| Page Range | 16961-17305 | |
| FR Document |
| Page and Subject | |
|---|---|
| 80 FR 17080 - Sunshine Act Meetings; National Science Board | |
| 80 FR 17119 - Sunshine Act Meeting | |
| 80 FR 17045 - Notice for Public Comment on the Child Abuse Prevention and Treatment Act (CAPTA) | |
| 80 FR 17058 - Notice for Public Comment on the Title IV-E Adoption Assistance Program's Suspension and Termination Policies | |
| 80 FR 16970 - Certain Employee Remuneration in Excess of $1,000,000 Under Internal Revenue Code Section 162(m) | |
| 80 FR 17032 - Extension of Deadline of Request for Applicants for Appointment to the United States-Brazil CEO Forum | |
| 80 FR 17109 - Sunshine Act Meeting Notice | |
| 80 FR 17138 - Petition for Exemption; Summary of Petition Received | |
| 80 FR 17034 - Large Power Transformers From the Republic of Korea: Final Results of Antidumping Duty Administrative Review; 2012-2013 | |
| 80 FR 17033 - Notification of Proposed Production Activity; Xylem Water Systems USA LLC, Subzone 37D (Centrifugal and Submersible Pumps), Auburn, New York | |
| 80 FR 17039 - State Energy Advisory Board (STEAB) | |
| 80 FR 16973 - Period of Limitations on Assessment for Listed Transactions Not Disclosed Under Section 6011 | |
| 80 FR 17020 - Notice of a Public Meeting: Regulations Implementing Section 1417 of the Safe Drinking Water Act: Prohibition on Use of Lead Pipes, Solder and Flux | |
| 80 FR 17025 - Notice of Intent To Request Approval To Establish a New Information Collection | |
| 80 FR 16998 - Grapes Grown in a Designated Area of Southeastern California; Increased Assessment Rate | |
| 80 FR 17029 - Agency Information Collection Activities: Proposed Collection; Comment Request-National Universal Product Code (NUPC) Database | |
| 80 FR 17042 - Proposed Information Collection Request; Comment Request; Information Collection Request Renewal for the Unregulated Contaminant Monitoring Rule (UCMR 3) | |
| 80 FR 17027 - Special Supplemental Nutrition Program for Women, Infants and Children (WIC): Income Eligibility Guidelines | |
| 80 FR 17026 - Child Nutrition Programs-Income Eligibility Guidelines | |
| 80 FR 17040 - Proposed Information Collection Request; Comment Request; Disinfectants/Disinfection Byproducts, Chemical and Radionuclides Rules Renewal Information Collection Request; Microbial Rules Renewal Information Collection Request; Public Water System Supervision Program Renewal Information Collection Request | |
| 80 FR 17073 - Sam D. Hamilton Noxubee National Wildlife Refuge, Mississippi; Final Comprehensive Conservation Plan and Finding of No Significant Impact for the Environmental Assessment and Associated Step-Down Plans | |
| 80 FR 17142 - Registration and Financial Security Requirements for Brokers of Property and Freight Forwarders; Association of Independent Property Brokers and Agents' Exemption Application | |
| 80 FR 17081 - Advisory Committee on Reactor Safeguards (ACRS); Meeting of the ACRS Subcommittee on Metallurgy & Reactor Fuels; Notice of Meeting | |
| 80 FR 17021 - Michigan: Final Authorization of State Hazardous Waste Management Program Revision | |
| 80 FR 17045 - National Cancer Institute; Notice of Closed Meeting | |
| 80 FR 17151 - Electronic Tax Administration Advisory Committee (ETAAC); Nominations | |
| 80 FR 17076 - Meeting of the Advisory Committee; Meeting | |
| 80 FR 17139 - Qualification of Drivers; Exemption Applications; Epilepsy and Seizure Disorders | |
| 80 FR 17136 - Record of Decision To Adopt U.S. Air Force Final Environmental Impact Statement for the Powder River Training Complex | |
| 80 FR 17072 - 30-Day Notice of Proposed Information Collection: Application for Energy Innovation Fund-Multifamily Pilot Program | |
| 80 FR 16980 - Notice of Enforcement for Special Local Regulations; RiverFest; Port Neches, TX | |
| 80 FR 17048 - Proposed Information Collection Activity; Comment Request | |
| 80 FR 17153 - Unblocking of Specially Designated Nationals and Blocked Persons Pursuant to the Cuban Assets Control Regulations | |
| 80 FR 17109 - Civilian Acquisition Workforce Personnel Demonstration Project; Department of Defense | |
| 80 FR 17053 - Agency Information Collection Activities; Proposed Collection; Comment Request; Extension of Certification of Maintenance of Effort on Help America Vote Act, Payments for Protection and Advocacy Systems (P&A Voting Access Narrative Annual Report) | |
| 80 FR 16996 - Fisheries of the Exclusive Economic Zone Off Alaska; Inseason Adjustment to the 2015 Gulf of Alaska Pollock Seasonal Apportionments | |
| 80 FR 17032 - New England Fishery Management Council; Public Meeting | |
| 80 FR 17152 - List of Countries Requiring Cooperation With an International Boycott | |
| 80 FR 17136 - SJI Board of Directors Meeting, Notice | |
| 80 FR 17076 - Notice of Lodging of Proposed Consent Decree Under the Comprehensive Environmental Response, Compensation, and Liability Act | |
| 80 FR 17150 - Submission for OMB Review; Comment Request | |
| 80 FR 17040 - Combined Notice of Filings #2 | |
| 80 FR 17038 - Combined Notice of Filings #1 | |
| 80 FR 17117 - Princeton Private Equity Fund and Princeton Fund Advisors, LLC; Notice of Application | |
| 80 FR 17005 - Airworthiness Directives; Gulfstream Aerospace Corporation Airplanes | |
| 80 FR 17056 - Ear, Nose, and Throat Devices Panel of the Medical Devices Advisory Committee; Amendment of Notice | |
| 80 FR 17052 - Pulmonary-Allergy Drugs Advisory Committee; Notice of Meeting | |
| 80 FR 17078 - Agency Information Collection Activities; Submission for OMB Review; Comment Request; National Longitudinal Survey of Youth 1997 | |
| 80 FR 17045 - Change in Bank Control Notices; Acquisitions of Shares of a Bank or Bank Holding Company | |
| 80 FR 17044 - Formations of, Acquisitions by, and Mergers of Bank Holding Companies | |
| 80 FR 17044 - Formations of, Acquisitions by, and Mergers of Savings and Loan Holding Companies | |
| 80 FR 17152 - Submission for OMB Review; Comment Request | |
| 80 FR 17034 - Proposed Information Collection; Comment Request; Papahanaumokuakea Marine National Monument Mokupapapa Discovery Center Exhibit Evaluation | |
| 80 FR 17137 - Transfer of Federally Assisted Facility | |
| 80 FR 17147 - Notice of Intent To Prepare an Environmental Impact Statement for the GA 400 Transit Initiative in Fulton County, Georgia | |
| 80 FR 17072 - Notice of Cancellation of Public Meeting, Pecos District Resource Advisory Council Meeting, Lesser Prairie-Chicken Habitat Preservation Area of Critical Environmental Concern (LPC ACEC) Livestock Grazing Subcommittee New Mexico | |
| 80 FR 17054 - Center for Substance Abuse Treatment; Notice of Meeting | |
| 80 FR 17036 - Agency Information Collection Activities Under OMB Review | |
| 80 FR 17007 - Airworthiness Directives; Airbus Airplanes | |
| 80 FR 17003 - Airworthiness Directives; Airbus Airplanes | |
| 80 FR 17079 - Agency Information Collection Activities; Submission for OMB Review; Comment Request; Employee Retirement Income Security Act Section 408(b)(2) Regulation | |
| 80 FR 17077 - Agency Information Collection Activities; Submission for OMB Review; Comment Request; Occupational Exposure to Hazardous Chemicals in Laboratories Standard | |
| 80 FR 17081 - Vogtle Electric Generating Station, Units 3 and 4; Southern Nuclear Operating Company; Annex Building Structure and Layout Changes | |
| 80 FR 17076 - National Register of Historic Places; Notification of Pending Nominations and Related Actions | |
| 80 FR 17059 - Agency Information Collection Activities: Cargo Manifest/Declaration, Stow Plan, Container Status Messages and Importer Security Filing | |
| 80 FR 17073 - National Register of Historic Places; Notification of Pending Nominations and Related Actions | |
| 80 FR 17050 - Early Clinical Trials With Live Biotherapeutic Products: Chemistry, Manufacturing, and Control Information; Guidance for Industry; Request for Comments | |
| 80 FR 17051 - Critical Path Innovation Meetings; Guidance for Industry; Availability | |
| 80 FR 17047 - Electronic Study Data Submission; Data Standards; Recommending the Use of the World Health Organization Drug Dictionary | |
| 80 FR 17049 - Odalys Fernandez: Debarment Order | |
| 80 FR 17057 - Development and Submission of Near Infrared Analytical Procedures; Draft Guidance for Industry; Availability | |
| 80 FR 17057 - Agency Information Collection Activities; Announcement of Office of Management and Budget Approval; Food Labeling; Calorie Labeling of Articles of Food in Vending Machines | |
| 80 FR 17047 - Target Animal Safety Data Presentation and Statistical Analysis; Draft Guidance for Industry; Availability | |
| 80 FR 17055 - Agency Information Collection Activities; Proposed Collection; Comment Request; Irradiation in the Production, Processing, and Handling of Food | |
| 80 FR 17153 - Notice of Open Public Hearing; Correction | |
| 80 FR 17126 - Self-Regulatory Organizations; The NASDAQ Stock Market LLC; Notice of Filing and Immediate Effectiveness of Proposed Rule Change Relating to Rule 5950 | |
| 80 FR 17132 - Self-Regulatory Organizations; ICE Clear Europe Limited; Notice of Filing of Proposed Rule Change Relating to Collateral and Haircut Policy | |
| 80 FR 17119 - Self-Regulatory Organizations; ICE Clear Europe Limited; Notice of Filing and Immediate Effectiveness of Proposed Rule Change Relating to FATCA Requirements | |
| 80 FR 17122 - Self-Regulatory Organizations; BOX Options Exchange LLC; Notice of Filing and Immediate Effectiveness of a Proposed Rule Change To Clarify Certain Statements Made in SR-BOX-2015-03, a Proposed Rule Change Filed by the Exchange on January 9, 2015 | |
| 80 FR 17046 - Center for Scientific Review; Notice of Closed Meetings | |
| 80 FR 17053 - National Institute of Diabetes and Digestive and Kidney Diseases; Notice of Closed Meetings | |
| 80 FR 17136 - Submission for OMB Review; Comment Request | |
| 80 FR 17129 - Submission for OMB Review; Comment Request | |
| 80 FR 17129 - ETFS Trust and ETF Securities Advisors, LLC; Notice of Application | |
| 80 FR 17121 - Submission for OMB Review; Comment Request | |
| 80 FR 17135 - Submission for OMB Review; Comment Request | |
| 80 FR 17049 - National Institute of Environmental Health Sciences; Notice of Closed Meeting | |
| 80 FR 17124 - Self-Regulatory Organizations; ICE Clear Europe Limited; Notice of Filing and Immediate Effectiveness of Proposed Rule Change Relating to Clearance of New Natural Gas Futures Contracts | |
| 80 FR 17038 - Agency Information Collection Activities; Comment Request; School Survey on Crime and Safety (SSOCS) 2016 and 2018 | |
| 80 FR 17033 - Proposed Information Collection; Comment Request; Pacific Islands Logbook Family of Forms | |
| 80 FR 17141 - Wisconsin Central Ltd.-Abandonment Exemption-in Lake County, Ill. | |
| 80 FR 17037 - Information Collection; Submission for OMB Review, Comment Request | |
| 80 FR 17031 - Notice of Public Meeting of the Missouri Advisory Committee for a Meeting To Discuss Matters Related to Its Project on Police-Community Relations in Missouri; Correction | |
| 80 FR 17031 - Agenda and Notice of Public Meeting of the New York Advisory Committee | |
| 80 FR 17080 - Levi Strauss & Co., Eugene, Oregon; Notice of Affirmative Determination Regarding Application for Reconsideration | |
| 80 FR 17080 - Notice of Availability of Funds and Funding Opportunity Announcement for Training To Work 3-Adult Reentry | |
| 80 FR 17010 - Promulgation of Air Quality Implementation Plans; Arizona; Regional Haze Federal Implementation Plan; Reconsideration | |
| 80 FR 17043 - Agency Information Collection Activities: Proposed Collection Renewal; Comment Request (3064-0109, 0162 & 0165) | |
| 80 FR 16996 - Implementation of Executive Order 13672 Prohibiting Discrimination Based on Sexual Orientation and Gender Identity by Contractors and Subcontractors; Agency Information Collection Activities; Announcement of OMB Approval | |
| 80 FR 17083 - Biweekly Notice; Applications and Amendments to Facility Operating Licenses and Combined Licenses Involving No Significant Hazards Considerations | |
| 80 FR 17062 - Notice of Regulatory Waiver Requests Granted for the Fourth Quarter of Calendar Year 2014 | |
| 80 FR 17000 - Airworthiness Directives; Airbus Airplanes | |
| 80 FR 16961 - Children's Gasoline Burn Prevention Act Regulation | |
| 80 FR 16961 - Revisions to Rules of Practice | |
| 80 FR 16980 - Electrical Equipment in Hazardous Locations | |
| 80 FR 17221 - Energy Conservation Program: Energy Conservation Standards for Residential Boilers | |
| 80 FR 16963 - HUD Approval of Requests for Transfers of Multifamily Housing Project-Based Rental Assistance, HUD-Held or Insured Debt, and Income-Based Use Restrictions | |
| 80 FR 17061 - Agency Information Collection Activities: Affidavit of Support Under Section 213A of the Act, Forms I-864; I-864A; I-864EZ; I-864W; Revision of a Currently Approved Collection | |
| 80 FR 17155 - Resource Agency Hearings and Alternatives Development Procedures in Hydropower Licenses |
Agricultural Marketing Service
Food and Nutrition Service
National Institute of Food and Agriculture
Foreign-Trade Zones Board
International Trade Administration
National Oceanic and Atmospheric Administration
Federal Energy Regulatory Commission
Children and Families Administration
Community Living Administration
Food and Drug Administration
National Institutes of Health
Substance Abuse and Mental Health Services Administration
Coast Guard
U.S. Citizenship and Immigration Services
U.S. Customs and Border Protection
Fish and Wildlife Service
Land Management Bureau
National Park Service
Employment and Training Administration
Federal Contract Compliance Programs Office
Federal Aviation Administration
Federal Motor Carrier Safety Administration
Federal Transit Administration
Surface Transportation Board
Foreign Assets Control Office
Internal Revenue Service
Consult the Reader Aids section at the end of this page for phone numbers, online resources, finding aids, reminders, and notice of recently enacted public laws.
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Federal Trade Commission.
Final rules; technical correction.
The Federal Trade Commission published final rules on March 23, 2015, revising certain of its rules of practice. This document makes a technical correction to those final rules.
Effective March 31, 2015.
G. Richard Gold, Attorney, (202) 326-3355, Office of the General Counsel, Federal Trade Commission, 600 Pennsylvania Avenue NW., Washington, DC 20580.
The Commission published a document in the
Administrative practice and procedure, Freedom of information, Public record.
For the reasons set forth in the preamble, the Federal Trade Commission amends title 16, chapter I, subchapter A of the Code of Federal Regulations as follows:
15 U.S.C. 46, unless otherwise noted.
(b) * * *
(10) * * *
(viii) The Commission's annual report submitted after the end of each fiscal year, summarizing its work during the year (with copies obtainable from the Superintendent of Documents, U.S. Government Publishing Office, Washington, DC 20402) and any other annual reports made to Congress on activities of the Commission as required by law;
Consumer Product Safety Commission.
Direct final rule.
The Children's Gasoline Burn Prevention Act (CGBPA or the Act) adopted the child-resistance requirements for closures on portable gasoline containers—found in the 2005 version of the applicable ASTM rule, F2517-05—as a consumer product safety rule. The 2005 ASTM standard was recently revised. Under the Act, the consumer product standard for portable gasoline containers will, by operation of law, incorporate the 2015 revisions to the child-resistance requirements unless the Commission finds that the revisions do not carry out the purposes of the CGBPA's requirements. The Commission has not found that the revisions fail to carry out the purposes of the CGBPA's requirements. As a result, the 2015 revisions to the child-resistance requirements will be automatically incorporated and apply as the statutorily-mandated standard for closures on portable gasoline containers. This direct final rule is to codify certain sections of the 2015 standard to eliminate potential confusion as to the applicable standard.
This rule will be effective on April 12, 2015, unless the Commission receives significant adverse comment by April 3, 2015. If we receive timely significant adverse comments, we will publish notification in the
You may submit comments, identified by Docket No. CPSC-2015-0006, by any of the following methods:
John Boja, Office of Compliance and Field Operations, Consumer Product Safety Commission, 4330 East West Highway, Bethesda, MD 20814-4408; telephone (301) 504-7300;
Under the Act, the ASTM standard for portable gasoline containers became, by operation of law, the applicable consumer product safety standard. Similarly, any revision to the child-resistance requirements of the ASTM standard becomes, by operation of law, part of the applicable consumer product safety standard unless the Commission determines, within 60 days after receiving notice from ASTM of a revised ASTM standard, that the revisions are not acceptable as provided in the Act.
On February 11, 2015, ASTM gave to CPSC notice of revisions to ASTM F2517-05. The revised standard is designated F2517-15.
The Commission has not made a determination that the revisions to ASTM F2517-05's child-resistance requirements for closures on portable gasoline containers fail to further the purposes of the CGBPA's requirements.
The rule codifies the child-resistance requirements for closures on portable gasoline containers as stated in ASTM F2517-15. As stated above, these requirements become mandatory through operation of law; the Commission is publishing this rule so that the Code of Federal Regulations will reflect the current version of the mandatory standard.
The Commission is issuing this rule as a direct final rule. Although the Administrative Procedure Act (APA) generally requires notice and comment rulemaking, section 553 of the APA provides an exception when the agency, for good cause, finds that notice and public procedure are “impracticable, unnecessary, or contrary to the public interest.” The Administrative Conference of the United States (ACUS) endorsed direct final rulemaking as an appropriate procedure to expedite promulgation of rules that are noncontroversial and that are not expected to generate significant adverse comment.
This rule will codify in the Code of Federal Regulations the child-resistance requirements of a consumer product safety standard, ASTM F2517-15, that already are in full force and effect by operation of law. Codification of the rule into CPSC's regulations is intended to eliminate potential confusion as to the child-resistance standard applicable to portable gasoline containers. In these circumstances where the substantive requirements are mandated by statute and have become effective under the statute, public comment serves little purpose. Moreover, codification of existing substantive requirements is not expected to be controversial or to result in significant adverse comment. As a result, the Commission believes that issuance of a rule codifying the revised standard in these circumstances is appropriate.
Unless we receive a significant adverse comment by April 3, 2015, the rule will become effective on April 12, 2015. In accordance with ACUS's recommendation, the Commission considers a significant adverse comment to be one in which the commenter explains why the rule would be inappropriate, including an assertion challenging the rule's underlying premise or approach, or a claim that the rule would be ineffective or unacceptable without change. Should the Commission receive a significant adverse comment, the Commission would withdraw this direct final rule. Depending on the comments and other circumstances, the Commission may then incorporate the adverse comment into a subsequent direct final rule or publish a notice of proposed rulemaking providing an opportunity for public comment.
Section 1460.3 of the final rule provides that closures on portable gasoline containers must comply with the child-resistance requirements of ASTM F2517-15. The Office of the Federal Register (OFR) has regulations concerning incorporation by reference. 1 CFR part 51. The OFR recently revised these regulations to require that, for a final rule, agencies must discuss in the rule's preamble ways that the materials the agency incorporates by reference are reasonably available to interested persons and how interested parties can obtain the materials. In addition, the preamble of the rule must summarize the material. 1 CFR 51.5(b).
In accordance with the OFR's requirements, the discussion in this section summarizes the provisions of ASTM F2517-15. Interested persons may purchase a copy of ASTM F2517-15 from ASTM, either through ASTM's Web site or by mail at the address provided in the rule. One may also inspect a copy of the standard at the CPSC's Office of the Secretary, U.S. Consumer Product Safety Commission, or at the National Archives and Records Administration (NARA), as discussed in the rule.
The CPSC is incorporating by reference child-resistance requirements of ASTM F2517-15 pursuant to the Act because the Commission has determined that the revised standard carries out the purposes of the child-resistant requirements for closures on portable gasoline containers specified in ASTM F2517-05.
The revised standard, ASTM F2517-15, contains:
As discussed in the preceding section, this is a direct final rule. Unless the Commission receives a significant adverse comment by April 3, 2015, the rule will become effective on April 12, 2015.
The Regulatory Flexibility Act (RFA) generally requires an agency to prepare a regulatory flexibility analysis of any rule subject to notice and comment rulemaking requirements under the Administrative Procedure Act or any other statutes unless the agency certifies that the rule will not have a significant economic impact on a substantial number of small entities. 5 U.S.C. 603 and 605. This rule merely codifies requirements that will take effect through operation of law as specified in the CGBPA. The rule does not impose any requirements beyond those put in place by the CGBPA. Thus, the rule does not create new substantive obligations for any entity, including any small entity. Accordingly, the Commission certifies that the rule will not have a significant impact on a substantial number of small entities.
The Commission's regulations provide a categorical exclusion for the Commission's rules from any requirement to prepare an environmental assessment or an environmental impact statement because they “have little or no potential for affecting the human environment.” 16 CFR 1021.5(c)(2). This rule falls within the categorical exclusion, so no environmental assessment or environmental impact statement is required.
This direct final rule contains no collection of information. Therefore, clearance by the Office of Management and Budget under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520) is not required.
Section 26(a) of the Consumer Product Safety Act (CPSA), 15 U.S.C. 2075(a), provides that where a “consumer product safety standard under [the CPSA]” is in effect and applies to a product, no state or political subdivision of a state may either establish or continue in effect a requirement dealing with the same risk of injury unless the state requirement is identical to the federal standard. (Section 26(c) of the CPSA also provides that states or political subdivisions of states may apply to the Commission for an exemption from this preemption under certain circumstances).
As discussed above, under the CGBPA, the child-resistance requirements of ASTM F2517-15 became a consumer product standard for CPSA purposes. Children's Gasoline Burn Prevention Act, Pub. L 110-278, Sec. 2(a) (July 17, 2008). The child-resistance requirements of ASTM F2517-15, which will be codified under this rule, will invoke the preemptive effect of section 26(a) of the CPSA.
Section 14(a) of the CPSA requires that products subject to a consumer product safety rule under the CPSA, or to a similar rule, ban, standard, or regulation under any other act enforced by the Commission, be certified as complying with all applicable CPSC requirements. 15 U.S.C. 2063(a). Such certification must be based on a test of each product, or on a reasonable testing program. Because ASTM F2517-15 is deemed a “consumer product safety rule” for CPSA purpose, portable gasoline containers manufactured on or after April 12, 2015 are subject to the testing and certification requirements of section 14 of the CPSA with respect to ASTM F2517-15.
Consumer protection, Gasoline, Incorporation by reference, Safety.
For the reasons stated above, the Commission adds part 1460 to subchapter B of title 16 of the Code of Federal Regulations to read as follows:
Sec. 2, Pub. L. 110-278, 122 Stat. 2602.
In accordance with the Children's Gasoline Burn Prevention Act, portable gasoline containers must comply with the requirements specified in § 1460.3, which are considered to be a consumer product safety rule.
Each portable gasoline container manufactured on or after April 12, 2015 for sale in the United States shall conform to the child-resistance requirements for closures on portable gasoline containers specified in sections 2 through 6 of ASTM F2517-15 (including Appendixes X2 and X3 referenced therein),
Office of the Assistant Secretary for Housing-Federal Housing Commissioner, HUD.
Notice of requirements to transfer assistance.
This notice establishes the terms and conditions by which HUD will approve a request for the transfer of project-based rental assistance, debt held or insured by the Secretary, and statutorily required income-based use restrictions from one multifamily housing project to another (or between several such projects). The Department of Housing and Urban Development Appropriations Act, 2014 and the Department of Housing and Urban Development Appropriations Act, 2015 give the Secretary the authority to approve transfer requests for fiscal years 2014 through 2016, provided that the Secretary publish a notice in the
Nancie-Ann Bodell, Acting Director, Office of Asset Management and Portfolio Oversight of Multifamily Housing, Office of Housing, Department of Housing and Urban Development, 451 7th Street SW., Room 6110, Washington, DC 20410; telephone number 202-708-2495 (this is not a toll-free number). Persons with hearing or speech impairments may access this number through TTY by calling the toll-free Federal Relay Service at 800-877-8339.
Beginning with section 318 of the Department of Housing and Urban Development Appropriations Act, 2006 (Pub. L. 109-115, 119 Stat. 2396, approved November 30, 2005), HUD appropriations acts have contained a general provision authorizing the Secretary to approve requests from project owners for the transfer of certain rental assistance, debt, and income-based use restrictions between HUD-assisted projects. For fiscal years 2014 and 2015, this transfer authority is provided under section 214 of Title II of Division L of the Consolidated Appropriations Act, 2014 (Pub. L. 113-76, 128 Stat. 5, approved January 17, 2014) (Section 214).
HUD approval of transfers is subject to the conditions enumerated in the appropriations act for the applicable fiscal year. These statutory terms and conditions have, in general, been consistent from one appropriations act to the next. The statutory criteria for fiscal years 2014 through 2016 are enumerated in Section 214(c), which provides as follows:
• The transfer authorized in subsection (a) is subject to the following conditions:
○ NUMBER AND BEDROOM SIZE OF UNITS.—
○ The transferring project shall, as determined by the Secretary, be either physically obsolete or economically nonviable.
○ The receiving project or projects shall meet or exceed applicable physical standards established by the Secretary.
○ The owner or mortgagor of the transferring project shall notify and consult with the tenants residing in the transferring project and provide a certification of approval by all appropriate local governmental officials.
○ The tenants of the transferring project who remain eligible for assistance to be provided by the receiving project or projects shall not be required to vacate their units in the transferring project or projects until new units in the receiving project are available for occupancy.
○ The Secretary determines that this transfer is in the best interest of the tenants.
○ If either the transferring project or the receiving project or projects meets the condition specified in subsection (d)(2)(A),
○ If the transferring project meets the requirements of subsection (d)(2),
○ The transfer does not increase the cost (as defined in section 502 of the Congressional Budget Act of 1974, as amended) of any FHA-insured mortgage, except to the extent that appropriations are provided in advance for the amount of any such increased cost.
HUD has exercised the transfer authority on a case-by-case basis, determining compliance with the statutory criteria based on the specific circumstances of the projects. Most of the statutory criteria are prescriptive, leaving little room for the exercise of agency discretion (for example, the requirement that the transfer not increase the cost of any FHA-insured mortgage). Others, however, are more
Section 214(e)(1) requires that HUD publish by notice in the
Owners of multifamily housing projects, as defined by subsection (d)(2) of Section 214, who wish to request a transfer of rental assistance, debt, or income-based use restrictions under Section 214 should submit a package containing the relevant materials outlined below to the HUD Hub/Program Center or Regional Center/Satellite Office for review. Owners can submit packages for review on or after the effective date of this notice. HUD will issue a subsequent Housing notice detailing procedural submission requirements and will follow this notice with a proposed rule to solicit comment before regulatory codification of these criteria.
Commencing for transfer requests submitted pursuant to Section 214, HUD will evaluate the request, on a case-by-case basis, in accordance with the following criteria. The receiving property must be a multifamily housing project prior to or as a result of the Section 214 transfer. The receiving project may already be HUD-affiliated, meaning it has existing HUD project-based rental assistance, an existing use restriction, or debt (either HUD-held or FHA-insured). HUD will approve a transfer under Section 214 to a HUD-affiliated property if the receiving property is in compliance with all business agreements with the Department or has a HUD-approved plan in place to correct any identified deficiencies. The receiving property may be existing, under construction, newly constructed, undergoing substantial rehabilitation, or undergoing moderate rehabilitation. Before Section 8 project-based rental assistance is transferred to the receiving property, the property must exist and be habitable (as demonstrated by a certificate of occupancy or like documentation). The numbered items below track the statutory criteria and, where HUD has been granted flexibility, establishes requirements and guidance on how HUD will assess compliance with the statutory factors.
For occupied units in the transferring project: The number of low-income and very low-income units and the configuration (
For unoccupied units in the transferring project: HUD may authorize a reduction in the number of dwelling units in the receiving project or projects to allow for a reconfiguration of bedroom sizes to meet market demands, as demonstrated by the transferring owner, provided there is no increase in the project-based assistance budget authority. HUD Multifamily Hub/Program Center or Regional Center/Satellite Office staff will verify that the net dollar amount of Federal assistance transferred remains the same in the receiving project or projects. The transferring owner shall provide justification for a reduction in the number of dwelling units in one or more of the following ways:
a. Evidence of all efforts to market the unit type proposed for reduction and evidence of the demand within the geographic market area for the proposed new unit type. The documentation may include evidence of the transferring owner's efforts, including:
i. Property traffic reports.
ii. Advertising details.
iii. Age and/or income waivers requested.
iv. Local housing authority wait list information or other affordable housing provider contacts made demonstrating that there is minimal or no demand for the unit type.
b. Documentation that the average vacancy at the transferring property has been 25 percent or more over the past 24 months.
c. Any other documentation that a reduction in the number of dwelling units is necessary to meet market demand, and approved by HUD.
Physical obsolescence shall be shown in one or more of the following ways:
a. A Real Estate Assessment Center (REAC) physical inspection score of 30 or below.
b. Two or more consecutive REAC physical inspection scores of below 60.
c. Condemnation or other such notice by the local or state government rendering the property uninhabitable.
d. A taking through eminent domain.
e. Evidence that needed capital repairs cannot be made without the property losing financial viability.
f. Any other proof of physical obsolescence provided by the owner and approved by HUD.
Economic non-viability must be shown in one or more of the following ways:
a. A market analysis justifying the inability of the property to meet current HUD-imposed affordability restrictions.
b. A market analysis indicating limited to no market for the unit type(s).
c. A demonstrated average vacancy of 25 percent or more over the past 24 months.
d. Any other proof of economic non-viability provided by the owner and approved by HUD.
The transferring owner is required to certify in writing that the material submitted to demonstrate compliance with this criterion is true and accurate. The Multifamily Hub/Program Center will review all submitted information and verify its accuracy.
The receiving project or projects must have a REAC physical inspection score of 60 or above. If the project does not have a current REAC physical inspection score, an inspection must be conducted prior to the transfer and the project must score 60 or above or have a HUD-approved plan in place to correct any deficiencies.
The receiving project must also meet all applicable accessibility requirements, including, but not limited to the accessibility requirements of the Fair Housing Act, section 504 of the Rehabilitation Act, and Title II of the Americans with Disabilities Act. The owner must provide documentation acceptable to HUD that the receiving project is in compliance with all applicable accessibility requirements. The HUD Hub/Program Center or Regional Center/Satellite Office will review the submitted documentation and verify acceptability.
The transferring owner must give the tenants and legitimate tenant organization(s) written notification of the proposed transfer and provide a minimum 30-day comment period. HUD will not accept a Section 214 request for any project unless the transferring owner has notified the tenants of the proposed transfer and has provided the tenants with an opportunity to comment on the proposed transfer.
a. The notification should include the address and phone of the appropriate HUD office, including the specific division and/or name and phone number of a contact at the appropriate HUD office. The notification should be provided in appropriate formats as necessary to meet the needs of all, including persons with limited English proficiency and formats for persons with vision, hearing, and other communication-related disabilities (
b. The notification will include a description of the impact of the request on tenants' rental assistance and tenant contributions. The notification must also explain the tenants' relocation rights and responsibilities, including the assistance that tenants may become eligible to receive under the Uniform Relocation Act if acquisition, rehabilitation or demolition are involved (see section five below). In addition, the notification must inform the tenants that if a Section 8 project-based rental assistance contract will be transferred, and it assists the unit they inhabit, they may be eligible for tenant protection vouchers if they choose not to relocate (see Section C below).
c. The notice must be delivered directly to each unit in the project or mailed to each tenant and posted in at least 3 places/common areas throughout the project, including any project office. In a project greater than 4 stories, the notice may be served either by delivery to each unit or by posting. If the posting method is used, the notice must be posted in at least three conspicuous places within each building in which the affected dwelling units are located.
i. The tenants (including any legal or other representatives acting for the tenants individually or as a group) have the right to inspect and copy the materials that the owner is required to submit to HUD for a period of 30 days from the date on which the notice is served to the tenants. Any tenant comments must be available in the project office during normal business hours for public reading and copying.
ii. The tenants have the right, during this period, to submit written comments on the transfer to the transferring owner and the appropriate HUD office. Tenant representatives may assist tenants in preparing these comments.
d. The transferring owner must hold a meeting with the tenants and legitimate tenant organizations to discuss the details of the notification and answer questions.
e. Upon completion of the tenant comment period, the transferring owner must review the comments submitted by the tenants and their representatives and prepare a written evaluation of the comments. Any negative comments must be addressed. The transferring owner must then submit the following materials to the appropriate HUD office at the time of submission of the request for transfer under Section 214:
i. A copy of the transferring owner's Notification to the tenants;
ii. A sign-in sheet from the tenant meeting;
iii. A copy of all the tenant comments;
iv. The transferring owner's evaluation of the tenant comments and any responses the owner gave to negative comments; and
v. A certification by the transferring owner that it has complied with all of the requirements of 24 CFR 245.410, 245.415, 245.416 through 245.419, as applicable, and 245.420. The transferring owner must identify any Fair Housing litigation settlement agreements, voluntary compliance agreements, or other remedial agreements signed by the owner and HUD. The Office of Fair Housing and Equal Opportunity (FHEO) will ensure there is no conflict between the agreements and the proposed transfer. If there is a conflict, the transferring owner may propose modifications to the remedial agreement as part of the transfer proposal.
The owner must also provide a certification of approval from the relevant local government officials, which may include but are not limited to the:
a. Local Mayor.
b. City Council.
c. Planning Commission.
d. Health and Human Services Commission.
e. Any other pertinent local government official or government body.
Although in some cases, a certification of approval may be required from multiple local governmental officials, there must be at least one certification of approval from at least one local government official in all cases to warrant approval of a request for transfer of assistance, debt, or use restrictions.
The tenants of the transferring project who remain eligible to receive assistance will not be required to vacate their units in the transferring project until new units in the receiving project are available for occupancy. If tenants must move as a direct result of acquisition, rehabilitation or demolition in connection with a transfer of assistance under Section 214, the Uniform Relocation Assistance and Real Property Acquisition Policies Act of 1970, as amended (URA) may apply.
HUD will review tenant relocations and protections on a case-by case-basis to ensure tenants are protected from permanent displacement. Under no circumstances shall the residents pay for any relocation costs incurred as a result of the transfer and the resulting move to the receiving property. It is within the owner's discretion whether to pay relocation costs for relocations to locations other than the receiving property. A Section 214 transaction where the tenants' relocation expenses are not paid, will not be approved by HUD.
HUD will determine that the transfer is in the best interest of the tenants based on criteria including, but not limited to, the following:
a. The transfer will preserve affordable and/or assisted housing in a
b. The transfer complies with section C of this notice. The site and neighborhood requirements ensure that the receiving property is in a location that affords the tenants at the transferring property the same or a better property location than the transferring site.
c. All current tenants will receive the same level of assistance they are currently receiving. Tenants that move from the transferring project to the receiving project remain subject to their existing lease requirements and all occupancy rules. The receiving owner may not seek to terminate the lease of a tenant from the transferring project for actions that occurred prior to the Section 214 transfer but the tenant will be subject to ongoing eligibility requirements for actions that occur after the transfer. Any eviction procedures currently underway at the transferring project will not be affected by the transfer of budget authority.
d. In scenarios where a Section 8 HAP contract will be transferred, and a tenant assisted by the HAP contract objects to relocating to the receiving property, the tenant may be eligible to receive a tenant protection voucher, subject to the availability of appropriations. A tenant may receive a TPV, if they meet the eligibility requirements for voucher assistance and the unit that they currently reside in is supported by a Section 8 project-based rental assistance contract that is subject to transfer as part of the Section 214 transfer. The owner will notify the tenant of their potential eligibility to receive a TPV at the time of tenant notification and subsequently notify the Multifamily Hub/PC regarding how many TPVs are requested. If TPVs are needed, the Multifamily Hub/PC should work with the Public and Indian Housing (PIH) field office to follow the procedures outlined in PIH Notice 2001-41.
e. To determine if the Section 214 transfer is in the best interest of the tenants, the transferring owner must provide documentation that all tenants residing at the property at the time of the transfer are relocating to a property of greater economic solvency or better physical condition, or accepting a tenant protection voucher to move to a property that best meets their housing needs.
f. If the transferring property is not fully assisted by a Section 8 project-based rental assistance contract, HUD will approve or disapprove the transfer based upon its review of the information submitted and all tenant comments received.
g. If the transferring property is not fully assisted by a Section 8 project-based rental assistance contract, the transfer will only be approved if:
i. There are no tenants at the transferring property; or
ii. The property is occupied but the transfer will be to an immediately adjacent property; or
iii. The unassisted tenants would have to move in the absence of the Section 214 transfer (
iv. The transfer involves a 202 Direct Loan or a 202/811 Capital Advance or PRAC contract that must be transferred as a result of a state's response to the Olmstead Decision or state Medicaid/Medicare policies on congregate housing make it economically impossible to continue operating the property as originally conceived.
h. If the tenants must be relocated, they will/did receive the protections provided under the URA, or other assistance if the URA is not triggered. No tenants will be displaced as a result of the transfer.
To demonstrate compliance, the receiving owner must submit one or more of the following as documentation:
a.Verification from the FHA lender that any lien on the receiving project is subordinate to any FHA-insured mortgage lien.
b. Other documentation as applicable.
A receiving owner may submit a waiver request if the receiving owner believes it is necessary that a lien(s) not be subordinate to the FHA insured mortgage to facilitate the financing of acquisition, construction, or rehabilitation of the receiving project or projects. Such a request must demonstrate that the waiver is necessary to finance the transaction and that there is minimal risk to the FHA as a result of the waiver. HUD must approve all waiver requests.
If a use restriction is in place at the receiving project, the receiving owner must sign a new or amended use restriction that includes all income and eligibility restrictions of the transferring use restriction and runs for the duration of the transferring project's existing use restriction or the use restriction at the receiving project, whichever is longer.
Transfers must not increase the cost (as defined in section 502 of the Congressional Budget Act of 1874) of any FHA-insured mortgage. HUD will consider the transfer of an FHA-insured mortgage, or Secretary-held formerly insured mortgage that is subsidized under either Section 221(d)(3)-(d)(5) with below market interest rates or Section 236. In addition, in order to avoid a claim against the General Insurance Fund, HUD may approve the transfer of a non-subsidized FHA-insured mortgage in combination with the transfer of a project-based rental assistance contract and/or a use restriction to a receiving project. However, HUD will only consider the transfer of a non-subsidized FHA-insured mortgage when the transferring project is in danger of imminent default on its FHA-insured mortgage due to a finding that the project is physically obsolete and/or economically nonviable in compliance with the criteria and process set forth in this notice.
1. Transfers that involve Section 202 assistance must comply with the site and neighborhood requirements at 24 CFR 891.125.
2. Transfers that involve Section 811 assistance must comply with the site and neighborhood requirements at 24 CFR 891.125 and 24 CFR 891.320.
3. All other receiving sites must comply with the site and neighborhood requirements below. The receiving owner must submit the address of the proposed property with their proposal and HUD will determine whether the site meets the following requirements:
a. The site and neighborhood is suitable from the standpoint of facilitating and furthering full compliance with the applicable provisions of Title VI of the Civil Rights Act of 1964, Title VIII of the Civil Rights Act of 1968, Executive Order 11063, and HUD regulations issued pursuant thereto.
b. The neighborhood must not be one that is seriously detrimental to family life or in which substandard dwellings or other undesirable conditions predominate, unless there is actively in progress a concerted program to remedy the undesirable conditions.
c. The housing must be accessible to social, recreational, educational, commercial, and health facilities and services, and other municipal facilities and services that are at least equivalent to those typically found in neighborhoods consisting largely of unassisted, standard housing of similar market rents.
d. If the receiving project is new construction, and is not covered by the
i. Sufficient, comparable opportunities exist for housing for minority households in the income range to be served by the proposed project, outside areas of minority concentration. Sufficient does not require that in every locality there be an equal number of assisted units within and outside of areas of minority concentration. Rather, application of this standard should produce a reasonable distribution of assisted units each year which over a period of several years will approach an appropriate balance of housing opportunities within and outside areas of minority concentration. An appropriate balance in any jurisdiction must be determined in light of local conditions affecting the range of housing choices available for very low-income minority households and in relation to the racial mix of the locality's population.
(A) Units may be considered to be comparable opportunities if they have the same household type and tenure type (owner/renter), require approximately the same total tenant payment, serve the same income group, are located in the same housing market, and are in standard condition.
(B) Application of this sufficient, comparable opportunities standard involves assessing the overall impact of HUD-assisted housing on the availability of housing choices for very low-income minority households, in and outside areas of minority concentration, and must take into account the extent to which the following factors are present, along with any other factor relevant to housing choice:
(1) A significant number of assisted housing units are available outside areas of minority concentration.
(2) There is significant integration of assisted housing projects constructed or rehabilitated in the past ten years, relative to the racial mix of the eligible population.
(3) There are racially integrated neighborhoods in the locality.
(4) Programs are operated by the locality to assist minority households, as applicable, that wish to find housing outside areas of minority concentration.
(5) Minority households have benefitted from local activities (
(6) A significant proportion of minority households, have been successful in finding units in nonminority areas under the Section 8 Certificate and Housing Voucher programs.
(7) Comparable housing opportunities have been made available outside areas of minority concentration through other programs.
ii. The project is necessary to meet overriding housing needs that cannot be met in that housing market area. Application of the overriding housing needs criterion, for example, permits approval of sites that are an integral part of an overall local strategy for the preservation or restoration of the immediate neighborhood and of sites in a neighborhood experiencing significant private investment that is demonstrably changing the economic character of the area (a “revitalizing area”). An overriding housing need, however, may not serve as the basis for determining that a site is acceptable if the only reason the need cannot otherwise be feasibly met is that discrimination on the basis of race, color, creed, sex, or national origin renders sites outside areas of minority concentration unavailable, or if the use of this standard in recent years has had the effect of circumventing the obligation to provide housing choice.
4. All Section 214 transactions (including those involving Section 202/811 properties) will be reviewed by HUD's Office of Policy Development and Research to assess whether there is sufficient demand for affordable rental housing in the receiving market area and to ensure that the transfer does not occur in neighborhoods with highly concentrated poverty.
The submission to HUD requesting a transfer under Section 214 must include the following information from the receiving owner:
1. Written confirmation of acceptance of the Housing Assistance Payments (HAP) contract, Use Agreement, and/or debt, as applicable, and confirmation that the transfer is warranted by local demand for affordable housing.
2. If the transfer involves project-based section 8 assistance, written evidence that the transfer of the HAP contract is warranted by local demands for affordable housing. Supporting documentation may include a market analysis showing eligible families in the area, a list of current tenants who are eligible for Section 8 assistance, or prospective tenants on waiting lists.
3. If applicable, a written tenant selection plan, Tenant Relocation Plan and an Affirmative Fair Housing Marketing Plan approved by HUD.
4. A narrative detailing the capacity of the proposed owner and management agent of the receiving property to own, operate, manage, and if applicable, renovate affordable housing.
5. The receiving owner must not be subject to any of the following actions that have not been resolved to HUD's satisfaction: (1) A charge from HUD concerning a systemic violation of the Fair Housing Act or a cause determination from a substantially equivalent state or local fair housing agency concerning a systemic violation of a substantially equivalent state or local fair housing law proscribing discrimination because of race, color, religion, sex, national origin, disability, or familial status; and (2) A Fair Housing Act lawsuit filed by the Department of Justice alleging a pattern or practice of discrimination or denial of rights to a group of persons raising an issue of general public interest pursuant to 42 U.S.C. 3614(a); or (3) A letter of finding identifying systemic noncompliance under Title VI of the Civil Rights Act of 1964, Section 504 of the Rehabilitation Act of 1973, or Section 109 of the Housing and Community Development Act of 1974. HUD will determine if actions to resolve the charge, cause determination, lawsuit, or letter of findings are sufficient to resolve the matter.
a. A voluntary compliance agreement (VCA) signed by all the parties;
b. A HUD-approved conciliation agreement signed by all the parties;
c. A conciliation agreement signed by all the parties and approved by the state governmental or local administrative agency with jurisdiction over the matter;
d. A consent order or consent decree; or
e. A final judicial ruling or administrative ruling or decision.
6. Documentation to assist HUD in an environmental review of the transfer request in accordance with environmental regulations and requirements at 24 CFR part 50. HUD will conduct the environmental review as required by part 50 prior to approving a transfer. HUD will document compliance on Form HUD-4128, “Environmental Assessment and Compliance Findings for the Related Laws.” Applicants are responsible for submitting environmental information and reports, and should use Chapter 9 of the MAP Guide and the HUD Environmental Review Web site (available at
a. Significant ground disturbance (digging) or construction not contemplated in the original application or incompatible with current engineering or institutional controls;
b. Site expansion or addition;
c. Transfer to a site for which a Phase I ESA in accordance with ASTM E 1527-05 (or a more recent edition) has not been prepared previously; or
d. Any other activities which may result in contaminant exposure pathways not contemplated in the original application or incompatible with current engineering or institutional controls.
After a request has been submitted to HUD, the requestor and other participants in the proposed transfer, including owners and contractors on the receiving project, may not undertake or commit funds for acquisition, rehabilitation, conversion, or construction of the receiving property until HUD has completed the environmental review and notified the requestor that the transfer to the receiving property is acceptable.
Once HUD has received and reviewed the materials above and approved the transfer under Section 214, the owner of the receiving project must do the following as applicable:
1. If there is a use restriction at the transferring property, sign a new or amended use restriction that includes all income and eligibility restrictions of the transferring use restriction and runs for the duration of the transferring project's existing use restriction or the use restriction at the receiving project, whichever is longer.
2. If the transfer involves project based section 8 assistance, renew the HAP contract for a 20-year term at the time of the transfer and attach the Preservation Exhibit agreeing to the automatic renewal of the Section 8 HAP contract at the end of the 20-year term, subject to annual appropriations, for a minimum of the time remaining on the HAP contract that was in effect prior to the transfer under Section 214.
3. Receive approval through the Previous Participation Process including a 2530 review. The receiving owner must be in compliance with all business agreements for the receiving project and for any other HUD insured or assisted projects owned.
4. Comply with all Departmental statutes, regulations, policies and procedures related to any assignment or amendment of a Section 8 HAP contract or other project-based rental assistance contract, required modification of loan documents and legal descriptions, or other necessary changes as a result of a Section 214 transfer.
A Finding of No Significant Impact (FONSI) with respect to the environment has been made for this notice in accordance with HUD regulations at 24 CFR part 50, which implement section 102(2)(C) of the National Environmental Policy Act of 1969 (42 U.S.C. 4332(2)(C)). The FONSI is available for public inspection between 8 a.m. and 5 p.m. weekdays in the Regulations Division, Office of General Counsel, Department of Housing and Urban Development, 451 7th Street SW., Room 10276, Washington, DC 20410-0500. Due to security measures at this HUD Headquarters Building, an advance appointment to review the FONSI must be scheduled by calling the Regulations Division at 202-708-3055 (not a toll free number).
The information collection requirements contained in this document have been approved by the Office of Management and Budget (OMB) under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520) and assigned OMB Control Number 2502-0608. In accordance with the Paperwork Reduction Act, HUD may not conduct or sponsor, and a person is not required to respond to, a collection of information unless the collection displays a currently valid OMB control number.
This notice will become effective April 30, 2015. HUD will begin accepting requests for transfers pursuant to this notice on or after the effective date. For questions regarding the submission or status of a transfer request, interested parties should contact their HUD Multifamily Hub/Program Center. The list of HUD Multifamily Hubs and Program Centers is available at:
Internal Revenue Service (IRS), Treasury.
Final regulations.
This document contains final regulations relating to the deduction limitation for certain employee remuneration in excess of $1,000,000 under the Internal Revenue Code (Code). These regulations affect publicly held corporations.
Ilya Enkishev at (202) 317-5600 (not a toll-free number).
On June 24, 2011, the Treasury Department and the IRS published a notice of proposed rulemaking (proposed regulations) in the
The Treasury Department and the IRS received written comments in response to the proposed regulations. All comments were considered and are available for public inspection at
Section 162(m)(1) precludes a deduction under chapter 1 of the Code by any publicly held corporation for compensation paid to any covered employee to the extent that the compensation for the taxable year exceeds $1,000,000. Section 162(m)(4)(C) provides that the deduction limitation does not apply to qualified performance-based compensation. Section 1.162-27(e)(1) provides that qualified performance-based compensation is compensation that meets all of the requirements of § 1.162-27(e)(2) through (e)(5).
The proposed regulations clarified § 1.162-27(e)(2)(vi)(A) by providing that the plan under which an option or stock appreciation right is granted must state “the maximum number of shares with respect to which options or rights may be granted during a specified period to any
Commenters suggested that these final regulations clarify that under § 1.162-27(e)(2)(vi)(A) a plan satisfies the per-employee limitation requirement if the plan specifies the maximum number of shares with respect to which any type of equity-based compensation may be granted to any individual employee during a specified period. Commenters explained that clarification is needed on whether the per-employee limitation may apply to all types of equity-based awards, not merely stock options and stock appreciation rights, which are the two types of equity-based awards described in § 1.162-27(e)(2)(vi)(A). In addition, commenters noted that a per-employee limitation on all types of equity-based awards would have the same effect as a per-employee limitation with respect to stock options and stock appreciation rights. In response to these comments, the final regulations modify § 1.162-27(e)(2)(vi)(A) to provide that a plan satisfies the per-employee limitation requirement if the plan specifies an aggregate maximum number of shares with respect to which stock options, stock appreciation rights, restricted stock, restricted stock units and other equity-based awards may be granted to any individual employee during a specified period under a plan approved by shareholders in accordance with § 1.162-27(e)(4). This clarification is not intended as a substantive change.
One commenter suggested that the clarification to § 1.162-27(e)(2)(vi)(A) apply only to compensation attributable to stock options and stock appreciation rights granted under a plan that was submitted for shareholder approval after August 8, 2011 (that is, forty-five days after the publication of the proposed regulations) and not to grants under plans submitted for shareholder approval before August 9, 2011 (even if the grant was made after that date). Another commenter suggested that the clarification apply only after the first shareholder meeting that occurs at least 12 months after the publication of these final regulations. These commenters reasoned that a transition period is appropriate because a plan providing for an aggregate share limit (but not an explicit per-employee share limitation) arguably satisfies the per-employee limitation requirement under the existing regulations because no individual employee may receive shares in excess of the aggregate limit.
These final regulations do not adopt either of these suggestions. The clarification to § 1.162-27(e)(2)(vi)(A) is not a substantive change. The transition rule in § 1.162-27(h)(3)(i) of the regulations provides that a plan providing for an aggregate limit, but not a per-employee limit, satisfies § 1.162-27(e)(2)(vi)(A) only if the plan was approved by shareholders before December 20, 1993, and only during a limited reliance period specified in § 1.162-27(h)(3)(i). Additionally, the legislative history to section 162(m) and the preamble to the 1993 Treasury Regulations (58 FR 66310) under section 162(m) provide for a limit on the maximum number of shares for which options or stock appreciation rights may be granted to individual employees. The preamble to the 1993 Treasury Regulations explains the reason for requiring a per-employee limitation: “Some have questioned why it would be necessary for the regulations to require an
In general, § 1.162-27(f)(1) provides that when a corporation becomes publicly held, the section 162(m) deduction limitation “does not apply to any remuneration paid pursuant to a compensation plan or agreement that existed during the period in which the corporation was not publicly held.” Pursuant to § 1.162-27(f)(2), a corporation may rely on § 1.162-27(f)(1) until the earliest of: (i) The expiration of the plan or agreement; (ii) a material modification of the plan or agreement; (iii) the issuance of all employer stock and other compensation that has been allocated under the plan or agreement; or (iv) the first meeting of shareholders at which directors are to be elected that occurs after the close of the third calendar year following the calendar year in which an initial public offering (IPO) occurs or, in the case of a privately held corporation that becomes publicly held without an IPO, the first calendar year following the calendar year in which the corporation becomes publicly held. Section 1.162-27(f)(3) provides that the relief provided under § 1.162-27(f)(1) applies to any compensation received pursuant to the exercise of a stock option or stock appreciation right, or the substantial vesting of restricted property, granted under a plan or agreement described in § 1.162-27(f)(1) if the grant occurs on or before the earliest of the events specified in § 1.162-27(f)(2). The proposed regulations clarified that the transition rule in § 1.162-27(f)(1) applies to all compensation other than compensation specifically identified in § 1.162-27(f)(3). Specifically, the proposed regulations identified compensation payable under a restricted stock unit arrangement (RSU) or a phantom stock arrangement as being ineligible for the transition relief in § 1.162-27(f)(3). Therefore, the effect of the proposed regulations is that compensation payable under a RSU is eligible for transition relief only if it is paid, and not merely granted, before the earliest of the events specified in § 1.162-27(f)(2).
Commenters suggested that compensation payable under a RSU should qualify for the transition relief in § 1.162-27(f)(3) because a RSU is economically similar to restricted stock. These final regulations do not adopt this suggestion. A RSU provides a right to receive an amount of compensation based on the value of stock that is payable in cash, stock, or other property (as defined in § 1.83-3(e)) upon the satisfaction of a vesting condition (such as a period of service). Restricted stock, by contrast, is property that has been transferred to the service provider on the date of grant subject to the satisfaction of a specified vesting condition. Restricted stock and RSU's are treated differently under the Code. RSU's generally are treated as nonqualified deferred compensation and may be subject to the rules under section 409A, whereas restricted stock is treated as property and is governed by the rules under section 83. Because compensation attributable to a RSU is in the nature of nonqualified deferred compensation (unlike restricted stock), compensation attributable to a RSU is not sufficiently similar to restricted property to receive the transition relief provided under § 1.162-27(f)(3). Accordingly, these final regulations adopt the proposed clarification to § 1.162-27(f)(3) without change.
The proposed regulations provided that the clarification to § 1.162-27(f)(3) would apply on or after the date of publication of the Treasury decision adopting the proposed regulations as final regulations. Commenters suggested that the clarification to § 1.162-27(f)(3) should apply to RSU's granted after the publication of final regulations and not merely to remuneration payable under a RSU after the date of publication. These final regulations adopt this suggestion. Accordingly, these final regulations provide that the clarification to § 1.162-27(f)(3) applies to remuneration otherwise deductible under a RSU that is granted on or after April 1, 2015.
The clarifications to paragraphs (e)(2)(vi)(A), (e)(2)(vii)
It has been determined that this Treasury decision is not a significant regulatory action as defined in Executive Order 12866, as supplemented by Executive Order 13563. Therefore, a regulatory assessment is not required. It also has been determined that section 553(b) of the Administrative Procedure Act (5 U.S.C. chapter 5) does not apply to these regulations, and because the regulations do not impose a collection of information on small entities, the Regulatory Flexibility Act (5 U.S.C. chapter 6) does not apply. Pursuant to section 7805(f) of the Internal Revenue Code, the proposed regulations preceding these regulations were submitted to the Chief Counsel for Advocacy of the Small Business Administration for comment on its impact on small business.
The principal author of these final regulations is Ilya Enkishev, Office of the Division Counsel/Associate Chief Counsel (Tax Exempt and Government Entities). However, other personnel from the IRS and the Treasury Department participated in their development.
Income taxes, Reporting and recordkeeping requirements.
Accordingly, 26 CFR part 1 is amended as follows:
26 U.S.C. 7805 * * *
(e) * * *
(2) * * *
(vi) * * *
(A)
(vii) * * *
Corporation V establishes a stock option plan for salaried employees. The terms of the stock option plan specify that no individual salaried employee shall receive options for more than 100,000 shares over any 3-year period. The compensation committee grants options for 50,000 shares to each of several salaried employees. The exercise price of each option is equal to or greater than the fair market value of a share of V stock at the time of each grant. Compensation attributable to the exercise of the options satisfies the requirements of paragraph (e)(2)(vi) of this section. If, however, the terms of the options provide that the exercise price is less than fair market value of a share of V stock at the date of grant, no compensation attributable to the exercise of those options satisfies the requirements of this paragraph (e)(2) unless issuance or exercise of the options was contingent upon the attainment of a preestablished performance goal that satisfies this paragraph (e)(2). If, however, the terms of the plan also provide that Corporation V could grant options to purchase no more than 900,000 shares over any 3-year period, but did not provide a limitation on the number of shares that any individual employee could purchase, then no compensation attributable to the exercise of those options satisfies the requirements of paragraph (e)(2)(vi) of this section.
(4) * * *
(iv)
(f) * * *
(3)
(j) * * *
(2) * * *
(vi) The modifications to paragraphs (e)(2)(vi)(A), (e)(2)(vii)
Internal Revenue Service (IRS), Treasury.
Final regulations.
This document contains final regulations relating to the exception to the general three-year period of limitations on assessment under section 6501(c)(10) of the Internal Revenue Code (Code) for listed transactions that a taxpayer failed to disclose as required under section 6011. These final regulations affect taxpayers who fail to disclose listed transactions in accordance with section 6011.
Danielle Pierce of the Office of Chief Counsel (Procedure and
The collection of information contained in these regulations has been reviewed and approved by the Office of Management and Budget in accordance with the Paperwork Reduction Act of 1995 (44 U.S.C. 3507(d)) under control number 1545-1940. The collection of information in these final regulations is in § 301.6501(c)-1(g)(5). This information is required to provide the IRS, under penalties of perjury, with the information necessary to properly determine the taxpayer's applicable period of limitations. The collection of information in these final regulations is the same as the collection of information in Revenue Procedure 2005-26 (2005-1 CB 965), which was previously reviewed and approved by the Office of Management and Budget under control number 1545-1940. The collection of information in § 301.6501(c)-1(g)(6) is the same as the collection of information required under section 6112. See § 601.601(d)(2)(ii)(b).
An agency may not conduct or sponsor, and a person is not required to respond to, a collection of information unless it displays a valid control number assigned by the Office of Management and Budget.
Books or records relating to a collection of information must be retained as long as their contents may become material in the administration of any internal revenue law. Generally, tax returns and tax return information are confidential, as required by 26 U.S.C. 6103.
This document contains amendments to the Procedure and Administration Regulations (26 CFR part 301) under section 6501(c) relating to exceptions to the period of limitations on assessment. Section 6501(a) provides that, except as otherwise provided, if a return is filed, tax with respect to that return must be assessed within 3 years from the later of the date the return was filed or the original due date of the return. Section 6501(c) contains several exceptions to the general three-year period of limitations on assessment.
Section 6501(c)(10) was added to the Code by section 814 of the American Jobs Creation Act of 2004, Public Law 108-357 (118 Stat. 1418, 1581 (2004)) (AJCA), enacted on October 22, 2004. Section 6501(c)(10) provides that, if a taxpayer fails to disclose a listed transaction as required under section 6011, the time to assess tax against the taxpayer with respect to that transaction will end no earlier than one year after the earlier of (A) the date on which the taxpayer furnishes the information required under section 6011, or (B) the date that the material advisor furnishes to the Secretary, upon written request, the information required under section 6112 with respect to the taxpayer related to the listed transaction. Section 6112 requires material advisors to maintain lists of advisees and other information with respect to reportable transactions, including listed transactions, and to furnish that information to the IRS upon request. The term “material advisor” is defined in § 301.6111-3(b). Section 6112 and § 301.6112-1 provide guidance relating to the preparation, content, maintenance, retention, and furnishing of lists by material advisors. Under this provision, if neither the taxpayer nor a material advisor furnishes the requisite information, the period of limitations on assessment will remain open, and the tax with respect to the listed transaction may be assessed at any time. Section 6501(c)(10) is effective for taxable years with respect to which the period of limitations on assessment did not expire prior to October 22, 2004.
Section 6501(c)(10) applies when a taxpayer does not properly disclose a listed transaction (as defined in section 6707A(c)(2)) as required under section 6011. Taxpayers are required under section 6011 and the regulations thereunder (collectively referred to as the “section 6011 disclosure rules”) to disclose certain information regarding each reportable transaction in which the taxpayer participated. See Treas. Reg. §§ 1.6011-4; 20.6011-4; 25.6011-4; 31.6011-4; 53.6011-4; 54.6011-4; and 56.6011-4. Among the transactions that are reportable are “listed transactions.” See Treas. Reg. § 1.6011-4(b)(2). Under the section 6011 disclosure rules, a listed transaction is a transaction that is the same as, or substantially similar to, a transaction that the IRS has determined to be a tax avoidance transaction and identified by notice, regulation, or other form of published guidance. Treas. Reg. § 1.6011-4(b)(2). For a list of transactions the IRS has identified as listed transactions, see Notice 2009-59, 2009-31 IRB 1. See § 601.601(d)(2).
If the section 6011 disclosure rules require a taxpayer to disclose a listed transaction, the taxpayer must complete and file a disclosure statement in accordance with the section 6011 disclosure rules. The section 6011 disclosure rules currently require that Form 8886, “Reportable Transaction Disclosure Statement” (or successor form), be used as the disclosure statement and be completed in accordance with the instructions to the form. The Form 8886 (or successor form) generally must be attached to the taxpayer's original or amended tax return for each taxable year for which a taxpayer participates in a listed transaction. Treas. Reg. § 1.6011-4(e)(1). If a listed transaction results in a loss that is carried back to a prior year, Form 8886 (or successor form) must be attached to the taxpayer's application for tentative refund or amended tax return for that prior year. The taxpayer also must send a copy of Form 8886 (or successor form) to the IRS Office of Tax Shelter Analysis (OTSA), generally at the same time that a disclosure statement pertaining to a particular listed transaction is first filed. Under the current rules, when a transaction is identified as a listed transaction after the date on which the taxpayer files a tax return (including an amended return) for a taxable year reflecting the taxpayer's participation in the listed transaction and before the end of the period of limitations for assessment of tax for any taxable year in which the taxpayer participated in the listed transaction, then the taxpayer must file Form 8886 (or successor form) with OTSA within 90 calendar days after the date the transaction became a listed transaction.
If a taxpayer does not disclose its participation in a listed transaction in accordance with all of the requirements of the section 6011 disclosure rules and section 6501(c)(10) applies, then the time to assess tax related to the listed transaction will expire no earlier than the earlier of (1) one year after the date on which the information described in section 6501(c)(10)(A) is provided, or (2) one year after the date on which the information described in section 6501(c)(10)(B) is provided.
The IRS and Treasury Department issued Rev. Proc. 2005-26 (2005-1 CB 965) on April 25, 2005, to provide interim guidance on section 6501(c)(10). The revenue procedure prescribes how taxpayers and material advisors should disclose listed transactions that were not properly disclosed under section 6011 in order to start the one-year period under section 6501(c)(10).
On October 7, 2009, a notice of proposed rulemaking (REG-160871-04) relating to the section 6501(c)(10) exception to the general three-year period of limitations on assessment that applies if a taxpayer fails to disclose a listed transaction as required under section 6011 was published in the
These final regulations adopt the proposed regulations with four substantive clarifications. First, § 301.6501(c)-1(g)(1) is clarified with respect to the interaction of the one-year period of limitations on assessment after disclosure of a listed transaction under section 6501(c)(10) and the general three-year period of limitations on assessment under section 6501(a) (or other applicable limitations period under section 6501). The one-year period in section 6501(c)(10) serves only to extend the existing limitations period. For example, if the general section 6501(a) three-year period of limitations on assessment applies and the one-year period under section 6501(c)(10) ends prior to the expiration of the section 6501(a) three-year period, the assessment period for the tax year remains open until the expiration of the general three-year period. Proposed section 301.6501(c)-1(g)(8), Example 5 (renumbered as Example 6 in the final regulations) and Example 9, illustrated this point. However, the text of the proposed regulations did not specifically provide that in no case will the period of limitations be shorter than the period of limitations that would apply without regard to application of section 301.6501(c)-1(g). A sentence was added to the end of § 301.6501(c)-1(g)(1) to clarify this point.
Second, the final regulations revise § 301.6501(c)-1(g)(6) to clarify when a disclosure will be considered a disclosure by a material advisor for purposes of section 6501(c)(10)(B) so that the one-year period of limitations on assessment will begin. Under section 6501(c)(10)(B), if a taxpayer fails to disclose information related to a listed transaction, the time to assess tax will end no earlier than one year after the date that “a material advisor meets the requirements of section 6112 with respect to a request by the Secretary under section 6112(b) relating to such transaction with respect to such taxpayer.” This means that unless a material advisor furnishes the information with respect to the taxpayer in response to an IRS written request for the list under section 6112(b) and in accordance with section 6112, the one-year period under section 6501(c)(10)(B) will not begin. Accordingly, receipt of information from a person other than the material advisor with respect to the taxpayer will not satisfy the requirements of a disclosure for purposes of section 6501(c)(10)(B). The final regulations add § 301.6501(c)-1(g)(6)(ii)(A) to clarify that, consistent with the statutory language, except in limited circumstances related to dissolution or liquidation of an entity that is a material advisor or in the case of a designation agreement, only receipt of information furnished by the material advisor will satisfy the requirements for disclosure under § 301.6501(c)-1(g)(6).
Third, the final regulations clarify that information received by the IRS in circumstances other than in response to a section 6112 request, such as in response to an Information Document Request in a section 6700 investigation or as a result of a summons enforcement proceeding, will not begin the one-year period under § 301.6501(c)-1(g)(6). Proposed section 301.6501(c)-1(g)(8), Example 10, illustrated this point. However, the text of the proposed regulations did not specifically address this point. The final regulations have been revised to add § 301.6501(c)-1(g)(6)(ii)(B) to provide that information not furnished in response to a section 6112 request will not satisfy the requirements under § 301.6501(c)-1(g)(6) even if provided by the material advisor, unless furnished to OTSA in accordance with § 301.6112-1(d) in the case of material advisors that are liquidated or dissolved.
Fourth, the final regulations clarify that if a material advisor furnishes information described in § 301.6112-1(e), but does not furnish information identifying the taxpayer as a person who entered into the listed transaction, the requirements of section 6501(c)(10)(B) will not have been satisfied for that taxpayer. Proposed section 301.6501(c)-1(g)(8), Example 11, illustrated this point. However, the text of the proposed regulations did not specifically address this point. The final regulations have been revised to add § 301.6501(c)-1(g)(6)(ii)(C) for clarification.
In addition to the revisions described above, other minor clarifying changes have been made that are not intended to be substantive.
These final regulations apply to taxable years for which the period of limitation on assessment under section 6501, including the period of limitation set forth in section 6501(c)(10) and § 301.6510(c)-1(g), did not expire before March 31, 2015, the date these final regulations are published in the
Upon the publication of these final regulations under section 6501(c)(10) in the
It has been determined that these final regulations are not a significant regulatory action as defined in Executive Order 12866, as supplemented by Executive Order 13653. Therefore, a regulatory assessment is not required. It also has been determined that section 553(b) of the Administrative Procedure Act (5 U.S.C. chapter 5) does not apply to these regulations.
It is hereby certified that the collection of information contained in these regulations will not have a significant economic impact on a substantial number of small entities. Accordingly, a regulatory flexibility analysis is not required under the Regulatory Flexibility Act (5 U.S.C. chapter 6). Section 6501(c)(10) applies when taxpayers fail to comply with the reporting requirements set forth under section 6011 with respect to listed transactions. The Treasury Department and the IRS do not know the exact number and types of taxpayers that fail to comply with those requirements. However, although the Treasury Department and the IRS are aware that many tax avoidance transactions involve pass-through entities, when pass-through entities are utilized, the entities are not ultimately liable for the tax; rather, the taxpayers subject to section 6501(c)(10) will be the individuals and corporations owning, directly or indirectly, the interests in the pass-through entities. Therefore, the Treasury Department and the IRS have determined that these final regulations will not affect a substantial number of small entities.
In addition, the Treasury Department and the IRS have determined that any impact on small entities resulting from these final regulations will not be significant. Most of the information required under these final regulations is already required by other regulations or forms, namely, § 1.6011-4, § 301.6112-1, and Form 8886, “Reportable Transaction Disclosure Statement.” The only new information required to be submitted to the IRS is a cover letter, which must contain a reference to the tax returns and taxable year(s) at issue and a statement signed under penalty of perjury. The cover letter should take minimal time and expense to prepare. Therefore, the additional requirement of the cover letter should not significantly increase the burden on taxpayers. Based on these facts, the Treasury Department and the IRS have determined that these final regulations will not have a significant economic impact on a substantial number of small entities. Pursuant to section 7805(f) of the Internal Revenue Code, the notice of proposed rulemaking preceding this regulation was submitted to the Chief Counsel for Advocacy of the Small Business Administration for comment on its impact on small business.
The principal author of these regulations is Danielle Pierce of the Office of the Associate Chief Counsel (Procedure and Administration).
Employment taxes, Estate taxes, Excise taxes, Gift taxes, Income taxes, Penalties, Reporting and recordkeeping requirements.
Accordingly, 26 CFR part 301 is amended as follows:
26 U.S.C. 7805 * * *
(g)
(2)
(3)
(ii)
(iii)
(4)
(5)
(B)
(
(C)
(D)
(ii)
(6)
(ii)
(
(
(
(B)
(C)
(iii)
(7)
(8)
(ii) The period of limitations on assessment for Y's 2003 taxable year was open on the date the transaction was identified as a listed transaction. Under the applicable section 6011 regulations (TD 9108), which were effective for transactions entered into before August 3, 2007, Y should have disclosed its participation in the transaction with its next filed return, which was its 2004 Form 1120, but Y did not disclose its participation. Y's failure to disclose with the 2004 Form 1120 relates to taxable years 2003 and 2004. Section 6501(c)(10) operates to keep the period of limitations on assessment open for the 2003 and 2004 taxable years with respect to the listed transaction until at least one year after the date Y satisfies the requirements of paragraph (g)(5) of this section or a material advisor satisfies the requirements of paragraph (g)(6) of this section with respect to Y.
(ii) The period of limitations on assessment for A's 2015 taxable year was open on the date the transaction was identified as a listed transaction. Under the current section 6011 regulations (TD 9350) which are effective for transactions entered into on or after August 3, 2007, A must disclose its participation in the transaction by filing a completed Form 8886 with OTSA on or before June 5, 2017, which is 90 days after the date the transaction became a listed transaction. A did not disclose the transaction as required. A's failure to disclose relates to taxable year 2015 even though the obligation to disclose did not arise until 2017. Section 6501(c)(10) operates to keep the period of limitations on assessment open for the 2015 taxable year with respect to the listed transaction until at least one year after the date A satisfies the requirements of paragraph (g)(5) of this section or a material advisor satisfies the requirements of paragraph (g)(6) of this section with respect to A.
(ii) On July 2, 2020, the IRS completes an examination of F's 2015 taxable year and disallows the tax consequences claimed as a result of the listed transaction. The disallowance of a loss increased F's adjusted gross income. Due to the increase of F's adjusted gross income, certain credits, such as the child tax credit, and exemption deductions were disallowed or reduced because of limitations based on adjusted gross income. In addition, F now is liable for the alternative minimum tax. The examination also uncovered that F claimed two deductions on Schedule C to which F was not entitled. Under section 6501(c)(10), the IRS can timely issue a statutory notice of deficiency (and assess in due course) against F for the deficiency resulting from (1) disallowing the loss, (2) disallowing the credits and exemptions to which F was not entitled based on F's increased adjusted gross income, and (3) being liable for the alternative minimum tax. In addition, the IRS can assess any interest and applicable penalties related to those adjustments, such as the accuracy-related penalty under sections 6662 and 6662A and the penalty under section 6707A for F's failure to disclose the transaction as required under section 6011 and the regulations under section 6011. The IRS cannot, however, pursuant to section 6501(c)(10), assess the increase in tax that would result from disallowing the two deductions on F's Schedule C because those deductions are not related to, or affected by, the adjustments concerning the listed transaction.
(9)
Coast Guard, DHS.
Notice of enforcement of regulation.
The Coast Guard will enforce Special Local Regulations for the RiverFest Power Boat races on the Neches River in Port Neches, TX from 2 p.m. on May 1, 2015, through 6 p.m. on May 3, 2015. This action is necessary to provide for the safety of the participants, crew, spectators, participating vessels, non-participating vessels and other users of the waterway. During the enforcement periods no person or vessel may enter the zone established by the Special Local Regulation without permission of the Captain of the Port (COTP) Port Arthur or his designated on-scene Patrol Commander.
The regulations in 33 CFR 100.801 will be enforced from 2 p.m. to 6 p.m. on May 1, 2015; and from 8:30 a.m. to 6 p.m. on May 2 and 3, 2015.
If you have questions on this notice of enforcement, call or email Mr. Scott Whalen, U.S. Coast Guard Marine Safety Unit Port Arthur, TX; telephone 409-719-5086, email
The Coast Guard will enforce Special Local Regulation for the annual boat races in 33 CFR 100.801(60) on May 1, 2015, from 2 p.m. to 6 p.m. and on May 2 and 3, 2015 from 8:30 a.m. to 6 p.m.
Under the provisions of 33 CFR 100.801, a vessel may not enter the regulated area, unless it receives permission from the Captain of the Port or his designated on-scene Patrol Commander. Spectator vessels may safely transit outside the regulated area but may not anchor, block, loiter, or impede participants or official patrol vessels. The Coast Guard may be assisted by other federal, state or local law enforcement agencies in enforcing this regulation.
This notice is issued under authority of 33 CFR 100.801 and 33 U.S.C. 1233. In addition to this notice in the
If the Captain of the Port or his designated on-scene Patrol Commander determines that the regulated area need not be enforced for the full duration stated in this notice, he or she may use a Broadcast Notice to Mariners to grant general permission to enter the regulated area.
Coast Guard, DHS.
Final rule.
The Coast Guard is issuing regulations applicable to newly constructed mobile offshore drilling units (MODUs), floating outer continental shelf (OCS) facilities, and vessels other than offshore supply vessels (OSVs) that engage in OCS activities. The regulations expand the list of acceptable national and international explosion protection standards and add the internationally accepted independent third-party certification system, the International Electrotechnical Commission System for Certification to Standards relating to Equipment for use in Explosive Atmospheres (IECEx), as an accepted method of testing and certifying electrical equipment intended for use in hazardous locations. The regulations also provide owners and operators of existing U.S. MODUs, floating OCS facilities, vessels other than OSVs, and U.S. tank vessels that carry flammable or combustible cargoes, the option of following this compliance regime as an alternative to the requirements contained in existing regulations.
This final rule is effective April 30, 2015.
The Director of the Federal Register has approved the incorporation by reference of certain publications listed in this rule, effective April 30, 2015.
Comments and material received from the public, as well as documents mentioned in this preamble as being available in the docket, are part of docket USCG-2012-0850 and are available for inspection or copying at the Docket Management Facility (M-30), U.S. Department of Transportation, West Building Ground Floor, Room W12-140, 1200 New Jersey Avenue SE., Washington, DC 20590, between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays. You may also find this docket online by going to
If you have questions on this rule, call or email Mr. Raymond Martin, Systems Engineering Division (CG-ENG-3), Coast Guard; telephone 202-372-1384, email
On June 24, 2013, we published a notice of proposed rulemaking (NPRM) in the
In April 2013, the Coast Guard tasked the National Offshore Safety Advisory Committee (NOSAC) to review and comment on a notice of policy we published in the
A key finding of the Coast Guard's investigation of the MODU DEEPWATER HORIZON explosion, fire, and sinking emphasized the importance of proper electrical equipment installations in hazardous locations during oil drilling exploration on U.S. and foreign MODUs. The Coast Guard, therefore, reviewed the existing regulations for hazardous locations; specifically, the requirements for electrical equipment testing and certification and the standards applicable to U.S. and foreign MODUs, floating OCS facilities, and vessels that engage in OCS activities.
Currently, electrical equipment on U.S. vessels and floating facilities that operate on the OCS must comply with 46 CFR subpart 111.105. This subpart adopts international and national standards and requires the equipment to be tested and certified by a Coast Guard-accepted independent third-party laboratory.
In contrast, foreign vessels and floating facilities that engage in OCS activities must meet the requirements of 33 CFR subchapter N. Currently, foreign floating OCS facilities must meet the same engineering standards as U.S. floating OCS facilities, while foreign vessels engaged in OCS activities on the U.S. OCS do not meet the same engineering standards as U.S. vessels. While the Coast Guard supports the development and adoption of international vessel safety standards, the existing safety requirements of the International Convention on the Safety of Life at Sea, 1974 (SOLAS) do not completely account for the specifics of hydrocarbon production, processing, storage, and handling systems, and the 2009 IMO MODU Code, which provides a recommended SOLAS equivalency for MODUs, is not a legally binding instrument. For electrical equipment in hazardous locations, we believe this rule is necessary to ensure that all vessels engaged in OCS activities meet the same, OCS-specific safety standards. In this final rule, therefore, we require that new foreign MODUs, floating OCS facilities and vessels meet the same standards for explosion protection in hazardous areas as their U.S. counterparts before operating on the OCS. Additionally, through this final rule, we expand the list of acceptable standards for existing and new vessels and facilities.
As noted above, we received 23 comment letters in response to the NPRM. Additionally, NOSAC submitted a report to the Coast Guard that included their comments on the NPRM. We considered all of these comments in the development of this final rule. The comments and our responses have been grouped into subject-matter categories below. In cases where the comment resulted in a change to the regulations previously proposed in the NPRM, the change is specifically identified and discussed.
The NPRM's proposed implementation date was 30 days after publication of the final rule. Fourteen comments stated that was unreasonable. These commenters explained that over 200 MODUs were either under contract, under construction or due to be constructed in the next 5 years and that the costs of changing the specifications for the electrical equipment located in hazardous locations would be much greater than that indicated in Section VI of the NPRM.
We agree. While the estimates provided correspond to the global MODU population currently under construction, a majority of which have
Existing U.S. MODUs, floating OCS facilities, and vessels, other than offshore supply vessels (OSVs), and U.S. tank vessels that carry flammable or combustible cargoes may immediately use the expanded list of explosion protection standards and IECEx certification regime identified in this final rule in lieu of the existing requirements in §§ 111.105-1 through 111.105-15.
The NPRM proposed the adoption of a selection of explosion protection standards and certification schemes. Thirteen comments suggested that the proposed regulations were unnecessary and that compliance with the 2009 IMO MODU Code should be sufficient for all vessels. Many of these comments further noted that the 2009 IMO MODU Code already requires certification by an independent testing laboratory. We agree in part. The Coast Guard supports the development and adoption of international vessel safety standards. The Coast Guard believes the 2009 IMO MODU Code provides helpful guidance for the design and engineering of MODUs, particularly in supplementing SOLAS with standards specific to hydrocarbon production, processing, storage, and handling systems, and should be given appropriate effect by flag administrations. However, the 2009 IMO MODU Code is not a legally binding instrument and by its terms does not apply to vessels that are not MODUs. Additionally, there are differing interpretations of the “independent testing laboratory” certification contained in the 2009 MODU Code. As the coastal state with jurisdiction, we find that it is a necessary and reasonable safety measure to require that newly constructed foreign vessels and floating facilities that engage in OCS activities have uniform safety standards for explosion protection in hazardous locations.
Ten comments addressed the cost of bringing into compliance with the proposed rule existing MODUs that are currently not operated on the OCS but the owners or operators intend them to do so. Those comments stated that the cost of bringing the existing vessels into compliance would likely exceed the cost published in the NPRM. In addition to required equipment recertification and replacement costs, there would be a loss of revenue during necessary downtime for replacement of equipment that could equal or exceed all other costs.
We recognize that the costs to retrofit an existing MODU could be prohibitive depending on the design, construction and type of operation of an individual MODU. Because of this, we decided to make the final rule applicable to vessels and facilities that are constructed after April 2, 2018 and that engage in OCS activities. Existing vessels and facilities will continue to be subject to the regulations and standards effective at the time of their construction.
Similarly, one comment recommended that the Coast Guard address electrical equipment in hazardous locations on MODUs currently on the OCS. The Coast Guard disagrees. As explained earlier, this rule does not require any existing vessel or facility to meet the requirements of subpart 111.108 because the costs to retrofit existing equipment could be prohibitive depending on the design, construction and type of operation of an individual vessel or facility.
One comment stated that the Coast Guard should address electrical equipment in hazardous locations on foreign oil and chemical tankers and gas carriers entering U.S. ports. These vessels are outside the scope of this rulemaking, which is confined to vessels and facilities engaged in OCS activities. Additionally, foreign oil and chemical tankers and gas carriers are already subject to international standards and to Coast Guard inspection for compliance with those standards.
Four comments requested that the final rule not apply to sister vessels of vessels already operating on the OCS. They argued that these vessels are identical in design to those existing vessels that the Coast Guard is excluding from the requirements of this final rule.
Under the NPRM, vessels new to the OCS would have been subject to the new requirements, whereas vessels and facilities that had previously operated on the OCS would not. In this final rule, we have changed the applicability to include only those vessels and facilities that are constructed after April 2, 2018 and that engage in OCS activities. This final rule, therefore, does not place new requirements on any existing vessels or facilities nor any vessel or facility that is constructed on or before April 2, 2018. Existing vessels or facilities or those constructed on or before April 2, 2018 will remain subject to the regulations and standards effective at the time of their construction and will remain subject to Coast Guard inspection. Any vessel or facility constructed after the implementation date will be subject to the requirements of 46 CFR subpart 111.108 before operating on the OCS.
Eleven comments addressed the proposed requirement in 46 CFR 111.108-3 requiring the testing and certification of electrical equipment in hazardous locations by an independent laboratory. The definition of independent laboratory in the Coast Guard's Electrical Engineering regulations is contained in 46 CFR 110.15-1, and means a laboratory accepted by the Coast Guard using the independent laboratory criteria found in 46 CFR 159.010. Commenters stated that this requirement is burdensome and unnecessary, particularly for Ex Certification Bodies (ExCBs) and Ex Testing Laboratories operating under the IECEx System. Additionally, these commenters were concerned that there were not enough independent laboratories accepted by the Coast Guard, particularly within the IECEx System, to meet the demands for equipment certifications necessary to comply with this final rule. Further, the commenters stated that requiring Coast Guard-accepted independent laboratories undermines use of international standards, foreign flag administrations, and Recognized Organizations.
We disagree. First, there are differing interpretations of the “independent testing laboratory” certification contained in the 2009 MODU Code. U.S. MODUs, vessels and floating facilities, have been subject to independent third-party testing for over 30 years because we believe it is a critically important
In a separate rulemaking, the Coast Guard published an interim rule on August 18, 2014 (79 FR 48894) for U.S. offshore supply vessels greater than 6,000 GT ITC. That interim rule also recognized the IECEx System for certification of electrical equipment in hazardous locations. Unlike section 111.108-3(b)(3) of this final rule, 46 CFR 111.106-3(b)(3)(iii) of the interim rule does not require certification of electrical equipment in hazardous locations to be done by a Coast Guard accepted independent laboratory. The Coast Guard recognizes the inconsistency between 46 CFR 111.106-3(b)(3)(iii) of the interim rule and 46 CFR 111.108-3(b)(3) of this final rule and intends to align 46 CFR 111.106-3(b)(3)(iii) with this final rule in a future rulemaking.
Eight comments suggested the Coast Guard accept electrical equipment with certification issued under the European Commission Directive (94/9/EC) on equipment and Protective Systems Intended for use in Potentially Explosive Atmospheres (ATEX Directive or ATEX).
We disagree. ATEX certification does not require independent third party testing for all types of equipment. It also does not ensure that electrical equipment installed in hazardous locations is fully tested to relevant standards. When foreign MODUs and vessels have electrical equipment installed in hazardous locations that is not independently tested, there is not the same level of safety for explosion protection in hazardous areas as required of U.S. vessels and floating facilities that operate on the OCS and that are required to meet 46 CFR subpart 111.105. The ATEX Directive is a European conformity assessment scheme designed to facilitate trade within Europe and is based on “Essential Health and Safety Requirements.” Additionally, the ATEX Directive is currently not applicable to seagoing vessels or MODUs and it is our experience with ATEX certification that it can be difficult to determine the extent of testing performed by the “notified body
It is also important to recognize that some ATEX certified electrical equipment may be acceptable under subpart 111.108 if it can be demonstrated that the electrical equipment has been fully tested and certified to the applicable standards contained in 46 CFR subchapter J by an independent laboratory as defined in 46 CFR 110.15-1. Frequently, equipment with ATEX certification also has certifications acceptable under 46 CFR 111.108-3 of this final rule.
Two comments requested that the Coast Guard clarify a statement in CG-ENG Policy Letter No. 01-13, Alternate Design and Equipment Standard for Floating Offshore Installations (FOI) and Floating Production, Storage, and Offloading (FPSO) Units on the U.S. Outer Continental Shelf, of June 26, 2013. For hazardous locations, the policy letter states that electrical equipment certified under the ATEX scheme will not be accepted by the Coast Guard. As explained above, if the equipment is also certified in accordance with one of the acceptable methods listed in 46 CFR 111.108-3, in addition to its ATEX certification, then the equipment is acceptable under 46 CFR 111.108-3 of this final rule.
Three comments said the proposed use of Class I, Special Division 1 in 46 CFR 111.108-3(e) may cause confusion as it is not a term recognized by the National Fire Protection Association's (NFPA) standard, NFPA 70, National Electrical Code (NEC), We disagree and have not revised this section. Class I, Special Division 1 is intended to be equivalent to Class I, Zone 0, and is consistent with Informational Note No. 2 of Article 500.5(B)(3) of NFPA 70. Coast Guard regulations have long recognized that certain spaces such as cargo pump rooms and cargo tanks are more hazardous than other Class I, Division 1 locations. For these hazardous locations, we limit the types of permitted electrical installations. Use of the term “Class I, Special Division 1” simplifies the designation of these locations.
Five comments recommended that the Coast Guard establish standards for the design, installation, inspection, and maintenance of electrical equipment in hazardous locations. Two comments suggested requiring an onboard electrical equipment register that contains information regarding electrical equipment and its inspection, maintenance, and operational history. The commenters also suggest this information could be reviewed by visiting Coast Guard marine inspectors or third-party inspection personnel and could become part of a company's quality system. We agree that competency and accurate recordkeeping are critical to safety, but this recommendation is outside the scope of this rulemaking.
Under the NPRM, vessels and facilities new to the OCS would be subject to the NPRM, whereas vessels and facilities that had previously operated on the OCS, would not. Two comments requested that the Coast Guard more clearly define what constitutes having “operated on the OCS.” Because this final rule now applies only to vessels and facilities constructed after April 2, 2018, that engage in OCS activities, we believe no
Two comments requested clarification on the responsibilities of the Coast Guard and of the Bureau of Safety and Environmental Enforcement (BSEE) for electrical equipment in hazardous locations on MODUs under the USCG/BSEE Memorandum of Agreement, OCS-8, signed June 4, 2013. While the subject is outside the scope of this rulemaking because neither agency's responsibilities with regard to regulating electrical equipment located in hazardous locations are affected by this final rule, it is relevant to understanding the regulatory requirements for electrical equipment located in hazardous locations.
BSEE and Coast Guard have a shared responsibility for safety on the OCS. In general, the Coast Guard is responsible for the vessel or facility and all of its supporting systems while BSEE is responsible for systems related to the drilling and production of resources. Classification of hazardous locations and design of electrical systems is a vessel-wide or facility-wide task and the Coast Guard maintains a holistic view of the vessel or facility. The Coast Guard, in this rule, provides an expanded list of standards that are applicable to systems under the Coast Guard's jurisdiction as explained in BSEE-USCG MOA OCS-8. The electrical safety standards contained in BSEE's OCS regulations, 30 CFR part 250, are acceptable to the Coast Guard. Frequently, drilling and production components will be installed on vessels or facilities on a temporary or semi-temporary basis. In general, BSEE oversees these systems and if they find them acceptable, their installation is acceptable to the Coast Guard.
Two comments suggested that electrical equipment in Division 2 or Zone 2 locations be accepted without independent third-party certification or be accepted with ATEX certification. The Coast Guard agrees to the extent that applicable provisions of NFPA 70 and the 2009 IMO MODU Code permit. 46 CFR 111.108-3(b)(1) and (b)(2) incorporate by reference Articles 500-504 and Article 505 of the NFPA 70. Articles 501.125(B) and 505.20(C) of the NFPA 70 allow the installation of certain electrical equipment in these locations without independent identification or listing if the equipment meets specific requirements that reduce the risk of explosion. This final rule is not intended to modify these standards. 46 CFR 111.108-3(b)(3) incorporates Chapter 6 of the 2009 IMO MODU Code and requires certification under the IECEx System. The IECEx System requires independent certification for all electrical equipment in hazardous areas. This final rule is not intended to modify the IECEx System. Electrical system designers must choose an explosion protection standards regime from the list of acceptable options provided in 46 CFR 111.108-3 and comply with the standards regime they chose.
One comment requested that the Coast Guard incorporate the latest ANSI/ISA safety standards for hazardous locations. The Coast Guard agrees and notes that 46 CFR 111.108-3(b) incorporates the ANSI/ISA series of standards incorporated in NFPA 70, as it did in the NPRM.
Two comments noted that some required equipment located in hazardous locations is not available as certified for Zone 2 areas, such as search and rescue transponders. The Coast Guard agrees with this comment, and notes that several standards included in this final rule address this situation. The objective of this final rule is to provide a selection of standards for certification of electrical equipment in hazardous locations. Electrical equipment not meeting the Class I, Zone 2 or Class I, Division 2 requirements, should be installed as far as possible from hazardous locations, or if not possible, located or installed in the least hazardous location. Standards listed in 46 CFR 111.108-3 of this final rule do address equipment such as this. Section 6.3.3 of IEC 61892-7:2007,
One comment asked if equipment tested to the IECEx System but not yet marked as such would be acceptable. The commenter explained that equipment is sometimes delivered before the IECEx Certificate of Compliance is issued. Another comment noted that equipment can be certified under both the ATEX Directive and the IECEx System but only have ATEX labeling. Finally, a comment requested acceptance of equipment consisting of assemblies of IECEx certified components rather than requiring a certificate for the entire assembly.
These are compliance issues that can be very simple or very complex depending on the type of equipment and will be addressed by the Marine Safety Center (MSC) or cognizant Officer-in-Charge, Marine Inspection on a case-by-case basis. When IECEx on any other Coast Guard accepted independent third party certification is unclear, documentation must be presented that demonstrates the equipment meets the applicable requirements. Any equipment or assembly of equipment must meet all the requirements of the IECEx System. It is not the Coast Guard's intent to modify the IECEx System.
One comment requested that the Coast Guard consider lowering the minimum flashpoint that defines hazardous locations, because Ultra Low Sulfur (ULS) diesel fuels are being produced against a minimum flashpoint of 52° C, rather than the 60° C minimum that has served as the basis for both Coast Guard and IMO requirements to date. We are unable to make this change in the final rule because it was not proposed in the NPRM. The minimum flashpoint of 60° C exists in numerous standards and regulations including 46 CFR 111.105-29, 46 CFR 111.105-31, 46 CFR 58.01-10, numerous locations within SOLAS, and IEC 60092-502:1999. We may consider proposing a change to the minimum flashpoint in a future rulemaking. This will provide the public the opportunity to comment on the proposal. Until that occurs, the MSC can accept arrangements that provide an equivalent level of safety in accordance with 46 CFR 110.20-1.
One commenter requested that drill floor equipment that is IECEx certified for Class I, Zone 1 or Class I, Zone 2 be
The Director of the Federal Register has approved the material in § 110.10-1 for incorporation by reference under 5 U.S.C. 552 and 1 CFR part 51. Copies of the material are available from the sources listed in that section.
We developed this rule after considering numerous statutes and Executive Orders (E.O.s) related to rulemaking. Below we summarize our analyses based on these statutes or E.O.s.
Executive Orders 12866 (“Regulatory Planning and Review”) and 13563 (“Improving Regulation and Regulatory Review”) direct agencies to assess the costs and benefits of available regulatory alternatives and, if regulation is necessary, to select regulatory approaches that maximize net benefits (including potential economic, environmental, public health and safety effects, distributive impacts, and equity). Executive Order 13563 emphasizes the importance of quantifying both costs and benefits, of reducing costs, of harmonizing rules, and of promoting flexibility.
This rule is not a significant regulatory action under section 3(f) of Executive Order 12866 as supplemented by Executive Order 13563, and does not require an assessment of potential costs and benefits under section 6(a)(3) of that Order. The Office of Management and Budget (OMB) has not reviewed it under that Order. Nonetheless, we developed an analysis of the costs and benefits of the rule to ascertain its probable impacts on industry.
A summary of the changes between the NPRM and the final rule follows:
The Coast Guard received several comments on the published NPRM. These comments have been grouped by topic, as several comments addressed similar concerns, and are discussed in the following table.
We do not anticipate any costs to be borne by the U.S.-flagged vessels that will be affected by this rule. The rule requires that all U.S. vessels, excluding OSVs that are regulated under 46 CFR subchapter L, that are constructed after April 2, 2018 and engage in OCS activity, comply with the newly created subpart 111.108. U.S. flagged vessels which fall within this scope are provided with an expanded list of standards and certification options.
Subpart 111.108 will not impose any burden on U.S. vessels due to the nature of current industry practice. Because North American certification of electrical equipment is generally to the most current edition of the published reference standards,
The logic applied to U.S. vessels, excluding OSVs as discussed above, applies to U.S. MODUs and floating OCS facilities as well. We do not anticipate any cost burden associated with this rule to be imposed on this vessel class. We believe this because the affected population are those U.S. MODUs and floating OCS facilities that are constructed after April 2, 2018. These vessels will be subject to subpart 111.108, a subpart that contains the updated standards to which new equipment will be certified. As with the vessels discussed earlier, in the absence of subpart 111.108, new equipment would be built to the most current standards as a matter of industry practice. Under this final rule, this scenario will not require any costs to the vessel owner as there is no change in the regulatory environment for U.S. MODUs and floating OCS facilities.
Under this final rule, all U.S. MODUs, floating OCS facilities, vessels other than OSVs, and U.S. tank vessels may comply with this new subpart in lieu of §§ 111.105-1 through 111.105-15. We do not foresee any additional costs to the owners of these vessels and facilities by providing this option but if there are additional costs, there is expected to be equal or greater benefit to the owner driving the selection of this option. Currently, the regulations for electrical installations in hazardous locations are contained in subpart 111.105. This regulation will expand the available subparts to include subpart 111.108, while still allowing owners and operators the option to remain subject to existing subpart 111.105.
While the modification of the affected population aids us in estimating the effects of the proposed rulemaking, it does not further refine the costs which are applied to the population. As some commenters on the NPRM document have reinforced, the estimated costs associated with the rule could vary widely. Industry costs were constructed from a variety of elements, for example the cost of certifying equipment or the opportunity cost of recertification of said equipment. With the modification of the affected population we are able to drop the opportunity cost from our analysis, which allows us to further streamline our discussion of the costs for the rulemaking. What remains is the cost associated with third party certification of equipment.
Currently, foreign vessels are not required to utilize third party certified equipment in hazardous areas unless explicitly required by their flag state. Implementation of the final rule will require certification by a Coast Guard approved, independent laboratory which, in effect, changes the baseline for newly constructed foreign vessels. Foreign flagged vessels constructed 3 years after the implementation date seeking entrance to the OCS in pursuit of OCS activities will be required to utilize third party certified equipment where previously this was not explicitly required. Our analysis of this baseline change is clouded by the aggregate nature of the cost of certification. When an entity purchases equipment for use in a hazardous location on a vessel, the marginal cost of the certification element of the purchase price is not itemized for the purchaser. The certification cost is present in the purchase price as a value added component of the total price of the equipment. As such, we are not able to explicitly determine the marginal cost difference between equipment certified by a third party and those without third party certification. Additionally, the list of equipment present in these locations, and required to be third party certified, is diverse. For example, one equipment list obtained by the Coast Guard contained equipment which ranged in complexity from a fluorescent light to elements of the tank temperature monitoring system.
While the cost estimation is obtuse, it is not insurmountable. We have several elements which should allow us to construct a range for the final rule's associated costs. On the high end of the
The $500,000 cost quote
The cost floor is a function of costs potentially accrued to a hypothetical vessel to be built in the future. In some cases these vessels would be built to the certification specifications contained in this final rule anyway, in which case they would accrue no additional costs from this rule. However, due to the probable greater cost of third-party-certified equipment, we can assume that, without this rulemaking, some equipment would be installed without third party certification. Table 3 presents the range.
The Coast Guard-maintained MISLE database, contains records of all applicable vessels operating on the OCS in pursuit of OCS activities. Historic data extracted from this database is presented below in Table 4.
Over the past 10 years, 17 foreign vessels have been built which would fall under this rule's application. The database was filtered to include foreign vessels, those vessel classes which would potentially be on the OCS in pursuit of OCS activities, and have build years within the past decade. Evaluation of this data found that on average, 2 foreign vessels are built per year which could seek entrance to the US OCS in pursuit of OCS activities.
Therefore, the range of costs associated with this rulemaking will fall between $0 (2 Vessels * $0) and $1,000,000 (2 vessels * $500,000) per year with an average per year cost of $500,000 (2 vessels * $250,000).
Burden estimates in the NPRM were $800,000 per year. With the changes that the final rule makes to the affected population, the yearly costs have been reduced, by an estimation that is upwards of 37%.
We are unable to monetize benefits. We can find no casualties that would have been prevented by these regulations. However, third-party testing and certification for critical equipment, such as electrical equipment intended for use in hazardous locations, addresses a potentially catastrophic hazard consisting of an explosive gas or vapor combined with an electrical ignition source, and is generally understood by industry as an appropriate measure that enhances safety and protects life, the environment, and property.
We considered five alternatives when evaluating the effects of this final rule. The first, abstaining from action, was rejected because it allows a regulatory imbalance and a potential safety gap to exist between foreign vessels and U.S. vessels operating on the OCS.
The second alternative we considered was to require both U.S. and foreign vessels and facilities to adhere to the existing international standards. This alternative was deemed insufficient because compliance with international standards, such as the 2009 IMO Code, is subject to the interpretation of the applicable flag administration. An example of an undesired consequence of this alternative would be the acceptance of ATEX certified equipment. The Coast Guard, however, will not accept ATEX certifications because evidence of full testing to the applicable harmonized 60079 series of standards by an independent third-party laboratory is not guaranteed. Consistent with preexisting Coast Guard practices, third-party testing and certification for critical equipment is generally required.
The third alternative we considered was to require foreign vessels and floating facilities to meet current U.S. standards. This alternative was not selected because we believe that requiring compliance with U.S. standards is unnecessary when there are comparable international standards acceptable to the Coast Guard. Because these latest editions of internationally recognized standards for explosion protection offer owners and operators greater flexibility, while also avoiding the costs of coastal state-specific requirements, we are expanding the list of international explosion protection standards deemed acceptable.
The fourth alternative, implementing the regulations in this final rule, puts in place a regulatory regime that will allow for both the U.S., as the coastal state, and industry to be confident in the certification and assessment of electrical equipment intended for use in hazardous locations. This will be achieved through the use of the most current, internationally recognized standards for explosion protection and independent third-party certification. The regulations in this final rule expand the list of national and international explosion protection standards deemed acceptable for U.S. operators.
A fifth and final alternative is that which was presented to the public in the NPRM. This alternative included the application of the NPRM regulations to existing vessels before those vessels engaged in OCS activities for the first
Under the Regulatory Flexibility Act, 5 U.S.C. 601-612, we have considered whether this rule will have a significant economic impact on a substantial number of small entities. 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.
We do not anticipate any effect on small entities. As noted in the previous discussion, there is no anticipated cost burden placed on U.S. entities by this rule and, as such, we do not anticipate any effect on small entities that would be addressed by this section. Therefore, 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.
Under section 213(a) of the Small Business Regulatory Enforcement Fairness Act of 1996, Public Law 104-121, we offered to assist small entities in understanding this rule so that they could better evaluate its effects on them and participate in the rulemaking. 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.
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).
This rule calls for no new collection of information under the Paperwork Reduction Act of 1995, 44 U.S.C. 3501-3520.
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 principles and preemption requirements described in Executive Order 13132. Our analysis is explained below.
It is well settled that States may not regulate in categories reserved for exclusive regulation by the Coast Guard. It is also well settled that all of the categories for inspected vessels covered in 46 U.S.C. 3306, 3703, 7101, and 8101 (design, construction, alteration, repair, maintenance, operation, equipping, personnel qualification, and manning of vessels), as well as the reporting of casualties and any other category in which Congress intended the Coast Guard to be the sole source of a vessel's obligations, are within fields foreclosed from regulation by the States. (See the decision of the Supreme Court in the consolidated cases of
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.
This rule will not cause a taking of private property or otherwise have taking implications under E.O. 12630 (“Governmental Actions and Interference with Constitutionally Protected Property Rights”).
This rule meets applicable standards in sections 3(a) and 3(b)(2) of E.O. 12988, (“Civil Justice Reform”), to minimize litigation, eliminate ambiguity, and reduce burden.
We have analyzed this rule under E.O. 13045 (“Protection of Children from Environmental Health Risks and Safety Risks”). This rule is not an economically significant rule and would not create an environmental risk to health or risk to safety that might disproportionately affect children.
This rule does not have tribal implications under E.O. 13175 (“Consultation and Coordination with Indian Tribal Governments”), because it would 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.
We have analyzed this rule under E.O. 13211 (“Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use”). We have determined that it is not a “significant energy action” under that order because it is not a “significant regulatory action” under E.O. 12866 and is not likely to have a significant adverse effect on the supply, distribution, or use of energy.
The National Technology Transfer and Advancement Act, codified as a note to 15 U.S.C. 272, directs agencies to use voluntary consensus standards in their regulatory activities unless the agency provides Congress, through OMB, with an explanation of why using these standards would be inconsistent with applicable law or otherwise impractical. Voluntary consensus standards are technical standards (
This rule uses the following voluntary consensus standards:
The sections that reference these standards and the locations where these standards are available are listed in 46 CFR 110.10-1.
This rule also uses technical standards other than voluntary consensus standards.
The section that references this standard and the locations where this standard is available are listed in 46 CFR 110.10-1.
We have analyzed this final rule under Department of Homeland Security Management Directive 023-01 and Commandant Instruction M16475.lD, which guide the Coast Guard in complying with the National Environmental Policy Act of 1969 (NEPA) (42 U.S.C. 4321-4370f), and have concluded 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 final rule is categorically excluded under section 2.B.2, figure 2-1, paragraphs (34)(a), (d) and (e) of the Instruction and under section 6(a) of the “Appendix to National Environmental Policy Act: Coast Guard Procedures for Categorical Exclusions, Notice of Final Agency Policy” (67 FR 48244, July 23, 2002).” This final rule involves regulations which are editorial and concern inspection and equipping of vessels and regulations concerning vessel operation safety standards. An environmental analysis checklist and a categorical exclusion determination are available in
Continental shelf, Investigations, Marine safety, Occupational safety and health, Penalties, Reporting and recordkeeping requirements.
Continental shelf, Marine safety, Occupational safety and health, Vessels.
Reporting and recordkeeping requirements, Vessels, Incorporation by reference.
Vessels.
For the reasons discussed in the preamble, the Coast Guard amends 33 CFR parts 140 and 143 and 46 CFR parts 110 and 111 as follows:
43 U.S.C. 1333, 1348, 1350, 1356; Department of Homeland Security Delegation No. 0170.1.
(1) The vessel's keel was laid; or
(2) Construction identifiable with the vessel or facility began and assembly of that vessel or facility commenced comprising of 50 metric tons or at least 1 percent of the estimated mass of all structural material, whichever is less.
43 U.S.C. 1333(d)(1), 1348(c), 1356; 49 CFR 1.46; section 143.210 is also issued under 14 U.S.C. 664 and 31 U.S.C. 9701.
(d) Each floating OCS facility that is constructed after April 2, 2018 must comply with the requirements of 46 CFR subpart 111.108 prior to engaging in OCS activities.
Each mobile offshore drilling unit that is documented under the laws of a foreign nation and is constructed after April 2, 2018 must comply with the requirements of 46 CFR subpart 111.108 prior to engaging in OCS activities.
Each vessel that is documented under the laws of a foreign nation and is constructed after April 2, 2018 must comply with the requirements of 46 CFR subpart 111.108 prior to engaging in OCS activities.
33 U.S.C. 1509; 43 U.S.C 1333; 46 U.S.C. 3306, 3307, 3703; E.O. 12234, 45 FR 58801, 3 CFR, 1980 Comp., p. 277; Department of Homeland Security Delegation No. 0170.1; § 110.01-2 also issued under 44 U.S.C. 3507. Sections 110.15-1 and 110.25-1 also issued under sec. 617, Pub. L. 111-281, 124 Stat. 2905.
(a) Certain material is incorporated by reference into this subchapter with the approval of the Director of the Federal Register under 5 U.S.C. 552(a) and 1 CFR part 51. To enforce any edition other than that specified in this section, the Coast Guard must publish notice of change in the
(b)
(1) Rules for Building and Classing Steel Vessels, Part 4 Vessel Systems and Machinery, 2003 (“ABS Steel Vessel Rules”), IBR approved for §§ 110.15-1, 111.01-9, 111.12-3, 111.12-5, 111.12-7, 111.33-11, 111.35-1, 111.70-1, 111.105-31, 111.105-39, 111.105-40, and 113.05-7 of this chapter.
(2) Rules for Building and Classing Mobile Offshore Drilling Units, Part 4 Machinery and Systems, 2001 (“ABS MODU Rules”), IBR approved for §§ 111.12-1, 111.12-3, 111.12-5, 111.12-7, 111.33-11, 111.35-1, and 111.70-1 of this chapter.
(c)
(1) ANSI/IEEE C37.12-1991—American National Standard for AC High-Voltage Circuit Breakers Rated on a Symmetrical Current Basis-Specifications Guide, 1991 (“ANSI/IEEE C37.12”), IBR approved for § 111.54-1 of this chapter.
(2) ANSI/IEEE C37.27-1987 (IEEE Std 331)—Application Guide for Low-Voltage AC Nonintegrally Fused Power Circuitbreakers (Using Separately Mounted Current-Limiting Fuses), 1987 (“ANSI/IEEE C37.27”), IBR approved for § 111.54-1 of this chapter.
(3) ANSI/ISA 12.12.01-2012—Nonincendive Electrical Equipment for Use in Class I and II, Division 2 and Class II, Divisions 1 and 2 Hazardous (Classified) Locations, approved 9 July 2012 (“ANSI/ISA 12.12.01”), IBR approved for § 111.108-3(b) of this chapter.
(4) ANSI/ISA-60079-18—Electrical Apparatus for Use in Class I, Zone 1 Hazardous (Classified) Locations: Type of Protection—Encapsulation “m”, approved July 31, 2009 (“ANSI/ISA 60079-18”), IBR approved for § 111.106-3(d) of this chapter.
(5) ANSI/ISA-60079-18—Explosive atmospheres—Part 18: Equipment protection by encapsulation “m”, Third Edition, approved 14 September, 2012 (“ANSI/ISA 60079-18 (2012)”), IBR approved for § 111.108-3(e) of this chapter.
(d) American Petroleum Institute (API), Order Desk, 1220 L Street NW.,
(1) API RP 500—Recommended Practice for Classification of Locations for Electrical Installations at Petroleum Facilities Classified as Class I, Division 1 and Division 2, Second Edition, November 1997, reaffirmed in 2002 (“API RP 500”), IBR approved for §§ 111.106-7(a) and 111.106-13(b) of this chapter.
(2) API RP 505—Recommended Practice for Classification of Locations for Electrical Installations at Petroleum Facilities Classified as Class I, Zone 0, Zone 1, and Zone 2, First Edition, approved January 7, 1998 (dated November 1997), reaffirmed 2002 (“API RP 505”), IBR approved for §§ 111.106-7(a) and 111.106-13(b) of this chapter.
(e) ASME, Three Park Avenue, New York, NY 10016-5990, 800-843-2763,
(1) ASME A17.1-2000 Part 2 Electric Elevators, 2000 (“ASME A17.1”), IBR approved for § 111.91-1 of this chapter.
(2) [Reserved]
(f)
(1) ASTM B 117-97, Standard Practice for Operating Salt Spray (Fog) Apparatus, (“ASTM B 117”), IBR approved for § 110.15-1 of this chapter.
(2) ASTM F2876-10—Standard Practice for Thermal Rating and Installation of Internal Combustion Engine Packages for use in Hazardous Locations in Marine Applications, approved November 1, 2010 (“ASTM F2876-10”), IBR approved for §§ 111.106-3(h) and 111.108-3(g) of this chapter.
(g)
(1) CSA C22.2 No. 30-M1986—Explosion-Proof Enclosures for Use in Class I Hazardous Locations, Reaffirmed 2007 (“CSA C22.2 No. 30-M1986”), IBR approved for §§ 111.106-3(b) and 111.108-3(b) of this chapter.
(2) CSA C22.2 No. 213-M1987—Non-incendive Electrical Equipment for Use in Class I, Division 2 Hazardous Locations, Reaffirmed 2008 (“CSA C22.2 No. 213-M1987”), IBR approved for §§ 111.106-3(b) and 111.108-3(b) of this chapter.
(3) CAN/CSA-C22.2 No. 0-M91—General Requirements—Canadian Electrical Code, Part II, Reaffirmed 2006 (“CSA C22.2 No. 0-M91”), IBR approved for §§ 111.106-3(b) and 111.108-3(b) of this chapter.
(4) CAN/CSA-C22.2 No. 157-92—Intrinsically Safe and Non-incendive Equipment for Use in Hazardous Locations, Reaffirmed 2006 (“CSA C22.2 No. 157-92”), IBR approved for §§ 111.106-3(b) and 111.108-3(b) of this chapter.
(h) DLA Document Services, Department of Defense, Single Stock Point, 700 Robbins Avenue, Philadelphia, PA 19111, 215-697-6396,
(1) MIL-C-24640A—Military Specification Cables, Light Weight, Electric, Low Smoke, for Shipboard Use, General Specification for (1995) Supplement 1, June 26, 1995 (“NPFC MIL-C-24640A”), IBR approved for §§ 111.60-1 and 111.60-3 of this chapter.
(2) MIL-C-24643A—Military Specification Cables and Cords, Electric, Low Smoke, for Shipboard Use, General Specification for (1996), Amendment 2, March 13, 1996 (“MIL-C-24643A”), IBR approved for §§ 111.60-1 and 111.60-3 of this chapter.
(3) MIL-DTL-24640C with Supplement 1—Detail Specification Cables, Lightweight, Low Smoke, Electric, for Shipboard Use, General Specification for, November 18, 2011 (“MIL-DTL-24640C”), IBR approved for § 111.106-5(a) of this chapter.
(4) MIL-DTL-24643C with Supplement 1A—Detail Specification Cables, Electric, Low Smoke Halogen-Free, for Shipboard Use, General Specification for, December 13, 2011 (dated October 1, 2009) (“MIL-DTL-24643C”), IBR approved for § 111.106-5(a) of this chapter.
(5) MIL-W-76D—Military Specification Wire and Cable, Hook-Up, Electrical, Insulated, General Specification for (2003) Amendment 1-2003, February 6, 2003 (“NPFC MIL-W-76D”), IBR approved for § 111.60-11 of this chapter.
(i) FM Approvals, P.O. Box 9102, Norwood, MA 02062, 781-440-8000,
(1) Class Number 3600—Approval Standard for Electric Equipment for use in Hazardous (Classified) Locations General Requirements, November 1998 (“FM Approvals Class Number 3600”), IBR approved for §§ 111.106-3(b) and 111.108-3(b) of this chapter.
(2) Class Number 3610—Approval Standard for Intrinsically Safe Apparatus and Associated Apparatus for Use in Class I, II, and III, Division 1, Hazardous (Classified) Locations, January 2010 (“FM Approvals Class Number 3610”), IBR approved for §§ 111.106-3(b) and 111.108-3(b) of this chapter.
(3) Class Number 3611—Approval Standard for Nonincendive Electrical Equipment for Use in Class I and II, Division 2, and Class III, Divisions 1 and 2, Hazardous (Classified) Locations, December 2004 (“FM Approvals Class Number 3611”), IBR approved for §§ 111.106-3(b) and 111.108-3(b) of this chapter.
(4) Class Number 3615—Approval Standard for Explosionproof Electrical Equipment General Requirements, August 2006 (“FM Approvals Class Number 3615”), IBR approved for §§ 111.106-3(b) and 111.108-3(b) of this chapter.
(5) Class Number 3620—Approval Standard for Purged and Pressurized Electrical Equipment for Hazardous (Classified) Locations, August 2000 (“FM Approvals Class Number 3620”), IBR approved for §§ 111.106-3(b) and 111.108-3(b) of this chapter.
(j)
(1) IEEE Std C37.04-1999—IEEE Standard Rating Structure for AC High-Voltage Circuit Breakers, 1999 (“IEEE C37.04”), IBR approved for § 111.54-1 of this chapter.
(2) IEEE Std C37.010-1999—IEEE Application Guide for AC High-Voltage Circuit Breakers Rated on a Symmetrical Current Basis, 1999 (“IEEE C37.010”), IBR approved for § 111.54-1 of this chapter.
(3) IEEE Std C37.13-1990—IEEE Standard for Low-Voltage AC Power Circuit Breakers Used in Enclosures, October 22, 1990 (“IEEE C37.13”), IBR approved for § 111.54-1 of this chapter.
(4) IEEE Std C37.14-2002—IEEE Standard for Low-Voltage DC Power Circuit Breakers Used in Enclosures, April 25, 2003 (“IEEE C37.14”), IBR approved for § 111.54-1 of this chapter.
(5) IEEE Std 45-1998—IEEE Recommended Practice for Electric Installations on Shipboard, October 19, 1998 (“IEEE 45-1998”), IBR approved for §§ 111.30-19, 111.105-3, 111.105-31, and 111.105-41 of this chapter.
(6) IEEE Std 45-2002—IEEE Recommended Practice for Electrical Installations On Shipboard, October 11, 2002 (“IEEE 45-2002”), IBR approved for §§ 111.05-7, 111.15-2, 111.30-1, 111.30-5, 111.33-3, 111.33-5, 111.40-1, 111.60-1, 111.60-3, 111.60-5, 111.60-11, 111.60-13, 111.60-19, 111.60-21, 111.60-23, 111.75-5, and 113.65-5 of this chapter.
(7) IEEE 100—The Authoritative Dictionary of IEEE Standards Terms, Seventh Edition, 2000 (“IEEE 100”), IBR approved for § 110.15-1.
(8) IEEE Std 1202-1991—IEEE Standard for Flame Testing of Cables for Use in Cable Tray in Industrial and
(9) IEEE Std 1580-2001—IEEE Recommended Practice for Marine Cable for Use on Shipboard and Fixed or Floating Platforms, December 17, 2001 (“IEEE 1580”), IBR approved for §§ 111.60-1, 111.60-2, 111.60-3 and 111.106-5(a) of this chapter.
(k)
(1) IEC 60068-2-52—Environmental Testing Part 2: Tests—Test Kb: Salt Mist, Cyclic (Sodium Chloride Solution), Second Edition, 1996 (“IEC 68-2-52”), IBR approved for § 110.15-1.
(2) IEC 60079-0—Electrical apparatus for Explosive Gas Atmospheres—Part 0: General Requirements, Edition 3.1, 2000 (“IEC 60079-0”), IBR approved for §§ 111.105-1, 111.105-3, 111.105-5, 111.105-7, and 111.105-17 of this chapter.
(3) IEC 60079-1—Electrical Apparatus for Explosive Gas Atmospheres—Part 1: Flameproof Enclosures “d” including corr.1, Fourth Edition, June 2001 (“IEC 60079-1”), IBR approved for §§ 111.105-1, 111.105-3, 111.105-5, 111.105-7, 111.105-9, and 111.105-17 of this chapter.
(4) IEC 60079-1:2007—Explosive atmospheres—Part 1: Equipment protection by flameproof enclosures “d”, Sixth edition, 2007-04, IBR approved for §§ 111.106-3(b) and 111.108-3(b) of this chapter.
(5) IEC 60079-2 Electrical Apparatus for Explosive Gas Atmospheres—Part 2: Pressurized Enclosures “p”, Fourth Edition, 2001 (“IEC 60079-2”), IBR approved for §§ 111.105-1, 111.105-3, 111.105-5, 111.105-7, and 111.105-17 of this chapter.
(6) IEC 60079-2:2007—Explosive atmospheres—Part 2: Equipment protection by pressurized enclosures “p”, Fifth edition, 2007-02, IBR approved for §§ 111.106-3(b) and 111.108-3(b) of this chapter.
(7) IEC 60079-5—Electrical Apparatus for Explosive Gas Atmospheres—Part 5: Powder Filling “q”, Second Edition, 1997 (“IEC 60079-5”), IBR approved for §§ 111.105-1, 111.105-3, 111.105-5, 111.105-7, 111.105-15, and 111.105-17 of this chapter.
(8) IEC 60079-5:2007—Explosive atmospheres—Part 5: Equipment protection by powder filling “q”, Third edition, 2007-03, IBR approved for §§ 111.106-3(b) and 111.108-3(b) of this chapter.
(9) IEC 60079-6—Electrical Apparatus for Explosive Gas Atmospheres—Part 6: Oil Immersion “o”, Second Edition, 1995 (“IEC 60079-6”), IBR approved for §§ 111.105-1, 111.105-3, 111.105-5, 111.105-7, 111.105-15, and 111.105-17 of this chapter.
(10) IEC 60079-6:2007—Explosive atmospheres—Part 6: Equipment protection by oil immersion “o”, Third edition, 2007-03, IBR approved for § 111.108-3(b) of this chapter.
(11) IEC 60079-7—Electrical Apparatus for Explosive Gas Atmospheres—Part 7: Increased Safety “e”, Third Edition, 2001 (“IEC 60079-7”), IBR approved for §§ 111.105-1, 111.105-3, 111.105-5, 111.105-7, 111.105-15, and 111.105-17 of this chapter.
(12) IEC 60079-7:2006—Explosive atmospheres—Part 7: Equipment protection by increased safety “e”, Fourth edition, 2006-07, IBR approved for § 111.106-3(b) of this chapter.
(13) IEC 60079-11—Electrical Apparatus for Explosive Gas Atmospheres—Part 11: Intrinsic Safety “i”, Fourth Edition, 1999 (“IEC 60079-11”), IBR approved for §§ 111.105-1, 111.105-3, 111.105-5, 111.105-7, 111.105-11, and 111.105-17 of this chapter.
(14) IEC 60079-11:2006—Explosive atmospheres—Part 11: Equipment protection by intrinsic safety “i”, Fifth edition, 2006-07, IBR approved for § 111.106-3(b) of this chapter.
(15) IEC 60079-11:2011—Explosive atmospheres—Part 11: Equipment protection by intrinsic safety “i”, Edition 6.0, 2011-06, IBR approved for § 111.108-3(b) of this chapter.
(16) IEC 60079-13:2010—Explosive atmospheres—Part 13: Equipment protection by pressurized room “p”, Edition 1.0, 2010-10, IBR approved for §§ 111.106-3(b) and 111.108-3(b) of this chapter.
(17) IEC 60079-15—Electrical Apparatus for Explosive Gas Atmospheres—Part 15: Type of Protection “n”, Second Edition, 2001 (“IEC 60079-15”), IBR approved for §§ 111.105-1, 111.105-3, 111.105-5, 111.105-7, 111.105-15, and 111.105-17 of this chapter.
(18) IEC 60079-15:2010—Explosive atmospheres—Part 15: Equipment protection by type of protection “n”, Edition 4.0, 2010-01, IBR approved for §§ 111.106-3(b) and 111.108-3(b) of this chapter.
(19) IEC 60079-18—Electrical Apparatus for Explosive Gas Atmospheres—Part 18: Encapsulation “m”, First Edition, 1992 (“IEC 60079-18”), IBR approved for §§ 111.105-1, 111.105-3, 111.105-5, 111.105-7, 111.105-15, and 111.105-17 of this chapter.
(20) IEC 60079-18:2009—Explosive atmospheres—Part 18: Equipment protection by encapsulation “m”, Edition 3.0, 2009-05, IBR approved for §§ 111.106-3(b), 111.106-3(d), and 111.108-3(b) and (e) of this chapter.
(21) IEC 60079-25:2010—Explosive atmospheres—Part 25: Intrinsically safe electrical systems, Edition 2.0, 2010-02, IBR approved for §§ 111.106-3(b) and 111.108-3(b) of this chapter.
(22) IEC 60092-101—Electrical Installation in Ships, Part 101: Definitions and General Requirements, Edition 4.1, 2002 (“IEC 60092-101”), IBR approved for §§ 110.15-1 and 111.81-1 of this chapter.
(23) IEC 60092-201—Electrical Installation in Ships, Part 201: System Design-General, Fourth Edition, 1994 (“IEC 60092-201”), IBR approved for §§ 111.70-3 and 111.81-1 of this chapter.
(24) IEC 60092-202—Amendment 1 Electrical Installation in Ships, Part 202: System Design-Protection, 1996 (“IEC 60092-202”), IBR approved for §§ 111.12-7, 111.50-3, 111.53-1, and 111.54-1 of this chapter.
(25) IEC 60092-301—Amendment 2 Electrical Installation in Ships, Part 301: Equipment-Generators and Motors, 1995 (“IEC 60092-301”), IBR approved for §§ 111.12-7, 111.25-5, and 111.70-1 of this chapter.
(26) IEC 60092-302—Electrical Installation in Ships, Part 302: Low-Voltage Switchgear and Control Gear Assemblies, Fourth Edition, 1997 (“IEC 60092-302”), IBR approved for §§ 111.30-1, 111.30-5, and 111.30-19 of this chapter.
(27) IEC 60092-303—Electrical Installation in Ships, Part 303: Equipment-Transformers for Power and Lighting, Third Edition, 1980 (“IEC 60092-303”), IBR approved for § 111.20-15 of this chapter.
(28) IEC 60092-304—Amendment 1 Electrical Installation in Ships, Part 304: Equipment—Semiconductor Convertors, 1995 (“IEC 60092-304”), IBR approved for §§ 111.33-3 and 111.33-5 of this chapter.
(29) IEC 60092-306—Electrical Installation in Ships, Part 306: Equipment—Luminaries and accessories, Third Edition, 1980 (“IEC 60092-306”), IBR approved for §§ 111.75-20 and 111.81-1 of this chapter.
(30) IEC 60092-350:2008—Electrical installations in ships—Part 350: General construction and test methods of power, control and instrumentation cables for shipboard and offshore applications, Edition 3.0, 2008-02, IBR approved for § 111.106-5(a) of this chapter.
(31) IEC 60092-352—Electrical Installation in Ships—Choice and Installation of Cables for Low-Voltage Power Systems, Second Edition, 1997 (“IEC 60092-352”), IBR approved for §§ 111.60-3, 111.60-5, and 111.81-1 of this chapter.
(32) IEC 60092-353—Electrical Installations in Ships—Part 353: Single and Multicore Non-Radial Field Power Cables with Extruded Solid Insulation for Rated Voltages 1kV and 3kV, Second Edition, 1995 (“IEC 60092-353”), IBR approved for §§ 111.60-1, 111.60-3, and 111.60-5 of this chapter.
(33) IEC 60092-353:2011—Electrical installations in ships—Part 353: Power cables for rated voltages 1 kV and 3 kV, Edition 3.0, 2011-08, IBR approved for § 111.106-5(a) of this chapter.
(34) IEC 60092-401—Electrical Installations in Ships, Part 401: Installation and Test of completed Installation with amendment 1 (1987) and amendment 2 (1997), Third Edition, 1980 (“IEC 60092-401”), IBR approved for §§ 111.05-9 and 111.81-1 of this chapter.
(35) IEC 60092-502—Electrical installations in ships—Part 502: Tankers—Special features, Fifth edition, 1999-02 (“IEC 60092-502”), IBR approved for §§ 111.81-1, 111.105-31, 111.106-3(b), 111.106-5(c), 111.106-15(a), and 111.108-3(b) of this chapter.
(36) IEC 60092-503—Electrical installations in ships, Part 503: Special features: A.C. supply systems with voltages in the range of above 1kV up to and including 11kV, First Edition, 1975 (“IEC 60092-503”), IBR approved for § 111.30-5 of this chapter.
(37) IEC 60331-11—Tests for electric cables under fire conditions—Circuit integrity—Part 11: Apparatus—Fire alone at a flame temperature of at least 750 °C, First Edition, 1999 (“IEC 60331-11”), IBR approved for § 113.30-25 of this chapter.
(38) IEC 60331-21—Tests for Electric Cables Under Fire Conditions—Circuit Integrity—Part 21: Procedures and Requirements—Cables of Rated Voltage up to and Including 0.6/1.0kV, First Edition, 1999 (“IEC 60331-21”), IBR approved for § 113.30-25 of this chapter.
(39) IEC 60332-1—Tests on Electric Cables Under Fire Conditions, Part 1: Test on a Single Vertical Insulated Wire or Cable, Third Edition, 1993 (“IEC 60332-1”), IBR approved for § 111.30-19 of this chapter.
(40) IEC 60332-3-22—Tests on Electric Cables Under Fire Conditions—Part 3-22: Test for Vertical Flame Spread of Vertically-Mounted Bunched Wires or Cables—Category A, First Edition, 2000 (“IEC 60332-3-22”), IBR approved for §§ 111.60-1, 111.60-2, 111.60-6, and 111.107-1 of this chapter.
(41) IEC 60529—Degrees of Protection Provided by Enclosures (IP Code), Edition 2.1, 2001 (“IEC 60529”), IBR approved for §§ 110.15-1, 111.01-9, 113.10-7, 113.20-3, 113.25-11, 113.30-25, 113.37-10, 113.40-10, and 113.50-5 of this chapter.
(42) IEC 60533—Electrical and Electronic Installations in Ships—Electromagnetic Compatibility, Second Edition, 1999 (“IEC 60533”), IBR approved for § 113.05-7 of this chapter.
(43) IEC 60947-2—Low-Voltage Switchgear and Controlgear Part 2: Circuit-Breakers, Third Edition, 2003 (“IEC 60947-2”), IBR approved for § 111.54-1 of this chapter.
(44) IEC 61363-1—Electrical Installations of Ships and Mobile and Fixed Offshore Units—Part 1: Procedures for Calculating Short-Circuit Currents in Three-Phase a.c., First Edition, 1998 (“IEC 61363-1”), IBR approved for § 111.52-5 of this chapter.
(45) IEC 61892-7:2007—Mobile and fixed offshore units—Electrical installations—Part 7: Hazardous areas, Edition 2.0, 2007-11, IBR approved for § 111.108-3(b) of this chapter.
(46) IEC 62271-100—High-voltage switchgear and controlgear—part 100: High-voltage alternating current circuitbreakers, Edition 1.1, 2003 (“IEC 62271-100”), IBR approved for § 111.54-1 of this chapter.
(l)
(1) International Convention for the Safety of Life at Sea (SOLAS), Consolidated Text of the International Convention for the Safety of Life at Sea, 1974, and its Protocol of 1988: Article, Annexes and Certificates. (Incorporating all Amendments in Effect from January 2001), 2001 (“IMO SOLAS 74”), IBR approved for §§ 111.99-5, 111.105-31, 112.15-1, and 113.25-6 of this chapter.
(2) IMO Resolution A.1023(26)—Code for the Construction and Equipment of Mobile Offshore Drilling Units, 2009, 18 January 2010 (“2009 IMO MODU Code”), IBR approved for § 111.108-3(b) of this chapter.
(m)
(1) RP 12.6—Wiring Practices for Hazardous (Classified) Locations Instrumentation Part I: Intrinsic Safety, 1995 (“ISA RP 12.6”), IBR approved for § 111.105-11 of this chapter.
(2) [Reserved]
(n)
(1) Type Approval System—Test Specification Number 1, 2002, IBR approved for § 113.05-7 of this chapter.
(2) [Reserved]
(o)
(1) NEMA Standards Publication ICS 2-2000—Industrial Control and Systems Controllers, Contactors, and Overload Relays, Rated 600 Volts, 2000 (“NEMA ICS 2”), IBR approved for § 111.70-3 of this chapter.
(2) NEMA Standards Publication ICS 2.3-1995—Instructions for the Handling, Installation, Operation, and Maintenance of Motor Control Centers Rated not More Than 600 Volts, 1995 (“NEMA ICS 2.3”), IBR approved for § 111.70-3 of this chapter.
(3) NEMA Standards Publication No. ICS 2.4-2003—NEMA and IEC Devices for Motor Service—a Guide for Understanding the Differences, 2003 (“NEMA ICS 2.4”), IBR approved for § 111.70-3 of this chapter.
(4) NEMA Standards Publication No. ANSI/NEMA 250-1997—Enclosures for Electrical Equipment (1000 Volts Maximum), August 30, 2001 (“NEMA 250”), IBR approved for §§ 110.15-1, 111.01-9, 110.15-1, 113.10-7, 113.20-3, 113.25-11, 113.30-25, 113.37-10, 113.40-10, and 113.50-5 of this chapter.
(5) NEMA Standards Publication No. WC-3-1992—Rubber Insulated Wire and Cable for the Transmission and Distribution of Electrical Energy, Revision 1, February 1994 (“NEMA WC-3”), IBR approved for § 111.60-13 of this chapter.
(6) NEMA WC-70/ICEA S-95-658-1999—Standard for Non-Shielded Power Rated Cable 2000V or Less for the Distribution of Electrical Energy, 1999 (“NEMA WC-70”), IBR approved for § 111.60-13 of this chapter.
(p)
(1) NEC 2002 (NFPA 70)—National Electrical Code Handbook, Ninth Edition, 2002 (“NFPA NEC 2002”), IBR approved for §§ 111.05-33, 111.20-15, 111.25-5, 111.50-3, 111.50-7, 111.50-9, 111.53-1, 111.54-1, 111.55-1, 111.59-1, 111.60-7, 111.60-13, 111.60-23, 111.81-1, 111.105-1, 111.105-3, 111.105-5, 111.105-7, 111.105-9, 111.105-15, 111.105-17, and 111.107-1 of this chapter.
(2) NFPA 70—National Electrical Code, 2011 Edition (“NFPA 70”), IBR approved for §§ 111.106-3(b), 111.106-
(3) NFPA 77—Recommended Practice on Static Electricity, 2000 (“NFPA 77”), IBR approved for § 111.105-27 of this chapter.
(4) NFPA 99—Standard for Health Care Facilities, 2005 (“NFPA 99”), IBR approved for § 111.105-37 of this chapter.
(5) NFPA 496—Standard for Purged and Pressurized Enclosures for Electrical Equipment, 2003 (“NFPA 496”), IBR approved for § 111.105-7 of this chapter.
(6) NFPA 496—Standard for Purged and Pressurized Enclosures for Electrical Equipment, 2008 Edition (“NFPA 496 (2008)”), IBR approved for § 111.106-3(c) of this chapter.
(7) NFPA 496—Standard for Purged and Pressurized Enclosures for Electrical Equipment, 2013 Edition (“NFPA 496 (2013)”), IBR approved for § 111.108-3(d) of this chapter.
(q)
(1) DDS 300-2—A.C. Fault Current Calculations, 1988 (“NAVSEA DDS 300-2”), IBR approved for § 111.52-5 of this chapter.
(2) MIL-HDBK-299(SH)—Military Handbook Cable Comparison Handbook Data Pertaining to Electric Shipboard Cable Notice 1-1991 (Revision of MIL-HDBK-299(SH) (1989)), October 15, 1991 (“NAVSEA MIL-HDBK-299(SH)”), IBR approved for § 111.60-3 of this chapter.
(r)
(1) UL 44—Standard for Thermoset-Insulated Wire and Cable, Fifteenth Edition, Mar. 22, 1999 (Revisions through and including May 13, 2002) (“UL 44”), IBR approved for § 111.60-11 of this chapter.
(2) UL 50—Standard for Safety Enclosures for Electrical Equipment, Eleventh Edition, Oct. 19, 1995 (“UL 50”), IBR approved for § 111.81-1 of this chapter.
(3) UL 62—Standard for Flexible Cord and Fixture Wire, Sixteenth Edition, Oct. 15, 1997 (“UL 62”), IBR approved for § 111.60-13 of this chapter.
(4) UL 83—Standard for Thermoplastic-Insulated Wires and Cables, Twelfth Edition, Sept. 29, 1998 (“UL 83”), IBR approved for § 111.60-11 of this chapter.
(5) UL 484—Standard for Room Air Conditioners, Seventh Edition, (Revisions through and including Sep. 3, 2002), Apr. 27, 1993 (“UL 484”), IBR approved for § 111.87-3 of this chapter.
(6) UL 489—Molded-Case Circuit Breakers, Molded-Case Switches, and Circuit-Breaker Enclosures, Ninth Edition, (Revisions through and including Mar. 22, 2000), Oct. 31, 1996 (“UL 489”), IBR approved for §§ 111.01-15 and 111.54-1 of this chapter.
(7) UL 514A—Metallic Outlet Boxes, Ninth Edition, Dec. 27, 1996 (“UL 514A”), IBR approved for § 111.81-1 of this chapter.
(8) UL 514B—Conduit, Tubing, and Cable Fittings, Fourth Edition, Nov. 3, 1997 (“UL 514B”), IBR approved for § 111.81-1 of this chapter.
(9) UL 514C—Standard for Nonmetallic Outlet Boxes, Flush-Device Boxes, and Covers, Second Edition, Oct. 31, 1988 (“UL 514C”), IBR approved for § 111.81-1 of this chapter.
(10) UL 674—Standard for Safety: Electric Motors and Generators for Use in Division 1 Hazardous (Classified) Locations, Fourth Edition with revisions through Aug. 12, 2008 (dated Dec. 11, 2003) (“ANSI/UL 674”), IBR approved for § 111.106-3(b) of this chapter.
(11) UL 674—Standard for Safety: Electric Motors and Generators for Use in Hazardous (Classified) Locations, Fifth Edition, dated May 31, 2011 (with revisions through July 19, 2013) (“ANSI/UL 674 (2013)”), IBR approved for § 111.108-3(b) of this chapter.
(12) UL 823—Electric Heaters for Use in Hazardous (Classified) Locations, Ninth Edition including revisions through Nov. 15, 2007 (dated Oct. 20, 2006) (“ANSI/UL 823”), IBR approved for §§ 111.106-3(b) and 111.108-3(b) of this chapter.
(13) UL 844—Standard for Safety: Luminaires for Use in Hazardous (Classified) Locations, Twelfth Edition including revisions through Nov. 20, 2008 (dated Jan. 11, 2006) (“ANSI/UL 844”), IBR approved for § 111.106-3(b) of this chapter.
(14) UL 844—Standard for Safety: Luminaires for Use in Hazardous (Classified) Locations, Thirteenth Edition, dated June 29, 2012 (“ANSI/UL 844 (2012)”), IBR approved for § 111.108-3(b) of this chapter.
(15) UL 913—Standard for Intrinsically Safe Apparatus and Associated Apparatus for Use in Class i, ii, and iii, Division 1, Hazardous (Classified) Locations, Sixth Edition, (Revisions through and including Dec. 15, 2003) August 8, 2002 (“UL 913”), IBR approved for § 111.105-11 of this chapter.
(16) UL 913—Standard for Safety: Intrinsically Safe Apparatus and Associated Apparatus for Use in Class I, II, and III, Division 1, Hazardous Locations, Seventh Edition, Dated July 31, 2006 (including revisions through June 3, 2010) (“ANSI/UL 913”), IBR approved for §§ 111.106-3(b) and 111.108-3(b) of this chapter.
(17) UL 1042—Standard for Electric Baseboard Heating Equipment, Apr. 11, 1994, IBR approved for § 111.87-3 of this chapter.
(18) UL 1072—Standard for Medium-Voltage Power Cables, Third Edition, Dec. 28, 2001 (revisions through and including Apr. 14, 2003), IBR approved for § 111.60-1 of this chapter.
(19) UL 1104—Standard for Marine Navigation Lights, Second Edition, Oct. 29, 1998, IBR approved for § 111.75-17 of this chapter.
(20) UL 1203—Standard for Explosion-Proof and Dust-Ignition-Proof Electrical Equipment for Use in Hazardous (Classified) Locations, Third Edition, Sept. 7, 2000 (Revisions through and including Apr. 30, 2004), IBR approved for § 111.105-9 of this chapter.
(21) UL 1203—Standard for Safety: Explosion-Proof and Dust-Ignition Proof Electrical Equipment for Use in Hazardous (Classified) Locations, Fourth Edition, Dated September 15, 2006 (including revisions through October 28, 2009) (“ANSI/UL 1203”), IBR approved for §§ 111.106-3(b) and 111.108-3(b) of this chapter.
(22) UL 1309—Marine Shipboard Cables, First Edition, July 14, 1995, IBR approved for §§ 111.60-1, 111.60-3, and 111.106-5(a) of this chapter.
(23) UL 1581—Reference Standard for Electrical Wires, Cables, and Flexible Cords, May 6, 2003, IBR approved for §§ 111.30-19, 111.60-2, and 111.60-6 of this chapter.
(24) UL 1598—Luminaires, First Edition, Jan. 31, 2000, IBR approved for § 111.75-20 of this chapter.
(25) UL 1598A—Standard for Supplemental Requirements for Luminaires for Installation on Marine Vessels, First Edition, Dec. 4, 2000, IBR approved for § 111.75-20 of this chapter.
(26) UL 1604—Electrical Equipment for use in Class I and II, Division 2 and Class III Hazardous (Classified) Locations, Third Edition, Dated April 28, 1994 (including revisions through February 3, 2004) (“UL 1604”), IBR approved for § 111.108-3(b) of this chapter.
(27) UL 2225—Cables and Cable-Fittings for Use in Hazardous (Classified) Locations, Second Edition, Dec. 21, 2005 (“ANSI/UL 2225”), IBR approved for § 111.106-3(b) of this chapter.
(28) UL 2225—Standard for Safety: Cables and Cable-Fittings for use in
(b) * * *
(1) The vessel's keel was laid; or
(2) Construction identifiable with the vessel or facility began and assembly of that vessel or facility commenced comprising of 50 metric tons or at least 1 percent of the estimated mass of all structural material, whichever is less.
(q) For vessels with hazardous locations to which subpart 111.108 of this chapter applies, plans showing the extent and classification of all hazardous locations, including information on—
(1) Equipment identification by manufacturer's name and model number;
(2) Equipment use within the system;
(3) Parameters of intrinsically safe systems, including cables;
(4) Equipment locations;
(5) Installation details and/or approved control drawings; and
(6) A certificate of testing, and listing or certification, by an independent laboratory or an IECEx Certificate of Conformity under the IECEx System, where required by the respective standard in § 111.108-3(b)(1), (2), or (3) of this chapter.
46 U.S.C. 3306, 3703; Department of Homeland Security Delegation No. 0170.1. Section 111.05-20 and Subpart 111.106 also issued under sec. 617, Pub. L. 111-281, 124 Stat. 2905.
(a) This subpart applies to MODUs, floating OCS facilities, and vessels, other than offshore supply vessels regulated under subchapter L of this chapter, constructed after April 2, 2018 that engage in OCS activities.
(b) U.S. MODUs, floating OCS facilities, and vessels other than OSVs regulated under subchapter L of this chapter and U.S. tank vessels that carry flammable and combustible cargoes, may comply with this subpart in lieu of §§ 111.105-1 through 111.105-15. All other sections of subpart 111.105 of this part remain applicable.
(a) Electrical installations in hazardous locations, where necessary for operational purposes, must be located in the least hazardous location practicable.
(b) Electrical installations in hazardous locations must comply with paragraphs (b)(1), (2), or (3) of this section.
(1) NFPA 70 Articles 500 through 504 (incorporated by reference, see § 110.10-1 of this chapter). Equipment required to be identified for Class I locations must meet the provisions of Sections 500.7 and 500.8 of NFPA 70 and must be tested and listed by an independent laboratory to any of the following standards:
(i) ANSI/UL 674 (2013), ANSI/UL 823, ANSI/UL 844 (2012), ANSI/UL 913, ANSI/UL 1203, UL 1604 (replaced by ANSI/ISA 12.12.01) or ANSI/UL 2225 (2011) (incorporated by reference, see § 110.10-1 of this chapter).
(ii) FM Approvals Class Number 3600, Class Number 3610, Class Number 3611, Class Number 3615, or Class Number 3620 (incorporated by reference, see § 110.10-1 of this chapter).
(iii) CSA C22.2 Nos. 0-M91, 30-M1986, 157-92, or 213-M1987 (incorporated by reference, see § 110.10-1 of this chapter).
Note to § 111.108-3(b)(1): See Article 501.5 of NFPA 70 (incorporated by reference, see § 110.10-1 of this chapter) for use of Zone equipment in Division designated spaces.
(2) NFPA 70 Article 505 (incorporated by reference, see § 110.10-1 of this chapter). Equipment required to be identified for Class I locations must meet the provisions of Sections 505.7 and 505.9 of NFPA 70 and must be tested and listed by an independent laboratory to one or more of the types of protection in ANSI/ISA Series of standards incorporated in NFPA 70.
Note to paragraph (b)(2). See Article 505.9(c)(1) of the NFPA 70 (incorporated by reference, see § 110.10-1 of this chapter) for use of Division equipment in Zone designated spaces.
(3) Clause 6 of IEC 61892-7:2007 (incorporated by reference, see § 110.10-1 of this chapter) for all U.S. and foreign floating OCS facilities and vessels on the U.S. OCS or on the waters adjacent thereto; chapter 6 of 2009 IMO MODU Code (incorporated by reference, see § 110.10-1) for all U.S. and foreign MODUs; or clause 6 of IEC 60092-502 (incorporated by reference, see § 110.10-1) for U.S. tank vessels that carry flammable and combustible cargoes. Electrical apparatus in hazardous locations must be tested to IEC 60079-1:2007, IEC 60079-2:2007, IEC 60079-5:2007, IEC 60079-6:2007, IEC 60079-7:2006, IEC 60079-11:2011, IEC 60079-13:2010, IEC 60079-15:2010, IEC 60079-18:2009 or IEC 60079-25:2010 (incorporated by reference, see § 110.10-1) and certified by an independent laboratory under the IECEx System.
(c) System components that are listed or certified under paragraph (b)(1), (2), or (3) of this section must not be combined in a manner that would compromise system integrity or safety.
(d) As an alternative to paragraph (b)(1) of this section, electrical equipment that complies with the provisions of NFPA 496 (2013) (incorporated by reference, see § 110.10-1 of this chapter) is acceptable for installation in Class I, Divisions 1 and 2. When equipment meeting this standard is used, it does not need to be identified and marked by an independent laboratory. The Commanding Officer, MSC, will evaluate equipment complying with this standard during plan review.
Note to paragraph (d). The Commanding Officer, MSC, will generally consider it acceptable if a manufacturer's certification of compliance is indicated on a material list or plan.
(e) Equipment listed or certified to ANSI/ISA 60079-18 (2012) or IEC 60079-18:2009, respectively, (incorporated by reference, see § 110.10-1 of this chapter) is not
(f) Submerged pump motors that do not meet the requirements of § 111.105-31(d), installed in tanks carrying flammable or combustible liquids with closed-cup flashpoints not exceeding 60° C (140 °F), must receive concept approval by the Commandant (CG-ENG) and plan approval by the Commanding Officer, MSC.
(g) Internal combustion engines installed in Class I, Divisions 1 and 2 (Class I and IEC, Zones 1 and 2) must meet the provisions of ASTM F2876-10 (incorporated by reference, see § 110.10-1 of this chapter).
Office of Federal Contract Compliance Programs, Labor.
Announcement of Office of Management and Budget (OMB) approval of collection of information requirements.
The Department of Labor, Office of Federal Contract Compliance Programs (OFCCP) is announcing that the collection of information requirements contained in the final rule titled “Implementation of Executive Order 13672 Prohibiting Discrimination Based on Sexual Orientation and Gender Identity by Contractors and Subcontractors” (41 CFR part 60) have been approved by OMB under the Paperwork Reduction Act of 1995. The OMB approval control number is 1250-0009.
The final rule published December 9, 2014 (79 FR 72985), including the information collection requirements, will take effect on April 8, 2015.
Debra A. Carr, Director, Division of Policy and Program Development, Office of Federal Contract Compliance Programs, U.S. Department of Labor, 200 Constitution Ave. NW., Room C-3325, Washington, DC 20210, (202) 693-0104. This is not a toll-free number.
OFCCP published a final rule entitled “Implementation of Executive Order 13672 Prohibiting Discrimination Based on Sexual Orientation and Gender Identity by Contractors and Subcontractors” on December 9, 2014. This final rule amends the regulations implementing Executive Order 11246 by replacing the words “sex, or national origin” with the words “sex, sexual orientation, gender identity, or national origin” as directed by Executive Order 13672, titled “Further Amendments to Executive Order 11478, Equal Employment Opportunity in the Federal Government and Executive Order 11246, Equal Employment Opportunity.” This final rule becomes effective on April 8, 2015.
OFCCP submitted the information collection request on December 8, 2014 to OMB for approval in accordance with the Paperwork Reduction Act of 1995. On March 17, 2015 OMB approved the collections of information contained in the final rule and assigned this collection OMB Control Number 1250-0009 title “Prohibiting Discrimination Based on Sexual Orientation and Gender Identity by Contractors and Subcontractors.” The approval for the collection expires on September 30, 2015. The approved collections of information are:
• Amending the Equal Opportunity Clause: Sections 60-1.4(a) and (b) and 60-4.3(a);
• Amending the Tag Line in Job Advertisements and Solicitations: Sections 60-1.4(a)(2), and 1.4(b)(2); and
• Reporting Denied Visas to Department of State and OFCCP: Section 60-1.10.
As required by the Paperwork Reduction Act of 1995, the
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Temporary rule; inseason adjustment.
NMFS is adjusting the 2015 seasonal apportionments of the total allowable catch (TAC) for pollock in the Gulf of Alaska (GOA) by re-apportioning unharvested pollock TAC in Statistical Areas 610, 620, and 630 of the GOA. This action is necessary to provide opportunity for harvest of the 2015 pollock TAC, consistent with the goals and objectives of the Fishery Management Plan for Groundfish of the Gulf of Alaska.
Effective 1200 hours, Alaska local time (A.l.t.), March 26, 2015, until 2400 hours A.l.t., December 31, 2015.
Josh Keaton, 907-586-7228.
NMFS manages the groundfish fishery in the GOA exclusive economic zone according to the Fishery Management Plan for Groundfish of the Gulf of Alaska (FMP) prepared by the North Pacific Fishery Management Council (Council) under authority of the Magnuson-Stevens Fishery Conservation and Management Act.
The annual pollock TACs in Statistical Areas 610, 620, and 630 of the GOA are apportioned among four seasons, in accordance with § 679.23(d)(2). Regulations at § 679.20(a)(5)(iv)(B) allow the underharvest of a seasonal apportionment to be added to subsequent seasonal apportionments, provided that any revised seasonal apportionment does not exceed 20 percent of the seasonal apportionment for a given statistical area. Therefore, NMFS is increasing the B season apportionment of pollock in Statistical Areas 610, 620, and 630 of the GOA to reflect the underharvest of pollock in those areas during the A season. In addition, any underharvest remaining beyond 20 percent of the originally specified seasonal apportionment in a particular area may be further apportioned to other statistical areas. Therefore, NMFS also is increasing the B season apportionment of pollock to Statistical Area 620 based on the underharvest of pollock in Statistical Areas 610 and 630 of the GOA. These adjustments are described below.
The B seasonal apportionment of the 2015 pollock TAC in Statistical Area 610 of the GOA is 3,632 metric tons (mt) as established by the final 2015 and 2016 harvest specifications for groundfish of the GOA (80 FR 10250, February 25, 2015). In accordance with § 679.20(a)(5)(iv)(B), the Administrator, Alaska Region, NMFS (Regional Administrator), hereby increases the B season apportionment for Statistical Area 610 by 726 mt to account for the underharvest of the TAC in Statistical Area 610 in the A season. This increase is not greater than 20 percent of the B seasonal apportionment of the TAC in Statistical Area 610. Therefore, the revised B seasonal apportionment of the pollock TAC in Statistical Area 610 is 4,358 mt (3,632 mt plus 726 mt).
The B seasonal apportionment of the pollock TAC in Statistical Area 620 of the GOA is 37,820 mt as established by the final 2015 and 206 harvest specifications for groundfish of the GOA (80 FR 10250, February 25, 2015). In accordance with § 679.20(a)(5)(iv)(B), the Regional Administrator hereby increases the B seasonal apportionment for Statistical Area 620 by 5,693 mt to account for the underharvest of the TAC in Statistical Areas 610, 620, and 630 in the A season. This increase is in proportion to the estimated pollock biomass and is not greater than 20 percent of the B seasonal apportionment of the TAC in Statistical Area 620. Therefore, the revised B seasonal apportionment of the pollock TAC in Statistical Area 620 is 43,513 mt (37,820 mt plus 5,693 mt).
The B seasonal apportionment of pollock TAC in Statistical Area 630 of the GOA is 4,000 mt as established by the final 2015 and 2016 harvest specifications for groundfish of the GOA (80 FR 10250, February 25, 2015). In accordance with § 679.20(a)(5)(iv)(B), the Regional Administrator hereby increases the B seasonal apportionment for Statistical Area 630 by 800 mt to account for the underharvest of the TAC in Statistical Area 630 in the A season. This increase is not greater than 20 percent of the B seasonal apportionment of the TAC in Statistical Area 630. Therefore, the revised B seasonal apportionment of pollock TAC in Statistical Area 630 is 4,800 mt (4,000 mt plus 800 mt).
This action responds to the best available information recently obtained from the fishery. The Assistant Administrator for Fisheries, NOAA (AA), finds good cause to waive the requirement to provide prior notice and opportunity for public comment pursuant to the authority set forth at 5 U.S.C. 553(b)(B) as such requirement is impracticable and contrary to the public interest. This requirement is impracticable and contrary to the public interest as it would prevent NMFS from responding to the most recent fisheries data in a timely fashion and would provide opportunity to harvest increased pollock seasonal apportionments. NMFS was unable to publish a notice providing time for public comment because the most recent, relevant data only became available as of March 25, 2015.
The AA also finds good cause to waive the 30-day delay in the effective date of this action under 5 U.S.C. 553(d)(3). This finding is based upon the reasons provided above for waiver of prior notice and opportunity for public comment.
This action is required by § 679.20 and is exempt from review under Executive Order 12866.
16 U.S.C. 1801
Agricultural Marketing Service, USDA.
Proposed rule.
This proposed rule would implement a recommendation from the California Desert Grape Administrative Committee (Committee) to increase the assessment rate for the 2015 and subsequent fiscal periods from $0.0200 to $0.0250 per 18-pound lug of grapes handled. The Committee locally administers the marketing order and is comprised of producers and handlers of grapes grown and handled in a designated area of southeastern California. Assessments upon grape handlers are used by the Committee to fund reasonable and necessary expenses of the program. The fiscal period began on January 1 and ends December 31. The assessment rate would remain in effect indefinitely unless modified, suspended, or terminated.
Comments must be received by April 15, 2015.
Interested persons are invited to submit written comments concerning this proposed rule. Comments must be sent to the Docket Clerk, Marketing Order and Agreement Division, Fruit and Vegetable Program, AMS, USDA, 1400 Independence Avenue SW., STOP 0237, Washington, DC 20250-0237; Fax: (202) 720-8938; or Internet:
Kathie Notoro, Marketing Specialist, or Martin Engeler, Regional Director, California Marketing Field Office, Marketing Order and Agreement Division, Fruit and Vegetable Program, AMS, USDA; Telephone: (559) 487-5901, Fax: (559) 487-5906, or Email:
Small businesses may request information on complying with this regulation by contacting Jeffrey Smutny, Marketing Order and Agreement Division, Fruit and Vegetable Program, AMS, USDA, 1400 Independence Avenue SW., STOP 0237, Washington, DC 20250-0237; Telephone: (202) 720-2491, Fax: (202) 720-8938, or Email:
This proposed rule is issued under Marketing Order No. 925 (7 CFR part 925), regulating the handling of grapes grown in a designated area of southeastern California, hereinafter referred to as the “order.” The order is effective under the Agricultural Marketing Agreement Act of 1937, as amended (7 U.S.C. 601-674), hereinafter referred to as the “Act.”
The Department of Agriculture (USDA) is issuing this proposed rule in conformance with Executive Orders 12866, 13563, and 13175.
This proposed rule has been reviewed under Executive Order 12988, Civil Justice Reform. Under the marketing order now in effect, grape handlers in a designated area of southeastern California are subject to assessments. Funds to administer the order are derived from such assessments. It is intended that the assessment rate as proposed herein would be applicable to all assessable grapes beginning on January 1, 2015, and continue until amended, suspended, or terminated.
The Act provides that administrative proceedings must be exhausted before parties may file suit in court. Under section 608c(15)(A) of the Act, any handler subject to an order may file with USDA a petition stating that the order, any provision of the order, or any obligation imposed in connection with the order is not in accordance with law and request a modification of the order or to be exempted therefrom. Such handler is afforded the opportunity for a hearing on the petition. After the hearing, USDA would rule on the petition. The Act provides that the district court of the United States in any district in which the handler is an inhabitant, or has his or her principal place of business, has jurisdiction to review USDA's ruling on the petition, provided an action is filed not later than 20 days after the date of the entry of the ruling.
This proposed rule would increase the assessment rate established for the Committee for the 2015 and subsequent fiscal periods from $0.0200 to $0.0250 per 18-pound lug of grapes handled.
The grape order provides authority for the Committee, with the approval of USDA, to formulate an annual budget of expenses and collect assessments from handlers to administer the program. The members of the Committee are producers and handlers of grapes grown in a designated area of southeastern California. They are familiar with the Committee's needs and with the costs of goods and services in their local area and are thus in a position to formulate an appropriate budget and assessment rate. The assessment rate is formulated and discussed in a public meeting. Thus, all directly affected persons have an opportunity to participate and provide input.
For the 2014 and subsequent fiscal periods, the Committee recommended, and the USDA approved, an assessment rate that would continue in effect from fiscal period to fiscal period unless modified, suspended, or terminated by USDA based upon recommendation and information submitted by the Committee or other information available to USDA.
The Committee met on October 30, 2014, and unanimously recommended 2015 expenditures of $135,500, a contingency reserve fund of $9,500, and an assessment rate of $0.0250 per 18-pound lug of grapes handled. In comparison, last year's budgeted expenditures were $110,000. The Committee recommended a crop estimate of 5,800,000 18-pound lugs, which is higher than the 5,500,000 18-pound lugs handled last year. The Committee also recommended carrying
The major expenditures recommended by the Committee for the 2015 fiscal period include $15,500 for research, $17,000 for general office expenses, $62,750 for management and compliance expenses, $25,000 for research and preparation of materials such as the Committee's annual marketing policy statement, and $9,500 for a contingency reserve. The $15,500 research project is a continuation of a vine study in progress by the University of California, Riverside. In comparison, major expenditures for the 2014 fiscal period included $15,500 for research, $22,000 for general office expenses, and $62,500 for management and compliance expenses. Overall 2015 expenditures include an increase in management and compliance expenses and a decrease in general office expenses, and additional funds for a contingency reserve.
The assessment rate recommended by the Committee was derived by evaluating several factors, including estimated shipments for the 2015 season, budgeted expenses, and the level of available financial reserves. The Committee determined that the $0.0250 assessment rate would generate $145,000 in revenue to cover the budgeted expenses of $135,500, and a contingency reserve fund of $9,500.
Reserve funds by the end of 2015 are projected to be $40,000 if the $9,500 added to the contingency fund is expended or $49,500 if it is not expended. Both amounts are well within the amount authorized under the order. Section 925.41 of the order permits the Committee to maintain approximately one fiscal period's expenses in reserve.
The proposed assessment rate would continue in effect indefinitely unless modified, suspended, or terminated by USDA based upon a recommendation and information submitted by the Committee or other available information.
Although this assessment rate would be in effect for an indefinite period, the Committee would continue to meet prior to or during each fiscal period to recommend a budget of expenses and consider recommendations for modification of the assessment rate. The dates and times of Committee meetings are available from the Committee or USDA. Committee meetings are open to the public and interested persons may express their views at these meetings. USDA would evaluate the Committee's recommendations and other available information to determine whether modification of the assessment rate is needed. Further rulemaking would be undertaken as necessary. The Committee's 2015 budget and those for subsequent fiscal periods would be reviewed and, as appropriate, approved by USDA.
Pursuant to requirements set forth in the Regulatory Flexibility Act (RFA) (5 U.S.C. 601-612), the Agricultural Marketing Service (AMS) has considered the economic impact of this proposed rule on small entities. Accordingly, AMS has prepared this initial regulatory flexibility analysis.
The purpose of the RFA is to fit regulatory actions to the scale of businesses subject to such actions in order that small businesses will not be unduly or disproportionately burdened. Marketing orders issued pursuant to the Act, and the rules issued thereunder, are unique in that they are brought about through group action of essentially small entities acting on their own behalf.
There are approximately 14 handlers of southeastern California grapes who are subject to regulation under the marketing order and about 41 grape producers in the production area. Small agricultural service firms are defined by the Small Business Administration (13 CFR 121.201) as those having annual receipts of less than $7,000,000, and small agricultural producers are defined as those whose annual receipts are less than $750,000. Eleven of the 14 handlers subject to regulation have annual grape sales of less than $7,000,000, according to USDA Market News Service and Committee data. In addition, information from the Committee and USDA's Market News indicates that at least 10 of 41 producers have annual receipts of less than $750,000. Thus, it may be concluded that a majority of the grape handlers regulated under the order and about 10 of the producers could be classified as small entities under the Small Business Administration's definitions.
This proposed rule would increase the assessment rate established for the Committee and collected from handlers for the 2015 and subsequent fiscal periods from $0.0200 to $0.0250 per 18-pound lug of grapes. The Committee unanimously recommended 2015 expenditures of $135,500, a contingency reserve fund of $9,500, and an assessment rate of $0.0250 per 18-pound lug of grapes handled. The proposed assessment rate of $0.0250 is $0.0050 higher than the 2014 rate currently in effect. The quantity of assessable grapes for the 2015 season is estimated at 5,800,000 18-pound lugs. Thus, the $0.0250 rate should generate $145,000 in income. In addition, reserve funds at the end of the year are projected to be $49,500, which is well within the order's limitation of approximately one fiscal period's expenses.
The major expenditures recommended by the Committee for the 2015 fiscal period include $15,500 for research, $17,000 for general office expenses, $62,750 for management and compliance expenses, $25,000 for research and preparation of materials such as the Committee's annual marketing policy statement, and $9,500 for the contingency reserve. In comparison, major expenditures for the 2014 fiscal period included $15,500 for research, $22,000 for general office expenses, and $62,500 for management and compliance expenses. Overall expenditures included an increase in management and compliance expenses and a decrease in general office expenses, and funding of a contingency reserve.
Prior to arriving at this budget, the Committee considered alternative expenditures and assessment rates, to include not increasing the $0.0200 assessment rate currently in effect. Based on a crop estimate of 5,800,000 18-pound lugs, the Committee ultimately determined that increasing the assessment rate to $0.0250 would generate sufficient funds to cover budgeted expenses. Reserve funds at the end of the 2015 fiscal period are projected to be $40,000 if the $9,500 contingency fund is expended or $49,500 if it is not expended. These amounts are well within the amount authorized under the order.
A review of historical crop and price information, as well as preliminary information pertaining to the upcoming fiscal period, indicates that the producer price for the 2014 season averaged about $22.00 per 18-pound lug of California grapes handled. If the 2015 producer price is similar to the 2014 price, estimated assessment revenue as a percentage of total estimated producer revenue would be 0.11 percent for the 2015 season ($0.0250 divided by $22.00 per 18-pound lug).
This action would increase the assessment obligation imposed on handlers. While assessments impose
In accordance with the Paperwork Reduction Act of 1995 (44 U.S.C. Chapter 35), the order's information collection requirements have been previously approved by the Office of Management and Budget (OMB) and assigned OMB No. 0581-0189. No changes in those requirements as a result of this action are necessary. Should any changes become necessary, they would be submitted to OMB for approval.
This proposed rule would impose no additional reporting or recordkeeping requirements on either small or large California grape handlers. As with all Federal marketing order programs, reports and forms are periodically reviewed to reduce information requirements and duplication by industry and public sector agencies.
AMS is committed to complying with the E-Government Act, to promote the use of the internet and other information technologies to provide increased opportunities for citizen access to Government information and services, and for other purposes.
USDA has not identified any relevant Federal rules that duplicate, overlap, or conflict with this action.
A small business guide on complying with fruit, vegetable, and specialty crop marketing agreements and orders may be viewed at:
A 15-day comment period is provided to allow interested persons to respond to this proposed rule. Fifteen days is deemed appropriate because: (1) The 2015 fiscal period began on January 1, 2015, and the order requires that the rate of assessment for each fiscal period apply to all assessable grapes handled during such fiscal period; (2) the Committee needs to have sufficient funds to pay its expenses, which are incurred on a continuous basis; and (3) handlers are aware of this action, which was unanimously recommended by the Committee at a public meeting and is similar to other assessment rate actions issued in past years.
Grapes, Marketing agreements, Reporting and recordkeeping requirements.
For the reasons set forth in the preamble, 7 CFR part 925 is proposed to be amended as follows:
7 U.S.C. 601-674.
On and after January 1, 2015, an assessment rate of $0.0250 per 18-pound lug is established for grapes grown in a designated area of southeastern California.
Federal Aviation Administration (FAA), DOT.
Notice of proposed rulemaking (NPRM).
We propose to adopt a new airworthiness directive (AD) for certain Airbus Model A330-200, -200 Freighter, and -300 series airplanes; and all Airbus Model A340-200, -300, -500, and -600 series airplanes. This proposed AD was prompted by reports of cracks at certain frames of the forward cargo door. This proposed AD would require a detailed inspection for cracking of certain forward cargo doors, and repair if necessary. We are proposing this AD to detect and correct cracking at certain frames, which could result in the loss of structural integrity of the forward cargo door.
We must receive comments on this proposed AD by May 15, 2015.
You may send comments, using the procedures found in 14 CFR 11.43 and 11.45, by any of the following methods:
•
•
•
•
For service information identified in this proposed AD, contact Airbus SAS, Airworthiness Office—EAL, 1 Rond Point Maurice Bellonte, 31707 Blagnac Cedex, France; telephone +33 5 61 93 36 96; fax +33 5 61 93 45 80; email
You may examine the AD docket on the Internet at
Vladimir Ulyanov, Aerospace Engineer, International Branch, ANM-116,
We invite you to send any written relevant data, views, or arguments about this proposed AD. Send your comments to an address listed under the
We will post all comments we receive, without change, to
The European Aviation Safety Agency (EASA), which is the Technical Agent for the Member States of the European Union, has issued EASA Airworthiness Directive 2014-0228, dated October 20, 2014 (referred to after this as the Mandatory Continuing Airworthiness Information, or “the MCAI”), to correct an unsafe condition for certain Airbus Model A330-200, -200 Freighter, and -300 series airplanes; and all Airbus Model A340-200, -300, -500, and -600 series airplanes. The MCAI states:
An A330 aeroplane operator reported recently cases of crack findings on two different aeroplanes, at frame 20A and at frame 20B close to beam 3 of the forward cargo door. The first finding was detected during scheduled maintenance, while the second one was found during an inspection prompted by the first finding. Subsequent analyses of these cracks identified that the first crack initiated at frame 20B, which is the first primary load path, leading to excessive loads at frame 20A and consequent cracking. Nevertheless, on the other aeroplane, a crack was detected on frame 20A only. Rupture of both frames 20A and 20B could lead to frame 21 failure after a limited number of flight cycles (FC).
This condition, if not detected and corrected, may potentially result in the loss of structural integrity of the forward cargo door, which could ultimately jeopardise the aeroplane's safe flight.
Prompted by these findings, Airbus issued Alert Operators Transmission (AOT) A52L010-14 to provide instructions for a one-time inspection of frames 20A, 20B and 21 in the area of beam 3, until the half pitch between beam 2 and beam 3.
For the reasons described above, this [EASA] AD requires identification of the Part Number (P/N) of the affected forward cargo doors, a one-time detailed inspection (DET) of each affected door and, depending on findings, accomplishment of applicable corrective action(s) [contacting Airbus].
This [EASA] AD is considered to be an interim action and further AD action may follow.
Required actions also include sending inspection results to Airbus. You may examine the MCAI in the AD docket on the Internet at
Airbus has issued Alert Operators Transmission (AOT) A52L010-14, dated September 30, 2014. The service information describes procedures for an inspection for cracking of certain forward cargo doors, and repair if necessary. The actions described in this AOT are intended to correct the unsafe condition identified in the MCAI. This service information is reasonably available; see
This product has been approved by the aviation authority of another country, and is approved for operation in the United States. Pursuant to our bilateral agreement with the State of Design Authority, we have been notified of the unsafe condition described in the MCAI and service information referenced above. We are proposing this AD because we evaluated all pertinent information and determined an unsafe condition exists and is likely to exist or develop on other products of these same type designs.
We estimate that this proposed AD affects 89 airplanes of U.S. registry.
We also estimate that it would take about 1 work-hour per product to comply with the basic requirements of this proposed AD. The average labor rate is $85 per work-hour. Required parts would cost $0 per product. Based on these figures, we estimate the cost of this proposed AD on U.S. operators to be $7,565, or $85 per product.
In addition, we estimate that any necessary follow-on actions would take about 32 work-hours and require parts costing $654,850, for a cost of $657,570 per product. We have no way of determining the number of aircraft that might need this action.
A federal agency may not conduct or sponsor, and a person is not required to respond to, nor shall a person be subject to penalty for failure to comply with a collection of information subject to the requirements of the Paperwork Reduction Act unless that collection of information displays a current valid OMB control number. The control number for the collection of information required by this proposed AD is 2120-0056. The paperwork cost associated with this proposed AD has been detailed in the Costs of Compliance section of this document and includes time for reviewing instructions, as well as completing and reviewing the collection of information. Therefore, all reporting associated with this proposed AD is mandatory. Comments concerning the accuracy of this burden and suggestions for reducing the burden should be directed to the FAA at 800 Independence Ave. SW., Washington, DC 20591, ATTN: Information Collection Clearance Officer, AES-200.
Title 49 of the United States Code specifies the FAA's authority to issue rules on aviation safety. 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.
We are issuing this rulemaking under the authority described in “Subtitle VII, Part A, Subpart III, Section 44701: General requirements.” Under that section, Congress charges the FAA with promoting safe flight of civil aircraft in air commerce by prescribing regulations for practices, methods, and procedures the Administrator finds necessary for safety in air commerce. This regulation is within the scope of that authority because it addresses an unsafe condition that is likely to exist or develop on products identified in this rulemaking action.
We determined that this proposed AD would not have federalism implications under Executive Order 13132. This proposed AD would not have a substantial direct effect on the States, on the relationship between the national Government and the States, or on the distribution of power and responsibilities among the various levels of government.
For the reasons discussed above, I certify this proposed regulation:
1. Is not a “significant regulatory action” under Executive Order 12866;
2. Is not a “significant rule” under the DOT Regulatory Policies and Procedures (44 FR 11034, February 26, 1979);
3. Will not affect intrastate aviation in Alaska; and
4. Will not have a significant economic impact, positive or negative, on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.
Air transportation, Aircraft, Aviation safety, Incorporation by reference, Safety.
Accordingly, under the authority delegated to me by the Administrator, the FAA proposes to amend 14 CFR part 39 as follows:
49 U.S.C. 106(g), 40113, 44701.
We must receive comments by May 15, 2015.
None.
This AD applies to the airplanes identified in paragraphs (c)(1) and (c)(2) of this AD, certificated in any category.
(1) Airbus Model A330-201, -202, -203, -223, -223F, -243, -243F, -301, -302, -303, -321, -322, -323, -341, -342, and -343 airplanes, all manufacturer serial numbers, except those on which Airbus Modification 202702 has been embodied in production.
(2) Airbus Model A340-211, -212, -213, -311, -312, -313, -541, and -642 airplanes, all manufacturer serial numbers.
Air Transport Association (ATA) of America Code 52, Doors.
This AD was prompted by reports of cracks at certain frames of the forward cargo door. We are issuing this AD to detect and correct cracking at certain frames, which could result in the loss of structural integrity of the forward cargo door.
Comply with this AD within the compliance times specified, unless already done.
(1) Within 200 flight cycles after the effective date of this AD, do a detailed inspection for cracking of an affected forward cargo door, having a part number identified in paragraphs (g)(1)(i) through (g)(1)(xii) of this AD, at frames 20A, 20B, and 21 areas located above beam 3, from outside and inside, in accordance with Airbus Alert Operators Transmission (AOT) A52L010-14, dated September 30, 2014.
(i) F523-70500-000.
(ii) F523-70550-004.
(iii) F523-70500-006.
(iv) F523-70500-008.
(v) F523-70500-010.
(vi) F523-70500-012.
(vii) F523-70500-014.
(viii) F523-70550-000.
(ix) F523-70550-002.
(x) F523-70500-004.
(xi) F523-70550-008.
(xii) F523-70550-050.
(2) If any crack is found during the inspection required by paragraph (g)(1) of this AD, before further flight, repair using a method approved by the Manager, International Branch, ANM-116, Transport Airplane Directorate, FAA; or the European Aviation Safety Agency (EASA); or Airbus's EASA Design Organization Approval (DOA).
For the purposes of this AD, a detailed inspection is an intensive examination of a specific item, installation, or assembly to detect damage, failure, or irregularity. Available lighting is normally supplemented with a direct source of good lighting at an intensity deemed appropriate. Inspection aids such as a mirror, magnifying lenses, etc., may be necessary. Surface cleaning and elaborate procedures may be required.
Submit a report of the findings (both positive and negative) of the inspection required by paragraph (g)(1) of this AD to Serge KIYMAZ, Structure Engineer, Structure Engineering—SEES1 CUSTOMER SERVICES, Phone: +33(0)5 82 05 10 33, Fax: +33(0)5 61 93 36 14, email:
(1) If the inspection was done on or after the effective date of this AD: Submit the report within 30 days after the inspection.
(2) If the inspection was done before the effective date of this AD: Submit the report within 30 days after the effective date of this AD.
As of the effective date of this AD, installing a forward cargo door having any part number specified in paragraphs (g)(1)(i) through (g)(1)(xii) of this AD is permitted on any airplane, provided that prior to installation, the door is inspected and, depending on the findings, corrected, in accordance with Airbus AOT A52L010-14, dated September 30, 2014.
The following provisions also apply to this AD:
(1) Alternative Methods of Compliance (AMOCs): The Manager, International Branch, ANM-116, Transport Airplane Directorate, FAA, has the authority to approve AMOCs for this AD, if requested using the procedures found in 14 CFR 39.19. In accordance with 14 CFR 39.19, send your request to your principal inspector or local Flight Standards District Office, as appropriate. If sending information directly to the International Branch, send it to ATTN: Vladimir Ulyanov, Aerospace Engineer, International Branch, ANM-116, Transport Airplane Directorate, FAA, 1601 Lind Avenue SW., Renton, WA 98057-3356; telephone 425-227-1138; fax 425- 227-1149. Information may be emailed to:
(2) Contacting the Manufacturer: For any requirement in this AD to obtain corrective actions from a manufacturer, the action must be accomplished using a method approved by the Manager, International Branch, ANM-116, Transport Airplane Directorate, FAA; or the EASA; or Airbus's EASA DOA. If approved by the DOA, the approval must include the DOA-authorized signature.
(3) Reporting Requirements: A federal agency may not conduct or sponsor, and a person is not required to respond to, nor shall a person be subject to a penalty for failure to comply with a collection of information subject to the requirements of the Paperwork Reduction Act unless that collection of information displays a current valid OMB Control Number. The OMB Control Number for this information collection is 2120-0056. Public reporting for this collection of information is estimated to be approximately 5 minutes per response, including the time for reviewing instructions, completing and reviewing the collection of information. All responses to this collection of information are mandatory. Comments concerning the accuracy of this burden and suggestions for reducing the burden should be directed to the FAA at: 800 Independence Ave. SW., Washington, DC 20591, Attn: Information Collection Clearance Officer, AES-200.
(1) Refer to Mandatory Continuing Airworthiness Information (MCAI) EASA Airworthiness Directive 2014-0228, dated October 20, 2014, for related information. This MCAI may be found in the AD docket on the Internet at
(2) For service information identified in this AD, contact Airbus SAS, Airworthiness Office—EAL, 1 Rond Point Maurice Bellonte, 31707 Blagnac Cedex, France; telephone +33 5 61 93 36 96; fax +33 5 61 93 45 80; email
Federal Aviation Administration (FAA), DOT.
Notice of proposed rulemaking (NPRM).
We propose to supersede Airworthiness Directive (AD) 2012-13-06, for all Airbus Model A300 series airplanes and all Model A300 B4-600, B4-600R, and F4-600R series airplanes, and Model A300 C4-605R Variant F airplanes (collectively called Model A300-600 series airplanes). AD 2012-13-06 currently requires a one-time detailed inspection to determine the length of the fire shut-off valve (FSOV) bonding leads and for contact or chafing of the wires, and corrective actions if necessary. Since we issued AD 2012-13-06, a determination was made that the description of the inspection area specified in the service information was misleading; therefore, some operators might have inspected incorrect bonding leads. This proposed AD would instead require a new one-time detailed inspection of the FSOV bonding leads to ensure that the correct bonding leads are inspected, and corrective action if necessary. We are proposing this AD to detect and correct contact or chafing of wires and the bonding leads, which, if not detected, could be a source of sparks in the wing trailing edge, and could lead to an uncontrolled engine fire. May 5, 2015.
We must receive comments on this proposed AD by May 15, 2015.
You may send comments by any of the following methods:
•
•
•
•
For service information identified in this proposed AD, contact Airbus SAS, Airworthiness Office—EAW, 1 Rond Point Maurice Bellonte, 31707 Blagnac Cedex, France; telephone +33 5 61 93 36 96; fax +33 5 61 93 44 51; email
You may examine the AD docket on the Internet at
Dan Rodina, Aerospace Engineer, International Branch, ANM-116, Transport Airplane Directorate, FAA, 1601 Lind Avenue SW., Renton, WA 98057-3356; telephone 425-227-2125; fax 425-227-1149.
We invite you to send any written relevant data, views, or arguments about this proposed AD. Send your comments to an address listed under the
We will post all comments we receive, without change, to
On June 21, 2012, we issued AD 2012-13-06, Amendment 39-17108 (77 FR 40485, July 10, 2012). AD 2012-13-06 requires actions intended to address an unsafe condition on all Airbus Model A300 series airplanes and all Model A300 B4-600, B4-600R, and F4-600R series airplanes, and Model A300 C4-605R Variant F airplanes (collectively called Model A300-600 series airplanes).
Since we issued AD 2012-13-06, the European Aviation Safety Agency (EASA), which is the Technical Agent for the Member States of the European Union, has issued EASA Airworthiness Directive 2013-0204, dated September 6, 2013 (referred to after this as the Mandatory Continuing Airworthiness Information, or “the MCAI”), to correct an unsafe condition for the specified products. The MCAI states:
During a scheduled maintenance check, one operator reported inoperative Fire Shut Off Valve (FSOV). Investigations showed damage at wire located between engine 2 hydraulic FSOV and wing rear spar, in the zones 575/675, and at bonding lead, located between wing rib 7A and rib 8 below hydraulic pressure lines.
Similar inspections on different aeroplanes have shown that one of the causes of damage is the contact between bonding lead and the harness, due to over length of the bonding lead.
This condition, if not detected and corrected, could lead to either:
—a potential explosive condition on-ground if the FSOV, that is installed in fuel vapor zone is commanded to close position, or
—a temporary uncontrolled engine fire, if combined with a fire event in the nacelle fed by an hydraulic leakage and not controlled by the fire extinguishing system.
As the affected wire is not powered during normal operation, no defect can be detected unless a test is performed on the FSOV during maintenance check.
EASA issued AD 2011-0084 [
It appeared that the original issue of the Airbus inspection Service Bulletins (SB's) as
For the reasons described above, this [EASA] AD retains the requirements of EASA AD 2011-0084, which is superseded, and requires additional work on aeroplanes that have already been inspected in accordance with the instructions of the original issue of the SB's.
You may examine the MCAI in the AD docket on the Internet at
Airbus has issued Service Bulletin A300-24-0106, Revision 01, including Appendices 01, 02, 03, and 04, dated March 26, 2013 (for Model A300 series airplanes); and Service Bulletin A300-24-6108, Revision 01, including Appendices 01, 02, 03, and 04, dated March 26, 2013 (for Model A300-600 series airplanes. The actions described in this service information are intended to correct the unsafe condition identified in the MCAI. This service information is reasonably available; see
This product has been approved by the aviation authority of another country, and is approved for operation in the United States. Pursuant to our bilateral agreement with the State of Design Authority, we have been notified of the unsafe condition described in the MCAI and service information referenced above. We are proposing this AD because we evaluated all pertinent information and determined an unsafe condition exists and is likely to exist or develop on other products of these same type designs.
We estimate that this proposed AD affects 123 airplanes of U.S. registry.
We estimate that it would take about 8 work-hours per product to comply with the basic requirements of this proposed AD. The average labor rate is $85 per work-hour. Required parts would cost about $500 per product. Based on these figures, we estimate the cost of this proposed AD on U.S. operators to be $145,140, or $1,180 per product.
In addition, we estimate that any necessary follow-on actions would take about 1 work-hour and require parts costing $50, for a cost of $135 per product. We have no way of determining the number of products that may need these actions.
Title 49 of the United States Code specifies the FAA's authority to issue rules on aviation safety. 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.
We are issuing this rulemaking under the authority described in “Subtitle VII, Part A, Subpart III, Section 44701: General requirements.” Under that section, Congress charges the FAA with promoting safe flight of civil aircraft in air commerce by prescribing regulations for practices, methods, and procedures the Administrator finds necessary for safety in air commerce. This regulation is within the scope of that authority because it addresses an unsafe condition that is likely to exist or develop on products identified in this rulemaking action.
We determined that this proposed AD would not have federalism implications under Executive Order 13132. This proposed AD would not have a substantial direct effect on the States, on the relationship between the national Government and the States, or on the distribution of power and responsibilities among the various levels of government.
For the reasons discussed above, I certify this proposed regulation:
1. Is not a “significant regulatory action” under Executive Order 12866;
2. Is not a “significant rule” under the DOT Regulatory Policies and Procedures (44 FR 11034, February 26, 1979);
3. Will not affect intrastate aviation in Alaska; and
4. Will not have a significant economic impact, positive or negative, on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.
Air transportation, Aircraft, Aviation safety, Incorporation by reference, Safety.
Accordingly, under the authority delegated to me by the Administrator, the FAA proposes to amend 14 CFR part 39 as follows:
49 U.S.C. 106(g), 40113, 44701.
We must receive comments by May 15, 2015.
This AD replaces AD 2012-13-06, Amendment 39-17108 (77 FR 40485, July 10, 2012).
This AD applies to the airplanes specified in paragraphs (c)(1), (c)(2), and (c)(3) of this AD, certificated in any category, all certificated models; all manufacturer serial numbers.
(1) Airbus Model A300 B2-1A, B2-1C, B2K-3C, B2-203, B4-2C, B4-103, and B4-203 airplanes.
(2) Airbus Model A300 B4-601, B4-603, B4-620, B4-622, B4-605R, B4-622R, F4-605R, and F4-622R airplanes.
(3) Airbus Model A300 C4-605R Variant F airplanes.
Air Transport Association (ATA) of America Code 24, Electrical Power.
This AD was prompted by a determination that the description of the inspection area specified in the service information was misleading; therefore, some operators might have inspected incorrect bonding leads. We are issuing this AD to detect and correct contact or chafing of wires and the bonding leads, which, if not detected, could be a source of sparks in the wing trailing edge, and could lead to an uncontrolled engine fire.
Comply with this AD within the compliance times specified, unless already done.
At the applicable time specified in paragraph (g)(1) or (g)(2) of this AD: Do a one-time detailed inspection to determine the length of the FSOV bonding leads, and to detect contact or chafing of the wires located on the left-hand (LH) and right-hand (RH) sides of the wing rear spar, in accordance with the Accomplishment Instructions of Airbus Service Bulletin A300-24-0106, Revision 01, including Appendices 01, 02, 03, and 04, dated March 26, 2013 (for Model A300 series airplanes); or Airbus Service Bulletin A300-24-6108, Revision 01, including Appendices 01, 02, 03, and 04, dated March 26, 2013 (for Model A300-600 series airplanes); as applicable.
(1) For airplanes on which the inspection required by paragraph (g) of AD 2012-13-06,
(2) For airplanes on which the inspection required by paragraph (g) of AD 2012-13-06, Amendment 39-17108 (77 FR 40485, July 10, 2012), has been done as of the effective date of this AD: Inspect within 4,500 flight hours or 30 months after the effective date of this AD, whichever occurs first.
If, during the inspection required by paragraph (g) of this AD, the length of the bonding lead(s) is more than 80 millimeters (mm) (3.15 inches): Before further flight, replace the bonding lead(s) with a new bonding lead having a length equal to 80 mm ± 2 mm (3.15 inches) ± 0.08 inch, in accordance with the Accomplishment Instructions of the applicable service information identified in paragraph (g) of this AD.
If, during the inspection required by paragraph (g) of this AD, any contact or chafing of the wires is found, repair the wires before further flight, in accordance with the Accomplishment Instructions of the applicable service information identified in paragraph (g) of this AD.
As of August 14, 2012 (the effective date of AD 2012-13-06, Amendment 39-17108 (77 FR 40485, July 10, 2012), no person may install any bonding lead longer than 80 mm ± 2 mm (3.15 inches) ± 0.08 inch, located between the LH/RH engine hydraulic FSOV and wing rear spar in zones 575/675 on any airplane.
The following provisions also apply to this AD:
(1) Refer to Mandatory Continuing Airworthiness Information (MCAI) EASA Airworthiness Directive 2013-0204, dated September 6, 2013, for related information. This MCAI may be found in the AD docket on the Internet at
(2) For service information identified in this AD, contact Airbus SAS, Airworthiness Office—EAW, 1 Rond Point Maurice Bellonte, 31707 Blagnac Cedex, France; telephone +33 5 61 93 36 96; fax +33 5 61 93 44 51; email
Federal Aviation Administration (FAA), DOT.
Notice of proposed rulemaking (NPRM).
We propose to adopt a new airworthiness directive (AD) for all Gulfstream Aerospace Corporation Model GVI airplanes. This proposed AD was prompted by reports of corrosion on in-service air non-return valves. This proposed AD would require a revision to the Emergency Procedures section of the airplane flight manual (AFM). This proposed AD would also require a revision to the maintenance or inspection program, as applicable, to incorporate airworthiness limitations for the high pressure (HP) Stage 5 air non-return valves. We are proposing this AD to ensure the flightcrew is provided with procedures to mitigate the risks associated with failure of the HP Stage 5 air non-return valve. Failure of the HP Stage 5 air non-return valve in the open position could result in engine instability and uncommanded in-flight shutdown.
We must receive comments on this proposed AD by May 15, 2015.
You may send comments, using the procedures found in 14 CFR 11.43 and 11.45, by any of the following methods:
• Federal eRulemaking Portal: Go to
• Fax: 202-493-2251.
• Mail: U.S. Department of Transportation, Docket Operations, M-30, West Building Ground Floor, Room W12-140, 1200 New Jersey Avenue SE., Washington, DC 20590.
• Hand Delivery: Deliver to Mail address above between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays.
For service information identified in this proposed AD, contact Gulfstream Aerospace Corporation, Technical Publications Dept., P.O. Box 2206, Savannah, GA 31402-2206; telephone 800-810-4853; fax 912-965-3520; email
You may examine the AD docket on the Internet at
Eric Potter, Aerospace Engineer, Propulsion and Services Branch, ACE-118A, Atlanta Aircraft Certification Office, FAA, 1701 Columbia Avenue, College Park, GA 30337; phone: 404-474-5583;
We invite you to send any written relevant data, views, or arguments about this proposal. Send your comments to an address listed under the
We will post all comments we receive, without change, to
We received a report of multiple instances of corrosion on in-service air non-return valves on Gulfstream Aerospace Corporation Model GIV-X airplanes. This corrosion has resulted in failure of air non-return valves.
The same part number air non-return valve is installed on the Gulfstream Aerospace Corporation Model GVI airplanes, but it serves a different purpose in that application, where it functions as an HP Stage 5 air non-return valve.
Failure of the HP Stage 5 air non-return valve in the open position on the Model GVI airplanes could supply high-stage pressure to the low-stage port, resulting in engine instability and uncommanded in-flight shutdown. This condition could also have an adverse effect on subsequent in-flight engine re-start efforts if the flightcrew follows the current AFM procedures.
In light of this information, the FAA has determined that certain procedures should be included in the FAA-approved AFM for Model GVI airplanes to ensure the flightcrew is provided with procedures to mitigate the risks associated with failure of the HP Stage 5 air non-return valve. We have also determined that the maintenance or inspection program, as applicable, should be revised to incorporate an airworthiness limitation for the HP Stage 5 air non-return valves.
We reviewed Section 04-08-20, Normal Airstart-Automatic; Section 04-08-30, Manual Airstart-Starter Assist; and Section 04-08-40, Manual Airstart-Windmilling; of Chapter 04, Emergency Procedures, of the Gulfstream GVI (G650) AFM, Document Number GAC-AC-G650-OPS-0001, Revision 5, dated August 12, 2013. This service information describes revised procedures for in-flight engine restart and operating procedures.
In addition, we reviewed Section 05-10-10, Airworthiness Limitations, of Chapter 05, Time Limits/Maintenance Checks, of the Gulfstream GVI (G650) Maintenance Manual (MM), Revision 4, dated September 30, 2013. This service information adds an airworthiness limitation for the HP Stage 5 air non-return valve.
This service information is reasonably available; see ADDRESSES for ways to access this service information.
We are proposing this AD because we evaluated all the relevant information and determined the unsafe condition described previously is likely to exist or develop in other products of the same type design.
This proposed AD would require accomplishing the actions specified in the service information described previously.
This proposed AD would require revisions to certain operator maintenance documents to include new actions (
We consider this proposed AD interim action. The manufacturer is currently developing a modification that will positively address the unsafe condition identified in this proposed AD. Once this modification is developed, approved, and available, we might consider additional rulemaking.
We estimate that this proposed AD affects 52 airplanes of U.S. registry.
We estimate the following costs to comply with this proposed AD:
Title 49 of the United States Code specifies the FAA's authority to issue rules on aviation safety. 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.
We are issuing this rulemaking under the authority described in Subtitle VII, Part A, Subpart III, Section 44701: “General requirements.” Under that section, Congress charges the FAA with promoting safe flight of civil aircraft in air commerce by prescribing regulations for practices, methods, and procedures the Administrator finds necessary for safety in air commerce. This regulation is within the scope of that authority because it addresses an unsafe condition that is likely to exist or develop on products identified in this rulemaking action.
We determined that this proposed AD would not have federalism implications under Executive Order 13132. This proposed AD would not have a substantial direct effect on the States, on the relationship between the national Government and the States, or on the
For the reasons discussed above, I certify this proposed regulation:
(1) Is not a “significant regulatory action” under Executive Order 12866,
(2) Is not a “significant rule” under the DOT Regulatory Policies and Procedures (44 FR 11034, February 26, 1979),
(3) Will not affect intrastate aviation in Alaska, and
(4) Will not have a significant economic impact, positive or negative, on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.
Air transportation, Aircraft, Aviation safety, Incorporation by reference, Safety.
Accordingly, under the authority delegated to me by the Administrator, the FAA proposes to amend 14 CFR part 39 as follows:
49 U.S.C. 106(g), 40113, 44701.
We must receive comments by May 15, 2015.
None.
This AD applies to all Gulfstream Aerospace Corporation Model GVI airplanes, certificated in any category.
Air Transport Association (ATA) of America Code 36, Pneumatic.
This AD was prompted by reports of corrosion on in-service air non-return valves. We are issuing this AD to ensure the flightcrew is provided with procedures to mitigate the risks associated with failure of the high pressure (HP) Stage 5 air non-return valve. Failure of the HP Stage 5 air non-return valve in the open position could result in engine instability and uncommanded in-flight shutdown.
Comply with this AD within the compliance times specified, unless already done.
Within 30 days after the effective date of this AD: Revise the Emergency Procedures section of the AFM by inserting Section 04-08-20, Normal Airstart-Automatic; Section 04-08-30, Manual Airstart-Starter Assist; and Section 04-08-40, Manual Airstart-Windmilling; of Chapter 04, Emergency Procedures; of the Gulfstream GVI (G650) AFM, Document Number GAC-AC-G650-OPS-0001, Revision 5, dated August 12, 2013.
Within 30 days after the effective date of this AD: Revise the airplane maintenance manual or inspection program, as applicable, by incorporating the requirement for the HP Stage 5 air non-return valve from Section 05-10-10, Airworthiness Limitations, of Chapter 05, Time Limits/Maintenance Checks, of the Gulfstream GVI (G650) Maintenance Manual (MM), Revision 4, dated September 30, 2013. The initial compliance time for replacement of the HP Stage 5 air non-return valve is at the applicable time specified in Section 05-10-10, Airworthiness Limitations, of Chapter 05, Time Limits/Maintenance Checks, of the Gulfstream GVI (G650) MM, Revision 4, dated September 30, 2013, or within 30 days after the effective date of this AD, whichever occurs later.
After the maintenance or inspection program has been revised, as required by paragraph (h) of this AD, no alternative actions (
(1) The Manager, Atlanta Aircraft Certification Office (ACO), FAA, has the authority to approve AMOCs for this AD, if requested using the procedures found in 14 CFR 39.19. In accordance with 14 CFR 39.19, send your request to your principal inspector or local Flight Standards District Office, as appropriate. If sending information directly to the manager of the ACO, send it to the attention of the person identified in paragraph (k)(1) of this AD.
(2) Before using any approved AMOC, notify your appropriate principal inspector, or lacking a principal inspector, the manager of the local flight standards district office/certificate holding district office.
(1) For more information about this AD, contact Eric Potter, Aerospace Engineer, Propulsion and Services Branch, ACE-118A, FAA, Atlanta ACO, 1701 Columbia Avenue, College Park, GA 30337; phone: 404-474-5583; fax: 404-474-5606; email:
(2) For service information identified in this AD, contact Gulfstream Aerospace Corporation, Technical Publications Dept., P.O. Box 2206, Savannah, GA 31402-2206; telephone 800-810-4853; fax 912-965-3520; email
Federal Aviation Administration (FAA), DOT.
Notice of proposed rulemaking (NPRM).
We propose to supersede Airworthiness Directive (AD) 2013-13-04, for certain Airbus Model A318, A319, A320, and A321 series airplanes. AD 2013-13-04 currently requires installing a power interruption protection circuit for the landing gear control interface unit (LGCIU). Since we issued AD 2013-13-04, we have determined that additional work is necessary to adequately address the identified unsafe condition. This proposed AD would require a new modification of any previously modified LGCIU. This proposed AD would also require revising the maintenance or inspection program to reduce a certain functional check interval. This proposed AD also adds airplanes to the applicability. We are proposing this AD to prevent untimely unlocking and/or retraction of the nose landing gear (NLG), which, while on the ground, could result in injury to ground personnel and damage to the airplane.
We must receive comments on this proposed AD by May 15, 2015.
You may send comments by any of the following methods:
• Federal eRulemaking Portal: Go to
• Fax: 202-493-2251.
• Mail: U.S. Department of Transportation, Docket Operations, M-30, West Building Ground Floor, Room W12-140, 1200 New Jersey Avenue SE., Washington, DC 20590.
• Hand Delivery: U.S. Department of Transportation, Docket Operations, M-30, West Building Ground Floor, Room W12-140, 1200 New Jersey Avenue SE., Washington, DC, between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays.
For service information identified in this AD, contact Airbus, Airworthiness Office—EAS, 1 Rond Point Maurice Bellonte, 31707 Blagnac Cedex, France; telephone +33 5 61 93 36 96; fax +33 5 61 93 44 51; email
You may examine the AD docket on the Internet at
Sanjay Ralhan, Aerospace Engineer, International Branch, ANM-116, Transport Airplane Directorate, FAA, 1601 Lind Avenue SW., Renton, WA 98057-3356; telephone 425-227-1405; fax 425-227-1149.
We invite you to send any written relevant data, views, or arguments about this proposed AD. Send your comments to an address listed under the
We will post all comments we receive, without change, to
On June 14, 2013, we issued AD 2013-13-04, Amendment 39-17492 (78 FR 41286, July 10, 2013). AD 2013-13-04 requires actions intended to address an unsafe condition on certain Airbus Model A318, A319, A320, and A321 series airplanes. Since we issued AD 2013-13-04, Amendment 39-17492 (78 FR 41286, July 10, 2013), the European Aviation Safety Agency (EASA), which is the Technical Agent for the Member States of the European Community, has issued EASA Airworthiness Directive 2013-0202, dated September 5, 2013 (referred to after this as the Mandatory Continuing Airworthiness Information, or “the MCAI”), to correct an unsafe condition for Airbus Model A318-111, -112, -121, and -122 airplanes; Model A319-111, -112, -113, -114, -115, -131, -132, and -133 airplanes; Model A320-211, -212, -214, -231, -232, and -233 airplanes; and Model A321-111, -112, -131, -211, -212, -213, -231, and -232 airplanes. The MCAI states:
After a push back from the gate, an A320 aeroplane was preparing to initiate taxi, when an uncommanded nose landing gear (NLG) retraction occurred, causing the nose of the aeroplane to hit the ground. Investigations revealed that the retraction was caused by a combination of a power interruption to Landing Gear Control and Interface Units (LGCIU) and an internal hydraulic leak through the landing gear (LG) selector valve 40GA.
Deeper investigations have revealed that LGCIU power interruption appears during engine start at each flight. Even though no incident has been reported in service, it has been determined that a non-compliance to the safety objective exists when combined with a dormant single failure of the selector valve seal leaking.
This condition, if not corrected, could lead to further incidents of untimely unlocking and/or retraction of the NLG which, while on the ground, could result in injury to ground personnel and damage to the aeroplane.
To address the possible hydraulic leak of the LG selector valve, EASA issued AD 2007-0065 [
To address the risk of untimely unlocking and/or retraction of the NLG, EASA issued AD 2011-0202 [
Since that [EASA] AD was issued, it has been discovered that additional work is necessary to adequately correct this unsafe condition and consequently, Airbus issued Service Bulletin (SB) A320-32-1346 to Revision 05. An update of the maintenance programme is required as well, following the required modification.
For the reasons described above, this [EASA] AD retains the requirements of EASA AD 2011-0202, which is superseded, and requires certain additional actions, as defined in the revised Airbus SB, as applicable to aeroplane model, and an update of the approved maintenance programme.
The additional actions include a new modification of any previously modified LGCIU, and reducing a certain functional check interval. This proposed AD also adds airplanes on which Airbus modification 37866 has been embodied in production to the applicability. You may examine the MCAI in the AD docket on the Internet at
Airbus has issued Service Bulletin A320-32-1346, Revision 05, dated January 13, 2012. The service information describes procedures for modifying the LGCIU. The actions described in this service information are intended to correct the unsafe condition identified in the MCAI. This service information is reasonably available; see
This product has been approved by the aviation authority of another country, and is approved for operation in the United States. Pursuant to our bilateral agreement with the State of Design Authority, we have been notified of the unsafe condition described in the MCAI and service information referenced above. We are proposing this AD because we evaluated all pertinent information and determined an unsafe condition exists and is likely to exist or develop on other products of these same type designs.
We estimate that this proposed AD affects 851 airplanes of U.S. registry.
The actions required by AD 2013-13-04, Amendment 39-17492 (78 FR 41286, July 10, 2013), take about 48 work-hours per product, at an average labor rate of $85 per work-hour. Required parts will cost about $8,220
We estimate that it would take about 46 work-hours per product to comply with the new modification in this proposed AD. The average labor rate is $85 per work-hour. Required parts would cost about $9,650 per product. Based on these figures, we estimate the cost of the new modification on U.S. operators to be $11,539,560 or $13,560 per product.
We estimate that it would take about 1 work-hour per product to revise the maintenance or inspection program in this proposed AD. The average labor rate is $85 per work-hour. Based on these figures, we estimate the cost of revising the maintenance program on U.S. operators to be $72,335 or $85 per product.
Title 49 of the United States Code specifies the FAA's authority to issue rules on aviation safety. 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.
We are issuing this rulemaking under the authority described in “Subtitle VII, Part A, Subpart III, Section 44701: General requirements.” Under that section, Congress charges the FAA with promoting safe flight of civil aircraft in air commerce by prescribing regulations for practices, methods, and procedures the Administrator finds necessary for safety in air commerce. This regulation is within the scope of that authority because it addresses an unsafe condition that is likely to exist or develop on products identified in this rulemaking action.
We determined that this proposed AD would not have federalism implications under Executive Order 13132. This proposed AD would not have a substantial direct effect on the States, on the relationship between the national Government and the States, or on the distribution of power and responsibilities among the various levels of government.
For the reasons discussed above, I certify this proposed regulation:
1. Is not a “significant regulatory action” under Executive Order 12866;
2. Is not a “significant rule” under the DOT Regulatory Policies and Procedures (44 FR 11034, February 26, 1979);
3. Will not affect intrastate aviation in Alaska; and
4. Will not have a significant economic impact, positive or negative, on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.
Air transportation, Aircraft, Aviation safety, Incorporation by reference, Safety.
Accordingly, under the authority delegated to me by the Administrator, the FAA proposes to amend 14 CFR part 39 as follows:
49 U.S.C. 106(g), 40113, 44701.
We must receive comments by May 15, 2015.
This AD replaces AD 2013-13-04, Amendment 39-17492 (78 FR 41286, July 10, 2013).
(1) This AD applies to Airbus Model A318-111, -112, -121, and -122 airplanes; Model A319-111, -112, -113, -114, -115, -131, -132, and -133 airplanes; Model A320-211, -212, -214, -231, -232, and -233 airplanes; and Model A321-111, -112, -131, -211, -212, -213, -231, and -232 airplanes; certificated in any category; all manufacturer serial numbers.
Air Transport Association (ATA) of America Code 32, Landing Gear.
This AD was prompted by a determination that additional work is necessary to adequately address the identified unsafe condition. We are issuing this AD to prevent untimely unlocking and/or retraction of the nose landing gear (NLG), which, while on the ground, could result in injury to ground personnel and damage to the airplane.
Comply with this AD within the compliance times specified, unless already done.
This paragraph restates the requirements of paragraph (g) of AD 2013-13-04, Amendment 39-17492 (78 FR 41286, July 10, 2013). For all airplanes except airplanes on which Airbus modification 37866 has been embodied in production: At the applicable compliance time specified in paragraph (g)(1) or (g)(2) of this AD: Install a power interruption protection circuit for the landing gear control interface unit (LGCIU), in accordance with the Accomplishment Instructions of Airbus Service Bulletin A320-32-1346, Revision 04, including Appendices 01 and 02, dated April 22, 2011 (for Model A318, A319, A320, and A321 series airplanes other than the Model A319CJ (corporate jet) airplanes); or Airbus Service Bulletin A320-32-1349, Revision 03, including Appendix 1, dated October 5, 2011 (for Model A319CJ (corporate jet) airplanes).
(1) For airplanes that have embodied Airbus Modification 38947 specified in Airbus Service Bulletin A320-32-1348 during production or in service: Within 72 months after August 14, 2013 (the effective date of AD 2013-13-04, Amendment 39-17492 (78 FR 41286, July 10, 2013)).
(2) For all airplanes other than those identified in paragraph (g)(1) of this AD: Within 60 months after August 14, 2013 (the effective date of AD 2013-13-04, Amendment 39-17492 (78 FR 41286, July 10, 2013)).
This paragraph restates the requirements of paragraph (h) of AD 2013-13-04, Amendment 39-17492 (78 FR 41286, July 10, 2013). For airplanes on which the installation required by paragraph (g) of this AD has been done before August 14, 2013 (the effective date of AD 2013-13-04, Amendment 39-17492 (78 FR 41286, July 10, 2013)) using Airbus Service Bulletin A320-32-1346, dated December 4, 2008 (for Model A318, A319, A320, and A321 series airplanes other than Model A319CJ (corporate jet) airplanes): Within the applicable times specified in paragraphs (g)(1) and (g)(2) of this AD, re-identify the identification plates, in accordance with the Accomplishment Instructions of Airbus Service Bulletin A320-32-1346, Revision 04, including Appendices 01 and 02, dated April 22, 2011 (for Model A318, A319, A320, and A321 series airplanes other than Model A319CJ (corporate jet) airplanes).
For airplanes identified in paragraphs (i)(1), (i)(2), and (i)(3) of this AD except airplanes on which Airbus modification 37866 has been embodied in production: Modify the LGCIU at the applicable time specified in paragraph (i)(1), (i)(2), or (i)(3) of this AD, in accordance with the Accomplishment Instructions of Airbus Service Bulletin A320-32-1346, Revision 05, dated January 13, 2012, or Airbus Service Bulletin A320-32-1349, Revision 03, including Appendix 1, dated October 5, 2011 (for Model A319CJ (corporate jet) airplanes). Accomplishing the modification in this paragraph terminates the actions required by paragraphs (g) and (h) of this AD.
(1) For airplanes on which any LG selector valve having part number (P/N) 114079019 is installed and that have embodied Airbus Modification 38947 specified in Airbus Service Bulletin A320-32-1348 during production or in service: Modify the LGCIU within 72 months after the effective date of this AD.
(2) For airplanes on which any LG selector valve 40GA having a part number listed in paragraphs (i)(2)(i) through (i)(2)(xii) of this AD, provided the valve has the marking “DI” or “DI-BE” recorded on its amendment plates: Modify the LGCIU within 72 months after the effective date of this AD.
(i) P/N 114079001.
(ii) P/N 114079005.
(iii) P/N 114079009.
(iv) P/N 114079013.
(v) P/N 114079001A.
(vi) P/N 114079005A.
(vii) P/N 114079009A.
(viii) P/N114079015.
(ix) P/N 114079001AB.
(x) P/N 114079005AB.
(xi) P/N 114079009AB.
(xii) P/N 114079017.
(3) For all airplanes other than those identified in paragraphs (i)(1) and (i)(2) of this AD: Modify the LGCIU within 60 months after the effective date of this AD.
For airplanes that have been modified as of the effective date of this AD as specified in the applicable service information identified in paragraph (j)(1), (j)(2), (j)(3), or (j)(4) of this AD, except airplanes on which Airbus modification 37866 has been embodied in production: Within 72 months after the effective date of this AD, do the additional modification of the LGCIU, in accordance with the Accomplishment Instructions of Airbus Service Bulletin A320-32-1346, Revision 05, dated January 13, 2012.
(1) Airbus Service Bulletin A320-32-1346, Revision 01, dated October 27, 2009, which is not incorporated by reference in this AD.
(2) Airbus Service Bulletin A320-32-1346, Revision 02, dated November 4, 2009, which is not incorporated by reference in this AD.
(3) Airbus Service Bulletin A320-32-1346, Revision 03, dated January 7, 2010, which is not incorporated by reference in this AD.
(4) Airbus Service Bulletin A320-32-1346, including Appendices 01 and 02, Revision 04, dated April 22, 2011, which is incorporated by reference in AD 2013-13-04, Amendment 39-17492 (78 FR 41286, July 10, 2013).
Before further flight after accomplishing the actions specified in paragraph (i) or (j) of this AD or within 7 days after the effective date of this AD, whichever occurs later: Revise the maintenance or inspection program, as applicable, to incorporate Task 32.30.00.17, “Functional Check of LGCIU Power Supply Relays,” of Section C-32 of Section C, Systems and Powerplant, of the Airbus A318/A319/A320/A321 Maintenance Review Board Report, Revision 18, dated March 2013. The initial compliance time is within 4,000 flight hours after accomplishing the additional modification of the LGCIU.
This paragraph provides credit for A319 Corporate Jet airplanes for the modification required by paragraph (g) of this AD if that modification was performed before the effective date of this AD using Airbus Service Bulletin A320-32-1349, dated December 4, 2008; Airbus Service Bulletin A320-32-1349, Revision 01, dated August 31, 2009; or Airbus Service Bulletin A320-32-1349, Revision 02, dated June 16, 2010.
The following provisions also apply to this AD:
(1)
(2) AMOCs approved previously for AD 2013-13-04, Amendment 39-17492 (78 FR 41286, July 10, 2013) are approved as AMOCs for the corresponding provisions of this AD.
(3)
(1) Refer to Mandatory Continuing Airworthiness Information (MCAI) EASA Airworthiness Directive 2013-0202, dated September 5, 2013, for related information. This MCAI may be found in the AD docket on the Internet at
(2) For service information identified in this AD, contact Airbus, Airworthiness Office—EAS, 1 Rond Point Maurice Bellonte, 31707 Blagnac Cedex, France; telephone +33 5 61 93 36 96; fax +33 5 61 93 44 51; email
Environmental Protection Agency.
Proposed rule.
The Environmental Protection Agency (EPA) is proposing to revise part of the Arizona Regional Haze (RH) Federal Implementation Plan (FIP) applicable to the Coronado Generating Station (Coronado). In response to a petition for reconsideration from the Salt River Project Agricultural Improvement and Power District (SRP), the owner/operator of Coronado, we are proposing to replace a plant-wide compliance method with a unit-specific compliance method for determining compliance with the best available retrofit technology (BART) emission limits for nitrogen oxides (NO
Written comments must be submitted to the designated contact on or before May 15, 2015. Requests for a public hearing must be received on or before April 15, 2015.
Submit your comments, identified by docket number EPA-R09-OAR-2015-0165, by one of the following methods:
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See the
Thomas Webb, U.S. EPA, Region 9, Planning Office, Air Division, Air-2, 75 Hawthorne Street, San Francisco, CA 94105. Thomas Webb can be reached at telephone number (415) 947-4139 and via electronic mail at
For the purpose of this document, we are giving meaning to certain words or initials as follows:
• The words or initials
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• The term
• The initials
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• The words
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The proposed action relies on documents, information, and data that are listed in the index on
Written comments must be submitted on or before May 15, 2015. Submit your comments, identified by docket number EPA-R09-OAR-2015-0165, by one of the following methods:
•
•
•
•
EPA's policy is to include all comments received in the public docket without change. We may make comments available online at
Do not submit CBI to EPA through
When submitting comments, remember to:
• Identify the rulemaking by docket number and other identifying
• Explain why you agree or disagree; suggest alternatives and substitute language for your requested changes.
• Describe any assumptions and provide any technical information and/or data that you used.
• If you estimate potential costs or burdens, explain how you arrived at your estimate in sufficient detail to allow for it to be reproduced.
• Provide specific examples to illustrate your concerns, and suggest alternatives.
• Explain your views as clearly as possible, avoiding the use of profanity or personal threats.
• Make sure to submit your comments by the identified comment period deadline.
If anyone contacts EPA by April 15, 2015 requesting to speak at a public hearing, EPA will schedule a public hearing and announce the hearing in the
Congress created a program for protecting visibility in the nation's national parks and wilderness areas in 1977 by adding section 169A to the CAA. This section of the CAA establishes as a national goal the “prevention of any future, and the remedying of any existing, impairment of visibility in mandatory Class I Federal areas which impairment results from man-made air pollution.”
The Arizona Department of Environmental Quality (ADEQ) submitted a RH SIP (“Arizona RH SIP”) under Section 308 of the RHR to EPA Region 9 on February 28, 2011. The Arizona RH SIP included BART determinations for NO
. . . the emission limit of 0.080 lb/MMBtu established in the consent decree was not the result of a BART five-factor analysis, nor does the consent decree indicate that SCR at 0.080 lb/MMBtu represents BART. Nonetheless, given the compliance schedule established in the consent decree and the preliminary information received from SRP regarding the status of design and construction of the SCR system, it appears that achieving a 0.050 lb/MMBtu emission rate may not be technically feasible. Even if it is feasible, achievement of this emission rate may not be cost-effective. Therefore, we are proposing an emission limit of 0.080 lb/MMBtu as BART for NO
In its comments on our proposal, SRP asserted that a NO
In setting the NO
We received a petition from SRP on February 4, 2013, requesting partial reconsideration and administrative stay of our final rule under section 307(d)(7)(B) of the Clean Air Act (CAA) and section 705 of the Administrative Procedure Act.
EPA is proposing a unit-specific compliance method and separate emission limits for NO
In a letter sent to EPA on November 18, 2013, SRP outlined its views concerning the compliance method and emission limit at Coronado.
The 30-day rolling average NO
Because we are proposing to replace the plant-wide average emission rate limit for NO
After EPA granted reconsideration, SRP submitted additional information to EPA, including two reports prepared by S&L and RMB concerning the achievability of various NO
The 2013 S&L report consisted of an emission analysis of the SCR for Unit 1. Similar to the 2012 S&L report, which concerned Unit 2, the 2013 analysis examined the effect of startup/shutdown events, low-load cycling, and steam reheat on emissions over a 30-day average. In summary, the 2013 S&L analysis examined load profile data for Unit 1 for the period from January 1, 2011, through July 31, 2013, and estimated NO
Based on the emission rates summarized in Table 1 above, the S&L analysis examined the 30-day emission rate for Unit 1 assuming several combinations of startup events and loading profiles. The highest controlled 30-day average emission rate for several selected scenarios is presented in Table 2. The full analysis, including selected spreadsheets that contain the emission rate modeling for certain operating scenarios, is available in the docket for this proposed rule.
The supplemental information submitted by SRP on November 13, 2013, also included a report from RMB. In this report, RMB stated that it used equations for calculating the UPL, which is a statistical technique that examines an existing set of data points and predicts the chances (
RMB stated that it applied the equations for calculating UPL values to CEMS data for Unit 1, as well as to the CEMS data from three SCR-equipped coal-fired boilers that it considered comparable to Unit 1.
RMB then indicated that if the emission limit were considered a “never to be exceeded value,” an additional compliance margin should be incorporated given that the 99th percentile value does not account for the entire potential range of operating conditions that may occur. RMB indicated that rounding upwards to the next highest reasonable interval, 0.080 lb/MMBtu, would provide an approximate 10 percent compliance margin, and proposed that this value represents the lowest achievable NO
SRP provided additional information to EPA on April 28, 2014, that included documentation on SCR design parameters for Unit 2, the number of historical startup events occurring within single 30-day periods for Units 1 and 2, and expected future operation of Units 1 and 2.
In proposing a unit-specific limit for Unit 1, we have reviewed each of the analyses provided by SRP including the emission spreadsheets developed by S&L for several load profile scenarios. In addition, we have compared SRP's emission estimates for certain load profiles with actual Unit 1 emission data as reported to the Air Markets Program Data (AMPD).
With regard to the RMB analysis, we are unable to assess fully this analysis, as it lacked documentation regarding many of its components. In particular, RMB did not identify the UPL equation(s) it used or the emission rate characteristics, data distribution, number of emission rates, or t- or z-scores. RMB did not present specific evidence that the two SCR-equipped units are representative of how Coronado will perform when carefully operated after installation of SCR. In particular, RMB did not address the possibility that the SCR systems on these two units malfunctioned or were incorrectly operated during the data period. Accordingly, we are unable to evaluate RMB's assertions regarding its UPL calculations.
More fundamentally, we do not consider a UPL analysis to be necessary or appropriate for use in establishing an emission limit for Coronado Unit 1. Because the UPL method is a statistical technique, it is essentially an analytical tool that can be applied to any data set
By contrast, the data set available here is much more extensive, represents continuous data collected over a long period of time, and covers a wider range of unit operations. In particular, the UPL analyses performed by RMB for Coronado Unit 1 and the three SCR-equipped coal-fired boilers examined actual emission data from CEMS (or in the case of Coronado Unit 1, modeled emission data based on actual load operation) that consisted of thousands of data points collected continuously over periods of time ranging from eight months to over a year. As noted above, this is a different context than rulemakings in which EPA has employed the UPL method to develop category-wide emission standards based on, at most, a few dozen data points. Given the size and scope of the data set available in this instance, we propose to find that the use of the UPL method is not appropriate.
Finally, we do not agree with RMB's suggestion that the emission limit for Coronado Unit 1 should be rounded up to provide an additional compliance margin. We note that the UPL methodology used by EPA for MACT standard development does not include rounding up to the next highest reasonable interval as suggested by RMB. Given the conservative nature of the assumptions in the S&L analysis, we do not consider additional compliance margin appropriate in this instance.
Accordingly, in evaluating an appropriate limit for Coronado Unit 1, we have relied primarily upon the information provided in the S&L analysis. This analysis found that an emission rate of 0.065 lb/MMBtu would be appropriate for a scenario consisting of low-load cycling operations (with steam reheat) and three cold startups within a 30-day period. As described above, we consider this to be a reasonable estimate of SCR performance for Coronado Unit 1. We are are therefore proposing a limit of 0.065 lb/MMBtu on a rolling 30-BOD basis.
SRP also provided documentation in its April 28, 2014 letter of Unit 2 design parameters and indicated that it is proceeding with the installation of a low-load temperature-control system (
In our final rule published on December 5, 2012, establishing the NO
The information subsequently provided by SRP supports the assertion that the emission limit in the Consent Decree of 0.080 lb/MMBtu represents BART for this unit. In particular, the fact that SRP has already installed a low-load temperature-control system at this unit in order to meet the 0.080 lb/MMBtu limit suggests that a lower limit would not be achievable on a 30-BOD basis. As a result, we propose to set a unit-specific NO
In addition, we propose to revise the work practice standard at 40 CFR 52.145(f)(10) to require the operation of the SCR at all times that Unit 2 is in operation, consistent with technological
The Arizona RH FIP incorporates by reference certain provisions of the Arizona Administrative Code that establish an affirmative defense for excess emissions due to malfunctions.
The CAA requires that any revision to an implementation plan shall not be approved by the Administrator if the revision would interfere with any applicable requirement concerning attainment, reasonable further progress, or any other applicable requirement of the CAA.
EPA has promulgated health-based standards, known as the national ambient air quality standards (NAAQS), for seven pollutants, including NO
The other requirements of the CAA that are applicable to Coronado are:
• Standards of Performance for New Stationary Sources, 40 CFR part 60, subpart D;
• National Emission Standards for Hazardous Air Pollutants, 40 CFR part 63, subpart UUUUU;
• Compliance Assurance Monitoring, 40 CFR part 64;
• BART and other visibility protection requirements under CAA sections 110(a)(2)(J) and 169A and 40 CFR part 51, subpart P; and
• Interstate transport visibility requirements under CAA section 110(a)(2)(D)(i)(II).
Today's proposed revisions would not affect the applicable requirements of the National Emission Standards for Hazardous Air Pollutants, Standards of Performance for New Stationary Sources, or Compliance Assurance Monitoring requirements. Therefore, we propose to find that these revisions would not interfere with these requirements.
The proposed revisions would alter the specific emission limits that constitute BART for NO
With respect to the CAA's reasonable progress requirements under CAA section 110(a)(2)(J) and 169A, we note that in a September 3, 2014, final rule, we set reasonable progress goals (RPGs) for Arizona that accounted for the emission reductions projected to result from implementation of BART at Coronado (among other sources).
Finally, CAA section 110(a)(2)(D)(i)(II) requires that all SIPs contain adequate provisions to prohibit emissions that will interfere with other states' required measures to protect visibility. In our final rule of September 3, 2014, we determined that control measures in the Arizona RH SIP and FIP were sufficient to fulfill this requirement for the 1997 8-hour ozone, 1997 PM
EPA is proposing to revise the Arizona RH FIP to replace a plant-wide BART compliance method and emission limit for NO
This action is not a significant regulatory action and was therefore not submitted to the Office of Management and Budget (OMB) for review. This rule applies to only two facilities and is therefore not a rule of general applicability.
This action does not impose an information collection burden under the provisions of the Paperwork Reduction Act, 44 U.S.C. 3501
I certify that this proposed action will not have a significant economic impact on a substantial number of small entities. This action will not impose any requirements on small entities. Firms primarily engaged in the generation, transmission, and/or distribution of electric energy for sale are small if, including affiliates, the total electric output for the preceding fiscal year did not exceed 4 million megawatt hours. Each of the owners of facilities affected
This action does not contain an unfunded mandate of $100 million or more as described in UMRA, 2 U.S.C. 1531-1538, and does not significantly or uniquely affect small governments.
This action does not have federalism implications. It 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.
This action does not have tribal implications, as specified in Executive Order 13175. It will not have substantial direct effects on any 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. Thus, Executive Order 13175 does not apply to this action.
EPA interprets EO 13045 as applying only to those regulatory actions that concern health or safety risks that EPA has reason to believe may disproportionately affect children, per the definition of “covered regulatory action” in section 2-202 of the Executive Order. This action is not subject to Executive Order 13045 because it does not concern an environmental health risk or safety risk.
This action is not subject to Executive Order 13211 because it is not a significant regulatory action under Executive Order 12866.
This rulemaking does not involve technical standards. EPA is not proposing to revise any technical standards or impose any new technical standards in this action.
EPA believes the human health or environmental risk addressed by this action will not have potential disproportionately high and adverse human health or environmental effects on minority, low-income or indigenous populations. We expect that Coronado will install the same control technology in order to meet the revised emission limits as would have been necessary to meet the previously finalized limits. As shown in Tables 4 and 5 above, the difference in NO
Pursuant to CAA section 307(d)(1)(B), EPA proposes to determine that this action is subject to the requirements of CAA section 307(d), as it revises a FIP under CAA section 110(c).
Environmental protection, Air pollution control, Incorporation by reference, Nitrogen oxides, Reporting and recordkeeping requirements, Visibility.
42 U.S.C. 7401
Part 52, chapter I, title 40 of the Code of Federal Regulations is proposed to be amended as follows:
42 U.S.C. 7401
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(3) * * *
(i)
(5) * * *
(ii) * * *
(A)
(B)
(10)
(ii)
Environmental Protection Agency (EPA).
Notice of a public meeting.
The U.S. Environmental Protection Agency (EPA) announces a public meeting and webinar to obtain input on potential revisions to regulations for the Prohibition on Use of Lead Pipes, Solder and Flux. The Safe Drinking Water Act (SDWA) prohibits the use or introduction into commerce of pipes, pipe or plumbing fittings or fixtures, solder and flux that are not lead free. These revisions are necessary due to SDWA amendments enacted by Congress in the Reduction of Lead in Drinking Water Act of 2011 and the Community Fire Safety Act of 2013.
The public meeting will be held on April 14, 2015 (1 p.m. to 4:30 p.m., eastern time). This meeting will also be simultaneously broadcast as a webinar, available on the Internet. Persons wishing to participate in the meeting or webinar must pre-register by April 7, 2015, as described in the
More information is available at the following EPA Web site:
To participate in the webinar, you must pre-register by April 7, 2015, at
Environmental Protection Agency (EPA).
Proposed rule.
Michigan has applied to EPA for final authorization of the revisions to its hazardous waste program under the Resource Conservation and Recovery Act (RCRA). EPA has reviewed Michigan's application with regards to federal requirements and is proposing to authorize the State's program revisions.
Comments on this proposed rule must be received on or before June 1, 2015.
Submit your comments, identified by Docket ID No. EPA-R05-RCRA-2014-0689, by one of the following methods:
Judith Greenberg, Michigan Regulatory Specialist, RCRA/TSCA Programs Section, RCRA Branch, Land and Chemicals Division, U.S. Environmental Protection Agency, Region 5, 77 West Jackson Boulevard, LR-8J, Chicago, Illinois 60604. Judith Greenberg can be reached by telephone at (312) 886-4179 or via email at
States which have received final authorization from EPA under RCRA section 3006(b), 42 U.S.C. 6926(b), must maintain a hazardous waste program that is equivalent to, consistent with, and no less stringent than the federal program. As the federal program changes, states must change their programs and request EPA to authorize the changes. Changes to state programs may be necessary when federal or state statutory or regulatory authority is modified or when certain other changes occur. Most commonly, states must change their programs because of changes to EPA's regulations in 40 Code of Federal Regulations (CFR) parts 124, 260 through 266, 268, 270, 273 and 279.
We have made a tentative decision that Michigan's application to revise its authorized program meets all of the statutory and regulatory requirements established by RCRA. Therefore, we propose to grant Michigan final authorization to operate its hazardous waste program with the revisions described in the authorization application. Michigan will have responsibility for permitting treatment, storage, and disposal facilities (TSDFs) within its borders (except in Indian Country) and for carrying out the aspects of the RCRA program described in its program revision application, subject to the limitations of the Hazardous and Solid Waste Amendments of 1984 (HSWA). New federal requirements and prohibitions imposed by federal regulations that EPA promulgates under the authority of HSWA take effect in authorized states before they are authorized for the requirements. Thus, EPA will implement those requirements and prohibitions in Michigan, including issuing permits, until the State is granted authorization to do so.
The effect of this tentative decision, once finalized, is that a facility in Michigan subject to RCRA would have to comply with the authorized state requirements instead of the equivalent federal requirements in order to comply with RCRA. Michigan has enforcement responsibilities under its state hazardous waste program for violations of such program, but EPA retains its authority under RCRA sections 3007, 3008, 3013, and 7003, which include among others, authority to:
1. Perform inspections, and require monitoring, tests, analyses or reports;
2. Enforce RCRA requirements and suspend or revoke permits; and
3. Take enforcement actions regardless of whether the State has taken its own actions.
This action will not impose additional requirements on the regulated community because the regulations for which Michigan will be authorized are already effective, and will not be changed by EPA's final action.
If EPA receives adverse comments on this authorization, we will address all public comments in a later
Michigan initially received final authorization on October 16, 1986, effective October 30, 1986 (51 FR 36804-36805), to implement the RCRA hazardous waste management program. We granted authorization for changes to Michigan's program on November 24, 1989, effective January 23, 1990 (54 FR 48608); on January 24, 1991, effective June 24, 1991 (56 FR 18517); on October 1, 1993, effective November 30, 1993 (58 FR 51244); on January 13, 1995, effective January 13, 1995 (60 FR 3095); on February 8, 1996, effective April 8, 1996 (61 FR 4742); on November 14, 1997, effective November 14, 1997 (62 FR 61775); on March 2, 1999, effective June 1, 1999 (64 FR 10111); on July 31, 2002, effective July 31, 2002 (67 FR 49617); on March 9, 2006, effective March 9, 2006 (71 FR 12141); on January 7, 2008 (73 FR 1077), effective January 7, 2008; and on March 2, 2010, effective March 2, 2010 (75 FR 9345).
On June 9, 2014, Michigan submitted its final application seeking authorization of hazardous waste program revisions in accordance with 40 CFR 271.21. We have determined, subject to receipt of written comments that oppose this action, that Michigan's program revisions satisfy all of the requirements necessary to qualify for final authorization. Therefore, we propose to grant Michigan final authorization for the following program changes:
The most significant differences between the state rules we are proposing to authorize and federal rules are summarized below. It should be noted that this summary does not describe every difference or every detail regarding the differences that are described. Members of the regulated community are advised to read the complete rules to ensure that they understand the requirements with which they will need to comply.
There are aspects of the Michigan program which are more stringent than the federal program. All of these more stringent requirements are or will become part of the federally enforceable RCRA program when authorized by the EPA, and must be complied with in addition to the state requirements which track the minimum federal requirements. These more stringent requirements are found at (references are to the Michigan Administrative Code):
Michigan does not allow containment buildings, making the state requirements more stringent than the federal requirements at 40 CFR 262.10(f), (k)(1) and (k); 262.11(d); 262.41(b); 263.12; 40 CFR part 264 subpart DD; 40 CFR 265 subpart DD; and 40 CFR part 264 appendix I, Tables 1 and 2.
Michigan's rules at R 299.9220 are more stringent than the federal analog at 40 CFR 261.31 since the State's listing of F019 includes recordkeeping requirements as a condition of the exemption of wastewater treatment sludge generated from zinc phosphating, when zinc phosphating is used in the automobile assembly process, while the federal analog at 40 CFR 261.31 has separate recordkeeping requirements for generators claiming the exemption, rather than having the recordkeeping requirements as a condition of the exemption.
Michigan's rules at R 299.9601(1), (2), (2)(b), (c), (d), (e), (f), (g), (h) and (i); R 299.9608(1), (6) and (8); R 299.9615; and R 299.9702(1) are more stringent than the federal analogs at 40 CFR 265.56(b), 265.71, 265.72, 265.142(a), 265.174, 265.190(a), 265.193, 265.194, 265.197, 265.201, and 265.340(b)(1) since the State rules include provisions that require compliance with standards equivalent to 40 CFR part 264 rather than 40 CFR part 265.
Michigan's rules at R 299.9601(2)(a) and R 299.9602 are more stringent since the rules impose requirements regarding environmental and human health standards generally.
Michigan's rules at R 299.9615(4) are more stringent since the State rules require tank systems to comply with Michigan 1941 Act 207 standards (which govern above-ground storage tanks).
Michigan's rules at R 299.9623(9) are more stringent since the State rules require incinerators to comply with Michigan Part 55 standards (which address air pollution).
Michigan's rules at R 299.9629(7)-(7)(c) are more stringent since the State rules require timely notification of an exceedance of a groundwater surface water interface standard based on acute toxicity and established pursuant to part 201 and part 31 of act 451 and implementation of interim measures to prevent exceedance at the monitoring wells along with a proposal and schedule for completing corrective action to prevent a discharge that exceeds the standard.
Michigan's rules at R 299.11002(1) and (2) are more stringent than the federal analogs at 40 CFR 260.11(d) and (d)(1) since the State adopts updated versions of the “Flammable and Combustible Liquids Code.”
There are also aspects of Michigan's revised program which are broader in scope than the federal program. State provisions that EPA determines are broader in scope are not part of the federally authorized program and are not federally enforceable. Michigan's program revisions include the following rules that are broader in scope than the federal program (references are to the Michigan Administrative Code):
R 299.9226, R 299.9501(3)(d) (second sentence only) and R 299.9507, as amended effective November 5, 2013.
The following Michigan administrative rules that were broader in scope than the federal program were rescinded effective November 5, 2013 (references are to the Michigan Administrative Code):
R 299.9221 (Table 203b), R 299.9223 (Table 204b), R 299.9904, R 299.9905, R 299.9906, and R 299.11101, R 299.11102, R 299.11103, R 299.11104, R 299.11105, R 299.11106, and R 299.11107.
Michigan will issue permits for all the provisions for which it is authorized and will administer the permits it issues. EPA will continue to administer any RCRA hazardous waste permits or portions of permits which EPA issued prior to the effective date of the proposed authorization until they expire or are terminated. We will not issue any more new permits or new portions of permits for the provisions listed in the Table above after the effective date of the authorization. EPA will continue to implement and issue permits for HSWA requirements for which Michigan is not yet authorized.
Michigan is not authorized to carry out its hazardous waste program in Indian Country within the State, as defined in 18 U.S.C. 1151. This includes:
1. All lands within the exterior boundaries of Indian reservations within the State of Michigan;
2. Any land held in trust by the U.S. for an Indian tribe; and
3. Any other land, whether on or off an Indian reservation that qualifies as Indian Country.
Therefore, authorizing Michigan for these revisions would not affect Indian Country in Michigan. EPA would continue to implement and administer the RCRA program in Indian Country. It is EPA's long-standing position that the term “Indian lands” used in past Michigan hazardous waste approvals is synonymous with the term “Indian Country.”
Codification is the process of placing a state's statutes and regulations that comprise a state's authorized hazardous waste program into the Code of Federal Regulations. We do this by referencing the authorized state rules in 40 CFR part 272. Michigan's rules, up to and including those revised October 19, 1991, have previously been codified through incorporation-by-reference effective April 24, 1989 (54 FR 7421, February 21, 1989); as amended effective March 31, 1992 (57 FR 3724, January 31, 1992). We reserve the amendment of 40 CFR part 272, subpart X, for the codification of Michigan's program changes until a later date.
This proposed rule only authorizes hazardous waste requirements pursuant to RCRA 3006 and imposes no requirements other than those imposed by state law (see
The Office of Management and Budget has exempted this rule from its review under Executive Orders 12866 (58 FR 51735, October 4, 1993) and Executive Order 13563 (76 FR 3821 January 21, 2011).
This rule does not impose an information collection burden under the provisions of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501
This rule authorizes state requirements for the purpose of RCRA 3006 and imposes no additional requirements beyond those required by state law. Accordingly, I certify that this rule will not have a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601
Because this rule approves pre-existing requirements under state law and does not impose any additional enforceable duty beyond that required by state law, it does not contain any unfunded mandate or significantly or uniquely affect small governments, as described in the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4).
Executive Order 13132 (64 FR 43255, August 10, 1999) does not apply to this rule because it will not have federalism implications (
Executive Order 13175 (65 FR 67249, November 9, 2000) does not apply to this rule because it will not have tribal implications (
This rule is not subject to Executive Order 13045 (62 FR 19885, April 23, 1997), because it is not economically significant as defined in Executive Order 12866 and because the EPA does not have reason to believe the environmental health or safety risks addressed by this action present a disproportionate risk to children.
This rule is not subject to Executive Order 13211 (66 FR 28355, May 22, 2001), because it is not a significant regulatory action as defined in Executive Order 12866.
EPA approves state programs as long as they meet criteria required by RCRA, so it would be inconsistent with applicable law for EPA, in its review of a state program, to require the use of any particular voluntary consensus standard in place of another standard that meets the requirements of RCRA. Thus, the requirements of section 12(d) of the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) do not apply to this rule.
As required by Section 3 of Executive Order 12988 (61 FR 4729, February 7, 1996), in issuing this rule, EPA has taken the necessary steps to eliminate drafting errors and ambiguity, minimize potential litigation, and provide a clear legal standard for affected conduct.
EPA has complied with Executive Order 12630 (53 FR 8859, March 18, 1988) by examining the takings implications of the rule in accordance with the Attorney General's Supplemental Guidelines for the Evaluation of Risk and Avoidance of Unanticipated Takings issued under the executive order.
Because this rule proposes authorization of pre-existing state rules and imposes no additional requirements beyond those imposed by state law and there are no anticipated significant adverse human health or environmental effects, the rule is not subject to Executive Order 12898 (59 FR 7629, February 16, 1994).
Environmental protection; Administrative practice and procedure; Confidential business information; Hazardous materials transportation; Hazardous waste; Indians-lands; Intergovernmental relations; Penalties; Reporting, and recordkeeping requirements.
This action is issued under the authority of Sections 2002(a), 3006 and 7004(b) of the Solid Waste Disposal Act, as amended, 42 U.S.C. 6912(a), 6926, 6974(b).
National Institute of Food and Agriculture, USDA.
Notice and request for comments.
In accordance with the Paperwork Reduction Act of 1995 and Office of Management and Budget (OMB) regulations, that implement the Paperwork Reduction Act of 1995, this notice announces the National Institute of Food and Agriculture's (NIFA) intention to request approval to establish a new information collection for the Small Business Innovation Research (SBIR) Program.
Written comments on this notice must be received by June 4, 2015, to be assured of consideration. Comments received after that date will be considered to the extent practicable.
Written comments may be submitted by any of the following methods:
Robert Martin, Records Officer; Email:
The USDA SBIR Program Office proposes to contact Phase II awardees to determine their success in achieving commercial application of a market ready technology that was funded under the USDA SBIR Program. The survey would collect information from Phase II companies that received funding during the years of 1994 to 2014.
Data from the survey will be used to provide information that currently does not exist. The data will be used internally by the USDA SBIR Office to identify past and current activities of Phase II grantees in the areas of technology development, commercialization success, product development or services, and factors that may have prevented the technology from entering into the market place. Depending on the results of the survey, information from the survey will be used to highlight commercialization successes within the small business community; improve and refine program interactions with, and responsiveness to, the small business community; potentially refocus the strategies that are used to accomplish SBIR objectives for commercialization; and identify areas in need of improvement and enhancement. This survey will not be used to formulate or change policies. Rather, it will be used to enable the USDA SBIR Office to be responsive to its constituents and document successes within the USDA SBIR Program.
The objectives of the SBIR Program are to: Stimulate technological innovations in the private sector; strengthen the role of small businesses in meeting Federal research and development needs; increase private sector commercialization of innovations derived from USDA-supported research and development efforts; and foster and encourage participation by women-owned and socially and economically disadvantaged small business firms in technological innovations.
The USDA SBIR program is carried out in three separate phases:
1. Phase I awards to determine, insofar as possible, the scientific and technical merit and feasibility of ideas that appear to have commercial potential.
2. Phase II awards to further develop work from Phase I that meets particular program needs and exhibits potential for commercial application.
3. Phase III awards where commercial applications of SBIR-funded Research/Research and Development (R/R&D) are funded by non-Federal sources of capital; or where products, services or further research intended for use by the Federal Government are funded by follow-on non-SBIR Federal Funding Agreements.
The USDA SBIR Program is administered by NIFA of the USDA. NIFA exercises overall oversight for the policies and procedures governing SBIR grants awarded to the U.S. small business community, representing approximately 2.5% to 2.8% of the USDA extramural R/R&D budget. This represents approximately $201M in Phase II grants awarded to the U.S. small business community from 1994 to 2014.
A total of 499 USDA SBIR Phase II grants were awarded to small businesses between 1994 and 2014, and the USDA SBIR Program plans to contact past Phase II awardees to determine their success in achieving commercial application of a market ready technology under Phase III.
The survey will be administered through a USDA led contract where a contractor will perform an initial web based survey administered through a secure Internet link with a telephone interview and/or in person interview as a follow-up with SBIR Phase II grantees. Both the web based survey and telephone/in person interviews will consist of a series of questions that relate to the commercial status of the technology developed with USDA SBIR Phase II funding as well as general questions regarding the USDA SBIR Program. The USDA SBIR Program office will coordinate the initial contact with the Phase II companies in an effort to introduce the scope of the survey, provide straightforward instructions and facilitate the survey work that the contractor will initiate and complete. Phase II companies that do not respond within two weeks to the initial contact from the USDA SBIR Program Office will be sent a second request by email
All responses to this notice will be summarized and included in the request to OMB for approval. All comments will become a matter of public record.
Food and Nutrition Service, USDA.
Notice.
This notice announces the Department's annual adjustments to the Income Eligibility Guidelines to be used in determining eligibility for free and reduced price meals and free milk for the period from July 1, 2015 through June 30, 2016. These guidelines are used by schools, institutions, and facilities participating in the National School Lunch Program (and Commodity School Program), School Breakfast Program, Special Milk Program for Children, Child and Adult Care Food Program, and Summer Food Service Program. The annual adjustments are required by section 9 of the Richard B. Russell National School Lunch Act. The guidelines are intended to direct benefits to those children most in need and are revised annually to account for changes in the Consumer Price Index.
Vivian Lees, Branch Chief, Operational Support Branch, Child Nutrition Programs, Food and Nutrition Service (FNS), USDA, Alexandria, Virginia 22302, or by phone at (703) 305-2322.
This action is not a rule as defined by the Regulatory Flexibility Act (5 U.S.C. 601-612) and thus is exempt from the provisions of that Act.
In accordance with the Paperwork Reduction Act of 1995 (44 U.S.C. 3507), no recordkeeping or reporting requirements have been included that are subject to approval from the Office of Management and Budget.
This notice has been determined to be not significant and was reviewed by the Office of Management and Budget in conformance with Executive Order 12866.
The affected programs are listed in the Catalog of Federal Domestic Assistance under No. 10.553, No. 10.555, No. 10.556, No. 10.558 and No. 10.559 and are subject to the provisions of Executive Order 12372, which requires intergovernmental consultation with State and local officials. (See 2 CFR 415.3-415.6).
Pursuant to sections 9(b)(1) and 17(c)(4) of the Richard B. Russell National School Lunch Act (42 U.S.C. 1758(b)(1) and 42 U.S.C. 1766(c)(4)), and sections 3(a)(6) and 4(e)(1)(A) of the Child Nutrition Act of 1966 (42 U.S.C. 1772(a)(6) and 1773(e)(1)(A)), the Department annually issues the Income Eligibility Guidelines for free and reduced price meals for the National School Lunch Program (7 CFR part 210), the Commodity School Program (7 CFR part 210), School Breakfast Program (7 CFR part 220), Summer Food Service Program (7 CFR part 225) and Child and Adult Care Food Program (7 CFR part 226) and the guidelines for free milk in the Special Milk Program for Children (7 CFR part 215). These eligibility guidelines are based on the Federal income poverty guidelines and are stated by household size. The guidelines are used to determine eligibility for free and reduced price meals and free milk in accordance with applicable program rules.
In accordance with the Department's policy as provided in the Food and Nutrition Service publication
“Income,” as the term is used in this notice, does
The following are the Income Eligibility Guidelines to be effective from July 1, 2015 through June 30, 2016. The Department's guidelines for free meals and milk and reduced price meals were obtained by multiplying the year 2015 Federal income poverty guidelines by 1.30 and 1.85, respectively, and by rounding the result upward to the next whole dollar.
This notice displays only the annual Federal poverty guidelines issued by the Department of Health and Human Services because the monthly and weekly Federal poverty guidelines are not used to determine the Income Eligibility Guidelines. The chart details the free and reduced price eligibility criteria for monthly income, income received twice monthly (24 payments per year), income received every two weeks (26 payments per year) and weekly income.
Income calculations are made based on the following formulas: Monthly income is calculated by dividing the annual income by 12; twice monthly income is computed by dividing annual income by 24; income received every two weeks is calculated by dividing annual income by 26; and weekly income is computed by dividing annual income by 52. All numbers are rounded upward to the next whole dollar. The numbers reflected in this notice for a family of four in the 48 contiguous States, the District of Columbia, Guam and the territories represent an increase of 1.7 percent over last year's level for a family of the same size. The income eligibility guidelines table follows below.
Section 9(b)(1) of the Richard B. Russell National School Lunch Act (42 U.S.C. 1758(b)(1).
Food and Nutrition Service (FNS), USDA.
Notice
The U.S. Department of Agriculture (“Department”) announces adjusted income eligibility guidelines to be used by State agencies in determining the income eligibility of persons applying to participate in the Special Supplemental Nutrition Program for Women, Infants and Children Program (WIC). These income eligibility guidelines are to be used in conjunction with the WIC Regulations.
Effective Date July 1, 2015.
Donna Hines, Chief, Policy Branch, Supplemental Food Programs Division, FNS, USDA, 3101 Park Center Drive, Alexandria, Virginia 22302, (703) 305-2746.
This notice is exempt from review by the Office of Management and Budget under Executive Order 12866.
This action is not a rule as defined by the Regulatory Flexibility Act (5 U.S.C. 601-612) and thus is exempt from the provisions of this Act.
This notice does not contain reporting or recordkeeping requirements subject to approval by the Office of Management and Budget in accordance with the Paperwork Reduction Act of 1995 (44 U.S.C. 3507).
This program is listed in the Catalog of Federal Domestic Assistance Programs under No. 10.557, and is subject to the provisions of Executive Order 12372, which requires intergovernmental consultation with State and local officials (7 CFR part 3015, subpart V, 48 FR 29100, June 24, 1983, and 49 FR 22675, May 31, 1984).
Section 17(d)(2)(A) of the Child Nutrition Act of 1966, as amended (42 U.S.C. 1786(d)(2)(A)), requires the Secretary of Agriculture to establish income criteria to be used with nutritional risk criteria in determining a person's eligibility for participation in the WIC Program. The law provides that persons will be income-eligible for the WIC Program only if they are members of families that satisfy the income standard prescribed for reduced-price school meals under section 9(b) of the Richard B. Russell National School Lunch Act (42 U.S.C. 1758(b)). Under section 9(b), the income limit for reduced-price school meals is 185 percent of the Federal poverty guidelines, as adjusted. Section 9(b) also requires that these guidelines be revised annually to reflect changes in the Consumer Price Index. The annual revision for 2015/2016 was published by the Department of Health and Human Services (HHS) at 80 FR 3236, January 22, 2015. The guidelines published by HHS are referred to as the “poverty guidelines.”
Section 246.7(d)(1) of the WIC regulations (Title 7, Code of Federal Regulations) specifies that State agencies may prescribe income guidelines either equaling the income guidelines established under section 9 of the Richard B. Russell National School Lunch Act for reduced-price school meals, or identical to State or local guidelines for free or reduced-price health care. However, in conforming WIC income guidelines to State or local health care guidelines, the State cannot establish WIC guidelines which exceed the guidelines for reduced-price school meals, or which are less than 100 percent of the Federal poverty guidelines. Consistent with the method used to compute income eligibility guidelines for reduced-price meals under the National School Lunch Program, the poverty guidelines were multiplied by 1.85 and the results rounded upward to the next whole dollar. At this time, the Department is publishing the maximum and minimum WIC income eligibility guidelines by household size for the period July 1, 2015, through June 30, 2016. Consistent with section 17(f)(17) of the Child Nutrition Act of 1966, as amended (42 U.S.C. 1786(f)(17)), a State agency may implement the revised WIC income eligibility guidelines concurrently with the implementation of income eligibility guidelines under the Medicaid Program established under Title XIX of the Social Security Act (42 U.S.C. 1396,
State agencies that do not coordinate implementation with the revised Medicaid guidelines must implement the WIC income eligibility guidelines on July 1, 2015. The first table of this Notice contains the income limits by household size for the 48 contiguous States, the District of Columbia, and all Territories, including Guam.
Because the poverty guidelines for Alaska and Hawaii are higher than for the 48 contiguous States, separate tables for Alaska and Hawaii have been included for the convenience of the State agencies.
42 U.S.C. 1786.
Food and Nutrition Service (FNS), USDA.
Notice.
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 is a revision of a currently approved collection for the development and maintenance of a central repository containing information about authorized WIC foods as approved by various WIC State agencies.
Written comments must be received on or before June 1, 2015.
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
Comments may be sent to: Steve Porter, Food and Nutrition Service, U.S. Department of Agriculture, 3101 Park Center Drive, Room 528, Alexandria, VA 22302. Comments may also be submitted via fax to the attention of Steve Porter at 703-305-2196 or via email to
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.
Requests for additional information or copies of this information collection should be directed to Steve Porter at 703-305-2721.
The WIC Program is administered by the USDA Food and Nutrition Service (FNS). FNS provides grant funding and issues regulations which are utilized by WIC State agencies to operate the WIC Program and distribute benefits through local WIC clinics. The program operates throughout the 50 States, the District of Columbia, Guam, Puerto Rico, American Samoa, Commonwealth of the Northern Mariana Islands, the Virgin Islands, and in 34 Indian Tribal Organizations.
The USDA Food and Nutrition Service previously included WIC State agencies in burden calculations for the NUPC database. WIC State agencies have been removed from this burden calculation and will instead be included in the burden calculation associated with the final regulations for WIC Electronic Benefit Transfer promulgated as a result of The Healthy Hunger-Free Kids Act of 2010 (Pub. L. 111-296). The remainder of this abstract provides a brief description of WIC program operations and recent modifications to the NUPC database.
WIC State agencies are required to authorize eligible foods on their WIC food list by federal regulations at 7 CFR part 246. Under these regulations, State agencies must review food products for eligibility in accordance with Federal regulations and State agency policies. State agencies are not required to authorize all food products eligible under federal regulations, but generally select foods based on factors such as cost, availability and acceptability to participants. After review, the State agency develops a list of food items available to WIC participants for purchase. State agencies require Authorized Vendors (
WIC State agencies currently operating Electronic Benefit Transfer (EBT) systems provide their Authorized Vendors with an electronic file containing the State agency's current list of authorized foods. This food list is known as the Authorized Products List (APL). In State agencies where EBT systems are operational, as products are scanned at the checkout lane, the UPC or PLU is matched to the State specific APL. Food items matching the APL, and which are presented in quantities less than or equal to the remaining benefit balance associated with the participant's WIC EBT card, are approved for purchase. Unmatched items, or items in excess of the available account balance, may not be purchased with WIC benefits.
The Healthy, Hunger-Free Kids Act of 2010 directs the Secretary of Agriculture to establish a National Universal Product Code (NUPC) database for use by all WIC State agencies as they implement Electronic Benefit Transfer (EBT) statewide. As a result of this legislation, FNS has adopted a plan to expand the number of data elements contained in the existing NUPC database while simultaneously attempting to reduce the burden on WIC State agency employees tasked with creating State specific APL's by assembling food product information in an easily accessible repository.
NUPC database modifications and expansion activities have allowed for the storage and retrieval of additional data elements for each WIC authorized food to include: Nutrition facts panel, ingredients, special processing practices (
The NUPC database will provide all WIC State agencies with access to a central repository containing comprehensive information about authorized WIC foods. State agencies may choose to use the NUPC database to create an initial list of authorized foods eligible for redemption by WIC Program participants. Subsequently, State agencies may use the NUPC database to maintain their list of authorized foods and to create an APL for distribution to Authorized Vendors when operating in the EBT environment.
The estimated time per response varies by type of respondent. FNS expects all respondents will expend 12 hours per respondent per year to develop, maintain, and troubleshoot the electronic systems for use in transmitting information. The estimated time required to develop, maintain, and troubleshoot electronic systems is amortized over the expected number of responses. FNS also expects all respondents will expend 2 seconds per response to transmit information to FNS electronically. Since the time required to actually transmit the information to FNS is considered negligible (total of 40 minutes per year for all respondents), it was omitted from the burden calculation. FNS expects that Food Manufacturers or Distributors will expend 6 hours per response to gather and format the requested information. Authorized Vendors are expected to expend 1 hour per response to gather and format the requested information.The estimated time per response for Food Manufacturers or Distributors is expected to be 9 hours per response ((12 hours per year/4 responses per year) + 6 hours per response = 9 hours per response).
The estimated time per response for Authorized Vendors is expected to be 7 hours per response ((12 hours per year/2 responses per year) + 1 hour per response = 7 hours per response).
U.S. Commission on Civil Rights.
Notice of meeting; correction.
The U.S. Commission on Civil Rights published a document in the
David Mussatt, 312-353-8311.
In the
Notice is hereby given, pursuant to the provisions of the rules and regulations of the U.S. Commission on Civil Rights (Commission) and the Federal Advisory Committee Act that the Missouri Advisory Committee (Committee) will hold a meeting on Wednesday, April 1, 2015, at 2:00 p.m. until 3:00 p.m. CST.
In the
The meeting will be held on Wednesday, April 1, 2015, at 2:00 p.m. CST.
Notice is hereby given, pursuant to the provisions of the rules and regulations of the U.S. Commission on Civil Rights (Commission), and the Federal Advisory Committee Act (FACA), that a planning meeting of the New York Advisory Committee to the Commission will convene at 12:00 p.m. via conference call on Friday, April 10, 2015. The purpose of the planning meeting is for the Advisory Committee to discuss plans to conduct a public meeting on the over policing of communities of color in New York.
The meeting will be conducted via conference call. Persons with hearing impairments must first dial the Federal Relay Service
Members of the public who call-in can expect to incur charges for calls they initiate over wireless lines, and the Commission will not refund any incurred charges. Callers will incur no charge for calls they initiate over land-line connections to the toll-free telephone number.
Members of the public are entitled to submit written comments. The comments must be received in ERO by 30 days after the meeting date. Comments may be mailed to the Eastern Regional Office, U.S. Commission on Civil Rights, 1331 Pennsylvania Avenue, Suite 1150, Washington, DC 20425, faxed to (202) 376-7548, or emailed to Evelyn Bohor at
Records generated from this meeting may be inspected and reproduced at the Eastern Regional Office, as they become available, both before and after the meeting. Persons interested in the work of this advisory committee are advised to go to the Commission's Web site,
The meeting will be conducted pursuant to the provisions of the rules and regulations of the Commission and FACA.
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Notice; public meeting.
The New England Fishery Management Council's (Council) Observer Policy Committee will meet to review scientific information affecting New England fisheries in the exclusive economic zone (EEZ).
The meeting will be held on Thursday, April 16, 2015 beginning at 9:30 a.m.
The meeting will be held at the Four Points by Sheraton (formerly Sheraton Colonial), One Audubon Ave., Wakefield, MA 01880.
Thomas A. Nies, Executive Director, New England Fishery Management Council; telephone: (978) 465-0492.
The Observer Committee will review and discuss updated information and analyses for the draft Environmental Assessment for the NMFS-led omnibus amendment to establish provisions for Industry-Funded Monitoring (IFM) across all Council-managed fisheries; consider additional options for industry-funded portside sampling and electronic monitoring (EM) in the Atlantic herring fishery, to be implemented immediately in the IFM amendment (versus a framework adjustment); develop Committee recommendations; review/discuss updated information related to herring/mackerel economic analysis in omnibus IFM amendment; discuss other elements of IFM amendment and develop Committee recommendations; review Draft Action Plan and timeline for completion of IFM amendment. They will address other business as necessary.
Although non-emergency issues not contained in this agenda may be discussed, those issues may not be the subject of formal action during this meeting. Action will be restricted to those issues specifically identified in this notice and any issues arising after publication of this notice 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 Council's intent to take final action to address the emergency.
This meeting is physically accessible to people with disabilities. Requests for sign language interpretation or other auxiliary aids should be directed to Thomas A. Nies (see
16 U.S.C. 1801
International Trade Administration, Department of Commerce.
Notice.
On March 16, 2015, the Department of Commerce (“the Department”) published a
Applications for immediate consideration should be received no later than close of business April 13, 2015. Applications will continue to be accepted until June 30, 2016, for appointments to fill future vacancies that may arise.
Please send requests for consideration to Braeden Young, Office of Latin America and the Caribbean, U.S. Department of Commerce, either by email at
Braeden Young, Office of Latin America and the Caribbean, U.S. Department of Commerce, telephone: (202) 482-1093.
For more information on the United States-Brazil CEO Forum, please see the Request for Applicants. The Terms of Reference may be viewed at:
As delineated in the Request for Applicants, to be considered for membership, please submit the following information as instructed in the
National Oceanic and Atmospheric Administration (NOAA), Commerce.
Notice.
The Department of Commerce, as part of its continuing effort to reduce paperwork and respondent burden, invites the general public and other Federal agencies to take this opportunity to comment on proposed and/or continuing information collections, as required by the Paperwork Reduction Act of 1995.
Written comments must be submitted on or before June 1, 2015.
Direct all written comments to Jennifer Jessup, Departmental Paperwork Clearance Officer, Department of Commerce, Room 6616, 14th and Constitution Avenue NW., Washington, DC 20230 (or via the Internet at
Requests for additional information or copies of the information collection instrument and instructions should be directed to Walter Ikehara, (808) 725-5175 or
This request is for extension of a currently approved information collection.
Fishermen in Federally-managed fisheries in the western Pacific region are required to provide certain information about their fishing activities, catch, and interactions with protected species by submitting reports to National Marine Fisheries Service (NMFS), per 50 CFR part 665. These data are needed to determine the condition of the stocks and whether the current management measures are having the intended effects, to evaluate the benefits and costs of changes in management measures, and to monitor and respond to accidental takes of endangered and threatened species, including seabirds, sea turtles, and marine mammals.
Respondents have a choice of either electronic or paper forms. Methods of submittal include email of electronic forms, submission via Vessel Monitoring System device or online, and mail and facsimile transmission of paper forms.
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 (including hours and cost) of the proposed collection of information; (c) ways to enhance the quality, utility, and clarity of the information to be collected; and (d) ways to minimize the burden of the collection of information on respondents, including through the use of automated collection techniques or other forms of information technology.
Comments submitted in response to this notice will be summarized and/or included in the request for OMB approval of this information collection; they also will become a matter of public record.
Xylem Water Systems USA LLC (Xylem), operator of Subzone 37D, submitted a notification of proposed production activity to the FTZ Board for its facilities located in Auburn, New York. The notification conforming to the requirements of the regulations of the FTZ Board (15 CFR 400.22) was received on March 23, 2015.
Xylem already has authority to produce centrifugal and submersible pumps and related controllers. The current request would add a finished product (pump demonstration cutaways) and certain foreign-status materials and components to the scope of authority. Pursuant to 15 CFR 400.14(b), additional FTZ authority would be limited to the specific foreign-status materials and components and specific finished products described in the submitted notification (as described below) and subsequently authorized by the FTZ Board.
Production under FTZ procedures could exempt Xylem from customs duty payments on the foreign status components used in export production. On its domestic sales, Xylem would be able to choose the duty rates during customs entry procedures that apply to centrifugal and submersible pumps (free), pump demonstration cutaways (free), and controllers (1.5%) for the foreign status components and materials noted below and in the existing scope of authority.
Customs duties also could possibly be deferred or reduced on foreign status production equipment.
The components and materials sourced from abroad include: strainer parts; shaft coupling parts; cast iron bases; non-asbestos gaskets; plastic resins; electric current filtration devices; polyester rope; pressure transducers; and, fluid sight glasses (duty rate ranges from free to 6.5%).
Public comment is invited from interested parties. Submissions shall be addressed to the FTZ Board's Executive Secretary at the address below. The closing period for their receipt is May 11, 2015.
A copy of the notification will be available for public inspection at the Office of the Executive Secretary, Foreign-Trade Zones Board, Room
For further information, contact Pierre Duy at
National Oceanic and Atmospheric Administration (NOAA), Commerce.
Notice.
The Department of Commerce, as part of its continuing effort to reduce paperwork and respondent burden, invites the general public and other Federal agencies to take this opportunity to comment on proposed and/or continuing information collections, as required by the Paperwork Reduction Act of 1995.
Written comments must be submitted on or before June 1, 2015.
Direct all written comments to Jennifer Jessup, Departmental Paperwork Clearance Officer, Department of Commerce, Room 6616, 14th and Constitution Avenue NW., Washington, DC 20230 (or via the Internet at
Requests for additional information or copies of the information collection instrument and instructions should be directed to Andy Collins, at (808) 694-3922 or
This request is for extension of a currently approved information collection. Mokupapapa Discovery Center (Center) is an outreach arm of Papahanaumokuakea Marine National Monument that reaches 60,000 people each year in Hilo, Hawai`i. The Center was created eight years ago to help raise support for the creation of a National Marine Sanctuary in the Northwestern Hawaiian Islands. Since that time, the area has been proclaimed a Marine National Monument and the main messages we are trying to share with the public have changed to better reflect the new monument status, UNESCO World Heritage status and the joint management by the three co-trustees of the Monument. We therefore are seeking to find out if people visiting our Center are receiving our new messages by conducting an optional exit survey.
Surveys will be conducted by in-person interview as people exit the Center. Interviewers will record responses on paper, and later transfer them to an electronic database.
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 (including hours and cost) of the proposed collection of information; (c) ways to enhance the quality, utility, and clarity of the information to be collected; and (d) ways to minimize the burden of the collection of information on respondents, including through the use of automated collection techniques or other forms of information technology.
Comments submitted in response to this notice will be summarized and/or included in the request for OMB approval of this information collection; they also will become a matter of public record.
Enforcement and Compliance, International Trade Administration, Department of Commerce.
On September 24, 2014, the Department of Commerce (the Department) published the preliminary results of the administrative review of the antidumping duty order on large power transformers from the Republic of Korea.
Effective March 31, 2015.
Brian Davis (Hyosung) or David Cordell (Hyundai), AD/CVD Operations, Office VI, Enforcement and Compliance, International Trade Administration, U.S. Department of Commerce, 14th Street and Constitution Avenue NW., Washington, DC 20230; telephone: (202) 482-7924 or (202) 482-0408, respectively.
On September 24, 2014, the Department published the
The scope of this order covers large liquid dielectric power transformers (LPTs) having a top power handling capacity greater than or equal to 60,000 kilovolt amperes (60 megavolt amperes), whether assembled or unassembled, complete or incomplete. The merchandise subject to the order is currently classified in the Harmonized Tariff Schedule of the United States at subheadings 8504.23.0040, 8504.23.0080 and 8504.90.9540.
All issues raised in the case and rebuttal briefs by parties to this administrative review are addressed in the Issues and Decision Memorandum.
Based on a review of the record and comments received from interested parties regarding our
For Hyosung, we revised our margin program by adjusting Hyosung's reported U.S. duty expenses for certain sales transactions. We are also including U.S. freight expenses that were excluded in the
We made some changes to our calculation programs for Hyundai with respect to oil and certain other expenses. We also used the latest revised databases for U.S. sales and the Cost of Production based on post-preliminary questionnaires and responses.
As a result of the aforementioned recalculations of Hyosung's and Hyundai's weighted-average dumping margins, the weighted-average dumping margin for the three non-selected companies also changed.
As a result of this review, the Department determines the following weighted-average dumping margins
The Department shall determine and U.S. Customs and Border Protection (CBP) shall assess antidumping duties on all appropriate entries.
To determine whether the duty assessment rates covering the period were
The Department clarified its “automatic assessment” regulation on
We intend to issue assessment instructions directly to CBP 15 days after publication of the final results of this review.
The following cash deposit requirements will be effective upon publication of this notice for all shipments of subject merchandise entered, or withdrawn from warehouse, for consumption on or after the publication of these final results, as provided by section 751(a)(2) of the Act: (1) The cash deposit rate for respondents noted above will be the rate established in the final results of this administrative review; (2) for merchandise exported by manufacturers or exporters not covered in this administrative review but covered in a prior segment of the proceeding, the cash deposit rate will continue to be the company specific rate published for the most recently completed segment of this proceeding; (3) if the exporter is not a firm covered in this review, a prior review, or the original investigation, but the manufacturer is, the cash deposit rate will be the rate established for the most recently completed segment of this proceeding for the manufacturer of the subject merchandise; and (4) the cash deposit rate for all other manufacturers or exporters will continue to be 29.93 percent, the all-others rate established in the antidumping investigation.
This notice also serves as a final reminder to importers of their responsibility under 19 CFR 351.402(f) to file a certificate regarding the reimbursement of antidumping and/or countervailing duties prior to liquidation of the relevant entries during the POR. Failure to comply with this requirement could result in the Department's presumption that reimbursement of antidumping and/or countervailing duties occurred and the subsequent assessment of doubled antidumping duties.
This notice also serves as a reminder to parties subject to administrative protective orders (APO) of their responsibility concerning the return or destruction of proprietary information disclosed under APO in accordance with 19 CFR 351.305(a)(3), which continues to govern business proprietary information in this segment of the proceeding. 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 the terms of an APO is a sanctionable violation.
We are issuing and publishing this notice in accordance with sections 751(a)(1) and 777(i)(1) of the Act and 19 CFR 351.213(h).
Commodity Futures Trading Commission.
Notice.
In compliance with the Paperwork Reduction Act of 1995 (PRA), this notice announces that the Information Collection Request (ICR) abstracted below has been forwarded to the Office of Management and Budget (OMB) for review and comment. The ICR describes the nature of the information collection and its expected costs and burden.
Comments must be submitted on or before April 30, 2015.
Comments regarding the burden estimated or any other aspect of the information collection, including suggestions for reducing the burden, may be submitted directly to OMB within 30 days of the notice's publication by email at
•
•
•
•
All comments must be submitted in English, or if not, accompanied by an English translation. Comments will be posted as received to
The Commission reserves the right, but shall have no obligation, to review, pre-screen, filter, redact, refuse or remove any or all of your submission from
Eileen Chotiner, Division of Clearing and Risk, Commodity Futures Trading Commission, Three Lafayette Centre, 1155 21st Street NW., Washington, DC 20581; (202) 418-5467; email:
This is a request for extension of a currently approved information collection.
44 U.S.C. 3501
Corporation for National and Community Service.
Notice.
The Corporation for National and Community Service (CNCS) has submitted a public information collection request (ICR) entitled Senior Corps Foster Grand Parent pilot case study for review and approval in accordance with the Paperwork Reduction Act of 1995, Public Law 104-13, (44 U.S.C. Chapter 35). Copies of this ICR, with applicable supporting documentation, may be obtained by calling the Corporation for National and Community Service, Anthony Nerino, at (202) 606-3913 or email to
Comments may be submitted, identified by the title of the information collection activity, to the Office of Information and Regulatory Affairs, Attn: Ms. Sharon Mar, OMB Desk Officer for the Corporation for National and Community Service, by any of the following two methods within 30 days from the date of publication in the
(1) By fax to: (202) 395-6974, Attention: Ms. Sharon Mar, OMB Desk Officer for the Corporation for National and Community Service; or
(2) By email to:
The OMB is particularly interested in comments which:
• Evaluate whether the proposed collection of information is necessary for the proper performance of the functions of CNCS, 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;
• Propose ways to enhance the quality, utility, and clarity of the information to be collected; and
• Propose ways to minimize the burden of the collection of information on those who are to respond, including through the use of appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology.
A 60-day Notice requesting public comment was published in the
The case study instrument will involve interviews and focus groups
Interview and focus group data will be collected via taped and written responses to telephone conversations. Data analysis will focus on identifying and understanding factors associated the process (opportunity costs, benefits, obstacles and preparation) related to the decision to use a model approach to tutoring and educational interventions.
Institute of Education Sciences/National Center for Education Statistics (IES), Department of Education (ED).
Notice.
In accordance with the Paperwork Reduction Act of 1995 (44 U.S.C. 3501
Interested persons are invited to submit comments on or before June 1, 2015.
Comments submitted in response to this notice should be submitted electronically through the Federal eRulemaking Portal at
For specific questions related to collection activities, please contact Kashka Kubzdela, 202-502-7411.
The Department of Education (ED), in accordance with the Paperwork Reduction Act of 1995 (PRA) (44 U.S.C. 3506(c)(2)(A)), provides the general public and Federal agencies with an opportunity to comment on proposed, revised, and continuing collections of information. This helps the Department assess the impact of its information collection requirements and minimize the public's reporting burden. It also helps the public understand the Department's information collection requirements and provide the requested data in the desired format. ED is soliciting comments on the proposed information collection request (ICR) that is described below. The Department of Education 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.
Take notice that the Commission received the following electric rate filings:
Take notice that the Commission received the following electric reliability filings.
The filings are accessible in the Commission's eLibrary system by clicking on the links or querying the docket number.
Any person desiring to intervene or protest in any of the above proceedings must file in accordance with Rules 211 and 214 of the Commission's Regulations (18 CFR 385.211 and 385.214) 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:
Energy Efficiency and Renewable Energy, Department of Energy.
Notice of open meeting.
This notice announces a live Board meeting of the State Energy Advisory Board (STEAB). The Federal Advisory Committee Act (Pub. L. 92-463; 86 Stat.770) requires that public notice of these meetings be announced in the
April 28, 2015 9:00 a.m. to 5:30 p.m.; April 29, 2015 9:00 a.m. to 2:30 p.m.
Hilton Garden Inn Austin Downtown/Convention Center, 500 N Interstate 35, Austin, TX 78701
Monica Neukomm, Policy Advisor, Office of Energy Efficiency and Renewable Energy, U.S. Department of Energy, 1000 Independence Ave. SW., Washington, DC 20585. Phone number 202-287-5189, and email
Take notice that the Commission received the following electric corporate filings:
Take notice that the Commission received the following electric rate filings:
The filings are accessible in the Commission's eLibrary system by clicking on the links or querying the docket number.
Any person desiring to intervene or protest in any of the above proceedings must file in accordance with Rules 211 and 214 of the Commission's Regulations (18 CFR 385.211 and 385.214) 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:
Environmental Protection Agency (EPA).
Notice.
The U.S. Environmental Protection Agency (EPA) will be submitting renewals of information collection requests (ICRs) to the Office of Management and Budget (OMB) for review and approval in accordance with the Paperwork Reduction Act (PRA; 44 U.S.C. 3501
Comments must be submitted on or before June 1, 2015.
Submit your comments, referencing the Docket ID numbers provided for each ICR listed in the
EPA's policy is that all comments received will be included in the public docket without modifications 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.
Kevin Roland, Drinking Water Protection Division, Office of Ground Water and Drinking Water, (4606M), Environmental Protection Agency, 1200 Pennsylvania Ave., NW., Washington, DC 20460; telephone number: 202-564-4588; fax number: 202-564-3755; email address:
Supporting documents that explain in detail the information that the EPA will be collecting are available in the public dockets for these ICRs. The dockets can be viewed online at
Pursuant to section 3506(c)(2)(A) of the PRA, the EPA is soliciting comments and information to enable it to: (i) Evaluate whether the proposed collection of information is necessary for the proper performance of the functions of the Agency, including whether the information will have practical utility; (ii) 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; (iii) enhance the quality, utility and clarity of the information to be collected; and (iv) 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,
Environmental Protection Agency (EPA).
Notice.
The U.S. Environmental Protection Agency (EPA) will be submitting the “Information Collection Request Renewal for the Unregulated Contaminant Monitoring Rule (UCMR 3)” (EPA ICR No. 2192.06, OMB Control No. 2040-0270) to the Office of Management and Budget (OMB) for review and approval in accordance with the Paperwork Reduction Act (PRA; 44 U.S.C. 3501
Comments must be submitted on or before June 1, 2015.
Submit your comments, referencing Docket ID No. EPA-HQ-OW-2009-0090, online using
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.
Brenda D. Parris, Technical Support Center, Office of Ground Water and Drinking Water, Environmental Protection Agency, 26 West Martin Luther King Drive (MS 140), Cincinnati, Ohio 45268; telephone (513) 569-7961 or email at
Supporting documents that explain in detail the information that EPA will be collecting are available in the public docket for this ICR. The docket can be viewed online at
Pursuant to section 3506(c)(2)(A) of the PRA, EPA requests comments and information to enable it to: (i) Evaluate whether the proposed collection of information is necessary for the proper performance of the functions of the Agency, including whether the information will have practical utility; (ii) 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; (iii) enhance the quality, utility and clarity of the information to be collected; and (iv) 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,
UCMR 3 “Assessment Monitoring” began in January 2013 and continues through December 2015 for all large systems (those systems serving 10,001 to 100,000 people) and very large systems (those systems serving more than 100,000 people), and for a nationally representative sample of 800 small systems (those systems serving 10,000 or fewer people). The “Screening Survey” began in January 2013 and continues through December 2015 for all very large systems, 320 randomly-selected large systems, and 480 randomly selected small systems. “Pre-Screen Testing” began in January 2013 and continues through December 2015 for a sample of 800 small, undisinfected ground water systems (those systems serving 1,000 or fewer people).
This notice proposes renewal of the currently approved UCMR 3 ICR, (OMB Control No. 2040-0270), which covers the period 2012-2014. This ICR renewal accounts for activities conducted during 2015-2017. The complete five-year UCMR 3 period of 2012-2016 overlaps with the applicable ICR period only during 2015 and 2016. PWSs will only be involved in active monitoring during 2015 (
This information collection does not require respondents to disclose confidential information.
• Fewer PWSs participate during the ICR period of 2015-2017 than in 2012-2014. Only one third of the systems monitor for UCMR 3 contaminants in 2015-2017; two-thirds of the systems have already monitored for UCMR 3 contaminants in 2012-2014.
• The schedule of activities for PWSs differs. Some initial activities were conducted by all systems during the previous ICR period. These activities will not take place during the second ICR period of 2015-2017.
• The schedule of activities differs for participating states. Management and support activities for states vary with the UCMR 3 monitoring schedule. States are expected to incur less burden during this second UCMR 3 ICR period of 2015-2017.
Federal Deposit Insurance Corporation (FDIC).
Notice and request for comment.
The FDIC, as part of its continuing effort to reduce paperwork and respondent burden, invites the general public and other Federal agencies to take this opportunity to comment on the renewal of existing information collections, as required by the Paperwork Reduction Act of 1995. Currently, the FDIC is soliciting comment on renewal of the information collections described below.
Comments must be submitted on or before April 30, 2015.
Interested parties are invited to submit written comments to the FDIC by any of the following methods:
•
•
•
All comments should refer to the relevant OMB control number. A copy of the comments may also be submitted to the OMB desk officer for the FDIC: Office of Information and Regulatory Affairs, Office of Management and Budget, New Executive Office Building, Washington, DC 20503.
Gary Kuiper or John Popeo, at the FDIC address above.
1.
2.
3.
Comments are invited on: (a) Whether the collection of information is necessary for the proper performance of the FDIC's functions, including whether the information has practical utility; (b) the accuracy of the estimates of the burden of the information collection, including the validity of the methodology and assumptions used; (c) ways to enhance the quality, utility, and clarity of the information to be collected; and (d) ways to minimize the burden of the information collection on respondents, including through the use of automated collection techniques or other forms of information technology. All comments will become a matter of public record.
The companies listed in this notice have applied to the Board for approval, pursuant to the Home Owners' Loan Act (12 U.S.C. 1461
The applications listed below, as well as other related filings required by the Board, are available for immediate inspection at the Federal Reserve Bank indicated. The application also will be available for inspection at the offices of the Board of Governors. Interested persons may express their views in writing on the standards enumerated in the HOLA (12 U.S.C. 1467a(e)). If the proposal also involves the acquisition of a nonbanking company, the review also includes whether the acquisition of the nonbanking company complies with the standards in section 10(c)(4)(B) of the HOLA (12 U.S.C. 1467a(c)(4)(B)). Unless otherwise noted, nonbanking activities will be conducted throughout the United States.
Unless otherwise noted, comments regarding each of these applications must be received at the Reserve Bank indicated or the offices of the Board of Governors not later than April 24, 2015.
A. Federal Reserve Bank of Cleveland (Nadine Wallman, Vice President) 1455 East Sixth Street, Cleveland, Ohio 44101-2566:
1.
The companies listed in this notice have applied to the Board for approval, pursuant to the Bank Holding Company Act of 1956 (12 U.S.C. 1841
The applications listed below, as well as other related filings required by the Board, are available for immediate inspection at the Federal Reserve Bank indicated. The applications will also be available for inspection at the offices of the Board of Governors. Interested persons may express their views in writing on the standards enumerated in the BHC Act (12 U.S.C. 1842(c)). If the proposal also involves the acquisition of
Unless otherwise noted, comments regarding each of these applications must be received at the Reserve Bank indicated or the offices of the Board of Governors not later than April 24, 2015.
A. Federal Reserve Bank of Kansas City (Dennis Denney, Assistant Vice President) 1 Memorial Drive, Kansas City, Missouri 64198-0001:
1.
In connection with this application, Applicant also has applied to engage through Valparaiso Enterprises, Inc., Valparaiso, Nebraska, in general insurance activities in a town of less than 5,000 in population, pursuant to section 225.28(b)(11)(iii)(A).
The notificants listed below have applied under the Change in Bank Control Act (12 U.S.C. 1817(j)) and section 225.41 of the Board's Regulation Y (12 CFR 225.41) to acquire shares of a bank or bank holding company. The factors that are considered in acting on the notices are set forth in paragraph 7 of the Act (12 U.S.C. 1817(j)(7)).
The notices are available for immediate inspection at the Federal Reserve Bank indicated. The notices also will be available for inspection at the offices of the Board of Governors. Interested persons may express their views in writing to the Reserve Bank indicated for that notice or to the offices of the Board of Governors. Comments must be received not later than April 15, 2015.
A. Federal Reserve Bank of Minneapolis (Jacquelyn K. Brunmeier, Assistant Vice President) 90 Hennepin Avenue, Minneapolis, Minnesota 55480-0291:
1.
Pursuant to section 10(d) of the Federal Advisory Committee Act, as amended (5 U.S.C. App.), 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.
This notice is being published less than 15 days prior to the meeting due to the timing limitations imposed by the review and funding cycle.
Information is also available on the Institute's/Center's home page:
Children's Bureau; Administration on Children, Youth and Families; ACF, HHS.
Notice.
Pursuant to 42 U.S.C. 5106a, the Children's Bureau (CB) announces the opportunity for public comment on the policy interpretation of section 106(b)(2)(B)(x) articulated in question 2.1A.4 #8 of the Child Welfare Policy Manual (CWPM), which concerns the public disclosure of findings or information about a case of child abuse or neglect which results in a child fatality or near fatality.
Submit written or electronic comments on or before June 29, 2015.
Interested persons may submit comments to
Kathleen McHugh, United States Department of Health and Human Services, Administration for Children and Families, Policy Division, 8th Floor, 1250 Maryland Avenue, SW., Washington, DC 20024. Email address:
Section 106(b)(2)(B)(x) of CAPTA requires a certification by the State Governor that the State has in effect and is enforcing a State law, or has in effect and is operating a statewide program, relating to child abuse and neglect that includes “provisions which allow for public disclosure of the findings or information about the case of child abuse or neglect which has resulted in a child fatality or near fatality.” We revised our policy interpretation of the statutory provision regarding public disclosure of information in cases of child abuse or neglect which have resulted in a child fatality or near fatality found in section 106(b)(2)(B)(x) of CAPTA in September 2012 with the addition of CWPM question 2.1A.4 #8. This interpretation requires States to develop procedures for the release of information including, but not limited to: the cause of and circumstances regarding the fatality or near fatality; the age and gender of the child; information describing any previous reports or child abuse or neglect investigations that are pertinent to the child abuse or neglect that led to the fatality or near fatality; the result of any such investigations; and the services provided by and actions of the State on behalf of the child that are pertinent to the child abuse or neglect that led to the fatality or near fatality. States may allow exceptions to the release of information in order to ensure the safety and well-being of the child, parents and family or when releasing the information would jeopardize a criminal investigation, interfere with the protection of those who report child abuse or neglect or harm the child or the child's family. States must also ensure compliance with other federal confidentiality restrictions when implementing the confidentiality provisions under CAPTA, including the confidentiality requirements applicable to titles IV-B and IV-E of the Social Security Act (the Act) and in accordance with 45 CFR 1355.30, which requires that records maintained under title IV-E and IV-B of the Act are subject to the confidentiality provisions in 45 CFR 205.50. Among other things, 45 CFR 205.50 restricts the release or use of information concerning individuals receiving financial assistance under these programs to certain persons or agencies that require the information for specified purposes.
We also revised several CWPM answers in section 2.1A to bring them in line with the policy as outlined in the new question and answer (Q/A). CWPM section 2.1A.1, questions 1, 2, 6, and 8; and CWPM section 2.1A.4, questions 3, 4, 5, 6, and 7 were all revised. At that time, Q/A 2.1A.4 #2, was deleted, but it was updated and reissued in August 2013. This Q/A clarifies that when child abuse or neglect results in the death or near death of a child, the State must provide for the disclosure of the information required by section 2.1A.4, Q/A #8 of the CWPM, but that the provision should not be interpreted to require disclosure of information which would fall within the specific exceptions that states are allowed to establish under section 2.1A.4, Q/A #8 of the CWPM. The full Q/A 2.1A.4 #2 can be found at:
We seek comment from state agencies and other stakeholders about the revised policy interpretation at CWPM, section 2.1A.4, Q/A #8, or any other revised policies in section 2.1A of the CWPM noted above.
We encourage stakeholder respondents to address the following questions:
(1) Please describe any challenges you've had obtaining information about child fatalities and near fatalities which resulted from child abuse and neglect from a state. Have there been improvements in obtaining the information since CB revised the policy in CWPM section 2.1.A in September 2012?
(2) What concerns, if any, do you have with the definition of near fatalities in a state?
(3) Has a state responded that the state cannot disclose information due to confidentiality protections? If so, describe the information requested and the confidentiality provision cited by the state.
(4) Does your state offer a public report of the child fatalities review panel/commission? If so, does the report contain the required disclosure of information? Is the report a barrier to obtaining information?
We encourage state agency respondents to address the following questions:
(1) What challenges, if any, have you faced implementing the revised policy? Has the revised policy improved your disclosure process and policies?
(2) Are there challenges in applying the disclosure policy while also ensuring that you adhere to confidentiality protections?
Pursuant to section 10(d) of the Federal Advisory Committee Act, as amended (5 U.S.C. App.), 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.
This notice is being published less than 15 days prior to the meeting due to the timing limitations imposed by the review and funding cycle.
This notice is being published less than 15 days prior to the meeting due to the timing limitations imposed by the review and funding cycle.
Food and Drug Administration, HHS.
Notice.
The Food and Drug Administration (FDA or Agency) is announcing support for the World Health Organization (WHO) Drug Dictionary (available at
Although you can comment on this notice at any time, to ensure that the Agency considers your comments submit either electronic or written comments by May 5, 2015.
Submit written requests for single copies of the documents to the Division of Drug Information, Center for Drug Evaluation and Research, Food and Drug Administration, 10001 New Hampshire Ave., Hillandale Building, 4th Floor, Silver Spring, MD 20993-0002 or the Office of Communication, Outreach, and Development, Center for Biologics Evaluation and Research, Food and Drug Administration, 10903 New Hampshire Ave., Bldg. 71, Rm. 3128, Silver Spring, MD 20993-0002. Send one self-addressed adhesive label to assist that office in processing your requests.
Submit electronic comments to
Ron Fitzmartin, Center for Drug Evaluation and Research, Food and Drug Administration, 10903 New Hampshire Ave. Bldg. 51, rm. 1192, Silver Spring, MD 20993-002,
The use of a common dictionary to code concomitant medications is an important component of study data standardization. Generally, controlled terminology standards specify the key concepts that are represented as definitions, preferred terms, synonyms, codes, and code system. The analysis of study data is greatly facilitated by the use of controlled terms for clinical or scientific concepts that have standard, predefined meanings and representations. WHO Drug Dictionary contains unique codes as drug names and corresponding medicinal product information, including active ingredients and the Anatomical Therapeutic Chemical (ATC) classification system for the therapeutic uses. Typically, sponsors and applicants use WHO Drug Dictionary to code and analyze concomitant medications taken by subjects during the course of clinical trials.
Although use of WHO Drug Dictionary codes are not required at this time, FDA now supports and encourages the use of WHO Drug Dictionary coded concomitant medications used in clinical trials. For purposes of this notice, “supported” means the receiving Center has established processes and technology to support receiving, processing, reviewing, and archiving files in the specified standard.
FDA is now encouraging sponsors and applicants to provide WHO Drug Dictionary codes for concomitant medication data in investigational studies provided in regulatory submissions (
Interested persons may submit either electronic comments to
Food and Drug Administration, HHS.
Notice.
The Food and Drug Administration (FDA) is announcing the availability of a draft guidance for
Although you can comment on any guidance at any time (see 21 CFR 10.115(g)(5)), to ensure that the Agency considers your comment on this draft guidance before it begins work on the final version of the guidance, submit either electronic or written comments on the draft guidance by June 1, 2015.
Submit written requests for single copies of the guidance to the Communications Staff (HFV-12), Center for Veterinary Medicine, Food and Drug Administration, 7519 Standish Pl., Rockville, MD 20855. Send one self-addressed adhesive label to assist that office in processing your requests. See the
Submit electronic comments on the draft guidance to
Virginia Recta, Center for Veterinary Medicine (HFV-164), Food and Drug Administration, 7500 Standish Pl., Rockville, MD 20855, 240-402-0840,
FDA is announcing the availability of a draft guidance for industry #226 entitled “Target Animal Safety Data Presentation and Statistical Analysis.” It is intended to provide recommendations to industry regarding the presentation and statistical analyses of TAS data submitted to CVM as part of a study report to support approval of a new animal drug. These recommendations apply to TAS data generated from both TAS and field effectiveness studies conducted in companion animals (
This level 1 draft guidance is being issued consistent with FDA's good guidance practices regulation (21 CFR 10.115). The draft guidance, when finalized, will represent the current thinking of FDA on “Target Animal Safety Data Presentation and Statistical Analysis.” It does not establish any rights for any person and is not binding on FDA or the public. You can use an alternative approach if it satisfies the requirements of the applicable statutes and regulations.
This draft guidance refers to previously approved collections of information found in FDA regulations. These collections of information are subject to review by the Office of Management and Budget (OMB) under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520). The collections of information in 21 CFR part 514 have been approved under OMB control number 0910-0032.
Interested persons may submit either electronic comments regarding this document to
Persons with access to the Internet may obtain the draft guidance at either
Respondents: Current healthy marriage program applicants and participants, program managers and facilitators, and experts in the field.
In compliance with the requirements of section 3506(c)(2)(A) of the Paperwork Reduction Act of 1995, the Administration for Children and Families is soliciting public comment on the specific aspects of the information collection described above. Copies of the proposed collection of information can be obtained and comments may be forwarded by writing to the Administration for Children and Families, Office of Planning, Research and Evaluation, 370 L'Enfant Promenade SW., Washington, DC 20447, Attn: OPRE Reports Clearance Officer. Email address:
The Department specifically requests comments 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; (c) the quality, utility, and clarity of the information to be collected; and (d) ways to minimize the burden of the collection of information on respondents, including through the use of automated collection techniques or other forms of information technology. Consideration will be given to comments and suggestions submitted within 60 days of this publication.
Pursuant to section 10(d) of the Federal Advisory Committee Act, as amended (5 U.S.C. App.), 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 contract proposals and the discussions could disclose confidential trade secrets or commercial property such as patentable material, and personal information concerning individuals associated with the contract proposals, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.
Food and Drug Administration, HHS.
Notice.
The U.S. Food and Drug Administration (FDA or Agency) is issuing an order under the Federal Food, Drug, and Cosmetic Act (the FD&C Act) debarring Odalys Fernandez from providing services in any capacity to a person that has an approved or pending drug product application for a period of 6 years. FDA bases this order on a finding that Ms. Fernandez was convicted of five felony counts under Federal law for conduct involving health care fraud, and one count of conspiracy to commit health care fraud, and that this pattern of conduct is sufficient to find that there is reason to believe she may violate requirements under the FD&C Act relating to drug products. Ms. Fernandez was given notice of the proposed debarment and an opportunity to request a hearing within the timeframe prescribed by regulation. Ms. Fernandez failed to request a hearing. Ms. Fernandez's failure to request a hearing constitutes a waiver of her right to a hearing concerning this action.
This order is effective March 31, 2015.
Submit applications for termination of debarment to the Division of Dockets Management (HFA-305), Food and Drug Administration, 5630 Fishers Lane, Rm. 1061, Rockville, MD 20852.
Kenny Shade, Division of Enforcement, Office of Enforcement and Import Operations, Office of Regulatory Affairs, Food and Drug Administration, 12420 Parklawn Dr. (ELEM-4144), Rockville, MD 20857, 301-796-4640.
Section 306(b)(2)(B)(ii)(I) of the FD&C Act (21 U.S.C. 335a(b)(2)(B)(ii)(I)) permits debarment of an individual if FDA finds that the individual has been convicted of a felony under Federal law for conduct which involves bribery, payment of illegal gratuities, fraud, perjury, false statement, racketeering, blackmail, extortion, falsification or destruction of records, or interference with, obstruction of an investigation into, or prosecution of any criminal offense, and FDA finds, on the basis of the conviction and other information, that such individual has demonstrated a pattern of conduct sufficient to find that there is reason to believe the individual may violate requirements under the FD&C Act relating to drug products.
On November 9, 2012, the U.S. District Court for the Southern District of Florida entered judgment against Ms. Fernandez after a jury found her guilty of five counts of health care fraud in violation of 18 U.S.C. 1347, and one count of conspiracy to commit health care fraud in violation of 18 U.S.C. 1349.
FDA's finding that debarment is appropriate is based on the felony convictions referenced herein. The factual basis for these convictions is as follows: Ms. Fernandez was a registered nurse working for Ideal Home Health Inc. (Ideal), which was a business in Miami-Dade County, FL. Ideal purportedly provided skilled nursing services to Medicare beneficiaries who required home health services. As a
From on or about August 17, 2007, through on or about March 19, 2009, Ms. Fernandez conspired with others to defraud Medicare.
Ms. Fernandez and her coconspirators submitted, and caused the submission of, false and fraudulent claims to Medicare, and concealed the submission of these false and fraudulent claims.
Ms. Fernandez and her coconspirators falsified and caused Medicare beneficiaries to falsify weekly visit/time record sheets, and falsified skilled nursing progress notes representing that she had administered insulin injections and provided other medical services to Medicare beneficiaries. She caused Ideal to submit false and fraudulent claims to Medicare for home health benefits by falsely representing that she had provided these health services. As a result of these fraudulent claims, she caused Medicare to make payments to Ideal of approximately $82,040. Ms. Fernandez engaged in this criminal conduct repeatedly over a period of approximately 19 months.
As a result of her convictions, on September 8, 2014, FDA sent Ms. Fernandez a notice by certified mail proposing to debar her for 6 years from providing services in any capacity to a person that has an approved or pending drug product application. The proposal was based on the finding, under section 306(b)(2)(B)(ii)(I) of the FD&C Act, that Ms. Fernandez was convicted of felonies under Federal law for conduct involving health care fraud and conspiracy to commit health care fraud, and the Agency found, on the basis of the conviction and other information, that Ms. Fernandez had demonstrated a pattern of conduct sufficient to find that there is reason to believe she may violate requirements under the FD&C Act relating to drug products. This conclusion was based on the fact that Ms. Fernandez had legal and professional obligations to ensure that she submitted accurate medical claims for services she provided. Instead, Ms. Fernandez submitted, and caused the submission of, false weekly visit/time records and false daily blood sugar/insulin log sheets. She engaged in this conduct repeatedly over a period of almost 2 years. Her convictions indicate that she knowingly and willfully disregarded her legal and professional obligations to keep accurate medical records and to submit accurate claims for the services she provided. Having considered the conduct that forms the basis of her conviction and the fact that this conduct occurred in the course of her profession and showed a disregard for the obligations of her profession and the law, FDA found that Ms. Fernandez has demonstrated a pattern of conduct sufficient to find that there is reason to believe that, if she were to provide services to a person that has an approved or pending drug application, she may violate requirements under the FD&C Act relating to drug products. The proposal offered Ms. Fernandez an opportunity to request a hearing, providing her with 30 days from the date of receipt of the letter in which to file the request, and advised her that failure to request a hearing constituted a waiver of the opportunity for a hearing and of any contentions concerning this action. The proposal was received on September 12, 2014. Ms. Fernandez failed to respond within the timeframe prescribed by regulation and has, therefore, waived her opportunity for a hearing and has waived any contentions concerning her debarment (21 CFR part 12).
Therefore, the Director, Office of Enforcement and Import Operations, Office of Regulatory Affairs, under section 306(b)(2)(B)(ii)(I) of the FD&C Act, under authority delegated to the Director (Staff Manual Guide 1410.35), finds that Odalys Fernandez has been convicted of five counts of a felony and one count of conspiracy to commit a felony under Federal law for conduct involving health care fraud and, on the basis of the conviction and other information, finds that Ms. Fernandez has demonstrated a pattern of conduct sufficient to find that there is reason to believe she may violate requirements under the FD&C Act relating to drug products.
Based on the factors under section 306(c)(2)(A)(iii) of the FD&C Act, FDA finds that each offense be accorded a debarment period of 3 years. In the case of a person debarred for multiple offenses, FDA shall determine whether the periods of debarment shall run concurrently or consecutively (section 306(c)(2)(A)). FDA has concluded that the 3-year periods of debarment for the five counts of health care fraud shall run concurrently. The 3-year period of debarment for the conspiracy conviction shall run consecutively to the periods of debarment for health care fraud convictions, resulting in a total debarment period of 6 years.
As a result of the foregoing findings, Odalys Fernandez is debarred for 6 years from providing services in any capacity to a person with an approved or pending drug product application under sections 505, 512, or 802 of the FD&C Act (21 U.S.C. 355, 360b, or 382), or under section 351 of the Public Health Service Act (42 U.S.C. 262), effective (see
Any application by Ms. Fernandez for termination of debarment under section 306(d)(4) of the FD&C Act should be identified with Docket No. FDA-2014-N-0563 and sent to the Division of Dockets Management (see
Publicly available submissions may be seen in the Division of Dockets Management between 9 a.m. and 4 p.m., Monday through Friday.
Food and Drug Administration, HHS.
Notice; requests for comments.
The Food and Drug Administration (FDA) is announcing a request for additional comments on the chemistry, manufacturing, and control (CMC) information that a sponsor of an investigational new drug application (IND) should provide in its IND in order to meet regulatory requirements when commercially available foods or dietary supplements containing live biotherapeutic products (LBPs) are used as investigational new drugs in early phase clinical trials. The request for additional comments on the CMC information is related to the guidance entitled, “Early Clinical Trials with Live Biotherapeutic Products: Chemistry, Manufacturing, and Control Information; Guidance for Industry,” dated February 2012 (February 2012 guidance).
Submit either electronic or written comments on the requested CMC information by May 29, 2015.
Submit written requests for single copies of the February 2012 guidance to the Office of Communication, Outreach and Development, Center for Biologics Evaluation and Research (CBER), Food and Drug Administration, 10903 New Hampshire Ave., Bldg. 71, rm. 3128, Silver Spring, MD 20993-0002. Send one self-addressed adhesive label to assist the office in processing your requests. The guidance may also be obtained by mail by calling CBER at 1-800-835-4709 or 240-402-7800. See the
Submit electronic comments on the requested CMC information to
Jessica T. Walker, Center for Biologics Evaluation and Research, Food and Drug Administration, 10903 New Hampshire Ave., Bldg. 71, Rm. 7301, Silver Spring, MD 20993-0002, 240-402-7911.
FDA is announcing a request for additional comments on the CMC information that a sponsor of an IND should provide in its IND in order to meet the requirements under § 312.23 (21 CFR 312.23), when commercially available foods or dietary supplements containing LBPs are subject to study as investigational new drugs in early phase clinical trials.
In the
FDA is considering modifying the February 2012 guidance to address the CMC information that should be provided in an IND, under certain conditions. Specifically, FDA is considering whether to revise the guidance to address when the label on the commercially available product(s) would be considered adequate to satisfy the requirement for CMC information under § 312.23. For example, we are considering whether the label would be adequate to satisfy the CMC information when the following conditions are met: (1) The LBP product that is proposed for investigational use is a commercially available food or dietary supplement; (2) the investigation does not involve a route of administration, dose, patient population, or other factor that significantly increases the risk (or decreases the acceptability of risk) associated with the use of the food or dietary supplement; (3) the investigation is not intended to support a marketing application for a drug claim for the food or dietary supplement; and (4) the investigation is conducted in compliance with the requirements for INDs (part 312), the requirements for review by an institutional review board (21 CFR part 56), and with the requirements for informed consent (21 CFR part 50). FDA is seeking public comment on this issue.
Interested persons may submit either electronic comments regarding the requested CMC information to
Persons with access to the Internet may obtain the February 2012 guidance at either
Food and Drug Administration, HHS.
Notice.
The Food and Drug Administration (FDA) is announcing the availability of a guidance for industry entitled “Critical Path Innovation Meetings.” This guidance describes a Critical Path Innovation Meeting (CPIM), a means by which FDA's Center for Drug Evaluation and Research (CDER) and investigators from industry, academia, government, and patient advocacy groups can communicate to improve efficiency and success in drug development. The goals of the CPIM are to discuss a methodology or technology proposed by the meeting requester and for CDER to provide general advice on how this methodology or technology might enhance drug development. The discussions and background information submitted through the CPIM are nonbinding on both FDA and CPIM requesters.
Submit either electronic or written comments on Agency guidances at any time.
Submit written requests for single copies of this guidance to the Division of Drug Information, Center for Drug Evaluation and Research, Food
Submit electronic comments on the guidance to
Alicia Barbieri Stuart, Office of Translational Sciences, Center for Drug Evaluation and Research, Food and Drug Administration, 10903 New Hampshire Ave., Bldg. 21, Rm. 4547, Silver Spring, MD 20993-0002, 301-796-3852.
FDA is announcing the availability of a guidance for industry entitled “Critical Path Innovation Meetings.” The guidance describes the purpose and scope of a CPIM and how to request such a meeting. A CPIM provides the opportunity to discuss a methodology or technology proposed by the meeting requester and for CDER to provide general advice on how the methodology or technology might enhance drug development. During a CPIM, CDER will identify some of the larger gaps in existing knowledge that requesters might consider addressing in the course of their work. The discussions and background information submitted through the CPIM are nonbinding on both FDA and CPIM requesters. The CPIM initiative meets Prescription Drug User Fee Act (PDUFA) V Reauthorization Goal IX.A, “Enhancing Regulatory Science and Expediting Drug Development” by “Promoting Innovation Through Enhanced Communication Between FDA and Sponsors During Drug Development.”
This guidance is being issued consistent with FDA's good guidance practices regulation (21 CFR 10.115). The guidance represents the current thinking of FDA on “Critical Path Innovation Meetings.” It does not establish any rights for any person and is not binding on FDA or the public. You can use an alternative approach if it satisfies the requirements of the applicable statutes and regulations.
This guidance refers to previously approved collections of information that are subject to review by the Office of Management and Budget (OMB) under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520). The collection of information in 21 CFR part 312 (investigational new drug applications) has been approved under OMB control number 0910-0014. The collection of information in 21 CFR part 314 (new drug applications) has been approved under OMB control number 0910-0001. The collection of information resulting from formal meetings between interested persons and FDA has been approved under OMB control number 0910-0429.
Interested persons may submit either electronic comments regarding this document to
Persons with access to the Internet may obtain the document at either
Food and Drug Administration, HHS.
Notice.
This notice announces a forthcoming meeting of a public advisory committee of the Food and Drug Administration (FDA). The meeting will be open to the public.
FDA intends to make background material available to the public no later than 2 business days before the meeting. If FDA is unable to post the background material on its Web site prior to the meeting, the background material will be made publicly available at the location of the advisory committee meeting, and the background material will be posted on FDA's Web site after the meeting. Background material is available at
Persons attending FDA's advisory committee meetings are advised that the Agency is not responsible for providing access to electrical outlets.
FDA welcomes the attendance of the public at its advisory committee meetings and will make every effort to accommodate persons with physical disabilities or special needs. If you require special accommodations due to a disability, please contact Cindy Hong at least 7 days in advance of the meeting.
FDA is committed to the orderly conduct of its advisory committee meetings. Please visit our Web site at
Notice of this meeting is given under the Federal Advisory Committee Act (5 U.S.C. app. 2).
Pursuant to section 10(d) of the Federal Advisory Committee Act, as amended (5 U.S.C. App.), 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.
Administration on Intellectual and Developmental Disabilities, Administration for Community Living, HHS.
Notice.
The Administration for Community Living (ACL) is announcing an opportunity for public comment on the proposed collection of certain information by the agency. Under the Paperwork Reduction Act of 1995 (the PRA), Federal agencies are required to publish notice in the
Submit written or electronic comments on the collection of information by June 1, 2015.
Submit electronic comments on the collection of information to:
Submit written comments on the collection of information to Administration for Community Living, 1 Massachusetts Avenue NW., Room 4716, Washington, DC 20001, attention Melvenia Wright.
Melvenia Wright, Program Specialist, Administration for Community Living, Washington, DC 20001. Telephone: (202) 357-3486; email
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. “Collection of information” is defined in 44 U.S.C. 3502(3) and 5 CFR 1320.3(c) and includes agency request or requirements that members of the
The Protection and Advocacy Voting Access Annual Narrative Report from the Protection and Advocacy Systems is required by federal statute and regulation, the Help America Vote Act (HAVA), Public Law 107-252, title II, subtitle D, section 291, Payments for Protection and Advocacy to Assure Access for Individuals with Disabilities (42 U.S.C. 15461). The report is provided in writing to the Administration for Community Living, Administration on Intellectual and Developmental Disabilities (AIDD). Each eligible Protection and Advocacy System (P&As) must prepare and submit an annual report at the end of every fiscal year by the 31st of December. The report addresses the activities conducted with the funds provided during the year. The information collected from the annual report will be aggregated into an annual profile of how the P&As have utilized the funds and review the P&As activities carried out for each of the seven mandated area. These areas include full participation in the electoral process; education, training and assistance; advocacy and education around HAVA implementation efforts; training and education of election officials, poll workers and election volunteers regarding the rights of voters with disabilities and best practices; assistance in filing complaints; assistance to State and other governmental entities regarding the physical accessibility of polling places; and obtaining training and technical assistance on voting issues. The PAVA annual narrative report will also provide an overview of the goals and accomplishments for each P&A as well as permit the Administration on Intellectual and Developmental Disabilities (AIDD) to track voting progress to monitor grant activities and create the bi-annual report to Congress.
ACL estimates the burden of this collection of information as follows: 55 Protection and Advocacy Systems (P&A) respond annually which should be an average burden of 20 hours per State per year or a total of 1,100 hours for all states annually.
Pursuant to Public Law 92-463, notice is hereby given that the Substance Abuse and Mental Health Services Administration's (SAMHSA's) Center for Substance Abuse Treatment (CSAT) National Advisory Council will meet on April 15, 2015, from 9:30 a.m.-5:00 p.m. (EDT) and will include a session that is closed to the public.
The closed meeting will include the review of grant applications, which contain budget information, including the description of how an agency prices its services, information on proposed business relationships and subcontracts. Grant applications also contain personal information and contact information on agency principles. Discussion of proposed funding and awardees would be made public prior to the required congressional notification of grant award. Since the closed meeting will include discussion and evaluation of grant applications reviewed by Initial Review Groups and involve an examination of confidential financial and business information as well as personal information concerning the applicants, it will be closed to the public from 9:30 a.m. to 11:00 a.m. as determined by the SAMHSA Administrator, in accordance with Title 5 U.S.C. 552b(c)(4) and (6) and (c)(9)(B) and 5 U.S.C. App. 2, section 10(d).
The open session of the meeting will be held from 11:00 a.m.-5:00 p.m. and will include consideration of minutes from the SAMHSA CSAT NAC meeting of August 27, 2014, Director's report, discussion of SAMHSA's role regarding treatment of mental illness and substance use disorders, budget update, Pregnant and Postpartum Women and Medication Assisted Treatment panel discussions, and a recovery presentation and discussion.
The meeting will be held at the SAMHSA building, 1 Choke Cherry Road, Great Falls Conference Room, Rockville, MD 20850. Attendance by the public will be limited to space available and will be limited to the open sessions of the meeting. Interested persons may present data, information, or views, orally or in writing, on issues pending before the Council. Written submissions should be forwarded to the contact person on or before April 5, 2015. Oral presentations from the public will be scheduled at the conclusion of the meeting. Individuals interested in making oral presentations are encouraged to notify the contact on or before April 5, 2015. Five minutes will be allotted for each presentation.
The open meeting session may be accessed via telephone. To attend on site, obtain the call-in number and access code, submit written or brief oral comments, or request special accommodations for persons with disabilities, please register on-line at
Substantive meeting information and a roster of Council members may be obtained either by accessing the SAMHSA Council Web site at:
Substantive program information may be obtained after the meeting by accessing the SAMHSA Council Web site,
Food and Drug Administration, HHS.
Notice.
The Food and Drug Administration (FDA) is announcing an opportunity for public comment on our proposed collection of certain information. Under the Paperwork Reduction Act of 1995 (the PRA), Federal Agencies must publish notice in the
Submit either electronic or written comments on the collection of information by June 1, 2015.
Submit electronic comments on the collection of information to
FDA PRA Staff, Office of Operations, Food and Drug Administration, 8455 Colesville Rd., COLE-14526, Silver Spring, MD 20993-0002,
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. “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 provide a 60-day notice in the
With respect to the following collection of information, we invite comments on these topics: (1) Whether the proposed collection of information is necessary for the proper performance of our functions, including whether the information will have practical utility; (2) the accuracy of our estimate of the burden of the proposed 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 through the use of automated collection techniques, when appropriate, and other forms of information technology.
Under sections 201(s) and 409 of the Federal Food, Drug, and Cosmetic Act (the FD&C Act) (21 U.S.C. 321(s) and 348), food irradiation is subject to regulation under the food additive premarket approval provisions of the FD&C Act. The regulations providing for uses of irradiation in the production, processing, and handling of food are found in part 179 (21 CFR part 179). To ensure safe use of a radiation source, § 179.21(b)(1) requires that the label of sources bear appropriate and accurate information identifying the source of radiation and the maximum (or minimum and maximum) energy of the emitted radiation. Section 179.21(b)(2) requires that the label or accompanying labeling bear adequate directions for installation and use and a statement supplied by us that indicates maximum dose of radiation allowed. Section 179.26(c) requires that the label or accompanying labeling bear a logo and a radiation disclosure statement. Section 179.25(e) requires that food processors who treat food with radiation make and retain, for 1 year past the expected shelf life of the products up to a maximum of 3 years, specified records relating to the irradiation process (
We estimate the burden of this collection of information as follows:
We base our estimate of burden for the recordkeeping provisions of § 179.25(e) on our experience regulating the safe use of radiation as a direct food additive. The number of firms who process food using irradiation is extremely limited. We estimate that there are four irradiation plants whose business is devoted primarily (
No burden has been estimated for the labeling requirements in §§ 179.21(b)(1), 179.21(b)(2), and 179.26(c) because the information to be disclosed is information that has been supplied by FDA. Under 5 CFR 1320.3(c)(2), the public disclosure of information originally supplied by the Federal Government to the recipient for the purpose of disclosure to the public is not subject to review by the Office of Management and Budget under the Paperwork Reduction Act.
Food and Drug Administration, HHS.
Notice.
The Food and Drug Administration (FDA) is announcing an amendment to the notice of meeting of the Ear, Nose, and Throat Devices Panel of the Medical Devices Advisory Committee. This meeting was announced in the
Patricio Garcia, Center for Devices and Radiological Health, Food and Drug Administration, 10903 New Hampshire Ave., Bldg. 66, Rm. 1535, Silver Spring MD 20993-0002,
In the
On April 30, 2015, the Agency is adding three Agenda items to the original five agenda items posted in the March 13, 2015,
On May 1, 2015, the committee will discuss key issues related to a potential pre- to postmarket shift in clinical data requirements for modifications to cochlear implants in pediatric patients. These issues are categorized into three broad areas for discussion:
1. Cochlear implant changes (
2. Appropriate premarket clinical data requirements to support pre- to postmarket shift (
3. Clinical study design considerations (
FDA intends to make background material available to the public no later than 2 business days before the meeting. If FDA is unable to post the background material on its Web site prior to the meeting, the background material will be made publicly available at the location of the advisory committee meeting, and the background material will be posted on FDA's Web site after the meeting. Background material is available at
This notice is issued under the Federal Advisory Committee Act (5 U.S.C. app. 2) and 21 CFR part 14, relating to the advisory committees.
Food and Drug Administration, HHS.
Notice.
The Food and Drug Administration (FDA) is announcing that a collection of information entitled “Food Labeling; Calorie Labeling of Articles of Food in Vending Machines” has been approved by the Office of Management and Budget (OMB) under the Paperwork Reduction Act of 1995.
FDA PRA Staff, Office of Operations, Food and Drug Administration, 8455 Colesville Rd., COLE-14526, Silver Spring, MD 20993-0002,
On February 5, 2015, the Agency submitted a proposed collection of information entitled “Food Labeling; Calorie Labeling of Articles of Food in Vending Machines” to OMB for review and clearance under 44 U.S.C. 3507. 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. OMB has now approved the information collection and has assigned OMB control number 0910-0782. The approval expires on March 31, 2018. A copy of the supporting statement for this information collection is available on the Internet at
Food and Drug Administration, HHS.
Notice.
The Food and Drug Administration (FDA) is announcing the availability of a draft guidance for industry entitled “Development and Submission of Near Infrared Analytical Procedures.” This draft guidance provides recommendations to applicants of new drug applications (NDAs) and abbreviated new drug applications (ANDAs) regarding the development and submission of near infrared (NIR) analytical procedures used during the manufacture and analysis of pharmaceuticals. This draft guidance only pertains to the development and validation of NIR analytical procedures and does not provide recommendations concerning the set up and qualification of NIR instruments or their maintenance and calibration.
Although you can comment on any guidance at any time (see 21 CFR 10.115(g)(5)), to ensure that the Agency considers your comment on this draft guidance before it begins work on the final version of the guidance, submit either electronic or written comments on the draft guidance by June 1, 2015.
Submit written requests for single copies of the draft guidance to the Division of Drug Information, Center for Drug Evaluation and Research, Food and Drug Administration, 10001 New Hampshire Ave., Hillandale Building, 4th Floor, Silver Spring, MD 20993-0002. Send one self-addressed adhesive label to assist that office in processing your requests. See the
Submit electronic comments on the draft guidance to
John L. Smith, Center for Drug Evaluation and Research, Food and Drug Administration, 10903 New Hampshire Ave., Silver Spring, MD 20993-0002, 301-796-1757.
FDA is announcing the availability of a draft guidance for industry entitled “Development and Submission of Near Infrared Analytical Procedures.” This draft guidance provides recommendations to applicants of NDAs and ANDAs regarding the development and submission of NIR analytical procedures used during the manufacture and analysis of pharmaceuticals (including raw materials, in-process materials and intermediates, and finished products). It also provides recommendations regarding how the concepts described in the International Conference on Harmonisation (ICH) guidance for industry, “Q2(R1) Validation of Analytical Procedures: Text and Methodology” (
This draft guidance only pertains to the development and validation of NIR analytical procedures and does not provide recommendations concerning the set up and qualification of NIR instruments or their maintenance and calibration.
This draft guidance is being issued consistent with FDA's good guidance practices regulation (21 CFR 10.115). The draft guidance, when finalized, will represent the current thinking of FDA on the submission and development of NIR analytical procedures. It does not establish any rights for any person and is not binding on FDA or the public. You can use an alternative approach if it satisfies the requirements of the applicable statutes and regulations.
This guidance refers to previously approved collections of information that are subject to review by the Office of Management and Budget (OMB) under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520). The collections of information in 21 CFR part 314 for NDAs, ANDAs, supplements to applications, and annual reports have been approved under OMB control number 0910-0001.
Interested persons may submit either electronic comments regarding this document to
Persons with access to the Internet may obtain the document at either
Children's Bureau; Administration on Children, Youth and Families; ACF, HHS
Notice.
In accordance with title IV-E of the Social Security Act (42 U.S.C. 673), the Children's Bureau (CB) announces the opportunity for public comment on our suspension and termination policies for the title IV-E adoption assistance program, articulated in the Child Welfare Policy Manual. We similarly announce the opportunity to provide public comment about any other policy areas of concern relating to the title IV-E adoption assistance program.
Submit written or electronic comments on or before June 29, 2015.
Interested persons may submit comments to
Kathleen McHugh, United States Department of Health and Human Services, Administration for Children and Families, Policy Division, 8th Floor, 1250 Maryland Avenue SW., Washington, DC 20024. Email address:
The Social Security Act only permits a title IV-E agency to terminate a child or youth's title IV-E adoption assistance subsidy under three delineated circumstances: (1) The child has attained the age of 18, or the age that the agency has chosen pursuant to sec. 475(8)(B)(iii) and (iv) of the Social Security Act (or the age of 21 if the title IV-E agency has determined that the child has a mental or physical disability which would warrant continuation of assistance); (2) the title IV-E agency determines that the adoptive parents are no longer legally responsible for support of the child; or (3) the title IV-E agency determines that the adoptive parents are no longer providing any support to the child.
CB has interpreted the law to prohibit a title IV-E agency from automatically suspending a title IV-E adoption assistance payment on the basis that suspending title IV-E adoption assistance is equivalent to terminating title IV-E adoption assistance. See Child Welfare Policy Manual, section 8.2D.5, Question and Answer #3 (available at
The statute also requires adoptive parents to keep the title IV-E agency apprised of any circumstances that would impact a child's continued eligibility for title IV-E adoption assistance, or would impact the appropriate amount of the payment. See the Social Security Act at sec. 473(a)(4)(B). However, the statute does not specify a recourse for title IV-E agencies if a parent does not provide such information. CB has explained in the Child Welfare Policy Manual that title IV-E agencies may not suspend or terminate title IV-E adoption assistance if adoptive parents do not respond to requests for information about whether the parents are providing any support to the child, or whether the adoptive parents remain legally responsible for their adopted child. See Child Welfare Policy Manual, section 8.2, Question and Answer #1 (
We seek comment from title IV-E agencies and other stakeholders about the title IV-E adoption assistance suspension and termination policies. We invite agencies and stakeholders to share their experiences and concerns about how title IV-E agencies implement the suspension and termination policies, and any difficulties they have had ensuring that they are paying title IV-E adoption assistance funds appropriately.
In particular, we encourage respondents to address the following questions:
(1) Should jurisdictions have authority to suspend adoption assistance payments under any circumstances? If so, what specific circumstances should be the basis for suspension?
(2) If suspension was to be permitted, what processes should be required in connection with suspension, and what processes should be required for reinstatement?
More generally, we invite title IV-E agencies and other stakeholders to share their broader concerns about the title IV-E adoption assistance program that are unrelated to suspending or
U.S. Customs and Border Protection, Department of Homeland Security.
60-Day notice and request for comments; revision and extension of an existing collection of information.
U.S. Customs and Border Protection (CBP) of the Department of Homeland Security 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: Cargo Manifest/Declaration, Stow Plan, Container Status Messages and Importer Security Filing. CBP is proposing to add burden hours for four new collections of information, including Electronic Ocean Export Manifest, Electronic Air Export Manifest, Electronic Rail Export Manifest, and Vessel Stow Plan (Export). There are no changes to the existing forms or collections within this OMB approval. This document is published to obtain comments from the public and affected agencies.
Written comments should be received on or before June 1, 2015 to be assured of consideration.
Direct all written comments to U.S. Customs and Border Protection, Attn: Tracey Denning, Regulations and Rulings, Office of International Trade, 90 K Street NE., 10th Floor, Washington, DC 20229-1177.
Requests for additional information should be directed to Tracey Denning, U.S. Customs and Border Protection, Regulations and Rulings, Office of International Trade, 90 K Street NE., 10th Floor, Washington, DC 20229-1177, at 202-325-0265.
CBP invites the general public and other Federal agencies to comment on proposed and/or continuing information collections pursuant to the Paperwork Reduction Act of 1995 (Pub. L. 104-13; 44 U.S.C. 3507). The comments should address: (a) Whether the 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 estimates of the burden of the collection of information; (c) ways to enhance the quality, utility, and clarity of the information to be collected; (d) ways to minimize the burden, including the use of automated collection techniques or the use of other forms of information technology; and (e) the annual costs burden to respondents or record keepers from the collection of information (total capital/startup costs and operations and maintenance costs). The comments that are submitted will be summarized and included in the CBP request for OMB approval. All comments will become a matter of public record. In this document, CBP is soliciting comments concerning the following information collection:
• Name of the vessel or carrier
• Name and address of the shipper
• Port Where the Report is Made
• Nationality of the Ship
• Name of the Master
• Port of Loading
• Port of Discharge
• B/L Number (Master and House)
• Marks and Numbers
• Container numbers
• Seal Numbers
• Number and Kinds of Packages
• Description of Goods
• Gross Weight (lb. or kg)
• Measurement (per HTSUS)
• In-bond number
• AES ITN number or Exemption statement
• Split shipment indicator
• Port of split shipment
• Hazmat Indicator
• Chemical Abstract Service ID Number
• Vehicle Identification Number or Product Identification Number
• Mode of transportation (containerized or non-containerized)
• Exporting Carrier
• Marks of nationality and registration
• Flight Number
• Port of Lading
• Port of Unlading
• Scheduled date of departure
• Consolidator
• De-Consolidator
• Air Waybill type (Master, House, Simple, or Sub)
• Air Waybill Number
• Number of pieces and unit of measure
• Weight (lb. or kg.)
• Number of house air waybills
• Shipper name and address
• Consignee name and address
• Cargo description
• AES ITN number or AES Exemption statement
• Split air waybill indicator
• Hazmat indicator
• UN Number
• In-bond number
• Mode of transportation (containerized or non-containerized)
• Manifest number
• Mode of transportation (containerized or non-containerized)
• Port of Departure from the United States
• Date of Departure
• Train Number
• Rail car order/Car locator message
• Hazmat Indicator
• 6-character Hazmat code
• Marks and Numbers
• SCAC (Standard Carrier Alpha Code) identification code for exporting carrier
• Bill of Lading Number (Master and House)
• Shipper name and address
• Consignee name and address
• Notify Party name and address
• AES ITN or AES Exemption Statement
• Cargo Description
• Weight
• Quantity and Unit of Measure
• Split Shipment Indicator
• Portion of Split Shipment
• In-bond number
• Seal Number
• Mexican Pedimento Number
• Place where the rail carrier takes possession of the cargo shipment
• Port of Unlading
• Container Numbers (for containerized shipments) or the rail car numbers
• Data for empty rail cars (Empty indicator and rail car number)
U.S. Citizenship and Immigration Services, Department of Homeland Security.
30-Day notice.
The Department of Homeland Security (DHS), U.S. Citizenship and Immigration Services (USCIS) will be submitting 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. The information collection notice was previously published in the
The purpose of this notice is to allow an additional 30 days for public comments. Comments are encouraged and will be accepted until April 30, 2015. This process is conducted in accordance with 5 CFR 1320.10.
Written comments and/or suggestions regarding the item(s) contained in this notice, especially regarding the estimated public burden and associated response time, must be directed to the OMB USCIS Desk Officer via email at
You may wish to consider limiting the amount of personal information that you provide in any voluntary submission you make. For additional information please read the Privacy Act notice that is available via the link in the footer of
If you need a copy of the information collection instrument with instructions, or additional information, please visit the Federal eRulemaking Portal site at:
The address listed in this notice should only be used to submit comments concerning this information collection. Please do not submit requests for individual case status inquiries to this address. If you are seeking information about the status of your individual case, please check “My Case Status” online at:
Written comments and suggestions from the public and affected agencies should address one or more of the following four points:
(1) Evaluate whether the proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information will have practical utility;
(2) Evaluate the accuracy of the agency's estimate of the burden of the proposed collection of information, including the validity of the methodology and assumptions used;
(3) Enhance the quality, utility, and clarity of the information to be collected; and
(4) Minimize the burden of the collection of information on those who are to respond, including through the use of appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology,
(1)
(2)
(3)
(4)
(5)
(6)
(7)
Office of the General Counsel, HUD.
Notice.
Section 106 of the Department of Housing and Urban Development Reform Act of 1989 (the HUD Reform Act) requires HUD to publish quarterly
For general information about this notice, contact Camille E. Acevedo, Associate General Counsel for Legislation and Regulations, Department of Housing and Urban Development, 451 Seventh Street, SW., Room 10282, Washington, DC 20410-0500, telephone 202-708-1793 (this is not a toll-free number). Persons with hearing- or speech-impairments may access this number through TTY by calling the toll-free Federal Relay Service at 800-877-8339.
For information concerning a particular waiver that was granted and for which public notice is provided in this document, contact the person whose name and address follow the description of the waiver granted in the accompanying list of waivers that have been granted in the fourth quarter of calendar year 2014.
Section 106 of the HUD Reform Act added a new section 7(q) to the Department of Housing and Urban Development Act (42 U.S.C. 3535(q)), which provides that:
1. Any waiver of a regulation must be in writing and must specify the grounds for approving the waiver;
2. Authority to approve a waiver of a regulation may be delegated by the Secretary only to an individual of Assistant Secretary or equivalent rank, and the person to whom authority to waive is delegated must also have authority to issue the particular regulation to be waived;
3. Not less than quarterly, the Secretary must notify the public of all waivers of regulations that HUD has approved, by publishing a notice in the
a. Identify the project, activity, or undertaking involved;
b. Describe the nature of the provision waived and the designation of the provision;
c. Indicate the name and title of the person who granted the waiver request;
d. Describe briefly the grounds for approval of the request; and
e. State how additional information about a particular waiver may be obtained.
Section 106 of the HUD Reform Act also contains requirements applicable to waivers of HUD handbook provisions that are not relevant to the purpose of this notice.
This notice follows procedures provided in HUD's Statement of Policy on Waiver of Regulations and Directives issued on April 22, 1991 (56 FR 16337). In accordance with those procedures and with the requirements of section 106 of the HUD Reform Act, waivers of regulations are granted by the Assistant Secretary with jurisdiction over the regulations for which a waiver was requested. In those cases in which a General Deputy Assistant Secretary granted the waiver, the General Deputy Assistant Secretary was serving in the absence of the Assistant Secretary in accordance with the office's Order of Succession.
This notice covers waivers of regulations granted by HUD from October 1, 2014 through December 31, 2014. For ease of reference, the waivers granted by HUD are listed by HUD program office (for example, the Office of Community Planning and Development, the Office of Fair Housing and Equal Opportunity, the Office of Housing, and the Office of Public and Indian Housing, etc.). Within each program office grouping, the waivers are listed sequentially by the regulatory section of title 24 of the Code of Federal Regulations (CFR) that is being waived. For example, a waiver of a provision in 24 CFR part 58 would be listed before a waiver of a provision in 24 CFR part 570.
Where more than one regulatory provision is involved in the grant of a particular waiver request, the action is listed under the section number of the first regulatory requirement that appears in 24 CFR and that is being waived. For example, a waiver of both § 58.73 and § 58.74 would appear sequentially in the listing under § 58.73.
Waiver of regulations that involve the same initial regulatory citation are in time sequence beginning with the earliest-dated regulatory waiver.
Should HUD receive additional information about waivers granted during the period covered by this report (the fourth quarter of calendar year 2014) before the next report is published (the first quarter of calendar year 2015), HUD will include any additional waivers granted for the fourth quarter in the next report.
Accordingly, information about approved waiver requests pertaining to HUD regulations is provided in the Appendix that follows this notice.
More information about the granting of these waivers, including a copy of the waiver request and approval, may be obtained by contacting the person whose name is listed as the contact person directly after each set of regulatory waivers granted.
The regulatory waivers granted appear in the following order:
I. Regulatory waivers granted by the Office of Community Planning and Development.
II. Regulatory waivers granted by the Office of Housing.
III. Regulatory waivers granted by the Office of Public and Indian Housing.
For further information about the following regulatory waivers, please see the name of the contact person that immediately follows the description of the waiver granted.
• Regulation: 24 CFR 58.22(a).
Project/Activity: The Spokane Tribe of Indians requested a waiver of 24 CFR 58.22(a) for the demolition and new construction of the West End Community Center serving the Spokane Tribe in Wellpinit, WA. The waiver requested clearance for the demolition of the old community center prior to the Request for Release of Funds (RROF).
Nature of Requirement: The regulation at 24 CFR 58.22(a) provides that no entity may
Granted By: Clifford Taffet, General Deputy Assistant Secretary for Community Planning and Development.
Date Granted: December 10, 2014.
Reason Waived: It was determined that the project would further the HUD mission and advance HUD program goals to develop viable, quality communities. It was further determined that the Spokane Tribe of Indians did not knowingly violate the regulation, no HUD funds were committed, and based on the environmental assessment and field inspection, granting the waiver will not result in any unmitigated, adverse environmental impact.
Contact: Lauren Hayes, Office of Environment and Energy, Office of Community Planning and Development, Department of Housing and Urban Development, 451 Seventh Street SW., Room 7248, Washington, DC 20410, telephone (202) 402-4270.
• Regulations: 24 CFR 92.251(c) and 24 CFR 92.504(d).
Project/Activity: HUD, along with the U.S. Department of Agriculture and the U.S. Department of Treasury, developed the Physical Inspection Alignment Pilot Program to align physical inspection criteria and reduce the number of inspections for each property to no more than one visit per year while meeting the requirements of each federal funding source with a vested financial interest in the property. The waiver permitted pilot grantees to use the Uniform Physical Condition Standards as the minimum inspection standard for HOME-assisted rental property rather than Housing Quality Standards as currently required by 24 CFR 92.251(c) and allows for more frequent inspections than are required for inspection frequency under 24 CFR 92.504(d). The following participating jurisdictions were granted a limited waiver of HOME property standards for participating in HUD's Physical Inspections Alignment Pilot Program: the State of Kentucky, the State of Louisiana, the State of Minnesota, the State of Missouri, the State of New Mexico, the State of Texas, the State of Wisconsin and the State of Vermont.
Nature of Requirements: The regulation at 24 CFR 92.251(c) identifies the property standards for property acquired with HOME assistance. The regulation at 24 CFR 92.504(d) requires the participating jurisdiction to inspect each project at project completion and during the period of affordability to determine that the project meets the property standards of 24 CFR 92.251.
Granted By: Clifford Taffet, General Deputy Assistant Secretary for Community Planning and Development.
Date Granted: November 5, 2014.
Reasons Waived: The waiver was granted to reduce duplicative inspection for grantees participating in the Physical Inspection Alignment Pilot Program. HUD estimates that one periodically-scheduled physical inspection may result in 20,000 fewer property inspections per year by federal agencies, which will reduce the cost of program oversight and create efficiencies for the government, property owners, and for residents of affordable housing whose apartments are subject to inspection. The waiver was effective until December 31, 2014 and limited to Combined Funding Properties included in the 2014 Physical Inspection Alignment Pilot Program.
Contact: Virginia Sardone, Director, Office of Affordable Housing Programs, Office of Community Planning and Development, Department of Housing and Urban Development, 451 Seventh Street SW., Room 7164, Washington, DC 20410, telephone (202) 708-2684.
• Regulation: 24 CFR 570.200(h).
Project/Activity: On October 21, 2014, HUD issued a CPD Notice implementing procedures to govern the submission and review of consolidated plans and action plans for FY 2015 funding prior to the enactment of a FY 2015 HUD appropriation bill. These procedures apply to any Entitlement, Insular or Hawaii nonentitlement grantee with a program year start date prior to, or up to 60 days after, HUD's announcement of the FY 2015 formula program funding allocations for CDBG, ESG, HOME and HOPWA formula funding. Any grantee with an FY 2015 program year start date during the period starting October 1, 2014, and ending August 16, 2015 or 60 days after HUD announcement of FY 2015 allocation amounts (whichever comes first), is advised not to submit its consolidated plan/action plan until the FY 2015 formula allocations have been announced.
Nature of Requirement: The Entitlement CDBG program regulations provide for situations in which a grantee may incur costs against its CDBG grant prior to the award of its grant from HUD. Under the regulations, the effective date of a grantee's grant agreement is either the grantee's program year start date or the date that the grantee's annual action plan is received by HUD, whichever is later. This waiver allowed grantees to treat the effective date of the FY 2015 program year as the grantee's program year start date or date or the date that the grantee's annual action plan is received by HUD, whichever is
Granted By: Clifford Taffet, General Deputy Assistant Secretary for Community Planning and Development.
Date Granted: September 25, 2014, for effect on October 21, 2014.
Reason Waived: Under the provisions of the CPD Notice, a grantee's action plan may not be submitted to (and thus received by) HUD until several months after the grantee's program year start date. Lengthy delays in the receipt of annual appropriations by HUD, and implementation of the policy to delay submission of FY 2015 Action Plans, may have negative consequences for CDBG grantees that intend to incur eligible costs prior to the award of FY 2015 funding. Some activities might otherwise be interrupted while implementing these revised procedures. In addition, grantees might not otherwise be able to use CDBG funds for planning and administrative costs of administering their programs. In order to address communities' needs and to ensure that programs can continue without disturbance, this waiver allowed grantees to incur pre-award costs on a timetable comparable to that under which grantees have operated in past years. HUD advised grantees that this waiver is available for use by any applicable CDBG grantee whose action plan submission is delayed past the normal submission date because of delayed enactment of FY 2015 appropriations for the Department. This waiver authority is only in effect until August 16, 2015.
Contact: Steve Johnson, Director, Entitlement Communities Division, Office of Block Grant Assistance, Office of Community and Planning Development, Department of Housing and Urban Development, 451 7th Street SW., Room 7282, Washington, DC 20410, telephone (202) 708-1577.
• Regulation: 24 CFR 570.208(a)(l)(vi).
Project/Activity: Spokane County, WA requested a waiver of 24 CFR 570.208(a)(l)(vi) to allow the use of prior Low and Moderate Income Summary Data (LMISD) for an infrastructure activity in the town of Fairfield in order to demonstrate compliance with the low- and moderate-income benefit national objective requirements.
Nature of Requirement: HUD's regulation at 24 CFR 570.208(a)(l)(vi) requires that the most recently available decennial census information must be used to the fullest extent feasible, together with the section 8 income limits that would have applied at the time the income information was collected by the Census Bureau, to determine whether there is a sufficiently large percentage of low- and moderate-income persons residing in the area served by a CDBG funded activity. The HUD-produced Low and Moderate Income Summary Data provide this data to grantees. On June 10, 2014, HUD issued new Low and Moderate Income Summary Data, with an effective date of July 1, 2014 for use by grantees.
Granted By: Clifford Taffet, General Deputy Assistant Secretary for Community Planning and Development.
Date Granted: November 4, 2014.
Reason Waived: The Fairfield water line infrastructure activity had been in the planning stage for many months, and was included in the county's FY 2014 Annual Action Plan. However, funds were not obligated by the county to the activity prior to July 1, 2014 and July 1 was the county's program year start date. The service area for this activity no longer qualified under the new LMISD. However, the county explained that the town of Fairfield's demographic characteristics, with a population of 665, almost remained the same since the previous LMISD was issued, and that the American Community Survey (ACS) sampling methodology resulted in this change, not a
Contact: Steve Johnson, Director, Entitlement Communities Division, Office of Block Grant Assistance, Office of Community and Planning Development, Department of Housing and Urban Development, 451 Seventh Street SW., Room 7282, Washington, DC 20410, telephone (202) 708-1577.
• Regulation: 24 CFR 570.208(a)(l)(vi).
Project/Activity: King County, WA requested a waiver of 24 CFR 570.208(a)(l)(vi) to allow the use of prior Low and Moderate Income Summary Data (LMISD) for two infrastructure activities in order to demonstrate compliance with the low- and moderate-income benefit national objective requirements.
Nature of Requirement: HUD's regulation at 24 CFR 570.208(a)(l)(vi) requires that the most recently available decennial census information must be used to the fullest extent feasible, together with the section 8 income limits that would have applied at the time the income information was collected by the Census Bureau, to determine whether there is a sufficiently large percentage of low- and moderate-income persons residing in the area served by a CDBG funded activity. The HUD-produced Low and Moderate Income Summary Data provide this data to grantees. On June 10, 2014, HUD issued new Low and Moderate Income Summary Data, with an effective date of July 1, 2014 for use by grantees.
Granted By: Clifford Taffet, General Deputy Assistant Secretary for Community Planning and Development.
Date Granted: November 18, 2014.
Reason Waived: The request pertained to two infrastructure activities, which had been in the planning stage for many months, and were included in the county's FY 2014 Annual Action Plan. However, funds were not obligated by the county to these activities prior to July 1, 2014. The county documented that the available Low and Moderate Income Summary Data covered an area larger than the actual service areas for the two activities, and was not representative of the income characteristics of the activity service area residents. It was determined that unless the waiver was granted to the county, these activities that directly benefit the health and safety of residents would not be implemented due to the lack of expertise and funds needed to conduct special surveys to qualify the service areas. The waiver allowed the county to continue to use the prior Low and Moderate Income Summary Data to demonstrate compliance with the low- and moderate-income benefit national objective requirements.
Contact: Steve Johnson, Director, Entitlement Communities Division, Office of Block Grant Assistance, Office of Community and Planning Development, Department of Housing and Urban Development, 451 Seventh Street SW., Room 7282, Washington, DC 20410, telephone (202) 708-1577.
• Regulation:
Project/Activity: Louisville-Jefferson County, KY Metro Government requested a waiver of § 576.403(c) to allow the Legal Aid Society to provide legal services under the homelessness prevention component to program participants who want to stay in their units, even if the units do not meet the habitability standards. The waiver would allow those program participants receiving the legal services to receive the case management required at § 576.401(d) and (e) even if their units do not meet the habitability standards. The waiver was contingent upon the commitment of the recipient, its subrecipient, Legal Aid Society, and the subrecipient(s) providing the required case management to work with the property owners to bring the units into compliance with the habitability standards or assist the program participants to move if the units are unsafe.
Nature of Requirement: The regulation at § 576.403(c) states that the recipient or subrecipient cannot use ESG funds to help a program participant remain in or move into housing that does not meet the ESG minimum habitability standards for permanent housing.
Granted By: Cliff Taffet, General Deputy Assistant Secretary for Community Planning and Development.
Date Granted: December 10, 2014.
Reason Waived: HUD recognized that in certain instances, the best way to help program participants avoid homelessness is to keep them in their housing until better housing can be located, or their existing housing can be brought up to code. Legal services provide an important resource for persons who are at risk of homelessness, who need immediate assistance to help them avoid moving to the streets or emergency shelters. In some instances, it is not feasible to inspect a unit to ensure that it meets the habitability standards prior to the provision of the legal services assistance necessary to prevent homelessness for the individual or family. Also in some cases, the habitability requirement actually prohibits eligible program participants from receiving the legal services that could assist them to make the unit habitable and stabilize them in their housing.
Contact: Norm Suchar, Director, Office of Special Needs Assistance Programs, Office of Community Planning and Development, Department of Housing and Urban Development, 451 Seventh Street SW., Room 7262, Washington, DC 20410, telephone (202) 708-4300.
For further information about the following regulatory waivers, please see the name of the contact person that immediately follows the description of the waiver granted.
• Regulation: 24 CFR 219.220(b).
Project/Activity: St. James A.M.E Tower Apartments, FHA Project Number 031-018NISUP, Newark, NJ. The Owners have requested deferral of repayment of the Flexible Subsidy Operating Assistance Loan on this project due to their inability to repay the loan in full upon prepayment of the 236 Loan.
Nature of Requirement: Section 219.220(b)(1995) governs the repayment of operating assistance provided under the Flexible Subsidy Program for Troubled Projects states “Assistance that has been paid to a project owner under this subpart must be repaid at the earlier of expiration of the term of the mortgage, termination of mortgage insurance, prepayment of the mortgage, or a sale of the project (Transfer of Physical Assets (TPA)) if the Secretary so requires at the time of approval of the TPA.” Either of these actions would typically terminate FHA involvement with the property, and the Flexible Subsidy Loan would be repaid, in whole, at that time.
Granted by: Biniam T. Gebre, Acting Assistant Secretary for Housing-Federal Housing Commissioner.
Date Granted: December 30, 2014.
Reason Waived: The owner requested and was granted waiver of the requirement to defer repayment of the Flexible Subsidy Operating Assistance Loan to allow the much needed preservation and moderate rehabilitation of the project. The project will be preserved as an affordable housing resource of Newark, NJ.
Contact: John Ardovini, Restructuring Analyst, Office of Affordable Housing Preservation, Office of Housing, Department of Housing and Urban Development, 451 Seventh Street SW., Washington, DC 20410, telephone (202) 402-2636.
• Regulation: 24 CFR 219.220(b).
Project/Activity: CWA Apartments II FHA Number TN43L000016 is a project based Section 8 Loan Management Set-Aside (LMSA) contract encumbering a76-units for low- income families located in Nashville, Tennessee. The project consists of 76 two-bedroom units. The contract expires on August 31, 2017. On September 1, 1994, a Flexible Subsidy Loan was awarded in the amount of $1,659,585 at one percent per annum.
Nature of Requirement: Section 219.220(b) governs the repayment of operating assistance provided under the Flexible Subsidy Program for Troubled Projects prior to May 1, 1996 states: “Assistance that has been paid to a project owner under this subpart must be repaid at the earlier of the expiration of the term of the mortgage, termination of mortgage insurance, prepayment of the mortgage, or a sale of the project. . .” Either of these actions would typically terminate FHA involvement with the property, and the Flexible Subsidy Loan would be repaid, in whole, at that time.
Granted by: Carol J. Galante, Assistant Secretary for Housing-Federal Housing Commissioner.
Date Granted: October 7, 2014.
Reason Waived: The owner requested and was granted waiver because good cause was shown that it is in the public's best interest to grant this waiver. The owner executed and recorded a Rental Use Agreement that extended the affordability of the property for
Contact: Marilynne Hutchins, Office of Asset Management and Portfolio Oversight (OAMPO), Office of Housing, Department of Housing and Urban Development, 451 Seventh Street SW., Room 6174, Washington, DC 20410, telephone (202) 402-4323.
• Regulation: 24 CFR 219.220(b).
Project/Activity: CWA Apartments I Contract number TN43-L000-015 apartments CWA Apartments I is a 176-unit multifamily project which consists of 20 two-bedroom units and 156 three-bedroom units. The property was financed with a mortgage insured pursuant to Section 221(d)(3) of the National Housing Act, which has now matured and is paid in full. The Loan Management Set-Aside (LMSA) Housing Assistance Payments (HAP) contract covers all 176 units. The HAP contact expires on August 31, 2017. In 1995, the project was awarded a Flexible Subsidy Loan in the amount of $3,508,629 with one percent interest rate. As of September 29, 2014, the Flexible Subsidy Loan's unpaid balance is $4,141,194, including accrued interest.
Nature of Requirement: The regulation at 24 CFR 219.220(b)(1995), which governs the repayment of operating assistance provided under the Flexible Subsidy Program for Troubled Projects states, “Assistance that has been paid to a project Owner under this subpart must be repaid at the earlier of expiration of the term of the mortgage, termination of mortgage insurance, prepayment of the mortgage, or a sale of the project.”
Granted by: Carol J. Galante, Assistant Secretary for Housing-Federal Housing Commissioner.
Date Granted: October 7, 2014.
Reason Waived: The owner requested and was granted waiver because good cause was shown that it is in the public's best interest to grant this waiver. The owner executed and recorded a Rental Use Agreement that extended the affordability of the property for 20 years and amended the Residual Receipts Note to reflect the monthly payments. These documents were simultaneously assumed by the purchaser.
Contact: Marilynne Hutchins, Office of Asset Management and Portfolio Oversight (OAMPO), Office of Housing, Department of Housing and Urban Development, 451 Seventh Street SW., Room 6174, Washington, DC 20410, telephone (202) 402-4323.
• Regulation: 24 CFR 219.220(b).
Project/Activity: Cathedral Terrace Apartments FHA number 063-44007 is a 240-unit high-rise project for low- income and very low-income tenants. The mortgage was insured pursuant to Section 236(j)(1) of the National Housing Act and received its final endorsement on November 22, 1974, in the amount of $4,919,500. A Section 8 Loan Management Set-Aside (LMSA) contract subsidizes 224 units and expires on June 30, 2034. The mortgage matured on November 1, 2014, which triggered the repayment of the Flexible Subsidy Loans
Nature of Requirement: The regulation at 24 CFR 219.220(b) (1995), which governs the repayment of operating assistance provided under the Flexible Subsidy Program for Troubled Properties, states “Assistance that has been paid to a project Owner under this subpart must be repaid at the earlier of the expiration of the term of the mortgage, termination of mortgage insurance, prepayment of the mortgage, or a sale of the project.”
Granted by: Biniam Gebre, Acting Assistant Secretary for Housing-Federal Housing Commissioner.
Date Granted: December 30, 2014.
Reason Waived: The owner requested and was granted waiver to permit the deferment of repayment of the Flexible Subsidy Loans, plus accrued interest for a period of one year. The requested waiver was for the subject property only. The owner executed and recorded a Rental Use Agreement that would be superior to all liens. The Rental Use Agreement extended the project affordability 20 years from the date of the original mortgage maturity.
Contact: Judith Bryant, Office of Asset Management and Portfolio Oversight (OAMPO), Office of Housing, Department of Housing and Urban Development, 451 Seventh Street SW., Room 6174, Washington, DC 20410, telephone (202) 402-4891.
• Regulation: 24 CFR 232.7.
Project/Activity: Maple Ride of Plover Memory care is a 20 bed memory care facility. The facility does not meet the FHA “Bathroom “requirements at 24 CFR 232.7. The project is located in Plover, WI.
Nature of Requirement: The regulation mandates in a board and care home or assisted living facility that not less than one full bathroom must be provided for every four residents. Also, the bathroom cannot be accessed from a public corridor or area.
Granted By: Carol J. Galante, Assistant Secretary for Housing-Federal Housing Commissioner.
Date Granted: October 7, 2014.
Reason Waived: The project is for memory care, all rooms have half-bathrooms and the resident to full bathroom ratio is 5:1.
Contact: Vance T. Morris, Special Assistant, Office of Healthcare Programs, Office of Housing, Department of Housing and Urban Development, 451 Seventh Street SW., Room 2337, Washington, DC 20401, telephone (202) 402-2419.
• Regulation: 24 CFR 232.7.
Project/Activity: Senior Suites of Urbandale is an assisted living and memory care facility. The facility does not meet the FHA “Bathroom “requirements at 24 CFR 232.7. The project is located in Urbandale, IA.
Nature of Requirement: The regulation mandates that in a board and care home or assisted living facility that the not less than one full bathroom must be provided for every four residents. Also, the bathroom cannot be accessed from a public corridor or area.
Granted By: Biniam Gebre, Acting, Assistant Secretary for Housing-Federal Housing Commissioner.
Date Granted: November 24, 2014.
Reason Waived: The project is currently FHA insured and presents no additional financial risks to HUD.
Contact: Vance T. Morris, Special Assistant, Office of Healthcare Programs, Office of Housing, Department of Housing and Urban Development, 451 Seventh Street SW., Room 2337, Washington, DC 20401, telephone (202) 402-2419.
• Regulation: 24 CFR 232.505(a), 232.520, 232.540(b), 232.605 and 232.620.
Project/Activity: Supplemental Loans to Finance Purchase and Installation of Fire Safety Equipment.
Nature of Requirement: Waiver of provisions 232.505(a), 232.520, 232.540(b), 232.605 and 232.620 that do not reflect current processing requirements, as these regulatory procedures and protocols were established in 1974.
Granted By: Carol J. Galante, Assistant Secretary for Housing-Federal Housing Commissioner.
Date Granted: October 21, 2014.
Reason Waived: There is an urgent need to install automatic fire sprinkler systems in nursing homes due to a new federal mandate.
Contact: Vance T. Morris, Special Assistant, Office of Healthcare Programs, Office of Housing, Department of Housing and Urban Development, 451 Seventh Street SW., Room 2337, Washington, DC 20401, telephone (202) 402-2419.
• Regulation: 24 CFR 891.100(d).
Project/Activity: Teaneck Senior Housing, Teaneck, NJ, Project Number: 031-EE077/NJ39-S091-004.
Nature of Requirement: Section 891.100(d) prohibits amendment of the amount of the approved capital advance funds prior to closing.
Granted by: Carol J. Galante, Assistant Secretary for Housing-Federal Housing Commissioner.
Date Granted: October 3, 2014.
Reason Waived: The project is economically designed and comparable in cost to similar projects in the area, and the sponsor/owner exhausted all efforts to obtain additional funding from other sources.
Contact: Catherine M. Brennan, Director, Office of Housing Assistance and Grant Administration, Office of Housing, Department of Housing and Urban Development, 451 Seventh Street SW., Room 6180, Washington, DC 20410, telephone (202) 708-3000.
• Regulation: 24 CFR 891.100(d).
Project/Activity: Allen House, Millstone, NJ, Project Number: 031-EE083/NJ39-S101-006.
Nature of Requirement: Section 891.100(d) prohibits amendment of the amount of the approved capital advance funds prior to closing.
Granted by: Carol J. Galante, Assistant Secretary for Housing-Federal Housing Commissioner.
Date Granted: October 3, 2014.
Reason Waived: The project is economically designed and comparable in cost to similar projects in the area, and the sponsor/owner exhausted all efforts to obtain additional funding from other sources.
Contact: Catherine M. Brennan, Director, Office of Housing Assistance and Grant Administration, Office of Housing, Department of Housing and Urban Development, 451 Seventh Street SW., Room 6180, Washington, DC 20410, telephone (202) 708-3000.
• Regulation: 24 CFR 891.100(d).
Project/Activity: Our Lady of Assumption Apts., Abbeville, LA, Project Number: 064-EE243/LA48-S091-012.
Nature of Requirement: Section 891.100(d) prohibits amendment of the amount of the approved capital advance funds prior to closing.
Granted by: Carol J. Galante, Assistant Secretary for Housing-Federal Housing Commissioner.
Date Granted: October 3, 2014.
Reason Waived: The project is economically designed and comparable in cost to similar projects in the area, and the sponsor/owner exhausted all efforts to obtain additional funding from other sources.
Contact: Catherine M. Brennan, Director, Office of Housing Assistance and Grant Administration, Office of Housing, Department of Housing and Urban Development, 451 Seventh Street SW., Room 6180, Washington, DC 20410, telephone (202) 708-3000.
• Regulation: 24 CFR 891.165.
Project/Activity: Bill Sorro Community, San Francisco, CA, Project Number: 121-HD097/CA39-Q101-003.
Nature of Requirement: Section 891.165 provides that the duration of the fund reservation of the capital advance is 18 months from the date of issuance with limited exceptions up to 36 months, as approved by HUD on a case-by-case basis.
Granted by: Carol J. Galante, Assistant Secretary for Housing-Federal Housing Commissioner.
Date Granted: October 22, 2014.
Reason Waived: Additional time was needed in order to meet the construction lender's loan requirement for this capital advance upon completion mixed-finance project.
Contact: Catherine M. Brennan, Director, Office of Housing Assistance and Grant Administration, Office of Housing, Department of Housing and Urban Development, 451 Seventh Street SW., Room 6180, Washington, DC 20410, telephone (202) 708-3000.
• Regulation: Requirements of Mortgagee Letter 2011-22, Condominium Project Approval and Processing Guide, Insurance Requirements.
Project/Activity: Extension of initial waiver issued November 27, 2013, providing an exemption to the insurance requirements defined in Mortgagee Letter 2011-22, Condominium Project Approval and Processing Guide.
Nature of Requirement: Section 2.1.9 of the Condominium Project Approval and Processing Guide, Insurance Requirements, defines the condominium project insurance requirements that must be met for issuance of FHA condominium project approval. The extension of the initial waiver allows for acceptance of individual insurance policies issued to the unit owners for Manufactured Housing, Detached and Common Interest Condominium Projects unable to satisfy the insurance requirements.
Granted by: Biniam Gebre, Acting Assistant Secretary for Housing-Federal Housing Commissioner.
Date Granted: November 27, 2014.
Reason Waived: The extension of the waiver previously issued that allows unit owners to obtain and maintain their own insurance coverage is required to ensure the continued availability of a condominium unit as an affordable housing option. Issuance of the extension is consistent with the Department's objectives to expand the availability of FHA mortgage insurance, while providing appropriate safeguards.
Contact: Joanne B. Kuczma, Housing Program Officer, Office of Single Family Program Development, Office of Housing, Department of Housing and Urban Development, 451 Seventh Street SW., Washington, DC 20410, telephone (202) 402-2137.
For further information about the following regulatory waivers, please see the name of the contact person that immediately follows the description of the waiver granted.
• Regulation: 24 CFR 5.801(d)(1).
Project/Activity: Olean Housing Authority (NY093), Olean NY.
Nature of Requirement: The regulation establishes certain reporting compliance dates. The audited financial statements are required to be submitted to the Real Estate Assessment Center (REAC) no later than nine months after the housing authority's (HA) fiscal year end (FYE), in accordance with the Single Audit Act and OMB Circular A-133.
Granted By: Jemine A. Bryon, Acting Assistant Secretary for Public and Indian Housing.
Date Granted: October 1, 2014.
Reason Waived: The final approval of the annual audit was postponed due to three weather related cancellations of meetings of the Board of Commissioners. The audit was completed in December 2013, but was inadvertently not submitted. Due to the Departments' delayed response and the fact that the audited financials have been submitted and approved, the housing authority was granted a one-time waiver.
Contact: Judy Wojciechowski, Program Manager, NASS, Real Estate Assessment Center, Office of Public and Indian Housing, Department of Housing and Urban Development, 550 12th Street SW., Suite 100, Washington, DC 20410, telephone (202) 475-7907.
• Regulation: 24 CFR 5.801(d)(1).
Project/Activity: The Municipality of Fajardo (RQ036) Fajardo, PR
Nature of Requirement: The regulation establishes certain reporting compliance dates. The audited financial statements are required to be submitted to the Real Estate Assessment Center (REAC) no later than nine months after the housing authority's (HA) fiscal year end (FYE), in accordance with the Single Audit Act and OMB Circular A-133.
Granted By: Jemine A. Bryon, Acting Assistant Secretary for Public and Indian Housing.
Date Granted: October 13, 2014.
Reason Waived: The audited reporting requirements were delayed due to the unforeseen death of your predecessor auditor. The additional time was needed to enable the successor auditor to review and process for final approval. Due to the Departments' delayed response and the fact that the audited financial report was approved on August 28, 2014, the housing authority was granted this one-time waiver.
Contact: Judy Wojciechowski, Program Manager, NASS, Real Estate Assessment Center, Office of Public and Indian Housing, Department of Housing and Urban Development, 550 12th Street SW., Suite 100, Washington, DC 20410, telephone (202) 475-7907.
• Regulation: 24 CFR 5.801(d)(1).
Project/Activity: City of Mesa Housing Authority (AZ005) Mesa AZ.
Nature of Requirement: The regulation establishes certain reporting compliance dates. The audited financial statements are required to be submitted to the Real Estate Assessment Center (REAC) no later than nine months after the housing authority's (HA) fiscal year end (FYE), in accordance with the Single Audit Act and OMB Circular A-133.
Granted By: Jemine A. Bryon, Acting Assistant Secretary for Public and Indian Housing.
Date Granted: October 14, 2014.
Reason Waived: The delayed submission was a result of the process to implement a new ERP Integrated Information System during 2013. The agency is component unit and must wait until the city-wide audit was complete before processing the audited financial data. The agency incurred a turnover in staff prior to closing your 2013 books and that additional time was needed for IPA review and final submission. Due to the Department's delayed response and the fact that your audited financial report was approved on July 22, 2014, the housing authority was granted this one-time waiver.
Contact: Judy Wojciechowski, Program Manager, NASS, Real Estate Assessment Center, Office of Public and Indian Housing, Department of Housing and Urban Development, 550 12th Street SW., Suite 100, Washington, DC 20410, telephone (202) 475-7907.
• Regulation: 24 CFR 5.801(d)(1).
Project/Activity: South Tucson Housing Authority (AZ025) South Tucson, AZ
Nature of Requirement: The regulation establishes certain reporting compliance dates. The audited financial statements are required to be submitted to the Real Estate Assessment Center (REAC) no later than nine months after the housing authority's (HA) fiscal year end (FYE), in accordance with the Single Audit Act and OMB Circular A-133.
Granted By: Jemine A. Bryon, Acting Assistant Secretary for Public and Indian Housing.
Date Granted: November 19, 2014.
Reason Waived: The delayed submission was a result of the City of South Tucson's inability to obtain an extension from OMB to complete its Single Audit requirement. The agency was a component unit and waited until the city-wide audit was completed before processing the audited financial data for submission. Due to the Department's delayed response and the fact that the audited financial report was approved on August 27, 2014, the housing authority was granted a one-time waiver.
Contact: Judy Wojciechowski, Program Manager, NASS, Real Estate Assessment
• Regulation: 24 CFR 5.801(d)(1).
Project/Activity: Mercedes Housing Authority (TX029) Mercedes, TX
Nature of Requirement: The regulation establishes certain reporting compliance dates. The audited financial statements are required to be submitted to the Real Estate Assessment Center (REAC) no later than nine months after the housing authority's (HA) fiscal year end (FYE), in accordance with the Single Audit Act and OMB Circular A-133.
Granted By: Jemine A. Bryon, Acting Assistant Secretary for Public and Indian Housing.
Date Granted: November 26, 2014.
Reason Waived: The delayed submission was due to issues between the independent auditor and the Texas State Board. The State Board required the agency to seek a second review from another independent auditor. However, due to human resource issues and scheduled vacation, the advising auditor could not complete the audit in time to submit your audited financial data by the due date. The agency's audited financial data was approved on September 4, 2014, therefore, the housing authority was granted a one-time waiver.
Contact: Judy Wojciechowski, Program Manager, NASS, Real Estate Assessment Center, Office of Public and Indian Housing, Department of Housing and Urban Development, 550 12th Street SW., Suite 100, Washington, DC 20410, telephone (202) 475-7907.
• Regulation: Notices PIH 2013-3 and PIH 20013-26: Public Housing and Housing Choice Voucher Programs—Temporary Compliance Assistance.
Project/Activity: PIH Notice 2013-3 was issued to establish temporary guidelines for public housing agencies (PHAs) in fulfilling certain public housing and housing choice voucher requirements during the current and upcoming fiscal year to alleviate some of the burden on already stressed PHA resources. The reduction of burden provided in this notice involved offering PHAs the option to comply with certain alternative requirements to existing regulations, and if they opted to do so the existing regulation would be waived. Issuance of this notice was reported in HUD's Quarterly Regulatory Waiver report published in the
Nature of Requirement: The alternative requirements to regulatory requirements that were offered under the original notice and extended by the second notice were the following: The notice allows PHAs to use participants' actual past income to verify income, which would be a waiver of the requirement to project expected income in 24 CFR 5.609(a)(2). The notice allows households to self-certify as to having assets of less than $5,000, which would be a waiver of the requirement under 24 CFR 5.609(b)(3), 982.516(a)(2)(ii), and 960.259(c) for PHAs to verify assets. The notice allows a streamlined reexamination of income for elderly families and disabled families on fixed incomes, which would be a waiver of the requirement in 24 CFR 982.516 and 960.257 for PHAs to undertake the complete process for income verification and rent determination for families on fixed incomes. The notice allows PHAs to establish a payment standard of not more than 120 percent of the fair market rent without HUD approval as a reasonable accommodation, which would be a waiver of 24 CFR 982.503(c)(2)(B)(ii), which allows a PHA to establish a payment standard for the housing choice voucher program only but within limits currently permitted but designated for approval only by a HUD field office.
Granted By: Sandra B. Henriquez, Assistant Secretary for Public and Indian Housing.
Dates Granted: January 2013 through March 2015.
Reason Waived: The waivers and alternative requirements were granted because they would help facilitate the ability
Contact: Todd Thomas, Senior Program Specialist, Public Housing Management and Occupancy Division, Office of Public and Indian Housing, Department of Housing and Urban Development, 451 7th Street SW., Room 4210, Washington, DC 20410, telephone 202-402-5849.
• Regulation: 24 CFR 982.503(c), 982.503(c)(4)(ii) and 982.503(c)(5).
Project/Activity: Dunn County Housing Authority (DCHA), McKenzie County Housing Authority (MCHA), Bowman County Housing Authority (BCHA), Adams County Housing Authority (ACHA), Hettinger County Housing Authority (HCHA), Billings County Housing Authority (BCHA), Slope County Housing Authority (SCHA), Golden Valley County Housing Authority (GVCHA), Stark County Housing Authority (SCHA), ND.
Nature of Requirement: HUD's regulation at 24 CFR 982.503(c) establishes the methodology for establishing exception payment standards for an area. HUD's regulation at 24 CFR 503(c)(4)(ii) states that HUD will only approve an exception payment standard amount after six months from the date of HUD approval of an exception payment standard amount above 110 percent to 120 percent of the published fair market rent (FMR). HUD's regulation at 24 CFR 982.503(c)(5) states that the total population of a HUD-approved exception areas in an FMR area may not include more than 50 percent of the population of the FMR area.
Granted By: Jemine A. Bryon, Acting Assistant Secretary for Public and Indian Housing.
Date Granted: October 17, 2014.
Reason Waived: These waivers were granted because of increased economic activity due to natural resource exploration.
Contact: Becky Primeaux, Director, Housing Voucher Management and Operations Division, Office of Public Housing and Voucher Programs, Office of Public and Indian Housing, Department of Housing and Urban Development, 451 Seventh Street SW., Room 4216, Washington, DC 20410, telephone (202) 708-0477.
• Regulation: 24 CFR 982.503(c), 982.503(c)(4)(ii) and 982.503(c)(5).
Project/Activity: Burleigh County Housing Authority (BCHA), Bismarck, ND.
Nature of Requirement: HUD's regulation at 24 CFR 982.503(c) establishes the methodology for establishing exception payment standards for an area. HUD's regulation at 24 CFR 503(c)(4)(ii) states that HUD will only approve an exception payment standard amount after six months from the date of HUD approval of an exception payment standard amount above 110 percent to 120 percent of the published fair market rent (FMR). HUD's regulation at 24 CFR 982.503(c)(5) states that the total population of a HUD-approved exception areas in an FMR area may not include more than 50 percent of the population of the FMR area.
Granted By: Jemine A. Bryon, Acting Assistant Secretary for Public and Indian Housing.
Date Granted: November 19, 2014.
Reason Waived: These waivers were granted because of increased economic activity due to natural resource exploration.
Contact: Becky Primeaux, Director, Housing Voucher Management and Operations Division, Office of Public Housing and Voucher Programs, Office of Public and Indian Housing, Department of Housing and Urban Development, 451 Seventh Street SW., Room 4216, Washington, DC 20410, telephone (202) 708-0477.
• Regulation: 24 CFR 982.505(d).
Project/Activity: Arvada Housing Authority (AHA), Arvada, CO.
Nature of Requirement: 24 CFR 982.505(d) states that a public housing agency may only approve a higher payment standard for a family as a reasonable accommodation if the higher payment standard is within the basic range of 90 to 110 percent of the fair market rent (FMR) for the unit size.
Granted By: Jemine A. Bryon, Acting Assistant Secretary for Public and Indian Housing.
Date Granted: October 1, 2014.
Reason Waived: The participant, who is a person with disabilities, required an exception payment standard to move to a more accessible unit. To provide this reasonable accommodation so the client could move to a new unit and pay no more than 40 percent of her adjusted income toward the family share, the AHA was allowed to approve an exception payment standard that exceeded the basic range of 90 to 110 percent of the FMR.
Contact: Becky Primeaux, Director, Housing Voucher Management and Operations Division, Office of Public Housing and Voucher Programs, Office of Public and Indian Housing, Department of Housing and Urban Development, 451 Seventh Street SW., Room 4216, Washington, DC 20410, telephone (202) 708-0477.
• Regulation: 24 CFR 982.505(d).
Project/Activity: West Valley Housing Authority (WVHA), Dallas, OR.
Nature of Requirement: HUD's regulation at 24 CFR 982.505(d) states that a public housing agency may only approve a higher payment standard for a family as a reasonable accommodation if the higher payment standard is within the basic range of 90 to 110 percent of the fair market rent (FMR) for the unit size.
Granted By: Jemine A. Bryon, Acting Assistant Secretary for Public and Indian Housing.
Date Granted: October 23, 2014.
Reason Waived: The applicant, who is a person with disabilities, required an exception payment standard to remain in her current unit that met her needs. To provide this reasonable accommodation so that the client could remain in her unit and pay no more than 40 percent of her adjusted income toward the family share, the WVHA was allowed to approve an exception payment standard that exceeded the basic range of 90 to 110 percent of the FMR.
Contact: Becky Primeaux, Director, Housing Voucher Management and Operations Division, Office of Public Housing and Voucher Programs, Office of Public and Indian Housing, Department of Housing and Urban Development, 451 Seventh Street SW., Room 4216, Washington, DC 20410, telephone (202) 708-0477.
• Regulation: 24 CFR 982.505(d).
Project/Activity: Housing Authority of Grays Harbor County (HAGHC), Aberdeen, WA.
Nature of Requirement: HUD's regulation at 24 CFR 982.505(d) states that a public housing agency may only approve a higher payment standard for a family as a reasonable accommodation if the higher payment standard is within the basic range of 90 to 110 percent of the fair market rent (FMR) for the unit size.
Granted By: Jemine A. Bryon, Acting Assistant Secretary for Public and Indian Housing.
Date Granted: December 10, 2014.
Reason Waived: The applicant, who is a person with disabilities, required an exception payment standard to remain in her current unit that met her needs. To provide this reasonable accommodation so that the client could remain in her unit and pay no more than 40 percent of her adjusted income toward the family share, the HAGHC was allowed to approve an exception payment standard that exceeded the basic range of 90 to 110 percent of the FMR.
Contact: Becky Primeaux, Director, Housing Voucher Management and Operations Division, Office of Public Housing and Voucher Programs, Office of Public and Indian Housing, Department of Housing and Urban Development, 451 Seventh Street SW., Room 4216, Washington, DC 20410, telephone (202) 708-0477.
• Regulation: 24 CFR 982.505(d).
Project/Activity: Rhode Island Housing (RHI), Providence, RI.
Nature of Requirement: HUD's regulation at 24 CFR 982.505(d) states that a public housing agency may only approve a higher payment standard for a family as a reasonable accommodation if the higher payment standard is within the basic range of 90 to 110 percent of the fair market rent (FMR) for the unit size.
Granted By: Jemine A. Bryon, Acting Assistant Secretary for Public and Indian Housing.
Date Granted: December 17, 2014.
Reason Waived: The participant, who is a person with disabilities, required an exception payment standard to move to a unit that meets her needs. To provide this reasonable accommodation so the family could move to a new unit and pay no more than 40 percent of its adjusted income toward the family share, RHI was allowed to approve an exception payment standard that exceeded the basic range of 90 to 110 percent of the FMR.
Contact: Becky Primeaux, Director, Housing Voucher Management and Operations Division, Office of Public Housing and Voucher Programs, Office of Public and Indian Housing, Department of Housing and Urban Development, 451 Seventh Street SW., Room 4216, Washington, DC 20410, telephone (202) 708-0477.
• Regulation: 24 CFR 982.505(d).
Project/Activity: San Francisco Housing Authority (SFHA), San Francisco, CA.
Nature of Requirement: HUD's regulation at 24 CFR 982.505(d) states that a public housing agency may only approve a higher payment standard for a family as a reasonable accommodation if the higher payment standard is within the basic range of 90 to 110 percent of the fair market rent (FMR) for the unit size.
Granted By: Jemine A. Bryon, Acting Assistant Secretary for Public and Indian Housing.
Date Granted: December 17, 2014.
Reason Waived: The applicant was a person with disabilities who required an exception payment standard to move to a unit that met his needs. To provide this reasonable accommodation so that the client could move to a new unit and pay no more than 40 percent of his adjusted income toward the family share, the SFHA was allowed to approve an exception payment standard that exceeded the basic range of 90 to 110 percent of the FMR.
Contact: Becky Primeaux, Director, Housing Voucher Management and Operations Division, Office of Public Housing and Voucher Programs, Office of Public and Indian Housing, Department of Housing and Urban Development, 451 Seventh Street SW., Room 4216, Washington, DC 20410, telephone (202) 708-0477.
• Regulation: 24 CFR 982.505(d).
Project/Activity: Howard County Housing (HCH), Columbia, MD.
Nature of Requirement: HUD's regulation at 24 CFR 982.505(d) states that a public housing agency may only approve a higher payment standard for a family as a reasonable accommodation if the higher payment standard is within the basic range of 90 to 110 percent of the fair market rent (FMR) for the unit size.
Granted By: Jemine A. Bryon, Acting Assistant Secretary for Public and Indian Housing.
Date Granted: December 29, 2014.
Reason Waived: The participant, who is a person with disabilities, required an exception payment standard to move to a new unit. To provide this reasonable accommodation so the family could move to a new unit and pay no more than 40 percent of its adjusted income toward the family share, HCH was allowed to approve an exception payment standard that exceeded the basic range of 90 to 110 percent of the FMR.
Contact: Becky Primeaux, Director, Housing Voucher Management and Operations Division, Office of Public Housing and Voucher Programs, Office of Public and Indian Housing, Department of Housing and Urban Development, 451 Seventh Street SW., Room 4216, Washington, DC 20410, telephone (202) 708-0477.
• Regulation: 24 CFR 982.505(d).
Project/Activity: City of Roseville Housing Authority (CRHA), Roseville, CA.
Nature of Requirement: HUD's regulation at 24 CFR 982.505(d) states that a public housing agency may only approve a higher payment standard for a family as a reasonable accommodation if the higher payment standard is within the basic range of 90 to 110 percent of the fair market rent (FMR) for the unit size.
Granted By: Jemine A. Bryon, Acting Assistant Secretary for Public and Indian Housing.
Date Granted: December 29, 2014.
Reason Waived: The applicant, who is a person with disabilities, required an exception payment standard to move to a new unit. To provide this reasonable accommodation so the family could move to a new unit and pay no more than 40 percent of his adjusted income toward the family share, the CRHA was allowed to approve an exception payment standard that exceeded the basic range of 90 to 110 percent of the FMR.
Contact: Becky Primeaux, Director, Housing Voucher Management and Operations Division, Office of Public Housing and Voucher Programs, Office of Public and Indian Housing, Department of Housing and Urban Development, 451 Seventh Street SW., Room 4216, Washington, DC 20410, telephone (202) 708-0477.
• Regulation: 24 CFR 985.101(a).
Project/Activity: Hawaii Public Housing Authority (HPHA), Honolulu, HI.
Nature of Requirement: HUD's regulation at 24 CFR 985.101(a) states a PHA must submit the HUD-required Section Eight Management Assessment Program (SEMAP) certification form within 60 calendar days after the end of its fiscal year.
Granted By: Jemine A. Bryon, Acting Assistant Secretary for Public and Indian Housing.
Date Granted: October 20, 2014.
Reason Waived: This waiver was granted since HPHA had technical difficulties in submitting its certification. HPHA was permitted to submit its SEMAP certification after the due date.
Contact: Becky Primeaux, Director, Housing Voucher Management and Operations Division, Office of Public Housing and Voucher Programs, Office of Public and Indian Housing, Department of Housing and Urban Development, 451 Seventh Street SW., Room 4210, Washington, DC 20410, telephone (202) 708-0477.
• Regulation: 24 CFR 985.101(a).
Project/Activity: Fort Wayne Housing Authority (FWHA), Fort Wayne, IN.
Nature of Requirement: HUD's regulation at 24 CFR 985.101(a) states a PHA must submit the HUD-required Section Eight Management Assessment Program (SEMAP) certification form within 60 calendar days after the end of its fiscal year.
Granted By: Jemine A. Bryon, Acting Assistant Secretary for Public and Indian Housing.
Date Granted: November 7, 2014.
Reason Waived: This waiver was granted since the executive director had a death in his family at the time the SEMAP certification was due. FWHA was permitted to submit its SEMAP certification after the due date.
Contact: Becky Primeaux, Director, Housing Voucher Management and Operations Division, Office of Public Housing and Voucher Programs, Office of Public and Indian Housing, Department of Housing and Urban Development, 451 Seventh Street SW., Room 4210, Washington, DC, 20410, telephone (202) 708-0477.
• Regulation: 24 CFR 985.101(a).
Project/Activity: Housing Authority of the City of Meriden (HACM), Meriden, CT.
Nature of Requirement: HUD's regulation at 24 CFR 985.101(a) states a PHA must submit the HUD-required Section Eight Management Assessment Program (SEMAP) certification form within 60 calendar days after the end of its fiscal year.
Granted By: Jemine A. Bryon, Acting Assistant Secretary for Public and Indian Housing.
Date Granted: December 17, 2014.
Reason Waived: This waiver was granted since the SEMAP certification had been submitted timely, but incorrectly into PICTEST. HACM was permitted to submit its SEMAP certification after the due date.
Contact: Becky Primeaux, Director, Housing Voucher Management and Operations Division, Office of Public Housing and Voucher Programs, Office of Public and Indian Housing, Department of Housing and Urban Development, 451 Seventh Street SW., Room 4210, Washington, DC 20410, telephone (202) 708-0477.
• Regulation: 24 CFR 985.101(a).
Project/Activity: Palm Beach County Housing Authority (PBCHA), West Palm Beach, FL.
Nature of Requirement: HUD's regulation at 24 CFR 985.101(a) states a PHA must submit the HUD-required Section Eight Management Assessment Program (SEMAP) certification form within 60 calendar days after the end of its fiscal year.
Granted By: Jemine A. Bryon, Acting Assistant Secretary for Public and Indian Housing.
Date Granted: December 17, 2014.
Reason Waived: This waiver was granted since the SEMAP certification had been submitted timely, but with an error message that could not be validated. PBCHA was permitted to submit its SEMAP certification after the due date.
Contact: Becky Primeaux, Director, Housing Voucher Management and Operations Division, Office of Public Housing and Voucher Programs, Office of Public and Indian Housing, Department of Housing and Urban Development, 451 Seventh Street SW., Room 4210, Washington, DC 20410, telephone (202) 708-0477.
• Regulation: 24 CFR 985.101(a).
Project/Activity: Mercer County Housing Authority (MCHA), Aledo, IL.
Nature of Requirement: HUD's regulation at 24 CFR 985.101(a) states a PHA must submit the HUD-required Section Eight Management Assessment Program (SEMAP) certification form within 60 calendar days after the end of its fiscal year.
Granted By: Jemine A. Bryon, Acting Assistant Secretary for Public and Indian Housing.
Date Granted: December 29, 2014.
Reason Waived: This waiver was granted since it the executive director was new and notification emails regarding SEMAP submission were sent to the wrong email address. MCHA was permitted to submit its SEMAP certification after the due date.
Contact: Becky Primeaux, Director, Housing Voucher Management and Operations Division, Office of Public Housing and Voucher Programs, Office of Public and Indian Housing, Department of Housing and Urban Development, 451 Seventh Street SW., Room 4210, Washington, DC 20410, telephone (202) 708-0477.
• Regulation: 24 CFR 1000.327(b).
Project/Activity: Asa'Carsarmiut Tribe of Mountain Village, Alaska 99632-0249; Stebbins Community Association of Stebbins, Alaska 99671; Bering Straits Regional Housing Authority of Nome, Alaska 99762; Native Village of Kivalina of Kivalina, AK 99750.
Nature of Requirement: HUD's regulation at 24 CFR 1000.327(b) requires Indian tribes in Alaska not located on a reservation to notify HUD in writing by September 15th that they or their Tribally Designated Housing Entity (TDHE) intends to submit an Indian Housing Plan (IHP) for the following fiscal year. If the tribe or their TDHE does not notify HUD, or notifies HUD that they do not intend to submit an IHP, HUD allocates the tribe's need formula data in the Indian Housing Block Grant formula to the tribe's regional tribe or regional corporation. HUD is required to allocate IHBG funds within 60 days of an appropriation, and prior notification ensures that HUD can properly allocate Alaska tribes' need data and make formula allocations in a timely manner.
Granted By: Jemine A. Bryon, Acting Assistant Secretary for Public and Indian Housing.
Date Granted: November 24, 2014.
Reason Waived: HUD granted the waiver because the tribes and TDHE would have lost out on critical Indian Housing Block Grant funding for the year. The waiver would not delay HUD's process because the Congressional appropriation for the upcoming fiscal year had not yet occurred. As such, the Department believed that there was good cause to waive the notification requirements of 24 CFR 1000.327(b).
Contact: Glenda N. Green, Director for the Office of Grants Management, Office of Native American Programs, Office of Public and Indian Housing, Department of Housing and Urban Development, 451 Seventh Street SW., Suite 5156, Washington, DC 20410, telephone (202) 402-6967.
• Regulation: 24 CFR 1000.224.
Project/Activity: Pueblo de Cochiti of Cochiti Pueblo, NM 87072-0070.
Nature of Requirement: HUD's regulation at 24 CFR 1000.224 that the Secretary may waive the applicability of the requirement to submit an Indian Housing Plan (IHP), in whole or in part, for a period of not more than 90 days, if the Secretary determines that an Indian tribe has not complied with, or is unable to comply with, those requirements due to exigent circumstances beyond the control of the Indian Tribe.
Granted By: Jemine A. Bryon, Acting Assistant Secretary for Public and Indian Housing.
Date Granted: October 20, 2014.
Reason Waived: A waiver was requested because of the unexpected resignation of the Executive Director based on health issues. The waiver was provided for no more than 90 days on the basis of exigent circumstances beyond its control.
Contact: Cheryl Dixon, Grants Management Specialist, Office of Grants Management, Office of Native American Programs, Office of Public and Indian Housing, Department of Housing and Urban Development, 500 Gold Avenue SW., Seventh FL, Suite 7301, Albuquerque, NM 87103-0906, telephone (505) 346-6924.
• Regulation: 24 CFR 1000.224.
Project/Activity: Hopi Tribal Housing Authority of Polacca, AZ 86042.
Nature of Requirement: HUD's regulation at 24 CFR 1000.224 that the Secretary may waive the applicability of the requirement to submit an Indian Housing Plan (IHP), in whole or in part, for a period of not more than 90 days, if the Secretary determines that an Indian tribe has not complied with, or is unable to comply with, those requirements due to exigent circumstances beyond the control of the Indian Tribe.
Granted By: Jemine A. Bryon, Acting Assistant Secretary for Public and Indian Housing.
Date Granted: October 22, 2014.
Reason Waived: A waiver was requested because a new Executive Director was in the process of being hired. The waiver was provided for no more than 90 days on the basis of exigent circumstances beyond its control.
Contact: Cristal Quinn, Grants Management Specialist, Office of Grants Management, Office of Native American Programs, Southwest Office of Native American Programs, Office of Public and Indian Housing, Department of Housing and Urban Development, One N. Central Ave., Phoenix, AZ 85004, telephone (602) 379-7206.
• Regulation: 24 CFR 1000.224.
Project/Activity: Resighini Rancheria of Klamath, CA 95548-0529.
Nature of Requirement: HUD's regulation at 24 CFR 1000.224 that the Secretary may waive the applicability of the requirement to submit an Indian Housing Plan (IHP), in whole or in part, for a period of not more than 90 days, if the Secretary determines that an Indian tribe has not complied with, or is unable to comply with, those requirements due to exigent circumstances beyond the control of the Indian Tribe.
Granted By: Jemine A. Bryon, Acting Assistant Secretary for Public and Indian Housing.
Date Granted: October 22, 2014.
Reason Waived: A waiver was requested because of new staff turnover, which resulted in technological problems in completing the IHP. The waiver was provided for no more than 90 days on the basis of exigent circumstances beyond its control.
Contact: Sarah Olson, Grants Management Specialist, Office of Grants Management, Office of Native American Programs, Southwest Office of Native American Programs, Office of Public and Indian Housing, Department of Housing and Urban Development, One N. Central Ave., Phoenix, AZ 85004, telephone (602) 379-7233.
• Regulation: 24 CFR 1000.224.
Project/Activity: Cahto Indians of the Laytonville Rancheria, Laytonville, CA 95454-1239.
Nature of Requirement: HUD's regulation at 24 CFR 1000.224 that the Secretary may waive the applicability of the requirement to submit an Indian Housing Plan (IHP), in whole or in part, for a period of not more than 90 days, if the Secretary determines that an Indian tribe has not complied with, or is unable to comply with, those requirements due to exigent circumstances beyond the control of the Indian Tribe.
Granted By: Jemine A. Bryon, Acting Assistant Secretary for Public and Indian Housing.
Date Granted: October 22, 2014.
Reason Waived: A waiver was requested because there were no housing funds available to pay the housing staff salary prior to completing the IHP. The Tribe needed time to re-hire the staff person to complete and submit the IHP. The waiver was provided for no more than 90 days on the basis of exigent circumstances beyond its control.
Contact: Daniel Celaya, Grants Management Specialist, Office of Grants Management, Office of Native American Programs, Southwest Office of Native American Programs, Office of Public and Indian, Housing Department of Housing and Urban Development, One N. Central Ave., Phoenix, AZ 85004, telephone (602) 379-7193.
• Regulation: 24 CFR 1000.224.
Project/Activity: Big Valley Tribe of Pomo Indians, Lakeport, CA 95453.
Nature of Requirement: HUD's regulation at 24 CFR 1000.224 that the Secretary may waive the applicability of the requirement to submit an Indian Housing Plan (IHP), in whole or in part, for a period of not more than 90 days, if the Secretary determines that an Indian tribe has not complied with, or is unable to comply with, those requirements due to exigent circumstances beyond the control of the Indian Tribe.
Granted By: Jemine A. Bryon, Acting Assistant Secretary for Public and Indian Housing.
Date Granted: October 22, 2014.
Reason Waived: A waiver was requested because a new Executive Director was in the process of being hired. The waiver was provided for no more than 90 days on the basis of exigent circumstances beyond its control.
Contact: Sarah Olson, Grants Management Specialist, Office of Grants Management, Office of Native American Programs, Southwest Office of Native American Programs, Office of Public and Indian Housing Department of Housing and Urban Development, One N. Central Ave., Phoenix, AZ 85004, telephone (602) 379-7233.
• Regulation: 24 CFR 1000.224.
Project/Activity: Summit Lake Paiute Tribe, Summit Lake, NV.
Nature of Requirement: HUD's regulation at 24 CFR 1000.224 that the Secretary may waive the applicability of the requirement to submit an Indian Housing Plan (IHP), in whole or in part, for a period of not more than 90 days, if the Secretary determines that an Indian tribe has not complied with, or is unable to comply with, those requirements due to exigent circumstances beyond the control of the Indian Tribe.
Granted By: Jemine A. Bryon, Acting Assistant Secretary for Public and Indian Housing.
Date Granted: October 28, 2014.
Reason Waived: A waiver was requested because the Tribal Council went through an internal reorganization; the person responsible for preparing the IHP was no longer associated with the Tribal Council. The Tribal Council will assign another council member to complete the IHP. The waiver was provided for no more than 90 days on the basis of exigent circumstances beyond its control.
Contact: Leticia Rodriguez, Grants Management Specialist, Office of Grants Management, Office of Native American Programs, Southwest Office of Native American Programs, Office of Public and Indian Housing, Department of Housing and Urban Development, 500 Gold Ave. SW., Seventh FL, Suite 7301, Albuquerque, NM 87103-0906, telephone (505) 346-6926.
Office of the Chief Information Officer, HUD.
Notice.
HUD has submitted the proposed information collection requirement described below to the Office of Management and Budget (OMB) for review, in accordance with the Paperwork Reduction Act. The purpose of this notice is to allow for an additional 30 days of public comment.
Interested persons are invited to submit comments regarding this proposal. Comments should refer to the proposal by name and/or OMB Control Number and should be sent to: HUD Desk Officer, Office of Management and Budget, New Executive Office Building, Washington, DC 20503; fax: 202-395-5806. Email:
Colette Pollard, Reports Management Officer, QDAM, Department of Housing and Urban Development, 451 7th Street, SW., Washington, DC 20410; email at
This notice informs the public that HUD has submitted to OMB a request for approval of the information collection described in Section A.
The
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,
HUD encourages interested parties to submit comment in response to these questions.
Section 3507 of the Paperwork Reduction Act of 1995, 44 U.S.C. Chapter 35.
Bureau of Land Management, Interior.
Cancellation of public meeting.
In accordance with the Federal Land Policy and Management Act and the Federal Advisory Committee Act, the meeting of the Bureau of Land Management (BLM) Pecos District Resource Advisory Council's (RAC) Lesser Prairie-Chicken (LPC) Habitat Preservation Area of Critical Environmental Concerns (ACEC) Livestock Grazing Subcommittee originally scheduled for the time a date listed below is cancelled.
The LPC ACEC Subcommittee was originally scheduled to meet on March 31, 2015, at 1 p.m. in the Roswell Field Office, 2909 West Second Street, Roswell, New Mexico 88201.
Adam Ortega, Roswell Field Office, Bureau of Land Management, 2909 West 2nd Street, Roswell, New Mexico 88201, 575-627-0204. Persons who use a telecommunications device for the deaf (TDD) may call the Federal Information Relay Service (FIRS) at 1-800-877-8229 to contact the above individual during normal business hours. The FIRS is available 24 hours a day, 7 days a week, to leave a message or question with the above individual. You will receive a reply during normal business hours.
The 10-member Pecos District RAC elected to create a subcommittee to advise the Secretary of the Interior, through the BLM Pecos District, about possible livestock grazing within the LPC ACEC. The Pecos District RAC met on March 10, 2015, and voted to pass on Subcommittee's management recommendations for the LPC ACEC to the BLM's Pecos District, making the
Nominations for the following properties being considered for listing or related actions in the National Register were received by the National Park Service before February 28, 2015. Pursuant to section 60.13 of 36 CFR part 60, written comments are being accepted concerning the significance of the nominated properties under the National Register criteria for evaluation. Comments may be forwarded by United States Postal Service, to the National Register of Historic Places, National Park Service, 1849 C St. NW., MS 2280, Washington, DC 20240; by all other carriers, National Register of Historic Places, National Park Service, 1201 Eye St. NW., 8th floor, Washington, DC 20005; or by fax, 202-371-6447. Written or faxed comments should be submitted by April 15, 2015. Before including your address, phone number, email address, or other personal identifying information in your comment, you should be aware that your entire comment—including your personal identifying information—may be made publicly available at any time. While you can ask us in your comment to withhold your personal identifying information from public review, we cannot guarantee that we will be able to do so.
Fish and Wildlife Service, Interior.
Notice of availability.
We, the U.S. Fish and Wildlife Service (Service), announce the availability of the final Comprehensive Conservation Plan (CCP) and Finding of No Significant Impact (FONSI) for the environmental assessment and associated step-down plans, including the Habitat Management Plan, Integrated Pest Management Plan, and the Visitor Services Plan, for Sam D. Hamilton Noxubee National Wildlife Refuge in Oktibbeha, Noxubee, and Winston Counties, Mississippi. In the final CCP, we describe how we will manage the Refuge for the next 15 years.
You may obtain a copy of the CCP and FONSI by writing to: Sam D. Hamilton Noxubee National Wildlife Refuge, 13723 Bluff Lake Rd., Brooksville, MS 39739. Alternatively, you may download the documents from our Internet Site:
Steve Reagan, Project Leader, 662-323-5548,
With this notice, we finalize the CCP process for Sam D. Hamilton Noxubee National Wildlife Refuge. We started the process through a notice in the
Sam D. Hamilton Noxubee National Wildlife Refuge (Refuge) is located within three counties (Noxubee, Oktibbeha, and Winston) in east-central Mississippi, and is approximately 17 miles south-southwest of Starkville and approximately 120 miles north-northeast of Jackson, the capital of Mississippi. The Refuge is currently 48,219 acres. The primary establishing legislation for the Refuge is Executive Order 8444, dated June 14, 1940. Established as Noxubee NWR in 1940, the Refuge was subsequently renamed
The National Wildlife Refuge System Administration Act of 1966 (16 U.S.C. 668dd-668ee) (Administration Act), as amended by the National Wildlife Refuge System Improvement Act of 1997, requires us to develop a CCP for each national wildlife refuge. The purpose for developing a CCP is to provide refuge managers with a 15-year plan for achieving refuge purposes and contributing toward the mission of the National Wildlife Refuge System, consistent with sound principles of fish and wildlife management, conservation, legal mandates, and our policies. In addition to outlining broad management direction on conserving wildlife and their habitats, CCPs identify wildlife-dependent recreational opportunities available to the public, including opportunities for hunting, fishing, wildlife observation, wildlife photography, and environmental education and interpretation. We will review and update the CCP at least every 15 years in accordance with the Administration Act.
We made copies of the Draft CCP/EA available for a 60-day public review and comment period via a
We developed three alternatives for managing the Refuge (Alternatives A, B, and C), with Alternative C selected for implementation. This alternative will manage refuge resources to optimize native wildlife populations and habitats under a balanced and integrated approach, not only for federally listed species (red-cockaded woodpeckers (RCW)) and migratory birds, but also for other native species such as white-tailed deer, wild turkey, Northern bobwhite, paddlefish, and forest-breeding birds.
This alternative also provides opportunities for the six priority public uses (
Under this alternative, the Refuge would favor management that restores historic forest conditions while achieving Refuge purposes.
Active manipulation of habitats and populations would occur as necessary to maintain biological integrity, diversity, and environmental health. Silvicultural treatments within bottomland hardwood habitats would receive low priority, but may be used to promote recruitment of red oak species within the overstory of those flooded forested habitats used by waterfowl. The Refuge would attempt to increase brood survival of waterfowl by managing shallow water aquatic habitats to produce and sustain protective shrub-scrub cover with fringe area of the Refuge's lakes. Manipulation of water level would be the primary tool used to produce the desired shrub-scrub cover.
The Refuge would participate in wood duck banding programs and try to obtain Refuge quotas as assigned by the U.S. Fish and Wildlife Service's national Migratory Bird program, and limit human access to key areas used by waterfowl to reduce disturbance during critical life cycle stages.
Habitat manipulations used to benefit RCWs could include silvicultural practices (
In order to sustain forest resources for future RCW habitat, harvesting of existing mature forests as part of regeneration efforts within present and future partitions may occur. No additional, non-historic pine habitats outside currently active partitions would be maintained or converted for support of the RCW. Refuge staff and possibly contractors would continue to scientifically monitor RCWs through observation and nest and fledge checks.
The current level of visitor services programs would be expanded for the general public, and attempts made to provide more access for users with disabilities and youth. This alternative would establish a “Connecting People with Nature” area to consolidate activities and users requiring greater support to enjoy wildlife dependent activities.
All existing wildlife-dependent uses and the supporting facilities would be maintained and, if resources are available, enhanced through possible increase and better maintenance in overlooks, boardwalks, and trails. An effort would be made to increase visitor safety and enjoyment through establishment of parking areas, improved management of vehicle flow, creation of paved walking and biking trails, and roadside bike lanes along Bluff Lake and Loakfoma Roads. Refuge regulatory and informational signs would receive priority.
Public activities found compatible include bicycle, boating, and picnicking in association with wildlife-dependent activities, geocaching for environmental education, recreational fishing and hunting, wildlife observation, wildlife photography, and environmental education and interpretation.
This notice is published under the authority of the National Wildlife Refuge System Improvement Act of 1997 (16 U.S.C. 668dd
Nominations for the following properties being considered for listing or related actions in the National Register were received by the National Park Service before March 7, 2015. Pursuant to section 60.13 of 36 CFR part 60, written comments are being accepted concerning the significance of the nominated properties under the National Register criteria for evaluation. Comments may be forwarded by United States Postal Service, to the National Register of Historic Places, National Park Service, 1849 C St. NW., MS 2280, Washington, DC 20240; by all other carriers, National Register of Historic Places, National Park Service,1201 Eye St. NW., 8th floor, Washington, DC 20005; or by fax, 202-371-6447. Written or faxed comments should be submitted by April 15, 2015. Before including your address, phone number, email address, or other personal identifying information in your comment, you should be aware that your entire comment—including your personal identifying information—may be made publicly available at any time. While you can ask us in your comment to withhold your personal identifying information from public review, we cannot guarantee that we will be able to do so.
A request for removal has been received for the following resource:
Joint Board for the Enrollment of Actuaries.
Notice of Federal Advisory Committee meeting.
The Executive Director of the Joint Board for the Enrollment of Actuaries gives notice of a closed meeting of the Advisory Committee on Actuarial Examinations.
The meeting will be held on April 27, 2015, from 8:30 a.m. to 5:00 p.m.
The meeting will be held at The Savitz Organization, 1845 Walnut Street, 14th Floor, Philadelphia, PA 19103.
Patrick W. McDonough, Executive Director of the Joint Board for the Enrollment of Actuaries, 703-414-3163.
Notice is hereby given that the Advisory Committee on Actuarial Examinations will meet at The Savitz Organization, 1845 Walnut Street, 14th Floor, Philadelphia, PA 19103.
The purpose of the meeting is to discuss topics and questions that may be recommended for inclusion on future Joint Board examinations in actuarial mathematics, pension law and methodology referred to in 29 U.S.C. 1242(a)(1)(B).
A determination has been made as required by section 10(d) of the Federal Advisory Committee Act, 5 U.S.C. App., that the subject of the meeting falls within the exception to the open meeting requirement set forth in Title 5 U.S.C. 552b(c)(9)(B), and that the public interest requires that such meeting be closed to public participation.
On March 23, 2015, the Department of Justice lodged a proposed consent decree with the United States District
The proposed consent decree resolves the United States' claims against: Richard Middleton, Circle Environmental, Inc. and Waterpollutionsolutions.com, Inc. (collectively the “Settling Defendants”), for cost recovery under Section 107 of the Comprehensive Environmental Response, Compensation, and Liability Act (“CERCLA”) relating to the release or threatened release of hazardous substances into the environment at the Circle Environmental #1 and #2 Superfund Sites (the “Sites”) in Terrell County, Georgia. Under the terms of the proposed consent decree, Settling Defendants will reimburse the United States' past costs in connection with the removal actions at the Sites in the amount of $285,000. In return, the United States agrees not to sue or take administrative action against Settling Defendants under Section 107 of CERCLA for past response costs. The case remains open against BSJR, LLC.
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
During the public comment period, the consent decree may be examined and downloaded at this Justice Department Web site:
Please enclose a check or money order for $5.50 (25 cents per page reproduction cost) payable to the United States Treasury for a copy of the consent decree with Appendices, or $4.50 (25 cents per page reproduction cost) for a copy of the consent decree without Appendices.
Notice.
On March 31, 2015, the Department of Labor (DOL) will submit the Occupational Safety and Health Administration (OSHA) sponsored information collection request (ICR) titled, “Occupational Exposure to Hazardous Chemicals in Laboratories Standard,” to the Office of Management and Budget (OMB) for review and approval for continued use, without change, in accordance with the Paperwork Reduction Act of 1995 (PRA), 44 U.S.C. 3501
The OMB will consider all written comments that agency receives on or before April 30, 2015.
A copy of this ICR with applicable supporting documentation; including a description of the likely respondents, proposed frequency of response, and estimated total burden may be obtained free of charge from the RegInfo.gov Web site at
Submit comments about this request by mail or courier to the Office of Information and Regulatory Affairs, Attn: OMB Desk Officer for DOL-OSHA, Office of Management and Budget, Room 10235, 725 17th Street NW., Washington, DC 20503; by Fax: 202-395-5806 (this is not a toll-free number); or by email:
Michel Smyth by telephone at 202-693-4129, TTY 202-693-8064, (these are not toll-free numbers) or by email at
44 U.S.C. 3507(a)(1)(D).
This ICR seeks to extend PRA authority for the Occupational Exposure to Hazardous Chemicals in Laboratories Standard information collection codified in regulation 29 CFR 1910.1450. The Standard applies to any Occupational Safety and Health Act of 1970 (OSH Act) laboratory that uses hazardous chemicals in accordance with the Standard's definitions for
This information collection is subject to the PRA. A Federal agency generally cannot conduct or sponsor a collection of information, and the public is generally not required to respond to an information collection, unless it is approved by the OMB under the PRA and displays a currently valid OMB Control Number. In addition, notwithstanding any other provisions of law, no person shall generally be subject to penalty for failing to comply with a collection of information that does not display a valid Control Number.
OMB authorization for an ICR cannot be for more than three (3) years without renewal, and the current approval for this collection is scheduled to expire on March 31, 2015. The DOL seeks to extend PRA authorization for this information collection for three (3) more years, without any change to existing requirements. The DOL notes that existing information collection requirements submitted to the OMB receive a month-to-month extension while they undergo review. For additional substantive information about this ICR, see the related notice published in the
Interested parties are encouraged to send comments to the OMB, Office of Information and Regulatory Affairs at the address shown in the
• Evaluate whether the proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information will have practical utility;
• Evaluate the accuracy of the agency's estimate of the burden of the proposed collection of information, including the validity of the methodology and assumptions used;
• Enhance the quality, utility, and clarity of the information to be collected; and
• Minimize the burden of the collection of information on those who are to respond, including through the use of appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology,
Notice.
The Department of Labor (DOL) is submitting the Bureau of Labor Statistics (BLS) sponsored information collection request (ICR) revision titled, “National Longitudinal Survey of Youth 1997,” to the Office of Management and Budget (OMB) for review and approval for use in accordance with the Paperwork Reduction Act (PRA) of 1995 (44 U.S.C. 3501
The OMB will consider all written comments that agency receives on or before April 30, 2015.
A copy of this ICR with applicable supporting documentation; including a description of the likely respondents, proposed frequency of response, and estimated total burden may be obtained free of charge from the RegInfo.gov Web site at
Submit comments about this request by mail or courier to the Office of Information and Regulatory Affairs, Attn: OMB Desk Officer for DOL-BLS, Office of Management and Budget, Room 10235, 725 17th Street NW., Washington, DC 20503; by Fax: 202-395-5806 (this is not a toll-free number); or by email:
Michel Smyth by telephone at 202-693-4129, TTY 202-693-8064, (these are not toll-free numbers) or sending an email to
44 U.S.C. 3507(a)(1)(D).
This ICR seeks approval under the PRA for revisions to the National Longitudinal Survey of Youth 1997 information collection. The National Longitudinal Survey of Youth 1997 (NLSY97) includes respondents born from 1980 through 1984 and lived in the United States when the survey began in 1997. The primary objective of the survey is to study the transition from full-time schooling to the establishment of careers and families. The longitudinal focus of the survey requires information to be collected about the same individuals over many years in order to trace their education, training, work experience, fertility, income, and program participation. Research based on the NLSY97 contributes to the formation of national policy in the areas of education, training, employment programs, and school-to-work transitions. This information collection has been classified as a revision, because there have been a few modifications to the existing NLSY97 questionnaire. The BLS Authorizing Statute authorizes this information collection.
This information collection is subject to the PRA. A Federal agency generally cannot conduct or sponsor a collection of information, and the public is generally not required to respond to an information collection, unless it is approved by the OMB under the PRA and displays a currently valid OMB Control Number. In addition, notwithstanding any other provisions of law, no person shall generally be subject to penalty for failing to comply with a collection of information that does not display a valid Control Number.
Interested parties are encouraged to send comments to the OMB, Office of
• Evaluate whether the proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information will have practical utility;
• Evaluate the accuracy of the agency's estimate of the burden of the proposed collection of information, including the validity of the methodology and assumptions used;
• Enhance the quality, utility, and clarity of the information to be collected; and
• Minimize the burden of the collection of information on those who are to respond, including through the use of appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology,
Notice.
On March 31, 2015, the Department of Labor (DOL) will submit the Employee Benefits Security Administration (EBSA) sponsored information collection request (ICR) titled, “Employee Retirement Income Security Act Section 408(b)(2) Regulation,” to the Office of Management and Budget (OMB) for review and approval for continued use, without change, in accordance with the Paperwork Reduction Act of 1995 (PRA), 44 U.S.C. 3501
The OMB will consider all written comments that agency receives on or before April 30, 2015.
A copy of this ICR with applicable supporting documentation; including a description of the likely respondents, proposed frequency of response, and estimated total burden may be obtained free of charge from the RegInfo.gov Web site at
Submit comments about this request by mail or courier to the Office of Information and Regulatory Affairs, Attn: OMB Desk Officer for DOL-EBSA, Office of Management and Budget, Room 10235, 725 17th Street NW., Washington, DC 20503; by Fax: 202-395-5806 (this is not a toll-free number); or by email:
44 U.S.C. 3507(a)(1)(D).
This ICR seeks to extend PRA authority for the Employee Retirement Income Security Act (ERISA) section 408(b)(2) regulation information collection requirements codified in regulations 29 CFR 2550.408(b)(-2(c) that require certain retirement plan service providers to disclose information about their compensation and potential conflicts of interest to responsible plan fiduciaries. These disclosure requirements provide guidance for compliance with a statutory exemption from ERISA prohibited transaction provisions. Failing to satisfy the 408(b)(2) regulation disclosure requirements may result in provision of services prohibited by ERISA section 406(a)(1)(C), with consequences for both the responsible plan fiduciary and the covered service provider. ERISA section 408(b)(2) authorizes this information collection.
This information collection is subject to the PRA. A Federal agency generally cannot conduct or sponsor a collection of information, and the public is generally not required to respond to an information collection, unless it is approved by the OMB under the PRA and displays a currently valid OMB Control Number. In addition, notwithstanding any other provisions of law, no person shall generally be subject to penalty for failing to comply with a collection of information that does not display a valid Control Number.
OMB authorization for an ICR cannot be for more than three (3) years without renewal, and the current approval for this collection is scheduled to expire on March 31, 2015. The DOL seeks to extend PRA authorization for this information collection for three (3) more years, without any change to existing requirements. The DOL notes that existing information collection requirements submitted to the OMB receive a month-to-month extension while they undergo review. For additional substantive information about this ICR, see the related notice published in the
Interested parties are encouraged to send comments to the OMB, Office of Information and Regulatory Affairs at the address shown in the
• Evaluate whether the proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information will have practical utility;
• Evaluate the accuracy of the agency's estimate of the burden of the proposed collection of information, including the validity of the methodology and assumptions used;
• Enhance the quality, utility, and clarity of the information to be collected; and
• Minimize the burden of the collection of information on those who are to respond, including through the use of appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology,
By application dated on February 6, 2015, a state workforce official requested administrative reconsideration of the negative determination regarding workers' eligibility to apply for worker adjustment assistance applicable to workers and former workers of Levi Strauss & Company, Eugene, Oregon. The determination was issued on January 14, 2015 and the Notice of Determination was published in the
Pursuant to 29 CFR 90.18(c) reconsideration may be granted under the following circumstances:
(1) If it appears on the basis of facts not previously considered that the determination complained of was erroneous;
(2) If it appears that the determination complained of was based on a mistake in the determination of facts not previously considered; or
(3) If in the opinion of the Certifying Officer, a misinterpretation of facts or of the law justified reconsideration of the decision.
The initial investigation resulted in a negative determination based on the findings that worker separations at Levi Strauss & Co., Eugene, Oregon are not attributable to increased imports of articles or a shift in production of articles to a foreign country.
The request for reconsideration asserts that although the workers are engaged in service-related activities, the workers perform production forecasting activities and order management support of Levi Strauss' production of clothing and apparel. The reconsideration application concludes that both activities drive production and has been shifted to a foreign country.
The Department of Labor has carefully reviewed the request for reconsideration and the existing record, and has determined that the Department will conduct further investigation to determine if the workers meet the eligibility requirements of the Trade Act of 1974.
After careful review of the application, I conclude that the claim is of sufficient weight to justify reconsideration of the U.S. Department of Labor's prior decision. The application is, therefore, granted.
Employment and Training Administration, Labor.
Funding Opportunity Announcement (FOA).
The Employment and Training Administration (ETA), U.S. Department of Labor, announces the availability of approximately $27 million in grant funds authorized by the Workforce Investment Act and the Second Chance Act of 2007 for Training to Work 3—Adult Reentry. ETA plans to award approximately 20 grants of up to $1,360,000 each to serve male and female ex-offenders, referred to in the FOA as returning citizens.
This FOA provides the opportunity for organizations to develop and implement career pathways programs in demand sectors and occupations for men and women, including veterans, and people with disabilities, who are at least 18 years old and who are enrolled in work release programs. The purpose of this program is to assist returning citizens transition back into their communities by gaining industry-recognized credentials and securing employment.
The complete FOA and any subsequent FOA amendments in connection with this solicitation are described in further detail on ETA's Web site at
The closing date for receipt of applications under this announcement is May 1, 2015. Applications must be received no later than 4:00:00 p.m. Eastern Time.
Brinda Ruggles, 200 Constitution Avenue NW., Room N-4716, Washington, DC 20210; Telephone: 202-693-3437.
The Grant Officer for this FOA is Melissa Abdullah.
The National Science Board's Committee on Programs and Plans (CPP) and Subcommittee on Facilities (SCF), pursuant to NSF regulations (45 CFR part 614), the National Science Foundation Act, as amended (42 U.S.C. 1862n-5), and the Government in the Sunshine Act (5 U.S.C. 552b), hereby gives notice of the scheduling of a teleconference for the transaction of National Science Board business, as follows:
Friday, April 3, 2015 at 1 p.m. EDT.
Chairmen's remarks and discussion of NSF's draft response
Closed.
This meeting will be held by teleconference. Please refer to the National Science Board Web site
The ACRS Subcommittee on Metallurgy & Reactor Fuels will hold a meeting on April 7, 2015, Room T-2B1, 11545 Rockville Pike, Rockville, Maryland.
The meeting will be open to public attendance.
The agenda for the subject meeting shall be as follows:
The Subcommittee will discuss Consequential Steam Generator Tube Rupture (C-SGTR). The Subcommittee will hear presentations by and hold discussions with the NRC staff and other interested persons regarding this matter. The Subcommittee will gather information, analyze relevant issues and facts, and formulate proposed positions and actions, as appropriate, for deliberation by the Full Committee.
Members of the public desiring to provide oral statements and/or written comments should notify the Designated Federal Official (DFO), Christopher Brown (Telephone 301-415-7111 or Email:
Detailed meeting agendas and meeting transcripts are available on the NRC Web site at
If attending this meeting, please enter through the One White Flint North building, 11555 Rockville Pike, Rockville, MD. After registering with security, please contact Mr. Theron Brown (Telephone 240-888-9835) to be escorted to the meeting room.
Nuclear Regulatory Commission.
Exemption and combined license amendment issuance.
The U.S. Nuclear Regulatory Commission (NRC) is granting an exemption to allow a departure from the certification information of Tier 1 of the generic design control document (DCD) and is issuing License Amendment No. 27 to Combined Licenses (COL), NPF-91 and NPF-92. The COLs were issued to Southern Nuclear Operating Company, Inc., and Georgia Power Company, Oglethorpe Power Corporation, Municipal Electric Authority of Georgia, and the City of Dalton, Georgia (the licensee); for construction and operation of the Vogtle Electric Generating Plant (VEGP), Units 3 and 4, located in Burke County, Georgia.
The granting of the exemption allows the changes to Tier 1 information requested in the amendment. Because the acceptability of the exemption was determined in part by the acceptability of the amendment, the exemption and amendment are being issued concurrently.
Please refer to Docket ID NRC-2015-0074 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 Web site: Go to
• NRC's Agencywide Documents Access and Management System (ADAMS): You may obtain publicly-available documents online in the ADAMS Public Documents collection at
• NRC's PDR: You may examine and purchase copies of public documents at the NRC's PDR, Room O1-F21, One White Flint North, 11555 Rockville Pike, Rockville, Maryland 20852.
Chandu Patel, Office of New Reactors, U.S. Nuclear Regulatory Commission, Washington, DC 20555-0001; telephone: 301-415-3025; email:
The NRC is granting an exemption from Paragraph B of Section III, “Scope and Contents,” of appendix D, “Design Certification Rule for the AP1000,” to part 52 of Title 10 of the
(a) Installation of an additional non-safety-related battery;
(b) Revision to the annex building internal configuration by converting a shift turnover room to a battery room, adding an additional battery equipment room, and moving a fire area wall;
(c) Increase in the height of a room in the annex building; and
(d) Increase in thicknesses of certain annex building floor slabs.
In addition, the proposed changes also include reconfiguring existing rooms and related room, wall, and access path changes and making changes to the corresponding Tier 1 information in appendix C to the Combined Licenses.
These changes were necessary as part of structural and layout design modifications to the annex building.
Part of the justification for granting the exemption was provided by the review of the amendment. Because the exemption is necessary in order to issue the requested license amendment, the NRC granted the exemption and issued the amendment concurrently, rather than in sequence. This included issuing a combined safety evaluation containing the NRC staff's review of both the exemption request and the license amendment. The exemption met all applicable regulatory criteria set forth in 10 CFR 50.12, 10 CFR 52.7, and Section VIII.A.4. of appendix D to 10 CFR part 52. The license amendment was found to be acceptable as well. The combined safety evaluation is available in ADAMS under Accession No. ML14323A649.
Identical exemption documents (except for referenced unit numbers and license numbers) were issued to the licensee for VEGP Units 3 and 4 (COLs NPF-91 and NPF-92). The exemption documents for VEGP Units 3 and 4 can be found in ADAMS under Accession Nos. ML14323A623 and ML14323A629, respectively. The exemption is reproduced (with the exception of abbreviated titles and additional citations) in Section II of this document. The amendment documents for COLs NPF-91 and NPF-92 are available in ADAMS under Accession Nos. ML14323A635 and ML14323A640, respectively. A summary of the amendment documents is provided in Section III of this document.
Reproduced below is the exemption document issued to Vogtle Units 3 and Unit 4. It makes reference to the combined safety evaluation that provides the reasoning for the findings made by the NRC (and listed under Item 1) in order to grant the exemption:
1. In a letter dated August 22, 2014, and revised by letter dated September 23, 2014, and supplemented by letters dated October 30 and November 6, 2014, the licensee requested from the Commission an exemption from the provisions of 10 CFR part 52, appendix D, Section III.B, as part of license amendment request 13-038, “Annex Building Structure and Layout Changes” (LAR-13-038).
For the reasons set forth in Section 3.1, “Evaluation of Exemption,” of the NRC staff's Safety Evaluation, which can be found in ADAMS under Accession No. ML14323A649, the Commission finds that:
A. The exemption is authorized by law;
B. the exemption presents no undue risk to public health and safety;
C. the exemption is consistent with the common defense and security;
D. special circumstances are present in that the application of the rule in this circumstance is not necessary to serve the underlying purpose of the rule;
E. the special circumstances outweigh any decrease in safety that may result from the reduction in standardization caused by the exemption; and
F. the exemption will not result in a significant decrease in the level of safety otherwise provided by the design.
2. Accordingly, the licensee is granted an exemption to the provisions of 10 CFR part 52, appendix D, Section III.B, to allow departures from the certified Design Control Document Tier 1, Table 3.3-1, “Definition of Wall Thickness for Nuclear Island Buildings, Turbine Building, and Annex Building,” and Figure 3.3-11A, “Annex Building Plan View at Elevation 100′-0″ (sensitive unclassified non-safeguards information (SUNSI)). The proposed changes include non-system based design descriptions and other detailed information related to these design descriptions and associated ITAAC, such changes to concrete floor thicknesses, annex building wall location descriptions, and the interior configuration of the annex building as described in the licensee's request dated August 22, 2014, and revised by letter dated September 23, 2014, and supplemented by letters dated October 30 and November 6, 2014. This exemption is related to, and necessary for the granting of License Amendment No. 27, which is being issued concurrently with this exemption.
3. As explained in Section 3.1, “Evaluation of Exemption,” of the NRC staff's Safety Evaluation (ADAMS Accession No. ML14323A649), this exemption meets the eligibility criteria for categorical exclusion set forth in 10 CFR 51.22(c)(9). Therefore, pursuant to 10 CFR 51.22(b), no environmental impact statement or environmental assessment needs to be prepared in connection with the issuance of the exemption.
4. This exemption is effective as of December 23, 2014.
By letter dated August 22, 2014, and revised by letter dated September 23, 2014, and supplemented by letters dated October 30 and November 6, 2014, the licensee requested that the NRC amend the COLs for VEGP, Units 3 and 4, COLs NPF-91 and NPF-92. The proposed amendment would depart from Tier 2 material previously incorporated into the Updated Final Safety Evaluation Report (UFSAR). Additionally, these Tier 2 changes involve changes to Tier 1 Information in the UFSAR, and the proposed amendment would also revise the associated material that has been included in Appendix C of each of the VEGP, Units 3 and 4 COLs. The requested amendment would revise the Tier 2 UFSAR information by revising UFSAR to (1) install an additional non-safety-related battery; (2) revise the annex building internal configuration; (3) increase the height of Containment Filtration Room A (Room 40551) by 4 feet from elevation (EL.) 146′-3″ to 150′-3″; and (4) increase concrete thicknesses from 6 inches to 8 inches in a number of floor slabs.
Additionally, the licensee proposed consistency and editorial changes to Tier 1 Table 3.3-1, as well as the corresponding information in Appendix C. These changes were necessary as part of a design modification to the structure and layout of the annex building.
The Commission has determined for these amendments that the application complies with the standards and requirements of the Atomic Energy Act of 1954, as amended (the Act), and the Commission's rules and regulations. The Commission has made appropriate findings as required by the Act and the Commission's rules and regulations in 10 CFR Chapter I, which are set forth in the license amendment.
A notice of consideration of issuance of amendment to facility operating license or combined license, as applicable, proposed no significant hazards consideration determination, and opportunity for a hearing in connection with these actions, was published in the
The Commission has determined that these amendments satisfy the criteria for categorical exclusion in accordance with 10 CFR 51.22. Therefore, pursuant to 10 CFR 51.22(b), no environmental impact statement or environmental assessment need be prepared for these amendments.
Using the reasons set forth in the combined safety evaluation, the staff granted the exemption and issued the amendment that the licensee requested on August 22, 2014, and revised by letter dated September 23, 2014, and supplemented by letters dated October 30 and November 6, 2014. The exemption and amendment were issued on December 23, 2014 as part of a combined package to the licensee (ADAMS Accession No. ML14323A609).
For the Nuclear Regulatory Commission.
Nuclear Regulatory Commission.
Biweekly notice.
Pursuant to Section 189a. (2) of the Atomic Energy Act of 1954, as amended (the Act), the U.S. Nuclear Regulatory Commission (NRC) is publishing this regular biweekly notice. The Act requires the Commission to publish notice of any amendments issued, or proposed to be issued and grants the Commission the authority to issue and make immediately effective any amendment to an operating license or combined license, as applicable, upon a determination by the Commission that such amendment involves no significant hazards consideration, notwithstanding the pendency before the Commission of a request for a hearing from any person.
This biweekly notice includes all notices of amendments issued, or proposed to be issued from March 5, 2015 to March 18, 2015. The last biweekly notice was published on March 17, 2015.
Comments must be filed by April 30, 2015. A request for a hearing must be filed by June 1, 2015.
You may submit comments by any of the following methods (unless this document describes a different method for submitting comments on a specific subject):
•
•
For additional direction on obtaining information and submitting comments, see “Obtaining Information and Submitting Comments” in the
Kay Goldstein, Office of Nuclear Reactor Regulation, U.S. Nuclear Regulatory Commission, Washington DC 20555-0001; telephone: 301-415-1506, email:
Please refer to Docket ID NRC-2015-0073 when contacting the NRC about the availability of information for this action. You may obtain publicly-available information related to this action by any of the following methods:
•
•
•
Please include Docket ID NRC-2015-0073, facility name, unit number(s), application date, and subject in your comment submission.
The NRC cautions you not to include identifying or contact information that you do not want to be publicly disclosed in your comment submission. The NRC posts all comment submissions at
If you are requesting or aggregating comments from other persons for submission to the NRC, then you should inform those persons not to include identifying or contact information that they do not want to be publicly disclosed in their comment submission. Your request should state that the NRC does not routinely edit comment
The Commission has made a proposed determination that the following amendment requests involve no significant hazards consideration. Under the Commission's regulations in § 50.92 of Title 10 of the
The Commission is seeking public comments on this proposed determination. Any comments received within 30 days after the date of publication of this notice will be considered in making any final determination.
Normally, the Commission will not issue the amendment until the expiration of 60 days after the date of publication of this notice. The Commission may issue the license amendment before expiration of the 60-day period provided that its final determination is that the amendment involves no significant hazards consideration. In addition, the Commission may issue the amendment prior to the expiration of the 30-day comment period should circumstances change during the 30-day comment period such that failure to act in a timely way would result, for example in derating or shutdown of the facility. Should the Commission take action prior to the expiration of either the comment period or the notice period, it will publish in the
Within 60 days after the date of publication of this notice, any person(s) whose interest may be affected by this action may file a request for a hearing and a petition to intervene with respect to issuance of the amendment to the subject facility operating license or combined license. Requests for a hearing and a petition for leave to intervene shall be filed in accordance with the Commission's “Agency Rules of Practice and Procedure” in 10 CFR part 2. Interested person(s) should consult a current copy of 10 CFR 2.309, which is available at the NRC's PDR, located at One White Flint North, Room O1-F21, 11555 Rockville Pike (first floor), Rockville, Maryland 20852. The NRC's regulations are accessible electronically from the NRC Library on the NRC's Web site at
As required by 10 CFR 2.309, a petition for leave to intervene shall set forth with particularity the interest of the petitioner in the proceeding, and how that interest may be affected by the results of the proceeding. The petition should specifically explain the reasons why intervention should be permitted with particular reference to the following general requirements: (1) The name, address, and telephone number of the requestor or petitioner; (2) the nature of the requestor's/petitioner's right under the Act to be made a party to the proceeding; (3) the nature and extent of the requestor's/petitioner's property, financial, or other interest in the proceeding; and (4) the possible effect of any decision or order which may be entered in the proceeding on the requestor's/petitioner's interest. The petition must also identify the specific contentions which the requestor/petitioner seeks to have litigated at the proceeding.
Each contention must consist of a specific statement of the issue of law or fact to be raised or controverted. In addition, the requestor/petitioner shall provide a brief explanation of the bases for the contention and a concise statement of the alleged facts or expert opinion which support the contention and on which the requestor/petitioner intends to rely in proving the contention at the hearing. The requestor/petitioner must also provide references to those specific sources and documents of which the petitioner is aware and on which the requestor/petitioner intends to rely to establish those facts or expert opinion. The petition must include sufficient information to show that a genuine dispute exists with the applicant on a material issue of law or fact. Contentions shall be limited to matters within the scope of the amendment under consideration. The contention must be one which, if proven, would entitle the requestor/petitioner to relief. A requestor/petitioner who fails to satisfy these requirements with respect to at least one contention will not be permitted to participate as a party.
Those permitted to intervene become parties to the proceeding, subject to any limitations in the order granting leave to intervene, and have the opportunity to participate fully in the conduct of the hearing.
If a hearing is requested, the Commission will make a final determination on the issue of no significant hazards consideration. The final determination will serve to decide when the hearing is held. If the final determination is that the amendment request involves no significant hazards consideration, the Commission may issue the amendment and make it immediately effective, notwithstanding the request for a hearing. Any hearing held would take place after issuance of the amendment. If the final determination is that the amendment request involves a significant hazards consideration, then any hearing held would take place before the issuance of any amendment unless the Commission finds an imminent danger to the health or safety of the public, in which case it will issue an appropriate order or rule under 10 CFR part 2.
All documents filed in NRC adjudicatory proceedings, including a request for hearing, a petition for leave to intervene, any motion or other document filed in the proceeding prior to the submission of a request for hearing or petition to intervene, and documents filed by interested governmental entities participating under 10 CFR 2.315(c), must be filed in accordance with the NRC's E-Filing rule (72 FR 49139; August 28, 2007). The E-Filing process requires participants to submit and serve all adjudicatory
To comply with the procedural requirements of E-Filing, at least ten 10 days prior to the filing deadline, the participant should contact the Office of the Secretary by email at
Information about applying for a digital ID certificate is available on the NRC's public Web site at
If a participant is electronically submitting a document to the NRC in accordance with the E-Filing rule, the participant must file the document using the NRC's online, Web-based submission form. In order to serve documents through the Electronic Information Exchange System, users will be required to install a Web browser plug-in from the NRC's Web site. Further information on the Web-based submission form, including the installation of the Web browser plug-in, is available on the NRC's public Web site at
Once a participant has obtained a digital ID certificate and a docket has been created, the participant can then submit a request for hearing or petition for leave to intervene. Submissions should be in Portable Document Format (PDF) in accordance with NRC guidance available on the NRC's public Web site at
A person filing electronically using the NRC's adjudicatory E-Filing system may seek assistance by contacting the NRC Meta System Help Desk through the “Contact Us” link located on the NRC's public Web site at
Participants who believe that they have a 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 requesting authorization to continue to submit documents in paper format. Such filings must be submitted by: (1) First class mail addressed to the Office of the Secretary of the Commission, U.S. Nuclear Regulatory Commission, Washington, DC 20555-0001, Attention: Rulemaking and Adjudications Staff; or (2) courier, express mail, or expedited delivery service to the Office of the Secretary, Sixteenth Floor, One White Flint North, 11555 Rockville Pike, Rockville, Maryland, 20852, Attention: Rulemaking and Adjudications Staff. Participants filing a document in this manner are responsible for serving the document on all other participants. Filing is considered complete by first-class mail as of the time of deposit in the mail, or by courier, express mail, or expedited delivery service upon depositing the document with the provider of the service. A presiding officer, having granted an exemption request from using E-Filing, may require a participant or party to use E-Filing if the presiding officer subsequently determines that the reason for granting the exemption from use of E-Filing no longer exists.
Documents submitted in adjudicatory proceedings will appear in the NRC's electronic hearing docket which is available to the public at
Petitions for leave to intervene must be filed no later than 60 days from the date of publication of this notice. Requests for hearing, petitions for leave to intervene, and motions for leave to file new or amended contentions that are filed after the 60-day deadline will not be entertained absent a determination by the presiding officer that the filing demonstrates good cause by satisfying the three factors in 10 CFR 2.309(c)(1)(i)-(iii).
For further details with respect to these license amendment applications, see the application for amendment which is available for public inspection in ADAMS and at the NRC's PDR. For additional direction on accessing information related to this document, see the “Obtaining Information and Submitting Comments” section of this document.
1. Does the proposed amendment involve a significant increase in the probability or consequences of an accident previously evaluated?
Response: No.
Duke Energy requests NRC review and approval to revise the Allowable Value parameter for the Technical Specification (TS) 3.3.2 Table 3.3.2-1, “Engineered Safety Feature Actuation System Instrumentation” function for Auxiliary Feedwater Loss of Offsite Power (Function 6.d.) and for the TS 3.3.5 Loss of Voltage function in Surveillance Requirement (SR) 3.3.5.2 in order to make this parameter more restrictive. The existing parameter was determined to be non-conservative and this parameter is presently classified as Operable But Degraded in the Catawba Corrective Action Program. In addition, the Nominal Trip Setpoint parameter for this function is being slightly lowered in order to gain additional margin. Finally, as part of this License Amendment Request (LAR), applicable footnotes are also being added to the affected TS 3.3.2 function in accordance with TS Task Force Traveler [(TSTF)] TSTF-493, Revision 4, “Clarify Application of Setpoint Methodology for LSSS Functions.” The more restrictive Allowable Value will preclude the potential for a double sequencing event to occur under the condition of a Loss of Coolant Accident (LOCA) load sequencer actuation with a pre-existing degraded voltage condition on the essential buses. These proposed changes will not increase the probability of occurrence of any design basis accident since the affected function, in and of itself, cannot initiate an accident. Should a LOCA occur, the proposed changes will ensure that the sequencer operates properly in order to mitigate the consequences of the event. Appropriate calculations were developed to substantiate the revised TS parameters proposed in this LAR. There will be no impact on the source term or pathways assumed in accidents previously evaluated. No analysis assumptions will be violated and there will be no adverse effects on onsite or offsite doses as the result of an accident. Adoption of the TSTF-493 footnotes for the respective SRs will ensure that the function's channels will continue to behave in accordance with safety analysis assumptions and the channel performance assumptions in the setpoint methodology.
Therefore, the proposed amendments do not involve a significant increase in the probability or consequences of an accident previously evaluated.
2. Does the proposed amendment create the possibility of a new or different kind of accident from any accident previously evaluated?
Response: No.
The proposed amendments do not change the methods governing normal plant operation; nor are the methods utilized to respond to plant transients altered. In addition, the proposed changes to the affected TS parameters and the adoption of the TSTF-493 footnotes will not create the potential for any new initiating events or transients to occur in the actual physical plant.
Therefore, the proposed amendments do not create the possibility of a new or different kind of accident from any accident previously evaluated.
3. Does the proposed amendment involve a significant reduction in the margin of safety?
Response: No.
Margin of safety is related to the confidence in the ability of the fission product barriers to perform their design functions during and following an accident. These barriers include the fuel cladding, the reactor coolant system, and the containment system. The proposed changes will assure the acceptable operation of the affected function under all postulated transient and accident conditions. This will ensure that all applicable design and safety limits are satisfied such that the fission product barriers will continue to perform their design functions.
Therefore, the proposed amendments do not involve a significant reduction in a margin of safety.
Based on the preceding discussion, Duke Energy concludes that the proposed amendments do not involve a significant hazards consideration under the standards set forth in 10 CFR 50.92(c), and, accordingly, a finding of “no significant hazards consideration” is justified.
The NRC staff has reviewed the licensee's analysis and, based on this review, it appears that the three standards of 10 CFR 50.92(c) are satisfied. Therefore, the NRC staff proposes to determine that the amendment request involves no significant hazards consideration.
1. Does the proposed change involve a significant increase in the probability or consequences of an accident previously evaluated?
Response: No.
The proposed change corrects a typographical error in TS 5.5.8, “Reactor Coolant Pump Flywheel Inspection Program,” and revises TS 5.5.9, “lnservice Testing Program,” for consistency with the requirements of 10 CFR 50.55a(f)(4) regarding the inservice testing of pumps and valves which are classified as ASME Code Class 1, Class 2 and Class 3. The proposed change incorporates revisions to the ASME Code that result in a net improvement in the measures for testing pumps and valves.
The proposed change does not impact any accident initiators or analyzed events or assumed mitigation of accident or transient events. The proposed change does not involve the addition or removal of any equipment, or any design changes to the facility.
Therefore, the proposed change does not involve a significant increase in the probability or consequences of an accident previously evaluated.
2. Does the proposed change create the possibility of a new or different kind of accident from any accident previously evaluated?
Response: No.
The proposed change corrects a typographical error in TS 5.5.8, “Reactor Coolant Pump Flywheel Inspection Program,” and revises TS 5.5.9, “lnservice Testing Program,” for consistency with the requirements of 10 CFR 50.55a(f)(4) regarding the inservice testing of pumps and valves which are classified as ASME Code Class 1, Class 2 and Class 3. The proposed change incorporates revisions to the ASME Code that result in a net improvement in the measures for testing pumps and valves.
The proposed change does not involve a modification to the physical configuration of
Therefore, the proposed change does not create the possibility of a new or different kind of accident from any accident previously evaluated.
3. Does the proposed change involve a significant reduction in a margin of safety?
Response: No.
The proposed change corrects a typographical error in TS 5.5.8, “Reactor Coolant Pump Flywheel Inspection Program,” and revises TS 5.5.9, “lnservice Testing Program,” for consistency with the requirements of 10 CFR 50.55a(f)(4) regarding the inservice testing of pumps and valves which are classified as ASME Code Class 1, Class 2 and Class 3. The proposed change incorporates revisions to the ASME Code that result in a net improvement in the measures for testing pumps and valves. The safety function of the affected pumps and valves will be maintained. Therefore, the proposed change does not involve a significant reduction in a margin of safety.
The NRC staff has reviewed the licensee's analysis and, based on this review, it appears that the three standards of 10 CFR 50.92(c) are satisfied. Therefore, the NRC staff proposes to determine that the amendment request involves no significant hazards consideration.
1. Does the proposed change involve a significant increase in the probability or consequences of an accident previously evaluated?
Response: No.
The Bases to TS 2.1.1.2 states that: “The MCPR SL ensures sufficient conservatism in the operating MCPR limit that, in the event of an AOO [Anticipated Operational Occurrence] from the limiting condition of operation, at least 99.9% of the fuel rods in the core would be expected to avoid boiling transition.
This condition is met in that the GGNS Cycle 20 (C20) MCPR SL evaluation was performed in accordance with Reference 4 [NEDE-24011-P-A, “General Electric Standard Application for Reactor Fuel (GESTAR-II”)]. The resulting values continue to ensure the conservatism described in the Bases to TS 2.1.1.2. The proposed changes also continue to ensure sufficient conservatism in the operating MCPR limit. The MCPR operating limits are presented and controlled in accordance with the GGNS Core Operating Limits Report (COLR).
The requested Technical Specification change does not involve any plant modifications or operational changes that could affect system reliability or performance or that could affect the probability of operator error. The requested change does not affect any postulated accident precursors, any accident mitigating systems, or introduce any new accident initiation mechanisms.
Therefore, the proposed change to increase the MCPR SL values does not involve a significant increase in the probability or consequences of an accident previously evaluated.
2. Does the proposed change create the possibility of a new or different kind of accident from any accident previously evaluated?
Response: No.
The proposed change does not involve any new modes of operation, any changes to setpoints, or any plant modifications. The proposed change to the MCPR SL accounts for requirements specified in the NRC Safety Evaluation limitations and conditions associated with NEDC-33173P [“Applicability of GE Methods to Expanded Operating Domains”] and NEDC-33006P [“Licensing Topical Report—General Electric Boiling Water Reactor Maximum Extended Load Line Limit Analysis Plus”]. Compliance with the criterion for incipient boiling transition continues to be ensured. The core operating limits will continue to be developed using NRC approved methods. The proposed [MCPR SL] does not result in the creation of any new precursors to an accident.
Therefore, the proposed change does not create of a new or different kind of accident from any accident previously evaluated.
3. Does the proposed change involve a significant reduction in a margin of safety?
Response: No.
The MCPR SLs have been evaluated in accordance with Global Nuclear Fuels NRC-approved cycle-specific safety limit methodology to ensure that during normal operation and during AOO's, at least 99.9% of the fuel rods in the core are not expected to experience transition boiling. The proposed change to the [MCPR SL] accounts for requirements specified in the NRC Safety Evaluation limitations and conditions associated with NEDC-33173P and NEDC-33006P, which result in additional margin above that specified in the TS Bases.
Therefore, the proposed change to the MCPR SL does not involve a significant reduction in a margin of safety.
The NRC staff has reviewed the licensee's analysis and, based on this review, it appears that the three standards of 10 CFR 50.92(c) are satisfied. Therefore, the NRC staff proposes to determine that the amendment request involves no significant hazards consideration.
1. Does the proposed change involve a significant increase in the probability or consequences of an accident previously evaluated?
Response: No.
The proposed change adopts a single flux methodology. While Chapter 15, Accident Analysis, of the Standard Review Plan (NUREG-0800, Standard Review Plan for the Review of Safety Analysis Reports for Nuclear Power Plants) assumes the pressure vessel does not fail, the flux methodology is not an initiator to any accident previously evaluated. Accordingly, the proposed change
Therefore, the proposed change does not involve a significant increase in the probability or consequences of an accident previously evaluated.
2. Does the proposed change create the possibility of a new or different kind of accident from any accident previously evaluated?
Response: No.
The proposed change adopts a flux methodology. The change does not involve a physical alteration of the plant (
Therefore, the proposed change does not create the possibility of a new or different kind of accident from any accident previously evaluated.
3. Does the proposed change involve a significant reduction in a margin of safety?
Response: No.
The proposed change adopts a single fluence methodology. The proposed change does not alter the manner in which safety limits, limiting safety system settings or limiting conditions for operation are determined. The proposed change ensures that the methodology used for fluence is in compliance with RG 1.190 requirements.
Therefore, the proposed change does not involve a significant reduction in a margin of safety.
The NRC staff has reviewed the licensee's analysis and, based on this review, it appears that the three standards of 10 CFR 50.92(c) are satisfied. Therefore, the NRC staff proposes to determine that the amendment request involves no significant hazards consideration.
1. Does the Proposed Change Involve a Significant Increase in the Probability or Consequences of an Accident Previously Evaluated?
Response: No.
The likelihood of a malfunction of any systems, structures or components (SSCs) supported by the UHS [ultimate heat sink] is not significantly increased by increasing the allowable Ultimate Heat Sink (UHS) temperature from ≤100 °F to ≤102 °F. The UHS provides a heat sink for process and operating heat from safety related components during a transient or accident, as well as during normal operation. The proposed change does not make any physical changes to any plant SSCs, nor does it alter any of the assumptions or conditions upon which the UHS is designed. The UHS is not an initiator of any analyzed accident. All equipment supported by the UHS has been evaluated to demonstrate that their performance and operation remains as described in the UFSAR [updated final safety analysis report] with no increase in probability of failure or malfunction.
The SSCs credited to mitigate the consequences of postulated design basis accidents remain capable of performing their design basis function. The change in maximum UHS temperature has been evaluated using the UFSAR described methods to demonstrate that the UHS remains capable of removing normal operating and post-accident heat. The change in UHS temperature and resulting containment response following a postulated design basis accident has been demonstrated to not be impacted. Additionally, all the UHS supported equipment, credited in the accident analysis to mitigate an accident, has been shown to continue to perform their design function as described in the UFSAR.
Therefore, the proposed change does not involve a significant increase in the probability or consequences of an accident previously evaluated.
2. Does the Proposed Change Create the Possibility of a New or Different Kind of Accident from any Accident Previously Evaluated?
Response: No.
The proposed change does not create the possibility of a new or different kind of accident from any accident previously evaluated. The proposed change does not introduce any new modes of plant operation, change the design function of any SSC, change the mode of operation of any SSC, or change any actions required when the TS limit is exceeded. There are no new equipment failure modes or malfunctions created as affected SSCs continue to operate in the same manner as previously evaluated and have been evaluated to perform as designed at the increased UHS temperature and as assumed in the accident analysis. Additionally, accident initiators remain as described in the UFSAR and no new accident initiators are postulated as a result of the increase in UHS temperature.
Therefore, the proposed change does not create the possibility of a new or different kind of accident from any previously evaluated.
3. Does the Proposed Change Involve a Significant Reduction in a Margin of Safety?
Response: No.
The proposed change continues to ensure that the maximum temperature of the cooling water supplied to the plant SSCs during a UHS design basis event remains within the evaluated equipment limits and capabilities assumed in the accident analysis. The proposed change does not result in any changes to plant equipment function, including setpoints and actuations. All equipment will function as designed in the plant safety analysis without any physical modifications. The proposed change does not alter a limiting condition for operation, limiting safety system setting, or safety limit specified in the Technical Specifications.
The proposed change does not adversely impact the UHS inventory required to be available for the UFSAR described design basis accident involving the worst case 30-day period including losses for evaporation and seepage to support safe shutdown and cooldown of both Braidwood Station units. Additionally, the structural integrity of the UHS is not impacted and remains acceptable following the change, thereby ensuring that the assumptions for both UHS temperature and inventory remain valid.
Therefore, since there is no adverse impact of this change on the Braidwood Station safety analysis, there is no reduction in the margin of safety of the plant.
The NRC staff has reviewed the licensee's analysis and, based on this review, it appears that the three standards of 10 CFR 50.92(c) are satisfied. Therefore, the NRC staff proposes to determine that the requested amendments involve no significant hazards consideration.
EGC has evaluated whether or not a significant hazards consideration is involved with the proposed amendment by focusing on the three standards set forth in 10 CFR 50.92(c), “Issuance of amendment,” as discussed below:
1. Does the proposed amendment involve a significant increase in the probability or consequences of an accident previously evaluated?
Response: No.
The proposed changes to revise TS 3.7.9, Condition I and SR 3.7.9.3 will ensure the operability of the SX [service water] makeup pumps to meet TS 3.7.9 LCO [Limiting Condition for Operation] requirement. The proposed change does not result in any physical changes to safety related structures, systems, or components. The probability of a flood at the river screen house (RSH) is unchanged. Since the UHS itself is not an accident initiator, the proposed change does not impact the initiators or assumptions of analyzed accidents, nor do they impact the mitigation of accidents or transient events. Consequently, the proposed change does not increase the probability of occurrence for any accident previously evaluated.
The proposed change will ensure that actions to verify operability of the deep well pumps will be taken prior to the potential for the SX makeup pumps to be adversely affected by the combined event flood high river level. Therefore, the UHS will be capable of performing its functions to mitigate accidents by serving as the heat sink for safety related equipment. Thus, the proposed change does not increase the consequences of any accident previously evaluated.
Therefore, the proposed change does not involve a significant increase in the probability or consequences of an accident previously evaluated.
2. Does the proposed amendment create the possibility of a new or different kind of accident from any accident previously evaluated?
Response: No.
The proposed change to revise TS 3.7.9, Condition I and SR 3.7.9.3 does not change the design function or operation of the SX makeup pumps. The proposed change does not change or introduce the possibility of any new or different type of equipment, modes of system operation, failure mechanisms, malfunctions, or accident initiators. The proposed change to lower the river level value at which action is taken to verify basin levels and deep well pumps are ready to perform the UHS makeup function in the place of the SX makeup pumps will not affect the operation or function of the UHS or the deep well pumps.
Therefore, the proposed change does not create the possibility of a new or different kind of accident from any accident previously evaluated.
3. Does the proposed amendment involve a significant reduction in a margin of safety?
Response: No.
The proposed change to revise TS 3.7.9, Condition I and SR 3.7.9.3 reestablishes the margin between the design bases combined event flood level and TS 3.7.9, Condition I action level for high river level. The proposed change will ensure the operability of the SX makeup pumps to meet TS 3.7.9 LCO and do not affect the ability of the SX makeup pumps to provide the safety related source makeup to the UHS.
Therefore, the proposed change does not involve a significant reduction in a margin of safety.
Based on the above, EGC concludes that the proposed amendment does not involve a significant hazards consideration under the standards set forth in 10 CFR 50.92(c), and accordingly, a finding of no significant hazards consideration is justified.
The NRC staff has reviewed the licensee's analysis and, based on this review, it appears that the three standards of 10 CFR 50.92(c) are satisfied. Therefore, the NRC staff proposes to determine that the requested amendments involve no significant hazards consideration.
EGC [Exelon Generation Company] has evaluated the proposed changes, using the criteria in 10 CFR 50.92, and has determined that the proposed changes do not involve a significant hazards consideration. The following information is provided to support a finding of no significant hazards consideration.
1. Does the proposed change involve a significant increase in the probability or consequences of an accident previously evaluated?
Response: No.
The proposed changes will not result in a significant change in the stored energy in the reactor vessel during the performance of the testing. The probability of an accident is not significantly increased because the proposed changes will not alter the method by which inservice leakage and hydrostatic testing is performed or significantly change the temperatures and pressures achieved to perform the test.
The consequences of previously evaluated accidents are not significantly increased because the required testing conditions provide adequate assurance that the consequences of a steam leak will be conservatively bounded by the consequences of the postulated main system line break outside of primary containment. Under these proposed changes, the secondary containment, standby gas treatment system, and associated initiation instrumentation are required to be operable during the performance of inservice leakage and hydrostatic testing and would be capable of mitigating any airborne radioactivity or steam leaks that could occur. In addition, the required Emergency Core Cooling subsystems will be more than adequate to ensure that a significant increase in consequences will not occur by ensuring that the potential for failed fuel and a subsequent increase in coolant activity above Technical Specification limits are minimized.
Therefore, the proposed changes do not involve a significant increase in the probability or consequences of an accident previously evaluated.
2. Does the proposed change create the possibility of a new or different kind of accident from any accident previously evaluated?
Response: No.
As the accumulated neutron fluence on the reactor vessel increases, the Pressure-Temperature Limits in TS 3.4.9 for DNPS [Dresden Nuclear Power Station] and QCNPS [Quad Cities Nuclear Power Station and TS [technical specification] 3.4.11 for LSCS [LaSalle County Station] may eventually require that inservice leakage and hydrostatic testing be conducted at RCS [reactor coolant system] temperatures greater than the average reactor coolant temperature for MODE 4 with the reactor shutdown. However, even with the required minimum reactor coolant temperatures less than or equal to the average reactor coolant temperature for MODE 4 with the reactor shutdown, maintaining RCS
Therefore, the proposed changes do not create the possibility of a new or different kind of accident from any previously evaluated.
3. Does the proposed change involve a significant reduction in a margin of safety?
Response: No.
The proposed changes and additions result in increased system operability requirements above those that currently exist during the performance of inservice leakage and hydrostatic testing. The incremental increase in stored energy in the vessel during testing will be conservatively bounded by the consequences of the postulated main steam line break outside of primary containment and analyzed margins of safety are unchanged.
Therefore, the proposed changes do not involve a significant reduction in a margin of safety.
EGC has reviewed the no significant hazards determination published on August 21, 2006 (71 FR 48561) [for Technical Specification Task Force traveler TSTF-484]. The no significant hazards determination was made available on October 27, 2006 (71 FR 63050) as part of the CLIIP [Consolidated Line Item Improvement Process] Notice of Availability. EGC has concluded that the determination presented in the notice is applicable to DNPS, Units 2 and 3; LSCS, Units 1 and 2; and QCNPS, Units 1 and 2; and the determination is hereby incorporated by reference to satisfy the requirements of 10 CFR 50.91(a).
The NRC staff has reviewed the licensee's analysis and, based on this review, it appears that the three standards of 10 CFR 50.92(c) are satisfied. Therefore, the NRC staff proposes to determine that the requested amendments involve no significant hazards consideration.
1. Does the proposed amendment involve a significant increase in the probability or consequences of an accident previously evaluated?
Response: No.
No physical changes to the facility will occur as a result of this proposed amendment. The proposed change will not alter the physical design. Current TS note could make LSCS susceptible to potential water hammer in the RHR system if in the SDC [shutdown cooling] Mode of RHR in Mode 3 when swapping from the SDC to LPCI mode of RHR. The proposed LAR [license amendment request] will eliminate the risk for cavitation of the pump and voiding in the suction piping, thereby avoiding potential to damage the RHR system, including water hammer.
Therefore, the proposed change does not involve a significant increase in the probability or consequences of an accident previously evaluated.
2. Does the proposed amendment create the possibility of a new or different kind of accident from any accident previously evaluated?
Response: No.
The proposed change does not alter the physical design, safety limits, or safety analysis assumptions associated with the operation of the plant. Accordingly, the change does not introduce any new accident initiators, nor does it reduce or adversely affect the capabilities of any plant structure, system, or component to perform their safety function. Deletion of the TS note is appropriate because current TSs could put the plant at risk for potential cavitation of the pump and voiding in the suction piping, resulting in potential to damage the RHR system, including water hammer.
Therefore, the proposed change does not create the possibility of a new or different kind of accident from any previously evaluated.
3. Does the proposed amendment involve a significant reduction in a margin of safety?
Response: No.
The proposed change conforms to NRC regulatory guidance regarding the content of plant Technical Specifications. The proposed change does not alter the physical design, safety limits, or safety analysis assumptions associated with the operation of the plant.
Therefore, the proposed change does not involve a significant reduction in a margin of safety.
Based on the above evaluation, EGC [Exelon Generation Company, LLC] concludes that the proposed amendment does not involve a significant hazards consideration under the standards set forth in 10 CFR 50.92(c), and, according a finding of no significant hazards consideration is justified.
The NRC staff has reviewed the licensee's analysis and, based on this review, it appears that the three standards of 10 CFR 50.92(c) are satisfied. Therefore, the NRC staff proposes to determine that the amendment request involves no significant hazards consideration.
1. Does the proposed change involve a significant increase in the probability or consequences of an accident previously evaluated?
Response: No.
The containment spray system and its spray nozzles are not accident initiators and therefore the proposed change does not involve a significant increase in the probability of an accident. The revised surveillance requirement will require event-based frequency verification in lieu of a fixed frequency verification. The proposed change does not have a detrimental impact on the integrity of any plant structure, system, or component that may initiate an analyzed event. The proposed change will not alter the operation or otherwise increase the failure probability of any plant equipment that can initiate an analyzed accident. Because the system will continue to be available to perform its accident mitigation function, the consequences of accidents previously evaluated are not significantly increased.
Therefore, the proposed change does not involve a significant increase in the probability or consequences of an accident previously evaluated.
2. Does the proposed change create the possibility of a new or different kind of accident from any accident previously evaluated?
Response: No.
The proposed change will not physically alter the plant (no new or different type of equipment will be installed) or change the methods governing normal plant operation. The proposed change does not introduce new accident initiators or impact assumptions made in the safety analysis. Testing requirements continue to demonstrate that the limiting conditions for operation are met and the system components are functional.
Therefore, the proposed change does not create the possibility of a new or different kind of accident from any previously evaluated.
3. Does the proposed change involve a significant reduction in a margin of safety?
Response: No.
The safety function of the CSS [containment spray system] is to spray water into the containment atmosphere in the event of a loss-of-coolant accident to prevent containment pressure from exceeding the design value and to remove fission products from the containment atmosphere.
The CSS is not susceptible to corrosion-induced obstruction or obstruction from sources external to the system. Maintenance activities that unexpectedly introduce unretrievable foreign material into the system would require subsequent verification to ensure there is no nozzle blockage. The spray header nozzles are expected to remain unblocked and available in the event that a safety function is required. Therefore, the capacity of the system would remain unaffected. The proposed change does not relax any criteria used to establish safety limits and will not relax any safety system settings. The safety analysis acceptance criteria are not affected by this change.
Therefore, the proposed change does not involve a significant reduction in the margin of safety.
The NRC staff has reviewed the licensee's analysis and, based on this review, it appears that the three standards of 10 CFR 50.92(c) are satisfied. Therefore, the NRC staff proposes to determine that the amendment request involves no significant hazards consideration.
1. Does the proposed amendment involve a significant increase in the probability or consequences of an accident previously evaluated?
Response: No.
The proposed amendment adopts the NRG-accepted guidelines of [Nuclear Energy Institute] NEI 94-01, Revision 3-A, “Industry Guideline for Implementing Performance-Based Option of 10 CFR part 50, Appendix J,” for [Davis-Besse Nuclear Power Station] DBNPS performance-based Type C containment isolation valve testing. Revision 3-A of NEI 94-01 allows, based on previous valve leak test performance, an extension of Type C containment isolation valve leak test intervals. Since the change involves only performance-based Type C testing, the proposed amendment does not involve either a physical change to the plant or a change in the manner in which the plant is operated or controlled.
Implementation of these guidelines continues to provide adequate assurance that during design basis accidents, the components of the primary containment system will limit leakage rates to less than the values assumed in the plant safety analyses.
The proposed amendment will not change the leakage rate acceptance requirements. As such, the containment will continue to perform its design function as a barrier to fission product releases.
Therefore, the proposed amendment does not significantly increase the probability or consequences of an accident previously evaluated.
2. Does the proposed amendment create the possibility of a new or different kind of accident from any accident previously evaluated?
Response: No.
The proposed amendment to revise the extended frequency performance-based Type C testing program does not change the design or operation of structures, systems, or components of the plant.
The proposed amendment would continue to ensure containment operability and would ensure operation within the bounds of existing accident analyses. There are no accident initiators created or affected by the proposed amendment.
Therefore, the proposed amendment does not create the possibility of a new or different kind of accident from any previously evaluated.
3. Does the proposed amendment involve a significant reduction in a margin of safety?
Response: No.
The proposed amendment to revise the extended frequency performance-based Type C testing program does not affect plant operations, design functions, or any analysis that verifies the capability of a structure, system, or component of the plant to perform a design function. In addition, this change does not affect safety limits, limiting safety system setpoints, or limiting conditions for operation. The specific requirements and conditions of the Technical Specification Containment Leakage Rate Testing Program exist to ensure that the degree of containment structural integrity and leak-tightness that is considered in the plant safety analysis is maintained.
The overall containment leak rate limit specified by Technical Specifications is maintained, thus ensuring the margin of safety in the plant safety analysis is maintained. The design, operation, testing methods, and acceptance criteria for Type A, Type B, and Type C containment leakage tests specified in applicable codes and standards would continue to be met with the acceptance of this proposed change, since these are not affected by this revision to the performance-based containment testing program.
Therefore, the proposed amendment does not involve a significant reduction in a margin of safety.
The NRC staff has reviewed the licensee's analysis and, based on this review, it appears that the three standards of 10 CFR 50.92(c) are satisfied. Therefore, the NRC staff proposes to determine that the amendment request involves no significant hazards consideration.
Criterion 1—The Proposed Change Does Not Involve a Significant Increase in the Probability or Consequences of an Accident Previously Evaluated.
Reactor coolant specific activity is not an initiator for any accident previously evaluated. The Completion Time when primary coolant gross activity is not within limit is not an initiator for any accident previously evaluated. The current variable limit on primary coolant iodine concentration is not an initiator to any accident previously evaluated. As a result, the proposed change does not significantly increase the probability of an accident. The proposed change will limit primary coolant noble gases to concentrations consistent with the accident analyses. The proposed change to the Completion Time has no impact on the consequences of any design basis accident since the consequences of an accident during the extended Completion Time are the same as the consequences of an accident during the Completion Time. As a result, the consequences of any accident previously evaluated are not significantly increased.
There are no physical changes to the plant being introduced by the proposed changes to the accident source term. Implementation of AST and the associated proposed TS changes and new atmospheric dispersion factors have no impact on the probability for initiation of any DBAs [Design Basis Accidents]. Once the occurrence of an accident has been postulated, the new accident source term and atmospheric dispersion factors are an input to analyses that evaluate the radiological consequences. The proposed changes do not involve a revision to the design or manner in which the facility is operated that could increase the probability of an accident previously evaluated in Chapter 14 of the UFSAR.
Based on the AST analyses, there are no proposed changes to performance requirements and no proposed revision to the parameters or conditions that could contribute to the initiation of an accident previously discussed in Chapter 14 of the UFSAR. Plant-specific radiological analyses have been performed using the AST methodology and new X/Qs have been established. Based on the results of these analyses, it has been demonstrated that the CR [control room] and off-site dose consequences of the limiting events considered in the analyses meet the regulatory guidance provided for use with the AST, and the doses are within the limits established by 10 CFR 50.67.
Therefore, it is concluded that the proposed amendment does not involve a significant increase in the probability or the consequences of an accident previously evaluated.
Criterion 2—The Proposed Change Does Not Create the Possibility of a New or Different Kind of Accident from any Previously Evaluated.
The proposed change in specific activity limits does not alter any physical part of the plant nor does it affect any plant operating parameter. The change does not create the potential for a new or different kind of accident from any previously calculated.
No new modes of operation are introduced by the proposed changes. The proposed changes will not create any failure mode not bounded by previously evaluated accidents. Implementation of AST and the associated proposed TS changes and new X/Qs have no impact to the initiation of any DBAs. These changes do not affect the design function or modes of operation of structures, systems and components in the facility prior to a postulated accident. Since structures, systems and components are operated no differently after the AST implementation, no new failure modes are created by this proposed change. The alternative source term change itself does not have the capability to initiate accidents.
Consequently, the proposed changes do not create the possibility of a new or different kind of accident from any accident previously evaluated.
Criterion 3—The Proposed Change Does Not Involve a Significant Reduction in a Margin of Safety.
The proposed change revises the limits on noble gas radioactivity in the primary coolant. The proposed change is consistent with the assumptions in the safety analyses and will ensure the monitored values protect the initial assumptions in the safety analyses.
The AST analyses have been performed using approved methodologies to ensure that analyzed events are bounding and safety margin has not been reduced. Also, new X/Qs, which are based on site specific meteorological data, were calculated in accordance with the guidance of RG 1.194 to utilize more recent data and improved calculational methodologies. The dose consequences of these limiting events are within the acceptance criteria presented in 10 CFR 50.67. Thus, by meeting the applicable regulatory limits for AST, there is no significant reduction in a margin of safety. Therefore, because the proposed changes continue to result in dose consequences within the applicable regulatory limits, the proposed amendment does not involve a significant reduction in margin of safety.
The NRC staff has reviewed the analysis and, based on this review, it appears that the three standards of 10 CFR 50.92(c) are satisfied. Therefore, the NRC staff proposes to determine that the amendments requested involve no significant hazards consideration.
1. Does the proposed amendment involve a significant increase in the probability or consequences of an accident previously evaluated?
Response: No.
The proposed amendment to the TS involves the extension of the CPNPP, Units 1 and 2 Type A containment test interval to 15 years and the extension of the Type C test interval to 75 months. The current Type A test interval of 120 months (10 years) would be extended on a permanent basis to no longer than 15 years from the last Type A test. The current Type C test interval of 60 months for selected components would be extended on a performance basis to no longer than 75 months. Extensions of up to nine months (total maximum interval of 84 months for Type C tests) are permissible only for non-routine emergent conditions. The proposed extension does not involve either a physical change to the plant or a change in the manner in which the plant is operated or controlled. The containment is designed to provide an essentially leak tight barrier against the uncontrolled release of radioactivity to the environment for postulated accidents. The containment and the testing requirements invoked to periodically demonstrate the integrity of the containment exist to ensure the plant's ability to mitigate the consequences of an accident, and do not involve the prevention or identification of any precursors of an accident. The change in dose risk for changing the Type A test frequency from three-per-ten years to once-per-fifteen-years, measured as an increase to the total integrated dose risk for all internal events accident sequences for CPNPP, of 1.00E-02 person rem/yr [roentgen equivalent man per year] to 6.51 person-rem/yr for Unit 1 and 6.53 person-rem/yr for Unit 2 using the EPRI [Energy Power Research Institute] guidance with the base case corrosion included. Therefore, this proposed extension does not involve a significant increase in the probability of an accident previously evaluated.
As documented in NUREG-1493 [, “Performance-Based Containment Leak-Test Program: Draft Report for Comment,” January 1995 (not publicly available)], Type B and C tests have identified a very large percentage of containment leakage paths, and the percentage of containment leakage paths that are detected only by Type A testing is very small. The CPNPP, Units 1 and 2 Type A test history supports this conclusion.
The integrity of the containment is subject to two types of failure mechanisms that can be categorized as: (1) Activity based, and; (2) time based. Activity based failure mechanisms are defined as degradation due to system and/or component modifications or maintenance. Local leak rate test requirements and administrative controls such as configuration management and procedural requirements for system restoration ensure that containment integrity is not degraded by plant modifications or maintenance activities. The design and construction requirements of the containment combined with the containment inspections performed in accordance with ASME [American Society of Mechanical Engineers] Section XI, the Maintenance Rule, and TS requirements serve to provide a high degree of assurance that the containment would not degrade in a manner that is detectable only by a Type A test. Based on the above, the proposed extensions do not significantly increase the consequences of an accident previously evaluated.
The proposed amendment also deletes exceptions previously granted to allow one-time extensions of the ILRT test frequency for both Units 1 and 2. These exceptions were for activities that have already taken place so their deletion is solely an administrative action that has no effect on any component and no impact on how the units are operated.
Therefore, the proposed change does not result in a significant increase in the probability or consequences of an accident previously evaluated.
2. Does the proposed change create the possibility of a new or different kind of accident from any accident previously evaluated?
Response: No.
The proposed amendment to the TS involves the extension of the CPNPP, Unit 1 and 2 Type A containment test interval to 15 years and the extension of the Type C test interval to 75 months. The containment and the testing requirements to periodically demonstrate the integrity of the containment exist to ensure the plant's ability to mitigate the consequences of an accident do not involve any accident precursors or initiators. The proposed change does not involve a physical change to the plant (
The proposed amendment also deletes exceptions previously granted to allow one-time extensions of the ILRT test frequency for both Units 1 and 2. These exceptions were for activities that would have already taken place by the time this amendment is approved; therefore, their deletion is solely an administrative action that does not result in any change in how the units are operated.
Therefore, the proposed change does not create the possibility of a new or different kind of accident from any previously evaluated.
3. Does the proposed change involve a significant reduction in a margin of safety?
Response: No.
The proposed amendment to TS 5.5.16 involves the extension of the CPNPP, Units 1 and 2 Type A containment test interval to 15 years and the extension of the Type C test interval to 75 months for selected components. This amendment does not alter the manner in which safety limits, limiting safety system set points, or limiting conditions for operation are determined. The specific requirements and conditions of the TS Containment Leak Rate Testing Program exist to ensure that the degree of containment structural integrity and leak-tightness that is considered in the plant safety analysis is maintained. The overall containment leak rate limit specified by TS is maintained.
The proposed change involves only the extension of the interval between Type A containment leak rate tests and Type C tests for CPNPP, Units 1 and 2. The proposed surveillance interval extension is bounded by the 15-year ILRT Interval and the 75-month Type C test interval currently authorized within NEI 94-01, Revision 3-A. Industry experience supports the conclusion that Type B and C testing detects a large percentage of containment leakage paths and that the percentage of containment leakage paths that are detected only by Type A testing is small. The containment inspections performed in accordance with ASME Section Xl, TS and the Maintenance Rule serve to provide a high degree of assurance that the containment would not degrade in a manner that is detectable only by Type A testing. The combination of these factors ensures that the margin of safety in the plant safety analysis is maintained. The design, operation, testing methods and acceptance criteria for Type A, B, and C containment leakage tests specified in applicable codes and standards would continue to be met, with the acceptance of this proposed change, since these are not affected by changes to the Type A and Type C test intervals.
The proposed amendment also deletes exceptions previously granted to allow one-time extensions of the ILRT test frequency for both Units 1 and 2. These exceptions were for activities that would have already taken place by the time this amendment is approved; therefore, their deletion is solely an administrative action and does not change how the units are operated and maintained.
Therefore, the proposed change does not involve a significant reduction in a margin of safety.
The NRC staff has reviewed the licensee's analysis and, based on this review, it appears that the three standards of 10 CFR 50.92(c) are satisfied. Therefore, the NRC staff proposes to determine that the amendment request involves no significant hazards consideration.
Because, this proposed change requires a departure from Tier 1 information in the Westinghouse Electric Company's Advanced Passive 1000 DCD, the licensee also requested an exemption from the requirements of the Generic DCD Tier 1 in accordance with 10 CFR 52.63(b)(1).
1. Does the proposed amendment involve a significant increase in the probability or consequences of an accident previously evaluated?
Response: No.
The proposed additions of a new nonsafety-related battery, battery room and battery equipment room, the room height increase, the floor thickness changes, the relocation of a non-structural internal wall, and the associated wall, room and corridor changes within the annex building do not adversely affect the fire loading analysis durations of the affected fire zones and areas (
With the conversion of an annex building room to a battery room, the building volume serviced by nuclear island nonradioactive ventilation system decreases by approximate five percent. This reduced volume is used in the post-accident main control room dose portion of the UFSAR LOCA radiological analysis. However, the volume decrease is not sufficient to change the calculated main control room dose reported in the UFSAR, and control room habitability is not affected.
Therefore, the proposed amendment does not involve a significant increase in the probability or consequences of an accident previously evaluated.
2. Does the proposed amendment create the possibility of a new or different kind of accident from any accident previously evaluated?
Response: No.
The proposed additions of a new nonsafety-related battery, battery room and battery equipment room, the room height increase, the floor thickness changes, the relocation of a non-structural internal wall, and their associated wall, room and corridor changes do not change fire barrier performance, and the fire loading analyses results remain acceptable. The room height and floor thickness changes are consistent with the annex building configuration used in the building's structural analysis. The relocated internal wall is non-structural, thus the structural analyses for the annex building are not affected. The affected rooms and associated equipment do not interface with components that contain radioactive material. The affected rooms do not contain equipment whose failure could initiate an accident. The proposed changes do not create a new fault or sequence of events that could result in a radioactive material release.
Therefore, the proposed amendment does not create the possibility of a new or different kind of accident.
3. Does the proposed amendment involve a significant reduction in a margin of safety?
Response: No.
The proposed additions of a new nonsafety-related battery, battery room and battery equipment room, the room height increase, the floor thickness changes, the relocation of a non-structural internal wall, and their associated wall, room and corridor changes do not change the fire barrier performance of the affected fire areas. The affected rooms do not contain safety-related equipment, and the safe shutdown fire analysis is not affected. Because the proposed change does not alter compliance with the construction codes to which the annex building is designed and constructed, the proposed changes to the structural configuration, including anticipated equipment loading, room height, and floor thickness do not adversely affect the safety margins associated with the seismic Category II structural capability of the annex building.
The floor areas and amounts of combustible material loads in affected fire zones and areas do not significantly change, such that their fire duration times remain within their two-hour design value, thus the safety margins associated with the fire loads analysis are not affected.
No safety analysis or design basis acceptance limit/criterion is challenged or exceeded by the proposed changes, thus no margin of safety is reduced.
Therefore, the proposed amendment does not involve a significant reduction in a margin of safety.
The NRC staff has reviewed the licensee's analysis and, based on this review, it appears that the three standards of 10 CFR 50.92(c) are satisfied. Therefore, the NRC staff proposes to determine that the amendment request involves no significant hazards consideration.
1. Does the proposed amendment involve a significant increase in the probability or consequences of an accident previously evaluated?
Response: No.
The proposed amendment includes changes to Integrated System Validation (ISV) activities, which are performed on the AP1000 plant simulator to validate the adequacy of the AP1000 human systems interface design and confirm that it meets human factors engineering principles. The proposed changes involve administrative details related to performance of the ISV, and no plant hardware or equipment is affected whose failure could initiate an accident, or that interfaces with a component that could initiate an accident, or that contains radioactive material. Therefore, these changes have no effect on any accident initiator in the Updated Final Safety Analysis Report (UFSAR), nor do they affect the radioactive material releases in the UFSAR accident analysis.
Therefore, the proposed amendment does not involve a significant increase in the probability or consequences of an accident previously evaluated.
2. Does the proposed amendment create the possibility of a new or different kind of accident from any accident previously evaluated?
Response: No.
The proposed amendment includes changes to ISV activities, which are performed on the AP1000 plant simulator to validate the adequacy of the AP1000 human system interface design and confirm that it meets human factors engineering principles. The proposed changes involve administrative details related to performance of the ISV, and no plant hardware or equipment is affected whose failure could initiate an accident, or that interfaces with a component that could initiate an accident, or that contains radioactive material. Although the ISV may identify a need to initiate changes to add, modify, or remove plant structures, systems, or components, these changes will not be made directly as part of the ISV.
Therefore, the proposed amendment does not create the possibility of a new or different kind of accident from any accident previously evaluated.
3. Does the proposed amendment involve a significant reduction in a margin of safety?
Response: No.
The proposed amendment includes changes to ISV activities, which are performed on the AP1000 plant simulator to validate the adequacy of the AP1000 human system interface design and confirm that it meets human factors engineering principles. The proposed changes involve administrative details related to performance of the ISV, and do not affect any safety-related equipment, design code compliance, design function, design analysis, safety analysis input or result, or design/safety margin. No safety analysis or design basis acceptance limit/criterion is challenged or exceeded by the proposed changes, thus no margin of safety is reduced.
Therefore, the proposed amendment does not involve a significant reduction in a margin of safety.
The NRC staff has reviewed the licensee's analysis and, based on this review, it appears that the three standards of 10 CFR 50.92(c) are satisfied. Therefore, the NRC staff proposes to determine that the amendment request involves no significant hazards consideration.
Specification 3.6.1.3, “Primary Containment Isolation Valves (PCIVs),” Action C, TS page 3.6-9, is revised to provide a 72 hour Completion Time for penetration flow paths with one inoperable PCIV with a closed system.
1. Does the proposed amendment involve a significant increase in the probability or consequences of an accident previously evaluated?
Response: No.
The proposed change extends the Completion Time to isolate an inoperable primary containment isolation valve (PCIV) from 4 hours to 72 hours when the PCIV is associated with a closed system. The PCIVs are not an initiator of any accident previously evaluated. The consequences of a previously evaluated accident during the extended Completion Time are the same as the consequences during the existing Completion Time.
Therefore, the proposed change does not involve a significant increase in the probability or consequences of any accident previously evaluated.
2. Does the proposed amendment create the possibility of a new or different kind of accident from any accident previously evaluated?
Response: No.
The proposed change does not involve a physical alteration to the plant (
Therefore, the proposed change does not create the possibility of a new or different kind of accident from any accident previously evaluated.
3. Does the proposed amendment involve a significant reduction in a margin of safety?
Response: No.
The proposed change extends the Completion Time to isolate an inoperable primary containment isolation valve (PCIV) from 4 hours to 72 hours when the PCIV is associated with a closed system. The PCIVs serve to mitigate the potential for radioactive release from the primary containment following an accident. The design and response of the PCIVs to an accident are not affected by this change. The revised Completion Time is appropriate given the isolation capability of the closed system.
Therefore, the proposed change does not involve a significant reduction in a margin of safety.
Based on the above, SNC concludes that the proposed amendment does not involve a significant hazards consideration under the standards set forth in 10 CFR 50.92(c), and, accordingly, a finding of “no significant hazards consideration” is justified.
The proposed change revises SRs 3.6.1.3.2 and 3.6.1.3.3 in Specification 3.6.1.3, “Primary Containment Isolation Valves (PCIVs),” to exempt manual PCIVs and blind flanges which are locked, sealed, or otherwise secured in position from position verification requirements. The proposed change also revises SR 3.6.4.2.1 in Specification 3.6.4.2, “Secondary Containment Isolation Valves (SCIVs),” to exempt manual SCIVs and blind flanges which are locked, sealed, or otherwise secured in position from position verification requirements.
Signification Hazards Consideration: SNC has evaluated whether or not a significant hazards consideration is involved with the proposed amendment(s) by focusing on the three standards set forth in 10 CFR 50.92, “Issuance of amendment,” as discussed below:
1. Does the proposed amendment involve a significant increase in the probability or consequences of an accident previously evaluated?
Response: No.
The proposed change exempts manual primary containment isolation valves and blind flanges located inside and outside of containment, and manual secondary containment isolation valves and blind flanges, that are locked, sealed, or otherwise secured in position from the periodic verification of valve position required by Surveillance Requirements 3.6.1.3.2, 3.6.1.3.3, and 3.6.4.2.1. The exempted valves and devices are verified to be in the correct position upon being locked, sealed, or secured. Because the valves and devices are in the condition assumed in the accident analysis, the proposed change will not affect the initiators or mitigation of any accident previously evaluated.
Therefore, the proposed change does not involve a significant increase in the probability or consequences of any accident previously evaluated.
2. Does the proposed amendment create the possibility of a new or different kind of accident from any accident previously evaluated?
Response: No.
The proposed change does not involve a physical alteration to the plant (
Therefore, the proposed change does not create the possibility of a new or different kind of accident from any accident previously evaluated.
3. Does the proposed amendment involve a significant reduction in a margin of safety?
Response: No.
The proposed change exempts manual primary containment isolation valves and blind flanges located inside and outside of containment, and manual secondary containment isolation valves and blind flanges, that are locked, sealed, or otherwise secured in position from the periodic verification of valve position required by Surveillance Requirements 3.6.1.3.2, 3.6.1.3.3, and 3.6.4.2.1. These valves and devices are administratively controlled and their operation is a non-routine event. The position of a locked, sealed or secured blind flange or valve is verified at the time it is locked, sealed or secured, and any changes to their position is performed under administrative controls. Industry experience has shown that these valves are generally found to be in the correct position. Since the change impacts only the frequency of verification for blind flange and valve position, the proposed change will provide a similar level of assurance of correct position as the current frequency of verification.
Therefore, the proposed change does not involve a significant reduction in a margin of safety.
Based on the above, SNC concludes that the proposed amendment does not involve a significant hazards consideration under the standards set forth in 10 CFR 50.92(c), and, accordingly, a finding of “no significant hazards consideration” is justified.
The proposed change modifies SR 3.6.1.3.5 in Specification 3.6.1.3, “Primary Containment Isolation Valves (PCIVs),” and SR 3.6.4.2.2, in Specification 3.6.4.2, “Secondary Containment Isolation Valves (SCIVs),” including their associated Bases, to delete the requirement to verify the isolation time of “each power operated” containment isolation valve and only require verification of each “power operated automatic isolation valve.”
Signification Hazards Consideration: SNC has evaluated whether or not a significant hazards consideration is involved with the proposed amendment(s) by focusing on the three standards set forth in 10 CFR 50.92, “Issuance of amendment,” as discussed below:
1. Does the proposed amendment involve a significant increase in the probability or consequences of an accident previously evaluated?
Response: No.
The proposed change revises the requirements in Technical Specification Surveillance Requirements (SRs) 3.6.1.3.5 and 3.6.4.2.2, and their associated Bases, to delete the requirement to verify the isolation time of “each power operated” PCIV and SCIV and only require verification of closure time for each “automatic power operated isolation valve.” The closure times for PCIVs and SCIVs that do not receive an automatic closure signal are not an initiator of any design basis accident or event, and therefore the proposed change does not increase the probability of any accident previously evaluated. The PCIVs and SCIVs are used to respond to accidents previously evaluated. Power operated PCIVs and SCIVs that do not receive an automatic closure signal are not assumed to close in a specified time. The proposed change does not change how the plant would mitigate an accident previously evaluated.
Therefore, the proposed change does not involve a significant increase in the probability or consequences of an accident previously evaluated.
2. Does the proposed amendment create the possibility of a new or different kind of accident from any accident previously evaluated?
Response: No.
The proposed change does not result in a change in the manner in which the PCIVs and SCIVs provide plant protection or introduce any new or different operational conditions. Periodic verification that the closure times for PCIVs and SCIVs that receive an automatic closure signal are within the limits established by the accident analysis will continue to be performed under SRs 3.6.1.3.5 and 3.6.4.2.2. The change does not alter assumptions made in the safety analysis, and is consistent with the safety analysis assumptions and current plant operating practice. There are also no design changes associated with the proposed changes, and the change does not involve a physical alteration of the plant (
Therefore, the proposed change does not create the possibility of a new or different kind of accident from any accident previously evaluated.
3. Does the proposed amendment involve a significant reduction in a margin of safety?
Response: No.
The proposed change provides clarification that only PCIVs and SCIVs that receive an automatic isolation signal are within the scope of SRs 3.6.1.3.5 and 3.6.4.2.2. The proposed change does not result in a change in the manner in which the PCIVs and SCIVs provide plant protection. Periodic verification that closure times for PCIVs and SCIVs that receive an automatic isolation signal are within the limits established by the accident analysis will continue to be performed. The proposed change does not affect the safety analysis acceptance criteria for any analyzed event, nor is there a change to any safety analysis limit. The proposed change does not alter the manner in which safety limits, limiting safety system settings or limiting conditions for operation are determined, nor is there any adverse effect on those plant systems necessary to assure the accomplishment of protection functions. The proposed change will not result in plant operation in a configuration outside the design basis.
Therefore, the proposed change does not involve a significant reduction in a margin of safety.
Based on the above, SNC concludes that the proposed amendment does not involve a significant hazards consideration under the standards set forth in 10 CFR 50.92(c), and, accordingly, a finding of “no significant hazards consideration” is justified.
Specification 3.1.4, “Control Rod Scram Times,” SRs 3.1.4.1 and 3.1.4.4, are revised to only require scram time testing of control rods that are in an affected core cell. The SR 3.1.4.1 Frequency “Prior to exceeding 40% RTP after fuel movement within the reactor vessel,” is eliminated and a new Frequency is added to SR 3.1.4.4 which states, “Prior to exceeding 40% RTP after fuel movement within the affected core cell.”
Significant Hazards Consideration: SNC has evaluated whether or not a significant hazards consideration is involved with the proposed amendment(s) by focusing on the three standards set forth in 10 CFR 50.92, “Issuance of amendment,” as discussed below:
1. Does the proposed amendment involve a significant increase in the probability or consequences of an accident previously evaluated?
Response: No.
The proposed change clarifies the intent of Surveillance testing in Specification 3.1.4, “Control Rod Scram Times.” The existing Specification wording requires control rod scram time testing of all control rods whenever fuel is moved within the reactor pressure vessel, even though the Technical Specification Bases state that control rod scram time testing is only required in the affected core cells. The Frequency of Surveillances 3.1.4.1 and 3.1.4.4 are revised to implement the Bases statement in the Specifications. The proposed change does not affect any plant equipment, test methods, or plant operation, and are not initiators of any analyzed accident sequence. The control rods will continue to perform their function as designed. Operation in accordance with the proposed Technical Specifications will ensure that all analyzed accidents will continue to be mitigated as previously analyzed.
Therefore, the proposed change does not involve a significant increase in the probability or consequences of any accident previously evaluated.
2. Does the proposed amendment create the possibility of a new or different kind of accident from any accident previously evaluated?
Response: No.
The proposed change does not involve a physical alteration to the plant (
Therefore, the proposed change does not create the possibility of a new or different kind of accident from any accident previously evaluated.
3. Does the proposed amendment involve a significant reduction in a margin of safety?
Response: No.
The proposed change clarifies the intent of Surveillance testing in Specification 3.1.4, “Control Rod Scram Times.” The existing Specification wording requires control rod scram time testing of all control rods whenever fuel is moved within the reactor pressure vessel, even though the Technical Specification Bases state that the control rod scam time testing is only required in the affected core cells. The proposed change will not affect the operation of plant equipment or the function of any equipment assumed in the accident analysis. Control rod scram time testing will be performed following any fuel movement that could affect the scram time.
Therefore, the proposed change does not involve a significant reduction in a margin of safety.
Based on the above, SNC concludes that the proposed amendment does not involve a significant hazards consideration under the standards set forth in 10 CFR 50.92(c), and, accordingly, a finding of “no significant hazards consideration” is justified.
The proposed change revises Specification 3.3.1.1, “RPS Instrumentation,” by deleting Surveillances 3.3.1.1.6 and 3.3.1.1.7, which verify the overlap between the source range monitor (SRM) and the intermediate range monitor (IRM), and between the IRM and the average power range monitor (APRM).
Significant Hazards Consideration: SNC has evaluated whether or not a significant hazards consideration is involved with the proposed amendment(s) by focusing on the three standards set forth in 10 CFR 50.92, “Issuance of amendment,” as discussed below:
1. Does the proposed amendment involve a significant increase in the probability or consequences of an accident previously evaluated?
Response: No.
The proposed change eliminates two Surveillances Requirements (SRs) (SRs 3.3.1.1.6 and 3.3.1.1.7) which verify the overlap between the source range monitor (SRM) and intermediate range monitor (IRM) and between the IRM and the average power range monitor (APRM). The testing requirement is incorporated in the existing Channel Check Surveillance (SR 3.3.1.1.1). The proposed change does not affect any plant equipment, test methods, or plant operation, and are not initiators of any analyzed accident sequence. The SRM, IRM, and APRM will continue to perform their function as designed. Operation in accordance with the proposed Technical Specifications will ensure that all analyzed accidents will continue to be mitigated as previously analyzed.
Therefore, the proposed change does not involve a significant increase in the probability or consequences of any accident previously evaluated.
2. Does the proposed amendment create the possibility of a new or different kind of accident from any accident previously evaluated?
Response: No.
The proposed change does not involve a physical alteration to the plant (
Therefore, the proposed change does not create the possibility of a new or different kind of accident from any accident previously evaluated.
3. Does the proposed amendment involve a significant reduction in a margin of safety?
Response: No.
The proposed change eliminates SRs 3.3.1.1.6 and 3.3.1.1.7 which verify the overlap between the SRM and IRM and between the IRM and the APRM. The testing requirement is incorporated in the existing Channel Check Surveillance (SR 3.3.1.1.1). The proposed change will not affect the operation of plant equipment or the function of any equipment assumed in the accident analysis. Instrument channel overlap will continue to be verified under the existing Channel Check surveillance.
Therefore, the proposed change does not involve a significant reduction in a margin of safety.
Based on the above, SNC concludes that the proposed amendment does not involve a significant hazards consideration under the standards set forth in 10 CFR 50.92(c), and, accordingly, a finding of “no significant hazards consideration” is justified.
The proposed change modifies Specification 3.6.1.3, “Primary Containment Isolation Valves,” and Specification 3.6.4.2, “Secondary Containment Isolation Valves.” The specifications require penetrations with an inoperable isolation valve to be isolated and periodically verified to be isolated. A Note is added to Specification 3.6.1.3, Actions A and C, and Specification 3.6.4.2, Action A, to allow isolation devices that are locked, sealed, or otherwise secured to be verified by use of administrative means.
Significant Hazards Consideration: SNC has evaluated whether or not a significant hazards consideration is involved with the proposed amendment(s) by focusing on the three standards set forth in 10 CFR 50.92, “Issuance of amendment,” as discussed below:
1. Does the proposed amendment involve a significant increase in the probability or consequences of an accident previously evaluated?
Response: No.
The proposed change modifies Specification 3.6.1.3, “Primary Containment Isolation Valves,” and Specification 3.6.4.2, “Secondary Containment Isolation Valves.” The specifications require penetrations with an inoperable isolation valve to be isolated and periodically verified to be isolated. A Note is added to Specification 3.6.1.3, Actions A and C, and Specification 3.6.4.2, Action A, to allow isolation devices that are locked, sealed, or otherwise secured to be verified by use of administrative means. The proposed change does not affect any plant equipment, test methods, or plant operation, and are not initiators of any analyzed accident sequence. The inoperable containment penetrations will continue to be isolated, and hence perform their isolation function. Operation in accordance with the proposed Technical Specifications will ensure that all analyzed accidents will continue to be mitigated as previously analyzed.
Therefore, the proposed change does not involve a significant increase in the probability or consequences of any accident previously evaluated.
2. Does the proposed amendment create the possibility of a new or different kind of accident from any accident previously evaluated?
Response: No.
The proposed change does not involve a physical alteration to the plant (
Therefore, the proposed change does not create the possibility of a new or different kind of accident from any accident previously evaluated.
3. Does the proposed amendment involve a significant reduction in a margin of safety?
Response: No.
The proposed change will not affect the operation of plant equipment or the function of any equipment assumed in the accident analysis. The primary and secondary containment isolation valves will continue to be operable or will be isolated as required by the existing specifications.
Therefore, the proposed change does not involve a significant reduction in a margin of safety.
Based on the above, SNC concludes that the proposed amendment does not involve a significant hazards consideration under the standards set forth in 10 CFR 50.92(c), and, accordingly, a finding of “no significant hazards consideration” is justified.
The proposed Technical Specification (TS) changes add explanatory text to the Bases for limiting condition for operation (LCO) 3.0.6 clarifying the “appropriate LCO for loss of function,” and that consideration does not have to be made for a loss of power in determining loss of function. Explanatory text is also added to the programmatic description of the Safety Function Determination Program (SFDP) in Specification 5.5.12 to provide clarification of these same issues.
Signification Hazards Consideration: SNC has evaluated whether or not a significant hazards consideration is involved with the proposed amendment(s) by focusing on the
1. Does the proposed amendment involve a significant increase in the probability or consequences of an accident previously evaluated?
Response: No.
The proposed Technical Specification (TS) changes add explanatory text to the programmatic description of the Safety Function Determination Program (SFDP) in Specification 5.5.10 to clarify in the requirements that consideration does not have to be made for a loss of power in determining loss of function. The Bases for limiting condition for operations (LCO) 3.0.6 are revised to provide clarification of the “appropriate LCO for loss of function,” and that consideration does not have to be made for a loss of power in determining loss of function. The changes are editorial and administrative in nature, and therefore do not increase the probability of any accident previously evaluated. No physical or operational changes are made to the plant. The proposed change does not change how the plant would mitigate an accident previously evaluated.
Therefore, the proposed change does not involve a significant increase in the probability or consequences of an accident previously evaluated.
2. Does the proposed amendment create the possibility of a new or different kind of accident from any accident previously evaluated?
Response: No.
The proposed changes are editorial and administrative in nature and do not result in a change in the manner in which the plant operates. The loss of function of any specific component will continue to be addressed in its specific TS LCO and plant configuration will be governed by the required actions of those LCOs. The proposed changes are clarifications that do not degrade the availability or capability of safety related equipment, and therefore do not create the possibility of a new or different kind of accident from any accident previously evaluated. There are no design changes associated with the proposed changes, and the changes do not involve a physical alteration of the plant (
Therefore, the proposed change does not create the possibility of a new or different kind of accident from any accident previously evaluated.
3. Does the proposed amendment involve a significant reduction in a margin of safety?
Response: No.
The proposed changes to TS 5.5.10 are clarifications and are editorial and administrative in nature. No changes are made the LCOs for plant equipment, the time required for the TS Required Actions to be completed, or the out of service time for the components involved. The proposed changes do not affect the safety analysis acceptance criteria for any analyzed event, nor is there a change to any safety analysis limit. The proposed changes do not alter the manner in which safety limits, limiting safety system settings or limiting conditions for operation are determined, nor is there any adverse effect on those plant systems necessary to assure the accomplishment of protection functions. The proposed changes will not result in plant operation in a configuration outside the design basis.
Therefore, the proposed changes do not involve a significant reduction in a margin of safety.
Based on the above, SNC concludes that the proposed amendment does not involve a significant hazards consideration under the standards set forth in 10 CFR 50.92(c), and, accordingly, a finding of “no significant hazards consideration” is justified.
The proposed change revises several Specification 3.8.1, “AC Sources—Operating,” Surveillance Notes to allow full or partial performance of the SRs to re-establish Operability provided an assessment determines the safety of the plant is maintained or enhanced. These Surveillances currently have Notes prohibiting their performance in Modes 1 or 2, or in Modes 1, 2, or 3.
SR 3.8.1.6 (ISTS SR 3.8.1.8), which tests the transfer of Alternating (AC) sources from normal to alternate offsite circuits, contains a Note prohibiting performance in Mode 1 or 2. The Note is modified to state that performance is normally prohibited in Mode 1 or 2 but may be performed to re-establish Operability provided an assessment determines the safety of the plant is maintained or enhanced.
SR 3.8.1.7 (ISTS SR 3.8.1.9), which tests the ability of the emergency diesel generator (DG) to reject a load greater than or equal to its associated single largest post-accident load, contains a Note prohibiting performance in Mode 1 or 2. An exception is provided for the swing DG. The Note is modified to state that performance is normally prohibited in Mode 1 or 2 but may be performed to re- establish Operability provided an assessment determines the safety of the plant is maintained or enhanced.
SR 3.8.1.8 (ISTS SR 3.8.1.10), which tests emergency DG operation following a load rejection of greater than or equal to 2775 kW, contains a Note prohibiting performance in Mode 1 or 2. The Note is modified to state that performance is normally prohibited in Mode 1 or 2 but portions of the SR may be performed to re- establish Operability provided an assessment determines the safety of the plant is maintained or enhanced.
SR 3.8.1.9 (ISTS SR 3.8.1.11), which tests the response to a loss of offsite power signal, contains a Note prohibiting performance in Mode 1, 2, or 3. The Note is modified to state that performance is normally prohibited in Mode 1, 2, or 3, but portions of the SR may be performed to re-establish Operability provided an assessment determines the safety of the plant is maintained or enhanced.
SR 3.8.1.10 (ISTS SR 3.8.1.12), which tests response to an Emergency Core Cooling System (ECCS) initiation signal, contains a Note prohibiting performance in Mode 1 or 2. The Note is modified to state that performance is normally prohibited in Mode 1 or 2, but the SR may be performed to re-establish Operability provided an assessment determines the safety of the plant is maintained or enhanced.
SR 3.8.1.11 (ISTS SR 3.8.1.13), which tests that each DGs automatic trips are bypassed on a loss of voltage signal concurrent with an ECCS initiation signal, contains a Note prohibiting performance in Mode 1, 2, or 3. The Note is modified to state that performance is normally prohibited in Mode 1, 2, or 3, but the SR may be performed to re-establish Operability provided an assessment determines the safety of the plant is maintained or enhanced.
SR 3.8.1.12 (ISTS SR 3.8.1.14), which performs a 24 hour loaded test run of the DG, contains a Note prohibiting performance in Mode 1 or 2. The Note is modified to state that performance is normally prohibited in Mode 1 or 2, but the SR may be performed to re-establish Operability provided an assessment determines the safety of the plant is maintained or enhanced.
SR 3.8.1.14 (ISTS SR 3.8.1.16), which verifies transfer from DG to offsite power, contains a Note prohibiting performance in Mode 1, 2, or 3. The Note is modified to state that performance is normally prohibited in Mode 1, 2, or 3, but portions of the SR may be performed to re-establish Operability provided an assessment determines the safety of the plant is maintained or enhanced.
SR 3.8.1.15 (ISTS SR 3.8.1.17), which verifies than a DG operating in test mode will return to ready-to-load condition and energize the emergency load from offsite power on receipt of an ECCS initiation signal, contains a Note prohibiting performance in Mode 1, 2, or 3. The Note is modified to state that performance is normally prohibited in Mode 1, 2, or 3, but portions of the SR may be performed to re-establish Operability provided an assessment determines the safety of the plant is maintained or enhanced.
SR 3.8.1.16 (ISTS SR 3.8.1.18), which verifies the interval between each sequenced load, contains a Note prohibiting performance in Mode 1, 2, or 3. The Note is modified to state that performance is normally prohibited in Mode 1, 2, or 3, but the SR may be performed to re-establish Operability provided an assessment determines the safety of the plant is maintained or enhanced.
SR 3.8.1.17 (ISTS SR 3.8.1.19), which verifies the response to a loss of offsite power signal and Engineered Safety Features (ESF) actuation signal, contains a Note prohibiting performance in Mode 1, 2, or 3. The Note is modified to state that performance is normally prohibited in Mode 1, 2, or 3, but portions of the SR may be performed to re-establish Operability provided an assessment determines the safety of the plant is maintained or enhanced.
Significant Hazards Consideration: SNC has evaluated whether or not a significant hazards consideration is involved with the proposed amendment(s) by focusing on the three standards set forth in 10 CFR 50.92, “Issuance of amendment,” as discussed below:
1. Does the proposed amendment involve a significant increase in the probability or consequences of an accident previously evaluated?
Response: No.
The proposed change modifies Mode restriction Notes on eleven emergency diesel generator (DG) Surveillances to allow performance of the Surveillance in whole or in part to re-establish emergency DG Operability. The emergency DGs and their associated emergency loads are accident mitigating features, and are not an initiator of any accident previously evaluated. As a result the probability of any accident previously evaluated is not increased. The proposed change allows Surveillance testing to be performed in whole or in part to re-establish Operability of an emergency DG. The consequences of an accident previously evaluated during the period that the emergency DG is being tested to re-establish Operability are no different from the consequences of an accident previously evaluated while the emergency DG is inoperable. As a result, the consequences of any accident previously evaluated are not increased.
Therefore, the proposed change does not involve a significant increase in the probability or consequences of any accident previously evaluated.
2. Does the proposed amendment create the possibility of a new or different kind of accident from any accident previously evaluated?
Response: No.
The proposed change does not involve a physical alteration to the plant (
Therefore, the proposed change does not create the possibility of a new or different kind of accident from any accident previously evaluated.
3. Does the proposed amendment involve a significant reduction in a margin of safety?
Response: No.
The purpose of Surveillances is to verify that equipment is capable of performing its assumed safety function. The proposed change will only allow the performance of the Surveillances to re-establish Operability and the proposed changes may not be used to remove an emergency DG from service. The proposed changes also require an assessment to verify that plant safety will be maintained or enhanced by performance of the Surveillance in the normally prohibited Modes.
Therefore, the proposed change does not involve a significant reduction in a margin of safety.
Based on the above, SNC concludes that the proposed amendment does not involve a significant hazards consideration under the standards set forth in 10 CFR 50.92(c), and, accordingly, a finding of “no significant hazards consideration” is justified.
The change inserts a discussion paragraph into Specification 1.4, and two new examples are added to facilitate the use and application of SR Notes that utilize the terms “met” and “perform.”
1. Does the proposed amendment involve a significant increase in the probability or consequences of an accident previously evaluated?
Response: No.
The proposed changes insert a discussion paragraph into Specification 1.4, and several new examples are added to facilitate the use and application of Surveillance Requirement (SR) Notes that utilize the terms “met” and “perform”. The changes also modify SRs in multiple Specifications to appropriately use “met” and “perform” exceptions. The changes are administrative in nature because they provide clarification and correction of existing expectations, and therefore the proposed change does not increase the probability of any accident previously evaluated. No physical or operational changes are made to the plant. The proposed change does not significantly change how the plant would mitigate an accident previously evaluated.
Therefore, the proposed change does not involve a significant increase in the probability or consequences of an accident previously evaluated.
2. Does the proposed amendment create the possibility of a new or different kind of accident from any accident previously evaluated?
Response: No.
The proposed changes are administrative in nature and do not result in a change in the manner in which the plant operates. The proposed changes do not degrade the availability or capability of safety related equipment, and therefore do not create the possibility of a new or different kind of accident from any accident previously evaluated. There are no design changes associated with the proposed changes, and the changes do not involve a physical alteration of the plant (
Therefore, the proposed change does not create the possibility of a new or different kind of accident from any accident previously evaluated.
3. Does the proposed amendment involve a significant reduction in a margin of safety?
Response: No.
The proposed changes are administrative in nature and do not result in a change in the manner in which the plant operates. The proposed changes provide clarification and correction of existing expectations that do not degrade the availability or capability of safety related equipment, or alter their operation. The proposed changes do not affect the safety analysis acceptance criteria for any analyzed event, nor is there a change to any safety analysis limit. The proposed changes do not alter the manner in which safety limits, limiting safety system settings or limiting conditions for operation are determined, nor is there any adverse effect on those plant systems necessary to assure the accomplishment of protection functions. The proposed changes will not result in plant operation in a configuration outside the design basis.
Therefore, the proposed changes do not involve a significant reduction in a margin of safety.
Based on the above, SNC concludes that the proposed amendment does not involve a significant hazards consideration under the standards set forth in 10 CFR 50.92(c), and, accordingly, a finding of “no significant hazards consideration” is justified.
Specification 3.3.3.1, “Post Accident Monitoring (PAM) Instrumentation,” Function 6, is renamed from “Primary Containment Isolation Valve Position” to “Penetration Flow Path Primary Containment Isolation Valve Position.”
1. Does the proposed amendment involve a significant increase in the probability or consequences of an accident previously evaluated?
Response: No.
The proposed change clarifies the separate condition entry Note in Specification 3.3.3.1, “Post Accident Monitoring (PAM) Instrumentation,” for Function 6, “Primary Containment Isolation Valve Position,” and Function 9, “Suppression Pool Water Temperature.” The proposed change does not affect any plant equipment, test methods, or plant operation, and are not initiators of any analyzed accident sequence. The actions taken for inoperable PAM channels are not changed. Operation in accordance with the proposed Technical Specifications will ensure that all analyzed accidents will continue to be mitigated as previously analyzed.
Therefore, the proposed change does not involve a significant increase in the probability or consequences of any accident previously evaluated.
2. Does the proposed amendment create the possibility of a new or different kind of accident from any accident previously evaluated?
Response: No.
The proposed change does not involve a physical alteration to the plant (
Therefore, the proposed change does not create the possibility of a new or different kind of accident from any accident previously evaluated.
3. Does the proposed amendment involve a significant reduction in a margin of safety?
Response: No.
The proposed change will not affect the operation of plant equipment or the function of any equipment assumed in the accident analysis. The PAM channels will continue to be operable or the existing, appropriate actions will be followed.
Therefore, the proposed change does not involve a significant reduction in a margin of safety.
Based on the above, SNC concludes that the proposed amendment does not involve a significant hazards consideration under the standards set forth in 10 CFR 50.92(c), and, accordingly, a finding of “no significant hazards consideration” is justified.
The proposed change revises Specification 3.3.6.1, “Primary Containment Isolation Instrumentation.” An Actions Note is added allowing penetration flow paths to be unisolated intermittently under administrative controls. The traversing incore probe (TIP) isolation system is also segregated into a separate Function, allowing 12 hours to place the channel in trip and 24 hours to isolate the penetration. A new Condition G is added for the new TIP isolation system Function. Condition G is referenced from Required Action C.1 when Conditions A or B are not met. The subsequent Actions are renumbered.
1. Does the proposed amendment involve a significant increase in the probability or consequences of an accident previously evaluated?
Response: No.
The proposed change revises Specification 3.3.6.1, “Primary Containment Isolation Instrumentation.” An Actions Note is added allowing penetration flow paths to be unisolated intermittently under administrative controls. The traversing incore probe (TIP) isolation system is segregated into a separate Function, allowing 12 hours to place the channel in trip and 24 hours to isolate the penetration. A new Action G is added which is referenced by the new TIP isolation system Function. The subsequent Actions are renumbered. The proposed change does not affect any plant equipment, test methods, or plant operation, and are not initiators of any analyzed accident sequence. The allowance to unisolate a penetration flow path will not have a significant effect on mitigation of any accident previously evaluated because the penetration flow path can be isolated, if needed, by a dedicated operator. The option to isolate a TIP System penetration will ensure the penetration will perform as assumed in the accident analysis. Operation in accordance with the proposed Technical Specifications will ensure that all analyzed accidents will continue to be mitigated as previously analyzed.
Therefore, the proposed change does not involve a significant increase in the probability or consequences of any accident previously evaluated.
2. Does the proposed amendment create the possibility of a new or different kind of accident from any accident previously evaluated?
Response: No.
The proposed change does not involve a physical alteration to the plant (
Therefore, the proposed change does not create the possibility of a new or different kind of accident from any accident previously evaluated.
3. Does the proposed amendment involve a significant reduction in a margin of safety?
Response: No.
The proposed change will not affect the operation of plant equipment or the function of any equipment assumed in the accident analysis. The allowance to unisolate a penetration flow path will not have a significant effect on a margin of safety because the penetration flow path can be isolated manually, if needed. The option to isolate a TIP System penetration will ensure the penetration will perform as assumed in the accident analysis.
Therefore, the proposed change does not involve a significant reduction in a margin of safety.
Based on the above, SNC concludes that the proposed amendment does not involve a significant hazards consideration under the standards set forth in 10 CFR 50.92(c), and, accordingly, a finding of “no significant hazards consideration” is justified.
The proposed change revises Specification 5.5.4, “Radioactive Effluent Controls Program,” paragraph e, to describe the original intent of the dose projections.
1. Does the proposed amendment involve a significant increase in the probability or consequences of an accident previously evaluated?
Response: No.
The proposed change revises Specification 5.5.4, “Radioactive Effluent Controls Program,” paragraph e, to describe the original intent of the dose projections. The cumulative and projection of doses due to liquid releases are not an assumption in any accident previously evaluated and have no effect on the mitigation of any accident previously evaluated.
Therefore, the proposed change does not involve a significant increase in the probability or consequences of any accident previously evaluated.
2. Does the proposed amendment create the possibility of a new or different kind of accident from any accident previously evaluated?
Response: No.
The proposed change does not involve a physical alteration to the plant (
Therefore, the proposed change does not create the possibility of a new or different kind of accident from any accident previously evaluated.
3. Does the proposed amendment involve a significant reduction in a margin of safety?
Response: No.
The proposed change revises Specification 5.5.4, “Radioactive Effluent Controls Program,” paragraph e, to describe the original intent of the dose projections. The cumulative and projection of doses due to liquid releases are administrative tools to assure compliance with regulatory limits. The proposed change revises the requirement to clarify the intent, thereby improving the administrative control over this process. As a result, any effect on the margin of safety should be minimal.
Therefore, the proposed change does not involve a significant reduction in a margin of safety.
Based on the above, SNC concludes that the proposed amendment does not involve a significant hazards consideration under the standards set forth in 10 CFR 50.92(c), and, accordingly, a finding of “no significant hazards consideration” is justified.
The proposed change adds a provision to Condition A of Specification 3.5.1, “ECCS—Operating,” to allow one Low Pressure Coolant Injection (LPCI) pump to be inoperable in each subsystem for a period of seven days.
1. Does the proposed amendment involve a significant increase in the probability or consequences of an accident previously evaluated?
Response: No.
The proposed change adds a provision to Condition A of Technical Specification (TS) 3.5.1 to allow one Low Pressure Coolant Injection (LPCI) pump to be inoperable in each subsystem for a period of seven days. The change to allow one LPCI pump to be inoperable in both subsystems is more reliable than what is currently allowed by Condition A, which requires entry into
Therefore, the proposed change does not involve a significant increase in the probability or consequences of any accident previously evaluated.
2. Does the proposed amendment create the possibility of a new or different kind of accident from any accident previously evaluated?
Response: No.
The proposed change does not involve a physical alteration to the plant (
Therefore, the proposed change does not create the possibility of a new or different kind of accident from any accident previously evaluated.
3. Does the proposed amendment involve a significant reduction in a margin of safety?
Response: No.
The proposed change adds a provision to Condition A of Technical Specification TS 3.5.1 to allow one LPCI pump to be inoperable in each subsystem for a period of seven days. The change to allow one LPCI pump to be inoperable in both subsystems is more reliable than what is currently allowed by Condition A, which requires entry into shutdown LCO 3.0.3 under these conditions. The proposed change does not affect any safety analysis assumptions.
Therefore, the proposed change does not involve a significant reduction in a margin of safety.
Based on the above, SNC concludes that the proposed amendment does not involve a significant hazards consideration under the standards set forth in 10 CFR 50.92(c), and, accordingly, a finding of “no significant hazards consideration” is justified.
The proposed change revises Specification 3.6.4.1, “Secondary Containment,” SRs 3.6.4.1.3 and 3.6.4.1.4 to clarify the intent of the Surveillances.
1. Does the proposed amendment involve a significant increase in the probability or consequences of an accident previously evaluated?
Response: No.
The proposed change revises Specification 3.6.4.1, “Secondary Containment,” Surveillance Requirements (SRs) 3.6.4.1.3 and 3.6.4.1.4 to clarify the intent of the Surveillances. The secondary containment and the standby gas treatment (SGT) system are not initiators of any accident previously evaluated. Operation in accordance with the proposed Technical Specifications will ensure that all analyzed accidents will continue to be mitigated as previously analyzed.
Therefore, the proposed change does not involve a significant increase in the probability or consequences of any accident previously evaluated.
2. Does the proposed amendment create the possibility of a new or different kind of accident from any accident previously evaluated?
Response: No.
The proposed change does not involve a physical alteration to the plant (
Therefore, the proposed change does not create the possibility of a new or different kind of accident from any accident previously evaluated.
3. Does the proposed amendment involve a significant reduction in a margin of safety?
Response: No.
The proposed change is an clarification of the intent of the surveillances to ensure that the secondary containment is not inappropriately declared inoperable when a SGT subsystem is inoperable. The safety functions of the secondary containment and the SGT system are not affected. This change is a correction that ensures that the intent of the secondary containment surveillances is clear.
Therefore, the proposed change does not involve a significant reduction in a margin of safety.
Based on the above, SNC concludes that the proposed amendment does not involve a significant hazards consideration under the standards set forth in 10 CFR 50.92(c), and, accordingly, a finding of “no significant hazards consideration” is justified.
The proposed change revises Specification 3.6.1.3, “Primary Containment Isolation Valves,” Action C, to provide a 72 hour Completion Time instead of a 12 hour Completion Time to isolate an inoperable excess flow check valve (EFCV).
1. Does the proposed amendment involve a significant increase in the probability or consequences of an accident previously evaluated?
Response: No.
The proposed change revises Specification 3.6.1.3, “Primary Containment Isolation Valves,” Action C, to provide a 72 hour Completion Time instead of a 12 hour Completion Time to isolate an inoperable excess flow check valve (EFCV). The primary containment isolation valves (PCIVs) are not an initiator of any accident previously evaluated. The consequences of a previously evaluated accident during the extended Completion Time are the same as the consequences during the existing Completion Time.
Therefore, the proposed change does not involve a significant increase in the probability or consequences of any accident previously evaluated.
2. Does the proposed amendment create the possibility of a new or different kind of accident from any accident previously evaluated?
Response: No.
The proposed change does not involve a physical alteration to the plant (
Therefore, the proposed change does not create the possibility of a new or different kind of accident from any accident previously evaluated.
3. Does the proposed amendment involve a significant reduction in a margin of safety?
Response: No.
The proposed change extends the Completion Time to isolate an inoperable primary containment penetration equipped with an excess flow check valve from 12 hours to 72 hours. The PCIVs serve to mitigate the potential for radioactive release from the primary containment following an accident. The design and response of the PCIVs to an accident are not affected by this change. The revised Completion Time is appropriate given the EFCVs are on penetrations that have been found to have acceptable barrier(s) in the event that the single isolation valve fails.
Therefore, the proposed change does not involve a significant reduction in a margin of safety.
Based on the above, SNC concludes that the proposed amendment does not involve a significant hazards consideration under the standards set forth in 10 CFR 50.92(c), and, accordingly, a finding of “no significant hazards consideration” is justified.
The proposed change revises Specification 5.5.9, “Diesel Fuel Oil Testing Program,” to remove references to the specific American Society for Testing and Materials (ASTM) Standard from the Administrative Controls Section of TS, and places them in a licensee-controlled document. Also, alternate criteria are added to establish the acceptability of new fuel oil for use prior to and following the addition to storage tanks.
1. Does the proposed amendment involve a significant increase in the probability or consequences of an accident previously evaluated?
Response: No.
The proposed changes remove the references to specific ASTM standards from the Administrative Controls Section of the Technical Specifications (TS) and place them in a licensee controlled document. Requirements to perform testing in accordance with the applicable ASTM standards is retained in the TS as are requirements to perform testing of both new and stored diesel fuel oil. Future changes to the licensee controlled document will be evaluated pursuant to the requirements of 10 CFR 50.59 to ensure that these changes do not result in more than a minimal increase in the probability or consequences of an accident previously evaluated. In addition, tests used to establish the acceptability of new fuel oil for use prior to and following the addition to storage tanks has been expanded to recognize more rigorous testing of water and sediment content. Relocating the specific ASTM standard references from the TS to a licensee controlled document and allowing a water and sediment content test to be performed to establish the acceptability of new fuel oil will not affect nor degrade the ability of the emergency diesel generators (EDGs) to perform their specified safety function. Fuel oil quality will continue to be tested and maintained to ASTM requirements. Diesel fuel oil testing is not an initiator of any accident previously evaluated, and the proposed changes do not adversely affect any accident initiators or precursors, or alter design assumptions, conditions, and configuration of the facility, or the manner in which the plant is operated. The proposed changes do not adversely affect the ability of structures, systems, and components to perform their intended safety function to mitigate the consequences of an initiating event within the assumed acceptance limits.
Therefore, the proposed changes do not involve a significant increase in the probability or consequences of any accident previously evaluated.
2. Does the proposed amendment create the possibility of a new or different kind of accident from any accident previously evaluated?
Response: No.
The proposed changes remove the references to specific ASTM standards from the Administrative Controls Section of TS and place them in a licensee controlled document. In addition, the tests used to establish the acceptability of new fuel oil for use prior to and following the addition to storage tanks has been expanded to allow a water and sediment content test to be performed to establish the acceptability of new fuel oil. The changes do not involve a physical alteration of the plant (
Therefore, the changes do not create the possibility of a new or different kind of accident from any accident previously evaluated.
3. Does the proposed amendment involve a significant reduction in a margin of safety?
Response: No.
The proposed changes remove the references to specific ASTM standards from the Administrative Controls Section of TS and place them in a licensee controlled document. Instituting the proposed changes will continue to ensure the use of applicable ASTM standards to evaluate the changes to the licensee-controlled document are performed in accordance with the provisions of 10 CFR 50.59. This approach provides an effective level of regulatory control and ensures that diesel fuel oil testing is conducted such that there is no significant reduction in a margin of safety. The margin of safety provided by the EDGs is unaffected by the proposed changes since TS requirements will continue to ensure fuel oil is of the appropriate quality. The proposed changes provide the flexibility needed to improve fuel oil sampling and analysis methodologies while maintaining sufficient controls to preserve the current margins of safety.
Based on the above, SNC concludes that the proposed amendment does not involve a significant hazards consideration under the standards set forth in 10 CFR 50.92(c), and, accordingly, a finding of “no significant hazards consideration” is justified.
The proposed change revises Specification 3.8.1, “AC Sources—Operating,” Surveillance 3.8.1.11, to clarify that the intent of the SR is to test the non-critical emergency DG automatic trips.
1. Does the proposed change involve a significant increase in the probability or consequences of an accident previously evaluated?
Response: No.
This change clarifies the purpose of Surveillance Requirement (SR) 3.8.1.11, which is to verify that non-critical automatic emergency diesel generator (DG) trips are bypassed in an accident. The non-critical automatic DG trips and their bypasses are not initiators of any accident previously evaluated. Therefore, the probability of any accident is not significantly increased. Additionally, the function of the emergency DG in mitigating accidents is not changed. The revised SR continues to ensure the emergency DG will operate as assumed in the accident analysis.
Therefore, the proposed change does not involve a significant increase in the probability or consequences of an accident previously evaluated.
2. Does the proposed change create the possibility of a new or different kind of accident from any accident previously evaluated?
Response: No.
This change clarifies the purpose of SR 3.8.1.11, which is to verify that non-critical automatic emergency DG trips are bypassed in an accident. The proposed change does not involve a physical alteration of the plant (no new or different type of equipment will be installed), or a change in the methods governing normal plant operation. Thus, this change does not create the possibility of a new or different kind of accident from any accident previously evaluated.
3. Does the proposed change involve a significant reduction in a margin of safety?
Response: No.
This change clarifies the purpose of SR 3.8.1.11, which is to verify that non-critical automatic DG trips are bypassed in an accident. This change clarifies the purpose of the SR, which is to verify that the emergency DG is capable of performing the assumed safety function. The safety function of the emergency DG is unaffected, so the change does not affect the margin of safety.
Therefore, this change does not involve a significant reduction in a margin of safety.
Based on the above, SNC concludes that the proposed change presents no significant hazards consideration under the standards set forth in 10 CFR 50.92(c), and, accordingly, a finding of “no significant hazards consideration” is justified.
Specifications 3.1.7, “Standby Liquid Control (SLC) System;” 3.6.4.3, “Standby Gas Treatment (SGT) System;” 3.8.1, “AC Sources—Operating;” and 3.8.7, “Distribution Systems—Operating,” contain Required Actions with a second Completion Time to establish a limit on the maximum time allowed for any combination of Conditions that result in a single continuous failure to meet the LCO. These Completion Times (henceforth referred to as “second Completion Times”) are joined by an “AND” logical connector to the Condition-specific Completion Time and state “X days from discovery of failure to meet the LCO” (where “X” varies by specification). The proposed change deletes these second Completion Times from the affected Required Actions. It also revises ISTS Example 1.3-3 to remove the discussion of second Completion Times and to revise the discussion in that Example to state that alternating between Conditions in such a manner that operation could continue indefinitely without restoring systems to meet the LCO is inconsistent with the basis of the Completion Times and is inappropriate. Therefore, the licensee shall have administrative controls to limit the maximum time allowed for any combination of Conditions that result in a single contiguous occurrence of failing to meet the LCO.
1. Does the proposed amendment involve a significant increase in the probability or consequences of an accident previously evaluated?
Response: No.
The proposed change eliminates certain Completion Times from the Technical Specifications. Completion Times are not an initiator to any accident previously evaluated. As a result, the probability of an accident previously evaluated is not affected. The consequences of an accident during the remaining Completion Time are no different than the consequences of the same accident during the removed Completion Times. As a result, the consequences of an accident previously evaluated are not affected by this change.
Therefore, the proposed change does not involve a significant increase in the probability or consequences of any accident previously evaluated.
2. Does the proposed amendment create the possibility of a new or different kind of accident from any accident previously evaluated?
Response: No.
The proposed change does not involve a physical alteration to the plant (
Therefore, the proposed change does not create the possibility of a new or different kind of accident from any accident previously evaluated.
3. Does the proposed amendment involve a significant reduction in a margin of safety?
Response: No.
The proposed change to delete the second Completion Time does not alter the manner in which safety limits, limiting safety system settings or limiting conditions for operation are determined. The safety analysis acceptance criteria are not affected by this change. The proposed changes will not result in plant operation in a configuration outside of the design basis.
Therefore, the proposed change does not involve a significant reduction in a margin of safety.
Based on the above, SNC concludes that the proposed amendment does not involve a significant hazards consideration under the standards set forth in 10 CFR 50.92(c), and, accordingly, a finding of “no significant hazards consideration” is justified.
The proposed change revises Specification 3.6.2.1, “Suppression Pool Average Temperature,” Required Actions D and E, to eliminate redundant requirements.
1. Does the proposed amendment involve a significant increase in the probability or consequences of an accident previously evaluated?
Response: No.
The proposed change revises Specification 3.6.2.1, “Suppression Pool Average Temperature,” Required Actions D and E, to eliminate redundant requirements when suppression pool temperature is above the Limiting Conditions for Operation (LCO) limit. Suppression pool temperature is not an initiator to any accident previously evaluated. Suppression pool temperature may affect the mitigation of accidents previously evaluated. The proposed change reduces the time allowed to operate with suppression pool temperature above the limit. The consequences of an accident under the proposed change are no different than under the current requirements.
Therefore, the proposed change does not involve a significant increase in the probability or consequences of any accident previously evaluated.
2. Does the proposed amendment create the possibility of a new or different kind of accident from any accident previously evaluated?
Response: No.
The proposed change does not involve a physical alteration to the plant (
Therefore, the proposed change does not create the possibility of a new or different kind of accident from any accident previously evaluated.
3. Does the proposed amendment involve a significant reduction in a margin of safety?
Response: No.
The proposed change revises Specification 3.6.2.1, “Suppression Pool Average Temperature,” Required Actions D and E, to eliminate redundant requirements when suppression pool temperature is above the LCO limit. The proposed change reduces the time allowed to operate with suppression pool temperature above the limit. The proposed revision will not adversely affect the margin of safety as it corrects the Actions to provide appropriate compensatory measures when suppression pool temperature is greater than the limit.
Therefore, the proposed change does not involve a significant reduction in a margin of safety.
Based on the above, SNC concludes that the proposed amendment does not involve a significant hazards consideration under the standards set forth in 10 CFR 50.92(c), and, accordingly, a finding of “no significant hazards consideration” is justified.
The proposed change revises Specification 3.3.2.1, Required Action C.2.1.2 from “Verify by administrative methods that startup with RWM inoperable has not been performed in the last calendar year” to “Verify by administrative methods that startup with RWM inoperable has not been performed in the last 12 months.”
1. Does the proposed change involve a significant increase in the probability or consequences of an accident previously evaluated?
Response: No.
The proposed change revises a Required Action to limit startup with the Rod Worth Minimizer (RWM) inoperable from once per calendar year to once per 12 months. The RWM is used to minimize the possibility and consequences of a control rod drop accident. This change clarifies the intent of the limitation, but does not affect the requirement for the RWM to be operable. As, over time, the number of startups with the RWM inoperable will not increase, the probability of any accident previously evaluated is not significantly increased. As the RWM is still required to be operable, the consequences of an any accident previously evaluated are not significantly increased.
Therefore, the proposed change does not involve a significant increase in the probability or consequences of an accident previously evaluated.
2. Does the proposed change create the possibility of a new or different kind of accident from any accident previously evaluated?
Response: No.
The proposed change revises a Required Action to limit startup with the Rod Worth Minimizer inoperable from once per calendar year to once per 12 months. No new or different accidents result from utilizing the proposed change. The changes do not involve a physical alteration of the plant (
Therefore, the proposed change does not create the possibility of a new or different kind of accident from any previously evaluated.
3. Does the proposed change involve a significant reduction in a margin of safety?
Response: No.
The proposed change revises a Required Action to limit startup with the Rod Worth Minimizer (RWM) inoperable from once per calendar year to once per 12 months. This clarifies the intent of the Required Action. The number of startups with RWM inoperable is not increased.
Therefore, the proposed change does not involve a significant reduction in a margin of safety.
Based on the above, SNC concludes that the proposed change presents no significant hazards consideration under the standards set forth in 10 CFR 50.92(c), and, accordingly, a finding of “no significant hazards consideration” is justified.
The proposed change revises the introductory paragraph of Specification 5.5.7, “Ventilation Filter Testing Program (VFTP),” to be consistent with the ISTS. Specific requirements to perform testing after
The existing wording states, “The VFTP will establish the required testing of Engineered Safety Feature (ESF) filter ventilation systems at the frequencies specified in Regulatory Guide 1.52, Revision 2, Sections C.5.c and C.5.d, or: (1) After any structural maintenance on the HEPA filter or charcoal adsorber housings, (2) following painting, fire or chemical release in any ventilation zone communicating with the system, or 3) after every 720 hours of charcoal adsorber operation.”
The proposed wording states, “A program shall be established to implement the following required testing of Engineered Safety Feature (ESF) filter ventilation systems at the frequencies specified in Regulatory Guide 1.52, Revision 2, Sections C.5.c and C.5.d, and in accordance with Regulatory Guide 1.52, Revision 2.”
1. Does the proposed amendment involve a significant increase in the probability or consequences of an accident previously evaluated?
Response: No.
The proposed change revises the introductory paragraph of Specification 5.5.7, “Ventilation Filter Testing Program (VFTP),” to be consistent with the ISTS. Specific requirements to perform testing after structural maintenance on the HEPA filter or charcoal adsorber housing or following painting, fire or chemical release, and after every 720 hours of operation are retained as a reference to Regulatory Guide requirements and general requirements in Surveillance Requirement (SR) 3.0.1. Implementation of these requirements will be in the licensee-controlled VFTP. The VFTP will be maintained in accordance with 10 CFR 50.59. Since any changes to the VFTP will be evaluated under 10 CFR 50.59, no significant increase in the probability or consequences of an accident previously evaluated will be allowed.
Therefore, this proposed change does not represent a significant increase in the probability or consequences of an accident previously evaluated.
2. Does the proposed amendment create the possibility of a new or different kind of accident from any accident previously evaluated?
Response: No.
The proposed change does not involve a physical alteration to the plant (
Therefore, the proposed change does not create the possibility of a new or different kind of accident from any accident previously evaluated.
3. Does the proposed amendment involve a significant reduction in a margin of safety?
Response: No.
The proposed change revises the introductory paragraph of Specification 5.5.7, “Ventilation Filter Testing Program (VFTP),” to be consistent with the ISTS. The proposed change will not reduce a margin of safety because it has no effect on any safety analysis assumption. In addition, no requirements are being removed, but are being replaced with references to an NRC Regulatory Guide and the requirements of SR 3.0.1.
Therefore, this proposed change does not involve a significant reduction in a margin of safety.
Based on the above, SNC concludes that the proposed amendment does not involve a significant hazards consideration under the standards set forth in 10 CFR 50.92(c), and, accordingly, a finding of “no significant hazards consideration” is justified.
The NRC staff has reviewed the licensee's analysis and, based on this review, it appears that the three standards of 10 CFR 50.92(c) are satisfied. Therefore, the NRC staff proposes to determine that the amendment request involves no significant hazards consideration.
1. Does the proposed change involve a significant increase in the probability or consequences of an accident previously evaluated?
Response: No.
The proposed changes to TS Section 3.8.3, Conditions A and B, and to SR 3.8.3.1 and SR 3.8.3.2 remove the volume of diesel fuel oil and lube oil required to support 7-day operation of each onsite diesel generator, and the volume equivalent to a 6-day supply, from the TS and replace them with the associated number of days. The numerical volumes will be maintained under licensee control. The specific volume of fuel oil equivalent to a 7 and 6-day supply is calculated using the NRC-approved methodology described in Regulatory Guide 1.137, Revision 1, “Fuel-Oil Systems for Standby Diesel Generators” and ANSI [American National Standards Institute]-N195 1976, “Fuel Oil Systems for Standby Diesel-Generators.” The specific volume of lube oil equivalent to a 7-day and 6-day supply is based on the diesel generator manufacturer's consumption values for the run time of the diesel generator. Because the requirement to maintain a 7-day supply of diesel fuel oil and lube oil is not changed and is consistent with the assumptions in the accident analyses, and the actions taken when the volume of fuel oil and lube oil are less than a 6-day supply have not changed, neither the probability nor the consequences of any accident previously evaluated will be affected.
The addition of a new Condition D provides a required action and completion time if new fuel oil properties are not within limits. The new SR 3.8.3.5 requires checking for and removing water from the 7-day storage tank every 31 days. The revised Section 5.5.9 adds testing requirements for new fuel oil to be completed prior to the addition of the new fuel oil to the 7-day storage tank, as well as additional testing to be completed prior or within 31 days of the addition. These requirements are more restrictive testing requirements and provide corrective action to be taken if the testing limits are not met. They are taken from the current NRC approved NUREG-1433, Revision 4, “Standard Technical Specifications, General Electric BWR/4 Plants.” Improved, more restrictive testing standards will neither change the probability or the consequences of any accident previously evaluated be affected.
Therefore, the proposed changes do not involve a significant increase in the
2. Does the proposed change create the possibility of a new or different kind of accident from any accident previously evaluated?
Response: No.
The changes do not involve a physical alteration of the plant (
Therefore, the proposed change does not create the possibility of a new or different kind of accident from any accident previously evaluated.
3. Does the proposed change involve a significant reduction in a margin of safety?
Response: No.
The proposed changes to Section 3.8.3, Conditions A and B, and to SR 3.8.3.1 and SR 3.8.3.2 remove the numerical volume of diesel fuel oil and lube oil required to support 7-day operation of each onsite diesel generator, and the numerical volume equivalent to a 6-day supply from the TS and replaces them with the associated number of days. The numerical volumes will be maintained under licensee control. As the bases for the existing limits on diesel fuel oil volume and lube oil volume are not changed, no change is made to the accident analysis assumptions and no margin of safety is reduced as part of this change.
The new, more restrictive, testing requirements, and the provision for corrective action to be taken if the testing limits are not met, are taken from the current NRC approved NUREG-1433, Revision 4, “Standard Technical Specifications, General Electric BWR/4 Plants.” These changes do not revise the accident analysis assumptions and no margin of safety is reduced as part of these changes.
Therefore, the proposed change does not involve a significant reduction in a margin of safety.
The NRC staff has reviewed the licensee's analysis and, based on this review, it appears that the three standards of 10 CFR 50.92(c) are satisfied. Therefore, the NRC staff proposes to determine that the amendment request involves no significant hazards consideration.
1. Does the proposed change involve a significant increase in the probability or consequences of an accident previously evaluated?
Response: No.
The proposed change revises or adds SRs [surveillance requirements] that require verification that the Emergency Core Cooling System (ECCS), the Residual Heat Removal (RHR) System, and the Containment Spray System are not rendered inoperable due to accumulated gas and to provide allowances which permit performance of the revised verification. Gas accumulation in the subject systems is not an initiator of any accident previously evaluated. As a result, the probability of any accident previously evaluated is not significantly increased. The proposed SRs ensure that the subject systems continue to be capable to perform their assumed safety function and are not rendered inoperable due to gas accumulation. Thus, the consequences of any accident previously evaluated are not significantly increased.
Therefore, the proposed change does not involve a significant increase in the probability or consequences of an accident previously evaluated.
2. Does the proposed change create the possibility of a new or different kind of accident from any accident previously evaluated?
Response: No.
The proposed change revises or adds SRs that require verification that the ECCS, the RHR System, and the Containment Spray System are not rendered inoperable due to accumulated gas and to provide allowances which permit performance of the revised verification. The proposed change does not involve a physical alteration of the plant (
Therefore, the proposed change does not create the possibility of a new or different kind of accident from any accident previously evaluated.
3. Does the proposed change involve a significant reduction in a margin of safety?
Response: No.
The proposed change revises or adds SRs that require verification that the ECCS, the RHR System, and the Containment Spray System are not rendered inoperable due to accumulated gas and to provide allowances which permit performance of the revised verification. The proposed change adds new requirements to manage gas accumulation in order to ensure the subject systems are capable of performing their assumed safety functions. The proposed SRs are more comprehensive than the current SRs and will ensure that the assumptions of the safety analysis are protected. The proposed change does not adversely affect any current plant safety margins or the reliability of the equipment assumed in the safety analysis. Therefore, there are no changes being made to any safety analysis assumptions, safety limits or limiting safety system settings that would adversely affect plant safety as a result of the proposed change.
Therefore, the proposed change does not involve a significant reduction in a margin of safety.
The NRC staff has reviewed the licensee's analysis and, based on this review, it appears that the three standards of 10 CFR 50.92(c) are satisfied. Therefore, the NRC staff proposes to determine that the amendment request involves no significant hazards consideration.
The following notices were previously published as separate individual notices. The notice content was the same as above. They were published as individual notices either because time did not allow the Commission to wait for this biweekly notice or because the action involved exigent circumstances. They are repeated here because the biweekly notice lists all amendments issued or proposed to be issued involving no significant hazards consideration.
For details, see the individual notice in the
During the period since publication of the last biweekly notice, the Commission has issued the following amendments. The Commission has determined for each of these amendments that the application complies with the standards and requirements of the Atomic Energy Act of 1954, as amended (the Act), and the Commission's rules and regulations. The Commission has made appropriate findings as required by the Act and the Commission's rules and regulations in 10 CFR Chapter I, which are set forth in the license amendment.
A notice of consideration of issuance of amendment to facility operating license or combined license, as applicable, proposed no significant hazards consideration determination, and opportunity for a hearing in connection with these actions, was published in the
Unless otherwise indicated, the Commission has determined that these amendments satisfy the criteria for categorical exclusion in accordance with 10 CFR 51.22. Therefore, pursuant to 10 CFR 51.22(b), no environmental impact statement or environmental assessment need be prepared for these amendments. If the Commission has prepared an environmental assessment under the special circumstances provision in 10 CFR 51.22(b) and has made a determination based on that assessment, it is so indicated.
For further details with respect to the action see (1) the applications for amendment, (2) the amendment, and (3) the Commission's related letter, Safety Evaluation and/or Environmental Assessment as indicated. All of these items can be accessed as described in the “Obtaining Information and Submitting Comments” section of this document.
The Commission's related evaluation of the amendment is contained in a Safety Evaluation dated March 16, 2015.
The Commission's related evaluation of the amendment is contained in a Safety Evaluation dated February 17, 2015.
The Commission's related evaluation of the amendment is contained in a Safety Evaluation dated March 13, 2015.
The Commission's related evaluation of the amendment is contained in a Safety Evaluation dated March 6, 2015.
The Commission's related evaluation of the amendment is contained in a Safety Evaluation dated March 12, 2015.
The Commission's related evaluation of the amendment is contained in a Safety Evaluation dated March 12, 2015.
The Commission's related evaluation of the amendments is contained in a Safety Evaluation dated March 11, 2015.
The proposed change relocates surveillance frequencies to a licensee-controlled program, the Surveillance Frequency Control Program. This change is applicable to licensees using probabilistic risk guidelines contained in NRC-approved NEI 04-10, Revision 1, “Risk-Informed Technical Specifications Initiative 5b, Risk-Informed Method for Control of Surveillance Frequencies” (ADAMS Accession No. ML071360456).
The Commission's related evaluation of the amendment is contained in a Safety Evaluation dated March 6, 2015.
The Commission's related evaluation of the amendment is contained in a Safety Evaluation dated February 26, 2015.
The Commission's related evaluation of the amendments is contained in a Safety Evaluation dated March 10, 2015.
For the Nuclear Regulatory Commission.
March 30, April 6, 13, 20, 27, May 4, 2015.
Commissioners' Conference Room, 11555 Rockville Pike, Rockville, Maryland.
Public and Closed.
There are no meetings scheduled for the week of March 30, 2015.
There are no meetings scheduled for the week of April 6, 2015.
This meeting will be webcast live at the Web address—
This meeting will be webcast live at the Web address—
There are no meetings scheduled for the week of April 20, 2015.
There are no meetings scheduled for the week of April 27, 2015.
There are no meetings scheduled for the week of May 4, 2015.
The schedule for Commission meetings is subject to change on short notice. For more information or to verify the status of meetings, contact Glenn Ellmers at 301-415-0442 or via email at
The NRC Commission Meeting Schedule can be found on the Internet at:
The NRC provides reasonable accommodation to individuals with disabilities where appropriate. If you need a reasonable accommodation to participate in these public meetings, or need this meeting notice or the transcript or other information from the public meetings in another format (
Members of the public may request to receive this information electronically. If you would like to be added to the distribution, please contact the Nuclear Regulatory Commission, Office of the Secretary, Washington, DC 20555 (301-415-1969), or email
U.S. Office of Personnel Management (OPM).
Notice of amendments to the project plan for the Department of Defense (DoD) Civilian Acquisition Workforce Personnel Demonstration Project (AcqDemo).
The DoD, with the approval of OPM, received authority to conduct a personnel demonstration project within DoD's civilian acquisition workforce and among those supporting personnel assigned to work directly with it. This notice announces the repeal and replacement of AcqDemo's original legal authorization and modifies the project plan to include new provisions; updates the project plan to address changes resulting from new General Schedule regulations and operational experience; announces guidelines for a formal process for interested DoD civilian acquisition organizations to use to request approval to participate in AcqDemo; and provides notice of expansion of coverage to new or realigned organizations.
The amendments will become effective as of March 31, 2015.
(1) DoD: Darryl R. Burgan, Civilian Acquisition Workforce Personnel Demonstration Project Program Office, 9820 Belvoir Road, Ft. Belvoir, VA 22060, (703) 805-5050; (2) OPM: Zelma Moore, U.S. Office of Personnel Management, 1900 E Street NW., Room 7456, Washington, DC 20415, (202) 606-1157.
The AcqDemo Project was established under the authority of the Secretary of Defense, with the approval of OPM. Subject to the authority, direction, and control of the Secretary, the Under Secretary of Defense for Acquisition, Technology, and Logistics (USD(AT&L)) carries out the powers, functions, and duties of the Secretary concerning the DoD acquisition workforce. As stated in the most recent legislative authorization, the purpose of the demonstration project is “to determine the feasibility or desirability of one or more proposals for improving the personnel management policies or procedures that apply with respect to the acquisition workforce of the [DoD] and supporting personnel assigned to work directly with the acquisition workforce.”
This demonstration project was originally authorized under section 4308 of the National Defense Authorization Act (NDAA) for Fiscal Year (FY) 1996 (Pub. L. 104-106, 110 Stat. 669; 10 United States Code Annotated (U.S.C.A.) 1701 note), as amended by section 845 of NDAA for FY 1998 (Pub. L. 105-85, 111 Stat.1845); section 813 of NDAA for FY 2003 (Pub. L. 107-314, 116 Stat. 2609); and section 1112 of NDAA for FY 2004 (Pub. L. 108-136, 117 Stat. 1634). Section 1113 of NDAA for FY 2010 (Pub. L. 111-84, 123 Stat. 2190) repealed the National Security Personnel System and directed conversion of all NSPS employees to their previous pay system by January 1, 2012. All NSPS employees formerly in AcqDemo were transitioned back to AcqDemo during the month of May 2011. On January 7, 2011, the original demonstration project authority was repealed and codified at section 1762 of
OPM approved and published the final project plan for the AcqDemo on January 8, 1999, in 64 FR 1426-1492. Since that time, four amendments have been approved and published, and one notice of intent to amend published by OPM:
(1) 66 FR 28006-28007 (May 21, 2001): This amendment was published to (1) correct discrepancies in the list of occupational series included in the project and (2) authorize managers to offer a buy-in to Federal employees entering the project after initial implementation.
(2) 67 FR 20192-20193 (April 24, 2002): This amendment was published to (1) make employees in the top broadband level of their career path eligible to receive a “very high” overall contribution score and (2) reduce the minimum rating period under the Contribution-based Compensation and Appraisal System (CCAS) to 90 calendar days.
(3) 67 FR 44250-44256 (July 1, 2002): This amendment (1) contained a list of all organizations that are eligible to participate in the project and (2) made the resulting adjustments to the table that describes the project's workforce demographics and union representation.
(4) 67 FR 63948-63949 (October 16, 2002): This notice of the intent to amend was published to propose a change in the method for determining and translating retention service credit. The proposal was overcome by the advent of the National Security Personnel System (NSPS), which was projected to replace the AcqDemo.
(5) 71 FR 58638-58639 (October 4, 2006): This amendment was published to facilitate the transition of AcqDemo employees to NSPS by authorizing an out-of-cycle Contribution-based Compensation and Appraisal System payout and amending conversion-out procedures.
With the enactment of section 872 of the Ike Skelton NDAA for FY 2011 (Pub. L. 111-383), Congress extended the authority for AcqDemo until September 30, 2017, and raised the total number of persons who may participate in the project from 95,000 to 120,000. Since the enactment, a number of acquisition workforce organizations recently indicated a strong interest in joining AcqDemo and have received DoD (USD(AT&L) and the Under Secretary of Defense (Personnel and Readiness) (USD(P&R)) and OPM approval to participate in the demonstration project.
AcqDemo involves streamlined hiring processes, broad banding, simplified classification, a contribution-based compensation and appraisal system, revised reduction-in-force procedures, academic degree and certification training, and sabbaticals.
The purpose of this notice is fivefold:
1. Announce that the original authority for the DoD Civilian Acquisition Workforce Personnel Demonstration Project provided by section 4308 of NDAA for FY 1996 (Pub. L. 104-106, 110 Stat. 669; 10 U.S.C.A. 1701 note), as amended, was repealed and codified at section 1762 of title 10 U.S.C. pursuant to section 872 of the Ike Skelton NDAA for FY 2011 (Pub. L. 111-383, 124 Stat. 4300, 4302).
2. Make modifications to 64 FR 1426-1492; 66 FR 28006-28007; 67 FR 20192-20193; 67 FR 44250-44256; 67 FR 63948-63949; and 71 FR 58638-58639 as appropriate to delete the repealed authority, insert the new updated authority, and include the new provisions authorized by section 872 of the Ike Skelton NDAA for FY 2011, including the associated changes necessitated by these provisions. The new provisions extend the authority termination date for the AcqDemo project to September 30, 2017; increase the total number of employees who may participate in the demonstration project up to 120,000; add workforce, organization and team participation eligibility criteria; add a provision for continuing the participation of organizations and teams whose subsequent reorganization causes changes in their demographics which could result in loss of eligibility to participate; and adds a requirement for two project assessments—one to be completed no later than September 30, 2012, which was forwarded to Congress in November 2012, and the other to be completed no later than September 30, 2016.
3. Improve process efficiency in refreshing the demonstration project plan to address required immediate changes resulting from new General Schedule (GS) regulations and actual demonstration project operational experience. These current changes include: Adding newly established GS occupational series, GS-0017, Explosive Safety Series; GS-0089, Emergency Management Series; GS-901, General Legal and Kindred Administration Series; GS-1603, Equipment, Facilities, and Services Assistance Series; GS-2299 Information Technology Management Student Trainee Series; and GS-0306, Public Information Management Series; replacing inactivated series GS-0334, Computer Specialist Series, with its replacement series GS-2210, Information Technology (IT) Management Series; and providing AcqDemo the capability to add other occupational series and revise or delete current series as a result of fluctuations in mission requirements or future DoD or OPM modifications to occupational series with appropriate notification to USD(P&R) and OPM for approval. Up to 20 positions may be reclassified to the Explosive Safety Series; approximately 800 positions are classified to the Information Technology Series; at least 5 positions each are classified to the General Legal and Kindred Administration Series, the Equipment, Facilities, and Services Assistance Series, and the Information Technology Management Student Trainee Series; and there is no impact on positions at this time with the addition of the Emergency Management Series and the Public Information Management Series.
4. Provide a formal process for DoD organizations interested in joining AcqDemo to request approval to participate in the demonstration project.
5. Announce the expansion of the AcqDemo to new or realigned DoD Acquisition organizations.
The DoD AcqDemo Program Office will post this amendment on the Program Office's Web site at
Pursuant to 5 CFR 470.315, OPM approves the following modification to the AcqDemo project plan.
Specific Textual Changes to the AcqDemo Project Plan:
A. In the notice published on January 8, 1999, 64 FR 1426-1492:
1. On page 1426, in the first column, in the second paragraph under the
2. On page 1426, in the first column, in the second paragraph under the
3. On page 1426, in the second column, in the first full paragraph, in the first through sixth lines, “Section 4308 of the National Defense Authorization Act for Fiscal Year 1996 (Pub. L. 104-106; 10 U.S.C.A. § 1701), as amended by section 845 of the National Defense Authorization Act for Fiscal Year 1998 (Pub. L. 105-85),” should read “Section 872 of the Ike Skelton NDAA for FY 2011 (Pub. L. 111-383, 124 Stat. 4300, 4302)”.
4. On page 1439, in Table 2, in the “Business Management & Technical Management Professional” section, insert GS occupational series GS-0017, Explosive Safety Series; GS-0089, Emergency Management Series; and GS-0306, Public Information Management Series in their proper place in accordance with the numerical sequence shown in the “Business Management & Technical Management Professional” section.
5. On page 1440, in Table 2, in the “Business Management & Technical Management Professional” section, delete the inactivated GS-0334, Computer Specialist Series.
6. On page 1441, in Table 2, in the “Business Management & Technical Management Professional” section, insert GS occupational series GS-0901, General Legal and Kindred Administration Series in its proper place in accordance with the numerical sequence shown in the “Business Management & Technical Management Professional” section.
7. On page 1444, in Table 2, in the “Business Management & Technical Management Professional” section, insert in a new line below series number 2199 at the end of Table 2, the GS-2210, Information Technology Management Series (Alternative A) and annotate for a footnote.
8. On page 1444, in Table 2, in the “Business Management & Technical Management Professional” section, insert GS occupational series GS-2299, Information Technology Management Student Trainee in its proper place in accordance with the numerical sequence shown in the “Business Management & Technical Management Professional” section.
9. On page 1444, in Table 2, under the bottom of the table, add the following footnote associated with GS-2210, Information Technology Management Series (Alternative A): “In April 2009, the Office of Personnel Management issued two qualification standards for Information Technology (IT) Management Series, 2210. Alternative A, which is applicable to AcqDemo participants, covers GS-5 through GS-15 (or equivalent) and must be used for GS-5 and GS-7 positions requiring IT-related education and/or IT-related experience. Alternative B covers only positions at the GS-5 or GS-7 (or equivalent) that do not require IT-related education or IT-related experience upon entry.”
10. On page 1446, in Table 2, in the “Administrative Support” section, insert GS occupational series GS-1603, Equipment, Facilities, and Services Assistance Series in its proper place in accordance with the numerical sequence shown in the “Administrative Support” section.
11. On page 1451, bottom of middle column, delete text in paragraph C.1 and replace with the following: “The AcqDemo Project will continue to use the occupational series designators consistent with those authorized by DoD and or OPM to identify positions. The current AcqDemo occupational series will be placed into appropriate career paths as shown in Table 2. Other occupational series may be added or current series revised or deleted as a result of fluctuations in mission requirements or future DoD or OPM modifications to occupational series with appropriate notice to USD(P&R) and OPM for approval. Titling practices consistent with those established by DoD or OPM classification standards will be used to determine the official title of positions.”
12. On page 1484, in the third column, immediately preceding the VI. Project Duration heading, insert the following new Section D (which will follow a Section C added to Section V by 71 FR 58638, October 4, 2006):
“
“Section 872 of the Ike Skelton NDAA for FY 2011 codified at 10 U.S.C. 1762(d) provides that an AcqDemo organization that loses, due to reorganization, the one-third, two-thirds personnel demographic eligibility required for continued inclusion in AcqDemo may continue to participate in the AcqDemo project. All requirements set forth in 5 U.S.C. 4703 continue to apply to the new organization or team. In addition, the following circumstances may be considered in determining whether the new organization should participate in AcqDemo. Continued participation may be contingent upon such items as the amount of reduction in the number and/or kinds of positions to be counted for the one-third, two-thirds demographic eligibility requirement; degree of personnel involvement in an organization with an acquisition mission to acquire necessary supplies, equipment, and services to support the warfighter and DoD support staff; scope of direct support to an acquisition workforce organization or closely related functional area; and or the primary personnel system utilized by the gaining organization.
“AcqDemo organizations affected by reorganization, realignment, consolidation, or other organizational changes that may impact the one-third, two-thirds personnel demographic eligibility requirement are to contact the AcqDemo Program Director expeditiously to discuss the workforce changes in relation to continued AcqDemo participation. The AcqDemo Program Director will decide the additional information that needs to be included in the organization's request for continued participation. The organization will submit a request for continued participation in accordance with the AcqDemo Program Office's internal implementing guidance. The AcqDemo Program Office will review the rationale for and the data supplied in support of continued participation; conduct periodic audits of the participating organizations' populations as appropriate; and request additional details or formal documentation as needed. Based on an assessment of the information provided, the AcqDemo Program Director will approve or disapprove the continued participation including any pertinent comments.”
13. On page 1485, in the first column, immediately preceding the VII. Evaluation Plan heading, insert the following new paragraph:
“The demonstration project has been extended by statute twice as indicated below:
“(a) Section 813 of the Bob Stump NDAA for FY 2003 (Pub. L. 107-314, 116 Stat. 2609) extended the authority to conduct the AcqDemo until September 30, 2012 and
“(b) Section 872 of the Ike Skelton NDAA for FY 2011 (Pub. L. 111-383, 124 Stat. 4300, 4302), which extended the authority to conduct the AcqDemo Program until September 30, 2017.”
14. On page 1485, in the third column, immediately following the text in VII. Evaluation Plan, insert the following new paragraph:
“With the authority extension granted by section 872, the Secretary of Defense was required to designate an independent organization to conduct two assessments of the acquisition workforce demonstration project. Each such assessment must include the following:
“(a) A description of the workforce included in the project.
“(b) An explanation of the flexibilities used in the project to appoint individuals to the acquisition workforce and whether those appointments are based on competitive procedures and recognize veterans' preferences.
“(c) An explanation of the flexibilities used in the project to develop a performance appraisal system that recognizes excellence in performance and offers opportunities for improvement.
“(d) The steps taken to ensure that such system is fair and transparent for all employees in the project.
“(e) How the project allows the organization to better meet mission needs.
“(f) An analysis of how the flexibilities in subparagraphs (b) and (c) are used, and what barriers have been encountered that inhibit their use.
“(g) Whether there is a process for—
“(i) ensuring ongoing performance feedback and dialogue among supervisors, managers, and employees throughout the performance appraisal period; and
“(ii) setting timetables for performance appraisals.
“(h) The project's impact on career progression.
“(i) The project's appropriateness or inappropriateness in light of the complexities of the workforce affected.
“(j) The project's sufficiency in terms of providing protections for diversity in promotion and retention of personnel.
“(k) The adequacy of the training, policy guidelines, and other preparations afforded in connection with using the project.
“(l) Whether there is a process for ensuring employee involvement in the development and improvement of the project.
“Pursuant to section 872 of the Ike Skelton NDAA for FY 2011 (see 10 U.S.C. 1762(e)), the first assessment was forwarded to Congress in November 2012. The second and final assessment must be completed no later than September 30, 2016. The Secretary shall submit to the covered congressional committees a copy of each assessment within 30 days after receipt by the Secretary of the assessment.”
B. In the notice published on May 21, 2001, 66 FR 28006-28007:
On page 28007, in the first column, under
C. In the notice published on April 24, 2002, 67 FR 20192-20193:
On page 20192, in the second and third columns, under the
D. In the notice published on July 1, 2002, 67 FR 44250-44256:
1. On page 44250, in the first column, under the
2. On page 44251, in the third column, under III. Personnel System Changes, delete paragraph 1 before Table 1, covering changes to Section II.E. and replace with the following:
“
3. On page 44251, middle of page, top of Table 1, delete Table 1 title and replace with: “Table 1. Eligible AcqDemo Organizations as of July 1, 2002.”
4. On page 44255, after Table 1, Note 5, and before paragraph 2, insert the following:
“2. AcqDemo Expansion.
“a. Request to Participate in AcqDemo. As a demonstration project, AcqDemo is subject to audit, evaluation and reporting requirements as Department leaders consider expanding participation in AcqDemo. Therefore, to assist in the effective management of the project, it is necessary to establish and utilize a formal application and approval process for organizations and teams desiring to participate in AcqDemo. The broad parameters of this process are described below with finite content requirements to be issued by the DoD AcqDemo Program Office using various internal DoD issuances such as AcqDemo Memorandum and AcqDemo Operating Procedures. As experience is gained using this process, analysis is conducted, and conclusions reached, minor modifications may be made by the DoD AcqDemo Program Office.
“b. Calls for Additional Participation. The AcqDemo Program Office may establish a regular schedule or periodically announce opportunities for interested acquisition organizations to apply for approval to participate in AcqDemo. Out-of cycle participation requests will be reviewed on a case-by-case basis. During the demonstration project authority period, limited expansion of the project may be determined valuable by the USD(AT&L). In these cases, plans for such expansion will be coordinated with the USD(P&R)and OPM prior to execution.
“c. Eligibility Requirements. Organizational and team participation in AcqDemo is voluntary. For an interested organization or team to be approved to participate, the following conditions must be met:
“(1) At least one-third of the workforce selected to participate in the demonstration project consists of members of the acquisition workforce (civilian employees occupying positions coded as meeting the requirements of the Defense Acquisition Workforce Improvement Act (DAWIA) of 1990);
“(2) At least two-thirds of the workforce participating in the demonstration project consists of members of the acquisition workforce and supporting personnel assigned to work directly with the acquisition workforce;
“(3) The civilian acquisition personnel demonstration project commenced before October 1, 2007;
“(4) Positions are classified to an approved occupational series; and
“(5) Requests from organizations or teams must be coordinated through the chain of command to include the USD(P&R) and for approval by USD(AT&L), or designee, and OPM for participation in the AcqDemo Project. Once the USD(AT&L) approves participation, the approval package will be provided to the USD(P&R) or designee for signature and forwarded to OPM for final approval and publication in accordance with 5 U.S.C. 4703 and title 5 Code of Federal Regulations (CFR) Part 470.
“(1) Initiation of the process should only occur after the leadership of the candidate population has:
“(a) Reviewed the AcqDemo design with AcqDemo Program Office officials;
“(b) Informally coordinated concurrence of their participation within their component leadership for any enterprise planning impacts; and
“(c) Assessed the acceptance level of their workforce with participation, views of stakeholders such as local bargaining union leadership (if applicable), and consideration of any other local climate and/or operational issues that would impact effective implementation of the project.
“(2) Gather and provide the required information described below:
“(a) Complete DoD component, DoD agency, or DoD field activity address.
“(b) Identification of the acquisition-related mission of the population requesting participation including a brief discussion of the major functions performed.
“(c) Requesting organizations are encouraged to provide any applicable local workforce challenges being encountered that are not covered in 64 FR 1426 and indicate how it is anticipated that AcqDemo could help address such challenges.
“(d) Workforce Demographic Data.
“(e) Identification of occupational series that need to be added.
“(f) A statement of confirmation that applicable Within-Grade Increase (WGI) buy-in conversion costs have been estimated and do not present adverse financial impact on payroll budgeting and execution.
“(g) Communication Plan, as available.
“(h) Desired conversion date for candidate population.
“(3) Requesting organization will route the application package through their command channels to the Assistant Secretary for Manpower and Reserve Affairs (M&RA) or equivalent, or as delegated by the Component for the military services, or the appropriate equivalent authority for Joint Services and DoD agencies and field activities under the 4th Estate for appropriate review and endorsement to the DoD AcqDemo Program Director. The AcqDemo Program Office staff will review the application package for compliance with required information and eligibility requirements and facilitate coordination of eligibility with USD (P&R) and participation approval with USD (AT&L) and OPM. The AcqDemo Program Director will then ensure the approval decisions are implemented, with quarterly updates provided to USD (P&R) and USD (AT&L).
“(4) Following receipt of appropriate coordinations and approvals for the requesting organization to participate in AcqDemo, the AcqDemo Program Office staff will initiate appropriate notification to the component Assistant Secretary (M&RA); 4th Estate Director, Administration and Management, or designees; USD (P&R), and the Office of Personnel Management. In addition, any organization approved to participate will notify affected employees, labor organizations, and other appropriate stakeholders.
“e. New or Realigned AcqDemo Eligible Organizations. As a result of the success of the AcqDemo classification, contribution appraisal, and compensation strategies and the desire of the USD (AT&L) to increase participation to more evenly balance the workforce among components and agencies for evaluation, the organizations listed in Table 1A either applied in calendar year 2014 and have been approved to participate in the AcqDemo, or are currently in Table 1 but require an update to their listed organizational alignment.
5. On page 44255, bottom of page, first column of narrative, delete paragraph 2, covering Section II.F. in its entirety including Table 3 and replace with the following:
“3. Workforce Coverage.
“a. Current Participating Employees. “As of January 22, 2015, AcqDemo contained twenty-eight organizations and teams with a total of 15,514 civilian employees covered by the project. Table 2 provides a demographic breakout of this actual population by participating Components or Service including number of employees by career path, broadband level, and bargaining unit representation. Of the 15,514 employees, 9.3% or 1,449 are represented by labor unions. The American Federation of Government Employees (AFGE) represents 65.1% of the bargaining unit employees and the National Federation of Federal Employees (NFFE) represents 31.5% of bargaining unit employees. The International Federation of Professional and Technical Engineers (IFPTE), National Association of Government Employees (NAGE), and Laborers' International Union of North America (LIUNA) represent the remainder (3.4%) of AcqDemo bargaining unit employees.”
“b. Workforce Coverage. Section 872 of the Ike Skelton NDAA for FY 2011 increased the number of employees who may participate in AcqDemo from 95,000 to 120,000 at any one time. The scope of AcqDemo workforce coverage gives primary consideration to the number and diversity of occupations within (1) the acquisition workforce and
“The AcqDemo includes primarily former General Schedule employees in positions with pay plan codes GS and GM. Employees and positions in other personnel systems and pay plans may be converted into AcqDemo as a result of reorganizations, restructuring, realignment, consolidation, Base Realignment and Closure decisions, legislative dictates, or other organizational changes. Students and recent graduates hired through the Pathways Programs may be included as determined by their organization or component. Excluded from coverage of this project are Senior Executive Service (SES), Senior Level (SL), Scientific and Technical (ST), Federal Wage System (FWS), and Administratively Determined (AD) positions. Also excluded from the project are (1) positions allocated to a Physicians and Dentist Pay Plan, either GP or GR; (2) positions covered by the Defense Civilian Intelligence Personnel System (DCIPS) (10 U.S.C. Chapter 83); (3) positions covered by or to be included in one of the Science and Technology Reinvention Laboratory (STRL) personnel demonstration projects (Section 342(b) of the NDAA for FY 1995, Pub. L. 103-337 (10 U.S.C. 2358), as amended); and (4) positions in the Space and Naval Warfare Systems Center, San Diego, CA, Alternative Personnel System (
E. In the notice published on October 16, 2002, 67 FR 63948—63949:
On page 63948, in the first column, under the
F. In the notice published on October 4, 2006, 71 FR 58638-58639:
On page 58638, in the third column, beginning in the third line from the top, “[See Section 4308 of the National Defense Authorization Act for Fiscal Year 1996 (Pub. L. 104-106; 10 U.S.C.A. section 1701 note), as amended by section 845 of the National Defense Authorization Act for Fiscal Year 1998 (Pub. L. 105-85)]” should read “[See Section 872 of the Ike Skelton National Defense Authorization Act for Fiscal Year 2011 (Pub. L. 111-383, 124 Stat. 4300, 4302)]”.
G. In the notice published on January 8, 1999, 64 FR 1439, change the number of Table 2 to Table 3.
Securities and Exchange Commission (“Commission”).
Notice of an application under section 6(c) of the Investment Company Act of 1940 (the “Act”) for an exemption from sections 18(c) and 18(i) of the Act and for an order pursuant to section 17(d) of the Act and rule 17d-1 under the Act.
The application was filed on October 2, 2014 and amended on February 6, 2015.
Secretary, U.S. Securities and Exchange Commission, 100 F Street NE., Washington, DC 20549-1090; Applicants, c/o Michael Wible, Esq., Thompson Hine LLP, 41 S. High Street, Suite 1700, Columbus, OH 43065.
Emerson S. Davis, Senior Counsel, at (202) 551-6868 or Daniele Marchesani, at (202) 551-6821 (Division of Investment Management, Chief Counsel's Office).
The following is a summary of the application. The complete application may be obtained via the Commission's Web site by searching for the file number, or an applicant using the Company name box, at
1. The Fund is a continuously offered non-diversified closed-end management investment company registered under the Act and organized as a Delaware statutory trust.
2. The Adviser, a Delaware limited liability company, is registered with the Commission as an investment adviser under the Investment Advisers Act of 1940, as amended (the “Advisers Act”). Northern Lights Fund Distributors, LLC, a registered broker-dealer under the Securities Exchange Act of 1934, as amended (“1934 Act”), will act as a placement agent for the Fund Northern Lights Fund Distributors, LLC is not an affiliated person, as defined in section 2(a)(3) of the Act, of the Adviser or of the Fund.
3. The Fund will continuously offer Shares in private placements in reliance on the provisions of Regulation D under the Securities Act of 1933, as amended (“Securities Act”).
4. The Fund currently issues a single class of Shares (“Initial Class”) at net asset value per share plus a servicing fee.
5. In order to provide a limited degree of liquidity to shareholders, the Fund may from time to time offer to repurchase Shares at their then current net asset value pursuant to rule 13e-4 under the 1934 Act pursuant to written tenders by shareholders.
6. The Applicants request that the order also apply to any other continuously-offered registered closed-end management investment company existing now or in the future, for which the Adviser or any entity controlling, controlled by, or under common control (as the term “control” is defined in section 2(a)(9) of the Act) with the Adviser acts as investment adviser, and which provides periodic liquidity with respect to its Shares pursuant to rule 13e-4 under the 1934 Act.
7. Applicants represent that any asset-based service and distribution fees will comply with the provisions of rule 2830(d) of the Conduct Rules of the National Association of Securities Dealers, Inc. (“NASD Conduct Rule 2830”).
8. The Fund will allocate all expenses incurred by it among the various classes of Shares based on the net assets of the Fund attributable to each class, except that the net asset value and expenses of each class will reflect distribution fees, service fees, and any other incremental expenses of that class. Expenses of the Fund allocated to a particular class of the Fund's Shares will be borne on a pro rata basis by each outstanding Share of that class. The Fund will comply with the provisions of rule 18f-3 as if it were an open-end investment company.
9. Although the Fund does not anticipate imposing CDSCs, the Applicants would only do so in compliance with the provisions of rule 6c-10 of the Act, as if that rule applied to closed-end management investment companies. With respect to any waiver of, scheduled variation in, or elimination of the CDSC, the Fund will comply with rule 22d-1 under the Act as if the Fund were an open-end investment company.
1. Section 18(c) of the Act provides, in relevant part, that a registered closed-end investment company may not issue or sell any senior security if, immediately thereafter, the company has outstanding more than one class of senior security. Applicants state that the creation of multiple classes of Shares of the Fund may be prohibited by section 18(c) of the Act.
2. Section 18(i) of the Act provides that each share of stock issued by a registered management investment company will be a voting stock and have equal voting rights with every other outstanding voting stock. Applicants state that permitting multiple classes of Shares of the Fund may violate section 18(i) of the Act because each class would be entitled to exclusive voting rights with respect to matters solely related to that class.
3. Section 6(c) of the Act provides that, the Commission may, by order upon application, conditionally or unconditionally exempt any person, security, or transaction, or any class or classes of persons, securities, or transactions, from any provision or provisions of the Act or from any rule or regulation under the Act, if and to the extent that the exemption is necessary or appropriate in the public interest and consistent with the protection of investors and the purposes fairly intended by the policy and provisions of the Act. Applicants request exemptive relief under section 6(c) from sections 18(c) and 18(i) to permit the Funds to issue multiple classes of Shares.
4. Applicants also believe that the proposed allocation of expenses and voting rights among multiple classes is equitable and will not discriminate against any group or class of
1. Applicants believe that the requested relief meets the standards of section 6(c) of the Act. Rule 6c-10 under the Act permits open-end investment companies to impose CDSCs, subject to certain conditions. Applicants state that although the Fund does not currently intend to impose CDSCs, the Fund will only impose a CDSC in compliance with rule 6c-10 as if that rule applied to closed-end management investment companies. The Fund would also make required disclosures in accordance with the requirements of Form N-1A concerning CDSCs as if the Fund were an open-end investment company. Applicants further state that, in the event it imposes CDSCs, the Fund will apply the CDSCs (and any waivers or scheduled variations of the CDSCs) uniformly to all shareholders of a given class and consistently with the requirements of rule 22d-1 under the Act.
1. Section 17(d) of the Act and rule 17d-1 under the Act prohibit an affiliated person of a registered investment company or an affiliated person of such person, acting as principal, from participating in or effecting any transaction in connection with any joint enterprise or joint arrangement in which the investment company participates unless the Commission issues an order permitting the transaction. In reviewing applications submitted under section 17(d) and rule 17d-1, the Commission considers whether the participation of the investment company in a joint enterprise or joint arrangement is consistent with the provisions, policies and purposes of the Act, and the extent to which the participation is on a basis different from or less advantageous than that of other participants.
2. Rule 17d-3 under the Act provides an exemption from section 17(d) and rule 17d-1 to permit open-end investment companies to enter into distribution arrangements pursuant to rule 12b-1 under the Act. Applicants request an order under section 17(d) of the Act and rule 17d-1 under the Act to permit the Fund to impose asset-based service and/or distribution fees. Applicants have agreed to comply with rules 12b-1 and 17d-3 as if those rules applied to closed-end investment companies.
Applicants agree that any order granting the requested relief will be subject to the following condition:
Applicants will comply with the provisions of rules 6c-10, 12b-1, 17d-3, 18f-3, and 22d-1 under the Act, as amended from time to time or replaced, as if those rules applied to closed-end management investment companies, and will comply with NASD Conduct Rule 2830, as amended from time to time, as if that rule applied to all closed-end management investment companies.
For the Commission, by the Division of Investment Management, under delegated authority.
Notice is hereby given, pursuant to the provisions of the Government in the Sunshine Act, Public Law 94-409, that the Securities and Exchange Commission will hold a Closed Meeting on Thursday, April 2, 2015 at 2:00 p.m.
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.
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), (7), 9(B) and (10) and 17 CFR 200.402(a)(3), (5), (7), 9(ii) and (10), permit consideration of the scheduled matter at the Closed Meeting.
Commissioner Piwowar, as duty officer, voted to consider the items listed for the Closed Meeting in closed session, and determined that no earlier notice thereof was possible.
The subject matter of the Closed Meeting will be:
Institution and settlement of injunctive actions;
Institution and settlement of administrative proceedings;
Resolution of litigation claims; and
Other matters relating to enforcement proceedings.
At times, changes in Commission priorities require alterations in the scheduling of meeting items.
For further information and to ascertain what, if any, matters have been added, deleted or postponed, please contact the Office of the Secretary at (202) 551-5400.
Pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (“Act”),
The principal purpose of the proposed rule change is to amend the ICE Clear Europe Finance Procedures in order to address certain reporting and information requirements relating to Sections 1471 through 1474 of the U.S.
In its filing with the Commission, ICE Clear Europe 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. ICE Clear Europe has prepared summaries, set forth in sections A, B, and C below, of the most significant aspects of these statements.
The purpose of the proposed rule change is for ICE Clear Europe to adopt amendments to its Finance Procedures in order to clarify certain informational and tax form requirements applicable to its Clearing Members in connection with FATCA (and other similar laws). Specifically, the amendments add a new paragraph 6.1(j) to the Finance Procedures, which states that Clearing Members are required to provide to the Clearing House information, and to complete tax forms, as may be required by the Clearing House in order to comply with its obligations relating to FATCA, including obligations under intergovernmental arrangements between U.K. and U.S. authorities with respect to FATCA compliance and implementing regulations and guidance in the U.K. The amendments also clarify that ICE Clear Europe's status under FATCA and such agreements and implementing regulations (including ICE Clear Europe's registration with the U.S. Internal Revenue Service for a Global Intermediary Identification Number for FATCA reporting purposes) is not intended to have any effect on ICE Clear Europe's status for the purposes of any other applicable law, or any of the rights or obligations of ICE Clear Europe or any Clearing Member or customer provided for under the Rules and Procedures and relevant member agreements.
FATCA was enacted on March 18, 2010, as part of the Hiring Incentives to Restore Employment Act, and became effective, subject to transition rules, on January 1, 2013. The U.S. Treasury Department finalized and issued various implementing regulations (“FATCA Regulations”)
The U.K. has entered into an IGA with the United States, and U.K. tax authorities have adopted implementing regulations (and related guidance) with respect to FATCA compliance for U.K. entities.
ICE Clear Europe believes that the proposed rule change is consistent with the requirements of Section 17A of the Securities Exchange Act of 1934 (the “Act”)
ICE Clear Europe does not believe the proposed rule change would have any impact, or impose any burden, on
Written comments relating to the proposed rule change to the rules have not been solicited or received. ICE Clear Europe will notify the Commission of any written comments received by ICE Clear Europe.
The foregoing rule change has become effective upon filing pursuant to Section 19(b)(3)(A) of the Act
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:
• Use the Commission's Internet comment form (
• Send an email to
• Send paper comments in triplicate to Secretary, Securities and Exchange Commission, 100 F Street NE., Washington, DC 20549-1090.
For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.
Notice is hereby given that, pursuant to the Paperwork Reduction Act of 1995 (44 U.S.C. 3501
Regulation Blackout Trade Restriction (“Regulation BTR”) (17 CFR 245.100-245.104) clarifies the scope and application of Section 306(a) of the Sarbanes-Oxley Act of 2002 (“Act”) (15 U.S.C. 7244(a)). Section 306(a)(6) [15 U.S.C.7244(a)(6)] of the Act requires an issuer to provide timely notice to its directors and executive officers and to the Commission of the imposition of a blackout period that would trigger the statutory trading prohibition of Section 306(a)(1) [15 U.S.C. 7244(a)(1)]. Section 306(a) of the Act prohibits any director or executive officer of an issuer of any equity security, directly or indirectly, from purchasing, selling or otherwise acquiring or transferring any equity security of that issuer during any blackout period with respect to such equity security, if the director or executive officer acquired the equity security in connection with his or her service or employment. The information provided under Regulation BTR is mandatory and is available to the public. Approximately 1,230 issuers file Regulation BTR notices approximately 5 times a year for a total of 6,150 responses. We estimate that it takes approximately 2 hours to prepare the blackout notice for a total annual burden of 2,460 hours. The issuer prepares 75% of the 2,460 annual burden hours for a total reporting burden of (1,230 × 2 hrs × 0.75) 1,845 hours. In addition, we estimate that an issuer distributes a notice to five directors and executive officers at an estimated 5 minutes per notice (1,230 blackout period × 5 notices × 5 minutes) for a total reporting burden of 512 hours. The combined annual reporting burden is (1,845 hours + 512 hours) 2,357 hours.
An agency may not conduct or sponsor, and a person is not required to respond to, a collection of information unless it displays a currently valid control number.
The public may view the background documentation for this information collection at the following Web site,
Pursuant to Section 19(b)(1) under the Securities Exchange Act of 1934 (the “Act”)
The Exchange is filing with the Securities and Exchange Commission (“Commission”) a proposed rule change to clarify certain statements made in SR-BOX-2015-03, a rule change filed by the Exchange on January 9, 2015, to implement an equity rights program (the “VPR Filing”). There are no proposed changes to any rule text.
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.
On January 9, 2015, the Exchange filed the VPR Filing to implement an equity rights program (the “VPR Program”).
In describing how Contract Equivalents are calculated in the VPR Filing, the Exchange inadvertently used the term “orders” to describe the option contracts executed by the Subscriber. Specifically, on pages 5 and 20-21 of 49 of the VPR Filing, the Exchange explained that the Contract Equivalent calculation for each of the four categories of account types would be based on the quantity of
Furthermore, in describing how the Contract Equivalent ratio was determined for each of the four account type categories under the Program, the Exchange noted, on pages 6, 16, and 20-
The Exchange believes that the proposal is consistent with the requirements of Section 6(b) of the Act, in general, and Section 6(b)(4) and 6(b)(5)of the Act,
The Exchange does not believe that the proposed rule change will impose any burden on competition that is not necessary or appropriate in furtherance of the purposes of the Act. The Exchange believes that the proposed rule change will improve competition by clarifying certain aspects of the VPR Filing for all market participants.
No written comments were either solicited or received.
The foregoing rule change has become effective pursuant to Section 19(b)(3)(A)(ii) of the Exchange Act
At any time within 60 days of the filing of the proposed rule change, the Commission summarily may temporarily suspend the rule change if it appears to the Commission that the action is necessary or appropriate in the public interest, for the protection of investors, or would otherwise further the purposes of the Act. If the Commission takes such action, the Commission shall institute proceedings to determine whether the proposed rule should be approved or disapproved.
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:
• Use the Commission's Internet comment form (
• Send an email to
• Send paper comments in triplicate to Secretary, Securities and Exchange Commission, 100 F Street NE., Washington, DC 20549-1090.
For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.
Pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (“Act”),
The principal purpose of the proposed rule change is to modify the ICE Clear Europe Delivery Procedures with respect to the settlement of certain European natural gas futures contracts that are currently traded or will be traded on the ICE Endex market and cleared by ICE Clear Europe.
In its filing with the Commission, ICE Clear Europe included statements concerning the purpose of and basis for the proposed rule change. The text of these statements may be examined at the places specified in Item IV below. ICE Clear Europe has prepared summaries, set forth in sections A, B, and C below, of the most significant aspects of such statements.
The purpose of the rule amendments is to modify the ICE Clear Europe Delivery Procedures in connection with the launch by the ICE Endex market of certain new natural gas futures contracts that will be cleared by ICE Clear Europe, namely the ICE Endex TTF Natural Gas Daily Futures Contracts, ICE Endex Gaspool Natural Gas Daily Futures Contracts, ICE Endex NCG Natural Gas Daily Futures Contracts and ICE Endex ZTP Natural Gas Daily Futures Contracts (the “New Futures Contracts”). These contracts are daily versions of existing monthly natural gas futures contracts traded on ICE Endex and cleared by ICE Clear Europe. ICE Clear Europe also proposes to make clarifying and conforming amendments for certain existing natural gas contracts that are covered by the Delivery Procedures. ICE Clear Europe does not otherwise propose to amend its clearing rules or procedures in connection with the New Futures Contracts.
The amendments adopt new subparts of Parts E, F, G and H of the Delivery Procedures, applicable to the ICE Endex TTF Natural Gas Daily Futures Contracts, ICE Endex Gaspool Natural Gas Daily Futures Contracts, ICE Endex NCG Natural Gas Daily Futures Contracts and ICE Endex ZTP Natural Gas Daily Futures Contracts, respectively. The amendments add references, as appropriate, to the New Futures Contracts in the applicable Parts of the Delivery Procedures. The amendments provide, among other matters, specifications for delivery of natural gas under a New Futures Contract, including relevant definitions and a detailed delivery timetable for the contracts. The amendments also address invoicing and payment for delivery. The amendments provide for calculation by ICE Clear Europe of buyer's and seller's security to cover delivery obligations and related liabilities, costs or charges, as well as procedures to address failed deliveries. The revised procedures also set out various documentation requirements for the relevant parties. In addition, changes are made to paragraph 5.1 of the Delivery Procedures to include the New Futures Contracts in the list of contracts for which parties may nominate transferors and transferees to make and take delivery.
Other changes are made throughout the Delivery Procedures to conform the names of certain contracts to those used in the relevant exchange rules, including for the ICE Endex Gaspool Natural Gas Futures Contract, ICE Endex NCG Natural Gas Futures Contract and ICE Endex ZTP Natural Gas Futures Contract. (Related changes and clarifications to defined terms have also been made.) Throughout relevant Parts of the Delivery Procedures, references to the “HIT report” have been replaced with the “MPFE report” (which is the current form of futures expiry report indicating positions that have gone to expiry). Certain drafting clarifications to the term “Invoice Period” have been made in the Delivery Procedures.
Changes have also made to the settlement timetable for existing ICE Futures UK Natural Gas Daily Futures in paragraph 5.2 of Part D and the delivery documentation requirements table in paragraph 8.1 of Part D (including as to the timetable and documentation for nominations of transferors and transferees). Parallel and conforming changes have been made in Parts E through H for other existing natural gas contracts. The existing Schedule of Forms and Reports appended to the Delivery Procedures has been removed as obsolete and unnecessary.
ICE Clear Europe believes that the changes described herein are consistent with the requirements of Section 17A of the Act
Specifically, ICE Clear Europe believes that it will be able to manage the risks associated with acceptance of the New Futures Contracts for clearing and physical delivery in such contracts. The New Futures Contracts present a similar risk profile to other ICE Endex contracts currently cleared by ICE Clear Europe, and ICE Clear Europe believes that its existing risk management and margin framework is sufficient for purposes of risk management of the New Futures Contracts and related deliveries.
Similarly, ICE Clear Europe has established appropriate standards for determining the eligibility of contracts submitted to it for clearing, and ICE Clear Europe believes that its existing systems are appropriately scalable to handle the New Futures Contracts, which are generally similar from an operational perspective to the other ICE Endex power contracts currently cleared by ICE Clear Europe.
For the reasons noted above, ICE Clear Europe believes that the proposed rule change is consistent with the requirements of Section 17A of the Act and regulations thereunder applicable to it.
ICE Clear Europe does not believe the proposed rule change would have any impact, or impose any burden, on competition not necessary or appropriate in furtherance of the Act. ICE Clear Europe is adopting the amendments to the Delivery Procedures principally in connection with the listing of new contracts for trading on the ICE Endex market. ICE Clear Europe believes that such contracts will provide additional opportunities for interested market participants to engage in trading activity relating to the relevant underlying gas markets. ICE Clear Europe does not believe the adoption of related Delivery Procedures amendments would adversely affect access to clearing for clearing members or their customers, or otherwise adversely affect competition in clearing services.
Written comments relating to the proposed rule change have not been solicited or received. ICE Clear Europe will notify the Commission of any written comments received by ICE Clear Europe.
The foregoing rule change has become effective upon filing pursuant to Section 19(b)(3)(A)
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:
• Use the Commission's Internet comment form (
• Send an email to
• Send paper comments in triplicate to Secretary, Securities and Exchange Commission, 100 F Street NE., Washington, DC 20549-1090.
All comments received will be posted without change; the Commission does not edit personal identifying information from submissions. You should submit only information that you wish to make available publicly. All submissions should refer to File Number SR-ICEEU-2015-008 and should be submitted on or before April 21, 2015.
For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.
Pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (“Act”),
NASDAQ proposes to amend the Market Quality Program (“MQP” or “Program”) fee (“MQP Fee”) in Rule 5950, entitled Market Quality Program.
The text of the proposed rule change is available on the Exchange's Web site at
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.
The purpose of this proposal is to amend the MQP Fee in section (b)(2) of Rule 5950. No other changes to the MQP are proposed.
The MQP enables market makers that voluntarily commit to and do in fact enhance the market quality, in terms of quoted spreads and liquidity, of certain securities listed on the Exchange to qualify for a fee credit. These market makers are eligible for a fee credit only to the extent that they maintain stringent quoting and liquidity standards set forth in the Program. The MQP is a one year pilot, during which time the Exchange will periodically provide information to the Commission about market quality in respect of the MQP. NASDAQ believes that the MQP will be beneficial to issuers, investors and other market participants, and to the economy in general by significantly enhancing the quality of the market and trading in listed securities.
The Commission approved the MQP as a pilot program.
Current Rule 5950 discusses the Market Quality Program. MQP Securities consist of ETF securities issued by an MQP Company and listed on the Exchange pursuant to NASDAQ Rule 5705.
Currently, per Rule 5950(b)(2), an MQP Company participating in the MQP will incur an annual basic MQP Fee of $50,000 per MQP Security (“basic MQP Fee”), which must be paid to the Exchange prospectively each quarter. An MQP Company may also, on an annual basis, voluntarily select to incur
The Exchange proposes to amend the basic MQP Fee and the supplemental MQP Fee. Specifically, the Exchange proposes to amend the MQP Fee as follows: the annual basic MQP fee will be $35,000; and the basic MQP Fee and supplemental MQP Fee when combined will not exceed $70,000. Thus, the supplemental MQP Fee as proposed may not be greater than $35,000 in addition to the basic MQP Fee. The 1:2 relationship between the basic and supplemental fee is preserved. That is, where currently the basic MQP Fee is $50,000 and the basic MQP Fee and supplemental MQP Fee when combined may not exceed $100,000 (twice the basic MQP Fee), the proposed basic MQP Fee is $35,000 and the basic MQP Fee and supplemental MQP Fee when combined may not exceed $70,000 (also twice the basic MQP Fee). Other than the MQP Fee, no other changes are proposed in this filing.
The Exchange has discussed the structure and implementation of the Program with potential MQP Companies and MQP Market Makers. The Exchange believes that the proposal will help to incentivize MQP Companies to list ETF products, and MQP Market Makers to make quality markets through the MQP Program. The Exchange believes that its proposal, which would encourage Program implementation, will be beneficial to the market and market participants.
The Exchange believes the proposed rule change is consistent with the Act and the rules and regulations thereunder, including the requirements of Section 6(b) of the Act.
The goal of the MQP—to incentivize members to make high-quality, liquid markets—supports the primary goal of the Act to promote the development of a resilient and efficient national market system. The primary goal of the Act includes multiple policies such as price discovery, order interaction, and competition among orders and markets. The MQP as amended promotes all of these policies and will enhance quote competition, improve NASDAQ liquidity, support the quality of price discovery, promote market transparency and increase competition for listings and trade executions while reducing spreads and transaction costs. Maintaining and increasing liquidity in exchange-listed securities executed on a registered exchange will help raise investors' confidence in the fairness of the market and their transactions. Improving liquidity in this manner is particularly important with respect to ETFs and low-volume securities, as noted by the Joint CFTC/SEC Advisory Commission on Emerging Regulatory Issues.
Each aspect of the MQP as amended adheres to and supports the Act. The Program promotes the equitable allocation of fees and dues among issuers. The MQP is completely voluntary in that it will provide an additional means by which issuers may relate to the Exchange without modifying the existing listing options. Issuers can supplement the standard listing fees (which have already been determined to be consistent with the Act) with those of the MQP (which are consistent with the Act as well). While the MQP will result in higher overall fees for issuers that choose to participate, the Exchange notes that the MQP Fee (both basic and supplemental) for participation in the Program is decidedly lower and would enable the issuers to receive significant benefits for participating, including greater liquidity, and lower transaction costs for their investors.
The MQP as amended also represents an equitable allocation of fees and dues among Market Makers. Again, the MQP is completely voluntary with respect to Market Maker participation in that it will provide an additional means by which members may qualify for a credit, without eliminating any of the existing means of qualifying for incentives on the Exchange. Currently, NASDAQ and other exchanges use multiple fee arrangements to incentivize Market Makers to maintain high quality markets or to improve the quality of executions, including various payment for order flow arrangements, liquidity provider credits, and NASDAQ's Investor Support Program (set forth in NASDAQ Rule 7014). Market Makers that choose to undertake increased burdens pursuant to the MQP will be rewarded with increased credits; those that do not undertake such burdens will receive no added benefit. As with issuers, Market Makers that choose to participate in the MQP will be permitted to withdraw from it after an initial commitment if they determine that the burdens imposed by the MQP outweigh the benefits provided.
Additionally, the MQP as amended reflects an equitable allocation of MQP Credits among Market Makers that choose to participate and fulfill the obligations imposed by the rule. If one Market Maker fulfills those obligations, the MQP Credit will be distributed by NASDAQ to that Market Maker out of the General Fund; and if multiple Market Makers satisfy the standard, the MQP Credit will be distributed pro rata among them. In other words, all of the
The MQP as amended is designed to avoid unfair discrimination among Market Makers and issuers. The proposed rule contains objective, measurable (universal) standards that NASDAQ will apply with care. These standards will be applied equally to ensure that similarly situated parties are treated similarly. This is equally true for inclusion of issuers and Market Makers, withdrawal of issuers and Market Makers, and termination of eligibility for the MQP. The standards are carefully constructed to protect the rights of all parties wishing to participate in the Program by providing notice of requirements and a description of the selection process. NASDAQ will apply these standards with the same care and experience with which it applies the many similar rules and standards in NASDAQ's rule manuals. The MQP Fee as amended and the credit to Market Makers will be applied uniformly to all in the Program that maintain Program standards.
NASDAQ notes that it operates in a highly competitive market in which market participants can readily favor competing venues if they deem fee levels at a particular venue to be excessive, or rebate opportunities available at other venues to be more favorable. In such an environment, NASDAQ must continually adjust its fees and program offerings to remain competitive with other exchanges and with alternative trading systems that have been exempted from compliance with the statutory standards applicable to exchanges. NASDAQ believes that all aspects of the proposed rule change reflect this competitive environment because the MQP is designed to increase the credits provided to members that enhance NASDAQ's market quality.
The proposal to lower the MQP Fee is commensurate with the goals of the Act, in compliance with the Act, and raises no new issues that have not already been discussed. The proposal is non-controversial in nature.
NASDAQ does not believe that the proposed rule change will result in any burden on competition that is not necessary or appropriate in furtherance of the purposes of the Act, as amended. To the contrary, NASDAQ believes that its proposal is pro-competitive in that it will incentivize the use of the MQP and increase competition in both the listings market and in the transaction services market. This proposal, like the MQP, will promote competition in the listings market by advancing NASDAQ's reputation as an exchange that works tirelessly to develop a better market for all issuers, and for partnering with issuers to improve the quality of trading on NASDAQ. In fact, this proposal, and the MQP itself, is a response to the competition provided by other markets that have developed competing programs, including NYSE Arca and BATS.
The MQP as amended promotes competition in the transaction services market by creating incentives for market makers to make better quality markets. As market makers strive to attain the quality standards established by the MQP, the quality of NASDAQ's quotes will improve. This, in turn, will attract more liquidity to NASDAQ and further improve the quality of trading of MQP stocks. Market quality and liquidity is paramount to NASDAQ, as also to other exchanges. As discussed, competing markets have created incentives of their own to improve the quality of their markets and to attract liquidity to their markets.
No written comments were either solicited or received.
Pursuant to Section 19(b)(3)(A)(ii) of the Act,
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: (i) Necessary or appropriate in the public interest; (ii) for the protection of investors; or (iii) otherwise in furtherance of the purposes of the Act. If the Commission takes such action, the Commission shall institute proceedings to determine whether the proposed rule should be approved or disapproved.
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:
• Use the Commission's Internet comment form (
• Send an email to
• Send paper comments in triplicate to Brent J. Fields, Secretary, Securities and Exchange Commission, 100 F Street NE., Washington, DC 20549-1090.
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 Web site 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 10:00 a.m. and 3:00 p.m. Copies of the filing also will be available for inspection and copying at the principal office of the Exchange. All comments received will be posted without change; the Commission does not edit personal identifying information from submissions. You should submit only information that you wish to make available publicly. All submissions should refer to File Number SR-NASDAQ-2015-025 and should be submitted on or before April 21, 2015.
For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.
Notice is hereby given that, pursuant to the Paperwork Reduction Act of 1995 (44 U.S.C. 3501
Form 40-F (17 CFR 249.240f) is used by certain Canadian issuers to register a class of securities pursuant to Section 12(b) or (g) of the Securities Exchange Act of 1934 (“Exchange Act”)(15 U.S.C. 78
An agency may not conduct or sponsor, and a person is not required to respond to, a collection of information unless it displays a currently valid control number.
The public may view the background documentation for this information collection at the following Web site,
Securities and Exchange Commission (“Commission”).
Notice of an application under section 6(c) of the Investment Company Act of 1940 (“Act”) for an exemption from section 15(a) of the Act and rule 18f-2 under the Act, as well as from certain disclosure requirements.
Applicants request an order that would permit them to enter into and materially amend subadvisory agreements with Wholly-Owned Sub-Advisers (as defined below) and non-affiliated sub-advisers without shareholder approval and would grant relief from certain disclosure requirements.
ETFS Trust (the “Trust”) and ETF Securities Advisors LLC (the “Adviser”).
An order granting the requested relief will be issued unless the Commission orders a hearing. Interested persons may request a hearing by writing to the Commission's Secretary and serving applicants with a copy of the request, personally or by mail. Hearing requests should be received by the Commission by 5:30 p.m. on April 17, 2015, and should be accompanied by proof of service on applicants, in the form of an affidavit or, for lawyers, a certificate of service. Pursuant to rule 0-5 under the Act, hearing requests should state the nature of the writer's interest, any facts bearing upon the desirability of a hearing on the matter, the reason for the request, and the issues contested. Persons who wish to be notified of a hearing may request notification by writing to the Commission's Secretary.
Secretary, U.S. Securities and Exchange Commission, 100 F Street NE., Washington, DC 20549-1090. Applicants, ETFS Trust, 48 Wall Street, New York, New York 10005.
Barbara T. Heussler, Senior Counsel, at (202) 551-6990, or Mary Kay Frech, Branch Chief, at (202) 551-6821 (Division of Investment Management, Chief Counsel's Office).
The following is a summary of the application. The complete application may be obtained via the Commission's Web site by searching for the file number, or for an applicant using the Company name box, at
1. The Trust is organized as a Delaware statutory trust and is registered with the Commission as an open-end management investment company under the Act. The Trust currently offers four series of shares and may offer additional series of shares in the future (each, a “Fund” and collectively the “Funds”),
2. Applicants request an order to permit the Adviser,
3. ETF Securities is the investment adviser to each Fund pursuant to an investment advisory agreement with the Trust (the “Investment Management Agreement”). Any other Adviser will be registered with the Commission as an investment adviser under the Advisers Act. The Investment Management Agreement was approved by the Board, including a majority the Independent Trustees, and by the shareholders of each Fund in the manner required by sections 15(a) and 15(c) of the Act and rule 18f-2 thereunder. The terms of the Investment Management Agreement will comply with section 15(a) of the Act. Each other investment management agreement with respect to a Fund (included in the term “Investment Management Agreement”) will comply with section 15(a) of the Act and will be similarly approved.
4. Pursuant to the terms of the Investment Management Agreement, the Adviser, subject to the supervision of the Board, provides continuous investment management of the assets of each Fund. Consistent with the terms of the Investment Management Agreement, the Adviser may, subject to the approval of the Board, including a majority of the Independent Trustees, and the shareholders of the applicable Subadvised Fund (if required), delegate portfolio management responsibilities of all or a portion of the assets of a Subadvised Fund to one or more Sub-Advisers. The Adviser would continue to have overall responsibility for the management and investment of the assets of each Subadvised Fund, and the Adviser's responsibilities would include, for example, recommending the removal or replacement of Sub-Advisers and determining the portion of that Subadvised Fund's assets to be managed by any given Sub-Adviser and reallocating those assets as necessary from time to time. The Adviser evaluates, allocates assets to, and oversees, the Sub-Advisers, and makes recommendations about their hiring, termination and replacement to the Board, at all times subject to the authority of the Board. For its services to a Fund under an Investment Management Agreement, the Adviser would receive an investment management fee from that Fund based on the average net assets of that Fund.
5. Currently the Adviser has entered into a sub-advisory agreement with Index Management Solutions, LLC (“IMS”) with respect to the Initial Funds. The sub-advisory agreement with IMS was approved by the Board, including a majority of the Independent Trustees, and by the sole shareholders of each Initial Fund in the manner required by sections 15(a) and 15(c) of the Act and rule 18f-2 thereunder. The terms of the sub-advisory agreement with IMS comply with section 15(a) of the Act. IMS is, and any future Sub-Adviser will be, an “investment adviser” as defined in section 2(a)(20) of the Act and will be registered as an investment adviser under the Advisers Act or exempt from such registration. Any Sub-Advisory Agreements will be approved by the Board, including a majority of the Independent Trustees, and the terms of each Sub-Advisory Agreement will comply fully with the requirements of section 15(a) of the Act. The Sub-Advisers, subject to the supervision of the Adviser and oversight of the Board, determine the securities and other instruments to be purchased, sold or entered into by a Subadvised Fund's portfolio or a portion thereof, and place orders with brokers or dealers that they select. The Adviser will compensate each Sub-Adviser out of the fee paid to the Adviser under the Investment Management Agreement.
6. Subadvised Funds will inform shareholders of the hiring of a new Sub-Adviser pursuant to the following procedures (“Modified Notice and Access Procedures”): (a) Within 90 days after a new Sub-Adviser is hired for any Subadvised Fund, that Subadvised Fund will send its shareholders
A “Multi-manager Information Statement” will meet the requirements of Regulation 14C, Schedule 14C and Item 22 of Schedule 14A under the Exchange Act for an information statement. Multi-manager Information Statements will be filed with the Commission via the EDGAR system.
7. Applicants also request an order under section 6(c) of the Act exempting the Subadvised Funds from certain disclosure obligations that may require each Subadvised Fund to disclose fees paid by the Adviser to each Sub-Adviser. Applicants seek relief to permit each Subadvised Fund to disclose (as a dollar amount and a percentage of the Subadvised Fund's net assets): (a) The aggregate fees paid to the Adviser and any Wholly-Owned Sub-Advisers; (b) the aggregate fees paid to Non-Affiliated Sub-Advisers; and (c) the fee paid to each Affiliated Sub-Adviser (collectively, the “Aggregate Fee Disclosure”). An exemption is requested to permit the Funds to include only the Aggregate Fee Disclosure. All other items required by sections 6-07(2)(a), (b) and (c) of Regulation S-X will be disclosed.
1. Section 15(a) of the Act states, in part, that it is unlawful for any person to act as an investment adviser to a registered investment company “except pursuant to a written contract, which contract, whether with such registered company or with an investment adviser of such registered company, has been approved by the vote of a majority of the outstanding voting securities of such registered company.” Rule 18f-2 under the Act provides that each series or class of stock in a series investment company affected by a matter must approve that matter if the Act requires shareholder approval.
2. Form N-1A is the registration statement used by open-end investment companies. Item 19(a)(3) of Form N-1A requires a registered investment company to disclose in its statement of additional information the method of computing the “advisory fee payable” by the investment company, including the total dollar amounts that the investment company “paid to the adviser (aggregated with amounts paid to affiliated advisers, if any), and any advisers who are not affiliated persons of the adviser, under the investment advisory contract for the last three fiscal years.”
3. Rule 20a-1 under the Act requires proxies solicited with respect to a registered investment company to comply with Schedule 14A under the Exchange Act. Items 22(c)(1)(ii), 22(c)(1)(iii), 22(c)(8) and 22(c)(9) of Schedule 14A, taken together, require a proxy statement for a shareholder meeting at which the advisory contract will be voted upon to include the “rate of compensation of the investment adviser,” the “aggregate amount of the investment adviser's fee,” a description of the “terms of the contract to be acted upon,” and, if a change in the advisory fee is proposed, the existing and proposed fees and the difference between the two fees.
4. Regulation S-X sets forth the requirements for financial statements required to be included as part of investment company registration statements and shareholder reports filed with the Commission. Sections 6-07(2)(a), (b) and (c) of Regulation S-X require registered investment companies to include in their financial statements information about investment advisory fees.
5. Section 6(c) of the Act provides that the Commission by order upon application may conditionally or unconditionally exempt any person, security, or transaction or any class or classes of persons, securities, or transactions from any provisions of the Act, or from any rule thereunder, if such exemption is necessary or appropriate in the public interest and consistent with the protection of investors and the purposes fairly intended by the policy and provisions of the Act. Applicants state that their requested relief meets this standard for the reasons discussed below.
6. Applicants assert that the shareholders expect the Adviser, subject to the review and approval of the Board, to select the Sub-Advisers who are in the best position to achieve the Subadvised Funds' investment objectives. Applicants assert that, from the perspective of the shareholder, the role of the Sub-Advisers is substantially equivalent to the role of the individual portfolio managers employed by an investment adviser to a traditional investment company. Applicants believe that permitting the Adviser to perform the duties for which the shareholders of the Subadvised Fund are paying the Adviser—the selection, supervision and evaluation of the Sub-Advisers—without incurring unnecessary delays or expenses is appropriate in the interest of the Subadvised Fund's shareholders and will allow such Subadvised Fund to operate more efficiently. Applicants state that the Investment Management Agreement will continue to be fully subject to section 15(a) of the Act and rule 18f-2 under the Act and approved by the Board, including a majority of the Independent Trustees, in the manner required by sections 15(a) and 15(c) of the Act. Applicants are not seeking an exemption with respect to the Investment Management Agreement.
7. Applicants assert that disclosure of the individual fees that the Adviser would pay to the Sub-Advisers of Subadvised Funds that operate in the multi-manager structure described in the application does not serve any meaningful purpose. Applicants contend that the primary reasons for requiring disclosure of individual fees paid to Sub-Advisers are to inform shareholders of expenses to be charged by a particular Subadvised Fund and to enable shareholders to compare the fees to those of other comparable investment companies. Applicants believe that the requested relief satisfies these objectives because the advisory fee paid to the Adviser will be fully disclosed and, therefore, shareholders will know what the Subadvised Fund's fees and expenses are and will be able to compare the advisory fees a Subadvised Fund is charged to those of other investment companies. Applicants assert that the requested disclosure relief would benefit shareholders of the Subadvised Fund because it would improve the Adviser's ability to negotiate the fees paid to Sub-Advisers. Applicants state that if the Adviser is not required to disclose the Sub-Advisers' fees to the public, the Adviser may be able to negotiate rates that are below a Sub-Adviser's “posted” amounts. Applicants assert that the relief will also encourage Sub-Advisers to negotiate lower sub-advisory fees with the Adviser if the lower fees are not required to be made public.
8. Applicants submit that the requested relief meets the standards for relief under section 6(c) of the Act. Applicants state that each Subadvised Fund will be required to obtain shareholder approval to operate as a “multiple manager” fund as described in the application before relying on the requested order. Applicants assert that conditions 6, 10, and 11 are designed to provide the Board with sufficient independence and the resources and information it needs to monitor and address any conflicts of interest. Applicants state that, accordingly, they believe the requested relief is necessary or appropriate in the public interest and consistent with the protection of
Applicants agree that any order granting the requested relief will be subject to the following conditions:
1. Before a Subadvised Fund may rely on the order requested in the application, the operation of the Subadvised Fund in the manner described in the application, including the hiring of Wholly-Owned Sub-Advisers, will be approved by a majority of the Subadvised Fund's outstanding voting securities as defined in the Act, which in the case of a Master Fund will include voting instructions provided by shareholders of the Feeder Funds investing in such Master Fund or other voting arrangements that comply with section 12(d)(1)(E)(iii)(aa) of the Act or, in the case of a new Subadvised Fund whose public shareholders purchase shares on the basis of a prospectus containing the disclosure contemplated by condition 2 below, by the initial shareholder(s) before offering the Subadvised Fund's shares to the public.
2. The prospectus for each Subadvised Fund, and in the case of a Master Fund relying on the requested relief, the prospectus for each Feeder Fund investing in such Master Fund, will disclose the existence, substance and effect of any order granted pursuant to the application. Each Subadvised Fund (and any such Feeder Fund) will hold itself out to the public as employing the multi-manager structure described in the application. Each prospectus will prominently disclose that the Adviser has the ultimate responsibility, subject to oversight by the Board, to oversee the Sub-Advisers and recommend their hiring, termination, and replacement.
3. The Adviser will provide general management services to a Subadvised Fund, including overall supervisory responsibility for the general management and investment of the Subadvised Fund's assets. Subject to review and approval of the Board, the Adviser will (a) set a Subadvised Fund's overall investment strategies, (b) evaluate, select, and recommend Sub-Advisers to manage all or a portion of a Subadvised Fund's assets, and (c) implement procedures reasonably designed to ensure that Sub-Advisers comply with a Subadvised Fund's investment objective, policies and restrictions. Subject to review by the Board, the Adviser will (a) when appropriate, allocate and reallocate a Subadvised Fund's assets among Sub-Advisers; and (b) monitor and evaluate the performance of Sub-Advisers.
4. A Subadvised Fund will not make any Ineligible Sub-Adviser Changes without such agreement, including the compensation to be paid thereunder, being approved by the shareholders of the applicable Subadvised Fund, which in the case of a Master Fund will include voting instructions provided by shareholders of the Feeder Fund investing in such Master Fund or other voting arrangements that comply with section 12(d)(1)(E)(iii)(aa) of the Act.
5. Subadvised Funds will inform shareholders, and if the Subadvised Fund is a Master Fund, shareholders of any Feeder Funds, of the hiring of a new Sub-Adviser within 90 days after the hiring of the new Sub-Adviser pursuant to the Modified Notice and Access Procedures.
6. At all times, at least a majority of the Board will be Independent Trustees, and the selection and nomination of new or additional Independent Trustees will be placed within the discretion of the then-existing Independent Trustees.
7. Independent Legal Counsel, as defined in rule 0-1(a)(16) under the Act, will be engaged to represent the Independent Trustees. The selection of such counsel will be within the discretion of the then-existing Independent Trustees.
8. The Adviser will provide the Board, no less frequently than quarterly, with information about the profitability of the Adviser on a per Subadvised Fund basis. The information will reflect the impact on profitability of the hiring or termination of any sub-adviser during the applicable quarter.
9. Whenever a sub-adviser is hired or terminated, the Adviser will provide the Board with information showing the expected impact on the profitability of the Adviser.
10. Whenever a sub-adviser change is proposed for a Subadvised Fund with an Affiliated Sub-Adviser or a Wholly-Owned Sub-Adviser, the Board, including a majority of the Independent Trustees, will make a separate finding, reflected in the Board minutes, that such change is in the best interests of the Subadvised Fund and its shareholders, and if the Subadvised Fund is a Master Fund, the best interests of any applicable Feeder Funds and their respective shareholders, and does not involve a conflict of interest from which the Adviser or the Affiliated Sub-Adviser or Wholly-Owned Sub-Adviser derives an inappropriate advantage.
11. No Trustee or officer of the Trust, a Fund or a Feeder Fund, or partner, director, manager or officer of the Adviser, will own directly or indirectly (other than through a pooled investment vehicle that is not controlled by such person) any interest in a Sub-Adviser except for (a) ownership of interests in the Adviser or any entity, except a Wholly-Owned Sub-Adviser, that controls, is controlled by, or is under common control with the Adviser, or (b) ownership of less than 1% of the outstanding securities of any class of equity or debt of any publicly traded company that is either a Sub-Adviser or an entity that controls, is controlled by, or under common control with a Sub-Adviser.
12. Each Subadvised Fund and any Feeder Fund that invests in a Subadvised Fund that is a Master Fund will disclose the Aggregate Fee Disclosure in its registration statement.
13. Any new Sub-Advisory Agreement or any amendment to a Subadvised Fund's existing Investment Management Agreement or Sub-Advisory Agreement that directly or indirectly results in an increase in the aggregate advisory fee rate payable by the Subadvised Fund will be submitted to the Subadvised Fund's shareholders for approval.
14. In the event the Commission adopts a rule under the Act providing substantially similar relief to that requested in the application, the requested order will expire on the effective date of that rule.
For the Commission, by the Division of Investment Management, under delegated authority.
Pursuant to section 19(b)(1) of the Securities Exchange Act of 1934 (“Act”)
The principal purpose of the proposed rule change is to implement a new collateral and haircut policy (the “Haircut Policy”), which is applicable to Permitted Cover posted by Clearing Members to meet the Clearing House's Margin and Guaranty Fund requirements.
In its filing with the Commission, ICE Clear Europe included statements concerning the purpose of and basis for the proposed rule change. The text of these statements may be examined at the places specified in Item IV below. ICE Clear Europe has prepared summaries, set forth in sections A, B, and C below, of the most significant aspects of such statements.
The Haircut Policy codifies and consolidates certain existing practices of the Clearing House with respect to Permitted Cover. Specifically, the policy is designed (i) to set out overall principles with respect to the assets accepted by the Clearing House as Permitted Cover; (ii) to establish a framework for determining absolute and relative limits, as applicable, on the value of the collateral that may be posted by a Clearing Member as Permitted Cover; (iii) to establish a value-at-risk (“VaR”) based methodology for determining haircuts for all Permitted Cover; (iv) to mitigate wrong-way risk from Permitted Cover; (v) to address sources for pricing Permitted Cover; and (vi) to set out certain related monitoring, reviewing and reporting procedures. The Haircut Policy applies to Permitted Cover provided for all product classes (F&O, CDS and FX).
The general aims of the Haircut Policy are to ensure that the Clearing House can efficiently liquidate all forms of Permitted Cover, that appropriate prices are used for valuation of Permitted Cover and that appropriate haircuts (including, as applicable, cross-currency haircuts) are used. The Haircut Policy also codifies certain general principles considered by the Clearing House in accepting assets as Permitted Cover, including availability of pricing information, the existence of liquid and active markets for buyers and sellers of those assets, the existence of sufficient price history, the ability to liquidate Permitted Cover without causing a market disruption, compliance with legal and regulatory requirements and sufficient operational and technological framework to handle deposit, liquidation and return of such assets as Permitted Cover. Cash collateral must be in one of several specified currencies underlying contracts cleared by the Clearing House. Additional general requirements apply to financial instruments, including prohibitions on acceptance of instruments that have non-“vanilla” features such as embedded options, instruments issued by a Clearing Member or its affiliate, instruments issued by a CCP or by entities that provide critical services to the Clearing House (other than central banks) and certain credit-based limits. Such limits require that the issuer is rated at least “BBB−” by S&P (or its equivalent), the average yield on the asset over the previous three months is not greater than 8%, and the 5-year CDS spread of the issuer has not exceeded 500 basis points over the previous three months. The Haircut Policy provides that where market conditions warrant, or where the Clearing House's sovereign risk model indicates deteriorating credit below a certain threshold (
The Haircut Policy contains a methodology for setting absolute limits on the value of non-cash Permitted Cover that can be posted by a Clearing Member. (The Clearing House does not, however, impose absolute or relative limits on the use of US Treasury securities as Permitted Cover.) Absolute collateral limits apply across a group of affiliated Clearing Members and apply across all product categories cleared by that group. Collateral provided by Sponsored Principals with the same sponsoring member will be included in all collateral limit calculations as part of the sponsoring member's client account. The policy also sets out relative, or concentration, limits for Permitted Cover provided by a Clearing Member. The Clearing House publishes on its Web site the current absolute and relative limits on government bonds provided as Permitted Cover. For government bonds, the absolute limit generally is calculated pursuant to a formula based on data from the repo market for the relevant government bond, taking into account both the overall size of that market and the percentage of that market consisting of repos with a one day maturity. The policy also specifies relevant sources of repo market data for particular types of government securities (including most European government bonds and Japanese government bonds accepted by the Clearing House) and gold market data for gold Permitted Cover. The policy also sets out alternative approaches for determining the limit for certain government bonds, including for UK, Swiss and Canadian government bonds. The policy sets out procedures for monitoring of limits on a daily basis and for remediation of breach of a limit by a Clearing Member. The risk management department monitors all collateral limits on a daily basis using a collateral breakdown report which flags limit breaches. Breaches will be reviewed internally and the relevant Clearing Member will be contacted. Breaches can be remediated by posting additional collateral, removal of collateral that is in breach of a limit, or both of the above.
The policy also provides for a risk-based reduction in absolute limits for government bonds based on the credit default swap (CDS) spread for the relevant issuer. Once the spread exceeds a specified level for a particular issuer, the absolute limit for Permitted Collateral of that issuer is reduced pursuant to a defined formula. If the spread exceeds a second level, the absolute limit is reduced to 5% of the
Specific wrong-way risk arising in connection with clearing of Western European sovereign CDS is addressed through a requirement that US dollar denominated collateral be provided for initial margin and that a portion of the CDS Guaranty Fund be US dollar-based (determined based on the ratio between the dollar-denominated and Euro-denominated initial margin requirements for CDS). In addition, where the member's aggregate short position in sovereign CDS with respect to a sovereign exceeds a specified threshold, the Clearing House may decline to accept government bonds of that sovereign or any other sovereign bonds that exhibit certain correlations with such government bonds.
The Haircut Policy also addresses potential wrong-way risk arising from Permitted Cover more generally. The Clearing House monitors collateral on a daily basis. Where the Clearing House considers there to be strong general wrong-way risk between a Clearing Member and the asset it is posting, the Clearing House will ask the member to change the composition of collateral to mitigate that risk.
The Haircut Policy establishes a VaR-based methodology for determining haircuts for Permitted Cover. The Clearing House calculates six different estimations of VaR for each applicable risk factor. Two estimations are based on a historical simulation approach (using a 1,000-business day (approximately 4 year) lookback period), and a one-day or two-day liquidation period assumption. Four estimations are based on a parametric methodology: Two using a 1,000-business day lookback period and a one-day or two-day liquidation period assumption, and two using a 60-business day (approximately 3 month) lookback period and a one-day or two-day liquidation period assumption. Each estimation is calculated using a 99.9% confidence interval (applicable to Permitted Cover posted with respect to all product categories). The proposed haircut will be based on the largest VaR of the 6 estimations. Fixed income assets are divided into separate maturity buckets for each issuer, with a separate haircut established for each bucket. The policy specifies relevant price sources that will be used for the calculation of haircuts for each type of Permitted Cover. Haircuts are determined using the bid prices of Permitted Cover assets, in order to account for higher liquidation costs in stressed markets. The model output is rounded up to the nearest 0.25%, in order to limit unnecessary variation in haircut levels. The applicable haircuts will be reviewed on a monthly basis, or more frequently where the risk management department deems it necessary.
The risk management department may further adjust the haircut determined under the model as it determines prudent in light of additional qualitative and quantitative factors. These include the Clearing House's credit assessment of the issuer, current market conditions and volatility, expected future volatility, the liquidity of the underlying market for the asset, including bid/ask spread, wrong way risk considerations, VaR estimates determined for a period of stressed market conditions, and other factors that might affect the liquidity or value of an asset in stressed market conditions. The Clearing House anticipates that such adjustments to the value calculated under the model would be used only in exceptional circumstances and would expect to use such adjustments to increase haircuts in stressed market circumstances. The Clearing House will make judicious use of current market information to override the model but anticipates exercising this ability in less than 5% of haircut rates.
The Haircut Policy also sets a minimum haircut level of 3%, in order to avoid pro-cyclical variation in haircuts. (The minimum level will be reviewed annually under the Haircut Policy.) In addition, a haircut add-on of up to 1% will be applied during the period until the next monthly review to issuers presenting increased credit risk. The add-on is applied once the issuer's CDS spread exceeds a specified level, and increases in steps of 0.25% up to a maximum of 1% where the CDS spread exceeds higher thresholds. The add-on is generally designed to anticipate potential haircut increases as part of the next monthly review cycle.
The Clearing House also imposes cross-currency haircuts, which address the exchange rate risk faced by the Clearing House where the Permitted Cover is denominated in a different currency from the currency of the applicable margin requirement. Under the Haircut Policy, cross-currency haircuts are determined using the same methodology described above for other haircuts, but are subject to a minimum haircut of 4.5%. Cross-currency haircuts are applied in addition to any applicable haircut for the relevant form of Permitted Cover.
Haircuts are reviewed under the policy on at least a monthly basis, although the risk department may do so more frequently in exceptional circumstances. The Clearing House monitors Permitted Cover on a daily and intraday basis. The Clearing House may, under its existing Rules and the Haircut Policy, take action to mitigate any change in risk, including by increasing haircuts, calling for additional collateral, reducing concentration limits and removing an asset from eligibility as Permitted Cover. The Clearing House monitors the value of Permitted Cover deposited with it on a real time basis. Any change in a member's intra-day cover value that is greater than 3% is flagged immediately by the Risk Management intraday monitoring system that is monitored by the Risk Management team throughout the business day. Any breach is investigated and appropriate action taken where necessary. The Clearing House also will backtest haircuts based on price moves observed in the markets on a daily basis, and review haircut levels if a price move breaches an existing haircut. The Clearing House prepares daily reports with respect to Permitted Cover for purposes of internal monitoring and provides monthly reports to the relevant Risk Committees and Board Risk Committee. The Clearing House will review the Haircut Policy on an annual basis (which will include review by the Board Risk Committee) or where there is a material change to the risk exposure of the Clearing House. The Haircut Policy will also be independently reviewed annually under the Clearing House's model governance framework.
ICE Clear Europe believes that the proposed rule change is consistent with the requirements of section 17A of the Act
ICE Clear Europe does not believe the amendments would have any impact, or impose any burden, on competition not necessary or appropriate in furtherance of the purposes of the Act. The Haircut Policy will be applicable to all Clearing Members with respect to assets provided by those members as Permitted Cover. ICE Clear Europe does not believe the adoption of the policy will adversely affect competition among Clearing Members. Furthermore, ICE Clear Europe does not anticipate that the changes will adversely affect the ability of market participants to clear contracts generally, reduce access to clearing generally, or limit market participants' choices for clearing such contracts. Although it is possible that the application of the Haircut Policy will result in higher haircuts or lower limitations for certain categories of Permitted Cover, ICE Clear Europe believes that the policy appropriately tailors the haircuts and limitations to the particular market, liquidity and credit risks presented by particular assets as Permitted Cover. As a result, in ICE Clear Europe's view, any incremental increase in cost of using certain types of Permitted Cover is warranted in light of the risks presented to the Clearing House. ICE Clear Europe thus believes that any impact on competition from the new model is appropriate in furtherance of the purposes of the Act.
Written comments relating to the proposed rule change have not been solicited or received. ICE Clear Europe will notify the Commission of any written comments received by ICE Clear Europe.
Within 45 days of the date of publication of this notice in the
(A) By order approve or disapprove the proposed rule change or
(B) institute proceedings to determine whether the proposed rule change should be disapproved.
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:
• Use the Commission's Internet comment form (
• Send an email to
• Send paper comments in triplicate to Secretary, Securities and Exchange Commission, 100 F Street NE., Washington, DC 20549-1090.
All comments received will be posted without change; the Commission does not edit personal identifying information from submissions. You should submit only information that you wish to make available publicly. All submissions should refer to File Number SR-ICEEU-2015-007 and should be submitted on or before
For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.
Notice is hereby given that, pursuant to the Paperwork Reduction Act of 1995 (44 U.S.C. 3501
Regulation G (17 CFR 244.100-244.102) under the Securities Exchange Act of 1934 (the “Exchange Act”) (15 U.S.C. 78a
An agency may not conduct or sponsor, and a person is not required to respond to, a collection of information unless it displays a currently valid control number.
The public may view the background documentation for this information collection at the following Web site,
Notice is hereby given that, pursuant to the Paperwork Reduction Act of 1995 (44 U.S.C. 3501
Form 20-F (17 CFR 249.220f) is used by foreign private issuers to register securities pursuant to Section 12(b) or (g) of the Securities Exchange Act of 1934 (“Exchange Act”) (15 U.S.C. 78
An agency may not conduct or sponsor, and a person is not required to respond to, a collection of information unless it displays a currently valid control number.
The public may view the background documentation for this information collection at the following Web site,
State Justice Institute.
Notice of Meeting.
The SJI Board of Directors will be meeting on Monday, April 13, 2015 at 10:00 a.m. The meeting will be held at SJI Headquarters in Reston, Virginia. The purpose of this meeting is to consider grant applications for the 2nd quarter of FY 2015, and other business. All portions of this meeting are open to the public.
State Justice Institute, 11951 Freedom Drive, Suite 1020, Reston, VA 20190.
Jonathan Mattiello, Executive Director, State Justice Institute, 11951 Freedom Drive, Suite 1020, Reston, VA 20190, 571-313-8843,
Federal Aviation Administration (FAA), DOT.
Notice of record of decision.
In accordance with Section 102 of the National Environmental Policy Act of 1969 (“NEPA”), the Council on Environmental Quality's (“CEQ”) regulations implementing NEPA (40 CFR parts 1500-1508), and other applicable authorities, including FAA Order 1050.1E, Environmental Impacts: Policies and Procedures, paragraph 518h, and FAA Order JO 7400.2K, “Procedures for Handling Airspace Matters,” paragraph 32-2-3, the FAA has conducted an independent review and evaluation of the Air Force's Final Environmental Impact Statement (FEIS) for the proposed expansion of airspace for the Powder River Training
Accordingly, the FAA adopts the FEIS, and takes full responsibility for the scope and content that addresses the proposed expansion of airspace for PRTC.
William Burris, Airspace Policy and Regulations Group, Office of Airspace Services, Federal Aviation Administration, 800 Independence Avenue SW., Washington, DC 20591; telephone: (202) 267-8656.
In August 2010, in accordance with the National Environmental Policy Act and its implementing regulations, the Air Force released a Draft EIS. The Draft EIS presented the potential environmental consequences of the Air Force's proposal to improve training for primarily bomber aircrews assigned to Ellsworth Air Force Base (AFB) and Minot AFB.
As a result of public, agency, and tribal comments during the 100-day public comment period on the Draft EIS, and the FAA aeronautical review process, the Air Force, FAA, other federal and state agencies, and tribal governments have consulted to mitigate concerns while continuing to meet national defense training requirements. The Air Force participated in continued communication, consultation, and/or meetings with state agencies and tribal representatives from 2008 through 2014. Consultation and coordination on potential environmental and related impacts will continue after completion of the FEIS. The Air Force is the proponent for the PRTC and is the lead agency for the preparation of the FEIS. The FAA is a cooperating agency responsible for approving special use airspace as defined in 40 CFR 1508.5.
As a result of the public comments received, the aeronautical studies, environmental analysis, and the USAF using agency and FAA controlling agency concurrence on mitigation measures to address public issues and aeronautical impacts, the FAA is establishing the PRTC MOAs as circularized to the public from February through May 2014, with two minor boundary adjustments. The adjustments include a larger cutout in the southern boundary of the PR-2 Low and High MOAs for arrivals and departures into Hulett, WY, and an adjustment of the southern boundaries of the Gap B and Gap C MOAs to avoid the Gap B MOAs extending across VOR Federal airway V-491.
The legal descriptions for the PRTC MOAs being established, as noted in this notice, will be published in the NFDD with a September 17, 2015 effective date.
Activating or scheduling the Powder River PR-1A-D Low, PR-3 Low, Gap A Low, and Gap B Low MOAs is not authorized until communication coverage is established by the USAF for these areas. This ensures the ability to recall airspace for civil IFR use. The following conditions must be accomplished prior to FAA approval for activating or scheduling the Low MOAs:
1. The USAF must notify Manager, Airspace Policy and Regulations when the communications capability mitigation described in the FEIS is established.
2. The FAA must accept that the communications capability established by the USAF complies with the mitigation described in the FEIS. If no validation information is provided with the USAF notice, the FAA will request it. The communication capability acceptance is to be accomplished by the Airspace Policy and Regulations Group in concert with the Central Service Center Operations Support Group (OSG).
3. The FAA controlling agencies and USAF using agency must establish MOA recall procedures which will enable controlling agencies to recall the low MOA airspace whenever necessary to allow IFR aircraft access to and from public use airports underlying the MOA.
4. The USAF must accomplish public outreach to all known aviation interested persons, organizations, and offices within 50 miles of the PRTC 60-days prior to the first planned scheduling and use of the PRTC Low MOAs once the conditions above are accomplished.
Upon completion of the conditions established above for the scheduling and activating of the PRTC Low MOAs identified, the USAF will be authorized to schedule and use all PRTC MOAs consistent with their designated purpose.
A copy of the FAA Record of Decision is available on the FAA Web site.
Federal Transit Administration (FTA), United States Department of Transportation (USDOT).
Notice of Intent (NOI) to transfer Federally assisted facility.
Section 5334(h) of the Federal Transit Laws, as codified, 49 U.S.C. 5301, et. seq., permits the Administrator of the Federal Transit Administration (FTA) to authorize a recipient of FTA funds to transfer land or a facility to a public body for any public purpose with no further obligation to the Federal Government if, among other things, no Federal agency is interested in acquiring the asset for Federal use. Accordingly, FTA is issuing this Notice to advise Federal agencies that the North Carolina Department of Transportation (NCDOT) intends to transfer the facility located at
Watauga County will be utilizing the property as a County maintenance department. Watauga County is charged with maintaining all county vehicles and facilities, including snow removal. This transfer would provide a number of benefits to the county and its residents. The site is more centrally located than the current location of the County maintenance department; the new location would allow quicker and more efficient dispatch of maintenance crews for snow removal and other services to County facilities. The interior space at this property will allow maintenance equipment and vehicles to be sheltered and maintained indoors, saving them from the wear currently experienced due to the harsh climate of the area. Also, the site and facilities have adequate space for other county usage, such as storage for other departments and a possible impound lot for the Sheriff's Office. The transfer will allow the property to be put to good use. The County has agreed to ensure that this use will be maintained for no less than five (5) years.
Effective Date: Any Federal agency interested in acquiring the facility must notify the FTA Region IV office of its interest no later than 30 days from the date of publication of the
Interested parties should notify the Regional Office by writing to Yvette G. Taylor, Regional Administrator, Federal Transit Administration, 230 Peachtree NW., Suite 1400, Atlanta, GA 30303.
Micah M. Miller, Regional Counsel, (404) 865-5474.
49 U.S.C. 5334(h) provides guidance on the transfer of capital assets. Specifically, if a recipient of FTA assistance decides an asset acquired under this chapter at least in part with that assistance is no longer needed for the purpose for which it was acquired, the Secretary of Transportation may authorize the recipient to transfer the asset to a local governmental authority to be used for a public purpose with no further obligation to the Government. 49 U.S.C. 5334(h)(1).
The Secretary may authorize a transfer for a public purpose other than mass transportation only if the Secretary decides:
(A) The asset will remain in public use for at least 5 years after the date the asset is transferred;
(B) There is no purpose eligible for assistance under this chapter for which the asset should be used;
(C) The overall benefit of allowing the transfer is greater than the interest of the Government in liquidation and return of the financial interest of the Government in the asset, after considering fair market value and other factors; and
(D) Through an appropriate screening or survey process, that there is no interest in acquiring the asset for Government use if the asset is a facility or land.
This document implements the requirements of 49 U.S.C. 5334(h)(1)(D) of the Federal Transit Laws. Accordingly, FTA hereby provides notice of the availability of the facility further described below. Any Federal agency interested in acquiring the affected facility should promptly notify the FTA. If no Federal agency is interested in acquiring the existing facility, FTA will make certain that the other requirements specified in 49 U.S.C. 5334(h)(1)(A) through (C) are met before permitting the asset to be transferred.
The subject property is identified as parcel identification number 2910-23-0273-000 by the Watauga County Tax Supervisor's office. The subject property contains 1.549-acres improved with a one-story metal & brick garage/office/warehouse building and a one-story brick equipment vehicle wash building, both in fair condition. Site improvements include asphalt pavement, chain-link fencing, and landscaping. The subject was formerly used as an office and maintenance facility for AppalCART, a public transportation system serving Watauga County. AppalCART moved to a new facility in late 2013 and the subject facilities are currently vacant. Public utilities include water, sewer, electric, telephone and cable.
Federal Aviation Administration (FAA), DOT.
Notice of petition for exemption received.
This notice contains a summary of a petition seeking relief from specified requirements of 14 CFR. The purpose of this notice is to improve the public's awareness of, and participation in, this aspect of FAA's regulatory activities. Neither publication of this notice nor the inclusion or omission of information in the summary is intended to affect the legal status of the petition or its final disposition.
Comments on this petition must identify the petition docket number and must be received on or before April 10, 2015.
You may send comments identified by Docket Number FAA-2015-0156 using any of the following methods:
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Timoleon Mouzakis, Federal Aviation Administration, Engine and Propeller Directorate, Standards Staff, ANE-111, 12 New England Executive Park, Burlington, Massachusetts 01803-5229; (781) 238-7114; facsimile: (781) 238-7199; email:
This notice is published pursuant to 14 CFR 11.85.
Federal Motor Carrier Safety Administration (FMCSA), DOT.
Notice of final disposition.
FMCSA announces its decision to grant requests from 3 individuals for exemptions from the regulatory requirement that interstate commercial motor vehicle (CMV) drivers have “no established medical history or clinical diagnosis of epilepsy or any other condition which is likely to cause loss of consciousness or any loss of ability to control a CMV.” The regulation and the associated advisory criteria published in the Code of Federal Regulations as the “Instructions for Performing and Recording Physical Examinations” have resulted in numerous drivers being prohibited from operating CMVs in interstate commerce based on the fact that they have had one or more seizures and are taking anti-seizure medication, rather than an individual analysis of their circumstances by a qualified medical examiner. The Agency concluded that granting exemptions for these CMV drivers will provide a level of safety that is equivalent to or greater than the level of safety maintained without the exemptions. FMCSA grants exemptions that will allow these 3 individuals to operate CMVs in interstate commerce for a 2-year period. The exemptions preempt State laws and regulations and may be renewed.
The exemptions are effective March 31, 2015. The exemptions expire on March 31, 2017.
Charles A. Horan, III, Director, Office of Carrier, Driver and Vehicle Safety, (202) 366-4001,
You may see all the comments online through the Federal Document Management System (FDMS) at:
Under 49 U.S.C. 31136(e) and 31315(b), FMCSA may grant an exemption from the safety regulations for a 2-year period if it finds “such exemption would likely achieve a level of safety that is equivalent to or greater than the level that would be achieved absent such exemption.” The statute also allows the Agency to renew exemptions at the end of the 2-year period.
FMCSA grants 3 individuals an exemption from the regulatory requirement in section 391.41(b)(8), to allow these individuals who take anti-seizure medication to operate CMVs in interstate commerce for a 2-year period. The Agency's decision on these exemption applications is based on an individualized assessment of each applicant's medical information, including the root cause of the respective seizure(s), the length of time elapsed since the individual's last seizure, and each individual's treatment regimen. In addition, the Agency reviewed each applicant's driving record found in the Commercial Driver's License Information System (CDLIS)
In reaching the decision to grant these exemption requests, the Agency considered both current medical literature and information and the 2007 recommendations of the Agency's Medical Expert Panel (MEP). The Agency previously gathered evidence for potential changes to the regulation at 49 CFR 391.41(b)(8) by conducting a comprehensive review of scientific literature that was compiled into the
On October 15, 2007, the MEP issued the following recommended criteria for evaluating whether an individual with epilepsy or a seizure disorder should be allowed to operate a CMV.
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The MEP report indicates individuals with moderate to high-risk conditions should not be certified. Drivers with a history of a single provoked seizure with low risk factors for recurrence should be recertified every year.
FMCSA presented the MEP's findings and the
The Agency acknowledges the MRB's position on the issue but believes relevant current medical evidence supports a less conservative approach. The medical advisory criteria for epilepsy and other seizure or loss of consciousness episodes was based on the 1988 “Conference on Neurological Disorders and Commercial Drivers” (NITS Accession No. PB89-158950/AS). A copy of the report can be found in the docket referenced in this notice.
The MRB's recommendation treats all drivers who have experienced a seizure the same, regardless of individual medical conditions and circumstances. In addition, the recommendation to continue prohibiting drivers who are taking anti-seizure medication from operating a CMV in interstate commerce does not consider a driver's actual seizure history and time since the last seizure. The Agency has decided to use the 2007 MEP recommendations as the basis for evaluating applications for an exemption from the seizure regulation on an individual, case-by-case basis.
Following individualized assessments of the exemption applications, including a review of detailed follow-up information requested from each applicant, FMCSA is granting exemptions from 49 CFR 391.41(b)(8) to 3 individuals. Under current FMCSA regulations, all of the 3 drivers receiving exemptions from 49 CFR 391.41(b)(8) would have been considered physically qualified to drive a CMV in interstate commerce except that they presently take or have recently stopped taking anti-seizure medication. For these 3 drivers, the primary obstacle to medical qualification was the FMCSA Advisory Criteria for Medical Examiners, based on the 1988 “Conference on Neurological Disorders and Commercial Drivers,” stating that a driver should be off anti-seizure medication in order to drive in interstate commerce. In fact, the Advisory Criteria have little if anything to do with the actual risk of a seizure and more to do with assumptions about individuals who are taking anti-seizure medication.
In addition to evaluating the medical status of each applicant, FMCSA evaluated the crash and violation data for the 3 drivers, some of whom currently drive a CMV in intrastate commerce. The CDLIS and MCMIS were searched for crash and violation data on the 3 applicants. For non-CDL holders, the Agency reviewed the driving records from the State licensing agency.
These exemptions are contingent on the driver maintaining a stable treatment regimen and remaining seizure-free during the 2-year exemption period. The exempted drivers must submit annual reports from their treating physicians attesting to the stability of treatment and that the driver has remained seizure-free. The driver must undergo an annual medical examination by a medical examiner, as defined by 49 CFR 390.5, following the FCMSA's regulations for the physical qualifications for CMV drivers.
FMCSA published a notice of receipt of application and requested public comment during a 30-day public comment period in a
On October 27, 2014, FMCSA published a notice of receipt of exemption applications and requested public comment on six individuals (79 FR 64003; Docket number FMCSA-2014-25450). The comment period ended on November 26, 2014. Three commenters responded to this notice. Bobby Shane Walker, an applicant in this notice, expressed support for his health status and driving safety. He provided details about his most recent driving accident. An anonymous commenter submitted details involving Bobby Shane Walker's recent driving accident and provided the driving accident report. Bob Johnson expressed support for the Epilepsy standard because it will save lives and benefit our citizens. Of the six applicants, three were denied. The Agency has determined that the following three applicants should be granted an exemption.
Mr. Connelly is a 60 year-old class B CDL holder in New Jersey. He has a history of seizures and has remained seizure free since 2000. He takes anti-seizure medication with the dosage and frequency remaining the same since that time. If granted an exemption, he would like to drive a CMV. His physician states he is supportive of Mr. Connelly receiving an exemption.
Mr. Marrill is a 48 year-old class A CDL holder in Missouri. He has a history of epilepsy and has remained seizure free since 1995. He takes anti-seizure medication with the dosage and frequency remaining the same for over two years. If granted an exemption, he would like to drive a CMV. His physician states he is supportive of Mr. Marrill receiving an exemption.
Mr. Rinkema is a 64 year-old driver in Illinois. He has a history of seizures and has remained seizure free since 1968. He takes anti-seizure medication with the dosage and frequency remaining the same since that time since 2004. If granted the exemption, he would like to drive a CMV. His physician states that he is supportive of Mr. Rinkema receiving an exemption.
Under 49 U.S.C. 31136(e) and 31315(b), FMCSA may grant an exemption from the epilepsy/seizure standard in 49 CFR 391.41(b)(8) if the exemption is likely to achieve an equivalent or greater level of safety than would be achieved without the exemption. Without the exemption, applicants will continue to be restricted to intrastate driving. With the exemption, applicants can drive in interstate commerce. Thus, the Agency's analysis focuses on whether an equal or greater level of safety is likely to be achieved by permitting each of these drivers to drive in interstate commerce as opposed to restricting the driver to driving in intrastate commerce.
The Agency is granting exemptions from the epilepsy standard, 49 CFR 391.41(b)(8), to 3 individuals based on a thorough evaluation of each driver's safety experience, and medical condition. Safety analysis of information relating to these 3 applicants meets the burden of showing that granting the exemptions would achieve a level of safety that is equivalent to or greater than the level that would be achieved without the exemption. By granting the exemptions, the interstate CMV industry will gain 3 highly trained and experienced drivers. In accordance with 49 U.S.C. 31315(b)(1), each exemption will be valid for 2 years, with annual recertification required unless revoked earlier by FMCSA. The exemption will be revoked if the following occurs: (1) The person fails to comply with the terms and conditions of the exemption; (2) the exemption has resulted in a lower level of safety than was maintained prior to being granted; or (3) continuation of the exemption would not be consistent with the goals and objectives of 49 U.S.C. 31136 and 31315.
FMCSA exempts the following 3 drivers for a period of 2 years with annual medical certification required: James Connelly (NJ); Timothy Merrill (MO); and John Rinkema (IL) from the prohibition of CMV operations by persons with a clinical diagnosis of epilepsy or seizures. If the exemption is still in effect at the end of the 2-year period, the person may apply to FMCSA for a renewal under procedures in effect at that time.
On March 11, 2015, Wisconsin Central Ltd. (WCL) filed with the Surface Transportation Board (Board) a petition under 49 U.S.C. 10502 for exemption from the provisions of 49 U.S.C. 10903 to abandon 3.6 miles of rail line extending between milepost 71.0 in North Chicago, Lake County, Ill., and milepost 74.6 in Waukegan, Lake County, Ill. (the Line). The Line traverses United States Postal Service Zip Codes 60064, 60085, and 60087.
According to WCL, there is one shipper, International Precision Components Corporation (IPCC), located on the Line. WCL states that IPCC has entered into a terminable agreement with WCL to lease a side track connecting to the Line. From WCL's side track, IPCC transloads shipments to truck for final delivery at IPCC's off-Line manufacturing facility. WCL notes that it is exploring the relocation of IPCC's transloading operations to another rail-served location. After receiving Board authority to abandon the Line, WCL states that it intends to salvage the rails, ties, and other track material and then to negotiate a sale of the right-of-way to the City of Waukegan (City). According to WCL, the sale of the right-of-way will allow the City to implement an urban redevelopment project.
In addition to an exemption from the provisions of 49 U.S.C. 10903, WCL seeks an exemption from 49 U.S.C. 10904 (offer of financial assistance (OFA) procedures). In support, WCL states that the right-of-way is needed for a valid public purpose as it is an essential component of the City's multi-faceted lakefront revitalization and redevelopment effort. WCL further asserts that there is no overriding public need for continued freight rail service. This request will be addressed in the final decision.
According to WCL, the Line does not contain federally granted rights-of-way. Any documentation in WCL's possession will be made available promptly to those requesting it.
The interest of railroad employees will be protected by the conditions set forth in
By issuing this notice, the Board is instituting an exemption proceeding
Any OFA under 49 CFR 1152.27(b)(2) will be due by July 9, 2015, or 10 days after service of a decision granting the petition for exemption, whichever occurs first. Each OFA must be accompanied by a $1,600 filing fee.
All interested persons should be aware that, following abandonment, the Line may be suitable for other public use, including interim trail use. Any request for a public use condition under 49 CFR 1152.28 or for trail use/rail banking under 49 CFR 1152.29 will be due no later than April 20, 2015. Each trail request must be accompanied by a $300 filing fee.
All filings in response to this notice must refer to Docket No. AB 303 (Sub-No. 46X) and must be sent to: (1) Surface Transportation Board, 395 E Street SW., Washington, DC 20423-0001; and (2) Robert A. Wimbish, Fletcher & Sippel LLC, 29 North Wacker Drive, Suite 920, Chicago, IL 60606-2832. Replies to the petition are due on or before April 20, 2015.
Persons seeking further information concerning abandonment procedures may contact the Board's Office of Public Assistance, Governmental Affairs and Compliance at (202) 245-0238 or refer to the full abandonment regulations at 49 CFR part 1152. Questions concerning environmental issues may be directed to the Board's Office of Environmental Analysis (OEA) at (202) 245-0305. Assistance for the hearing impaired is available through the Federal Information Relay Service at 1-800-877-8339.
An environmental assessment (EA) (or environmental impact statement (EIS), if necessary) prepared by OEA will be served upon all parties of record and upon any other agencies or persons who comment during its preparation. Other interested persons may contact OEA to obtain a copy of the EA (or EIS). EAs in abandonment proceedings normally will be made available within 60 days of the filing of the petition. The deadline for submission of comments on the EA generally will be within 30 days of its service.
Board decisions and notices are available on our Web site at “
By the Board, Rachel D. Campbell, Director, Office of Proceedings.
Federal Motor Carrier Safety Administration (FMCSA).
Notice of denial of application for exemption.
FMCSA denies an application from the Association of Independent Property Brokers and Agents (AIPBA) for an exemption for all property brokers and freight forwarders from the $75,000 bond provision included in section 32918 of the Moving Ahead for Progress in the 21st Century Act (MAP-21), now codified in 49 U.S.C. 13906. AIPBA filed its request pursuant to 49 U.S.C. 13541 on August 14, 2013. On December 26, 2013, FMCSA published a notice in the
This decision is effective March 31, 2015.
Mr. Thomas Yager, Chief of Driver and Carrier Operations, (202) 366-4001 or
For access to the docket to read background documents, including those referenced in this document, or to read comments received, go to:
• Regulations.gov,
• Docket Management Facility, Room W12-140, DOT Building, 1200 New Jersey Ave. SE., Washington, DC 20590. You may view the docket online by visiting the facility between 9 a.m. and 5 p.m., Monday through Friday except Federal holidays.
AIPBA's exemption application and all public comments are available in the public docket. To view comments filed in this docket, go to
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
Section 13541(a) of title 49 of the United States Code (49 U.S.C. 13541) requires the Secretary of Transportation (Secretary) to exempt a person, class of persons, or a transaction or service from the application, in whole or in part, of a provision of 49 U.S.C., Subtitle IV, Part B (Chapters 131-149), or to use the exemption authority to modify the application of a provision of 49 U.S.C. Chapters 131-149 as it applies to such person, class, transaction, or service when the Secretary finds that the application of the provision:
• Is not necessary to carry out the transportation policy of 49 U.S.C. 13101
• Is not needed to protect shippers from the abuse of market power or that the transaction or service is of limited scope; and
• Is in the public interest.
AIPBA seeks an exemption from the $75,000 financial security requirements for brokers and freight forwarders at 49 U.S.C. 13906 (b) & (c). Section 13906 is located in 49 U.S.C. Subtitle IV Part B (chapter 139) and therefore may be considered within the general scope of the exemption authority provided by section 13541. The Secretary may begin a section 13541 exemption proceeding on the application of an interested party. 49 U.S.C. 13541(b).
The Administrator of FMCSA has been delegated authority under 49 CFR 1.87 to carry out the functions vested in the Secretary by 49 U.S.C. 13541.
On July 6, 2012, the President signed MAP-21 into law, which included a number of mandatory, non-discretionary changes to FMCSA programs. Some of these changes amended the financial security requirements applicable to property brokers and freight forwarders operating under FMCSA's jurisdiction. Pub.L. 112-141, § 32918, 126 Stat. 405 (codified at 49 U.S.C. 13906(b) & (c)). More specifically, 49 U.S.C. 13906(b) and (c) requires brokers and freight forwarders to provide evidence of minimum financial security in the amount of $75,000.
On September 5, 2013, FMCSA published guidance (78 FR 54720) “concerning the implementation of certain provisions of . . . (MAP-21) concerning persons acting as a broker or a freight forwarder.” On October 1, 2013, FMCSA issued regulations requiring brokers and freight forwarders to have a $75,000 surety bond or trust fund in effect. 49 CFR 387.307(a), 387.403(c); 78 FR 60226, 60233.
On November 14, 2013, after initially filing a complaint and then voluntarily dismissing the case in district court, AIPBA filed a petition for review in the U.S. Court of Appeals for the Eleventh Circuit.
On January 23, 2015, AIPBA instituted another proceeding in the United States District Court for the Middle District of Florida, seeking to invalidate the $75,000 bond requirement from 49 U.S.C. 13906.
In an August 14, 2013 letter to the Secretary, AIPBA, through its counsel, requested that the Department “permanently exempt all property brokers and freight forwarders from the $75,000 broker bond provision of MAP-21. . . .” AIPBA argues that the “$75,000 broker surety bond amount is not necessary to carry out the transportation policy of section 13101, [or] . . . to protect shippers from the abuse of market power . . . and . . . is not in the public interest.” AIPBA seeks a categorical exemption “so that property brokers and forwarders can continue to do business under the existing bond regulations.” A copy of the exemption application is included in the docket referenced at the beginning of this notice.
First, AIPBA believes that the $75,000 bond requirement is contrary to the transportation policy of 49 U.S.C. 13101 because it violates the federal government's policy to “encourage fair competition, and reasonable rates for transportation by motor carriers of property” and to “allow a variety of quality and price options to meet changing market demands and the diverse requirements of the shipping and traveling public,” citing 49 U.S.C. 13101(a) (2)(A),(D).
AIPBA also argues that the $75,000 broker bond requirement “is not necessary to protect shippers from the abuse of market power.” According to AIPBA,”[t]he unnecessarily high $75,000 broker bond requirement will cause the majority of property brokers to leave the marketplace, which will expose shippers to abuses of market power by the few large property brokers able to stay in business.”
With regard to the public interest, AIPBA believes that the new bond requirement will “cause a significant increase in consumer prices once the supply of property brokers is drastically reduced.” AIPBA indicated that a lack of competition will require shippers to pay more for transportation services. In addition to predicting that small and mid-sized brokers will be forced out of the marketplace due to the new higher bond requirement, AIPBA believes the new requirement will serve as a barrier to entry into the marketplace for other property brokers.
Finally, while AIPBA acknowledges that “there are certain regulations from which [the Secretary] cannot issue exemptions,” it believes that:
On December 26, 2013, FMCSA requested public comment on the AIPBA exemption application (78 FR 78472). Specifically, FMCSA requested comments on whether the Agency should grant or deny AIPBA's application, in whole or in part. The Agency also requested comments on how it should apply 49 U.S.C. 13541(a)(1-3) to AIPBA's request.
FMCSA received 80 responses to the December 26, 2013, notice, 23 of which were anonymous. Most of the commenters (52, including 16 of the anonymous commenters) supported the AIPBA application for an exemption and 26 (including 7 of the anonymous commenters) opposed the request. The named commenters are: Micah Applebee; AIPBA; Dave Britton; William Cohen; Gerard Coyle; Sue Cuthbertson; Raymond Donahue; Rodney Falkenstein; Christine Friend; Philip Fulmer; Kelley Gabor; Ray Gerdes; Kathy Harris; David Hoke; Scott Housely; Matt Kloss; James Lamb (2 responses); Deborah J. Larson; Lew Levy; Stuart Looney (LineHaul Logistics, Inc.); Angela Maccombs; Michael Majerek; Mike Manzella; Aaron Menice; Deborah McCoy; Jenny Merkey; Michael Millard (2 responses); John Miller; Gaetono P. Monteleone
Many of the commenters who wrote in support of AIPBA's application believe the increased bond requirement has resulted in a significant decrease in the number of freight forwarders and brokers with the requisite authority from FMCSA. Some of these commenters argue that the increased bond requirement has resulted in the loss of jobs and an adverse impact on consumer prices. A number of the commenters who identified themselves as brokers argued the new requirement is intended to reduce competition by eliminating small businesses rather than to reduce fraud. Several commenters also argue that implementation of the $75,000 bond requirement is inconsistent with the transportation policy in 49 U.S.C. 13101.
Commenters writing in opposition to AIPBA's application argue that the previous $10,000 bond requirement was originally set in 1979 and that small trucking companies, especially owner operators, will be better protected and have better business opportunities with the $75,000 bond. A number of these commenters include brokers who state that obtaining the higher bond amount was relatively easy. And some state that the previous $10,000 bond was insufficient and resulted in transportation service providers being left unpaid after the broker went out of business.
A number of the commenters writing in support of AIPBA's application believe the increased bond requirement has resulted in unintended consequences such as brokers and freight forwarders being forced out of the industry, a loss of jobs and decreased rates for trucking companies. AIPBA indicated in its comments that the total number of property brokers on October 1, 2013, was 21,565 and that 8,218 broker operating authority registrations have been revoked since December 1, 2013. AIPBA indicated that the total number of freight forwarders on October 1, 2013, was 2,212 with 1,583 freight forwarder operating authority registrations revoked since December 1, 2013.
AIPBA also argues the increase in the bond requirements has resulted in the loss of jobs and an adverse impact on consumer prices. AIPBA believes the increase in bonds has had an adverse impact on rates for truckers as well.
Matt Kloss supports the AIPBA exemption in part and believes FMCSA should consider an incremental increase in the bond limit rather than leaving the limit at $75,000. He states that he has been in the brokerage business for 12 years and he has never had a successful filing against his bond. He explains that he is not in the business to steal money from trucking companies. He argues that “[e]stablished companies with good histories should have been required to increase the bond to $20,000 this year, with future increases that are manageable.”
An anonymous commenter believes that the bond requirement “. . . should be initially lowered to a more reasonable amount of $25,000.” This commenter also argued that the rules should require a $25,000 fee per agent for large brokers.
Sue Cuthbertson discusses the premiums that she had to pay to comply with the $75,000 bond requirement. She explains that she used to pay $900 per year for her broker bond and she now has to pay $3,500 per year for the $75,000 bond. She says that she could barely stay in business paying the $900.
An anonymous commenter writing in support of the AIPBA application describes a similar experience with premiums for the $75,000 bond. The commenter explains that initially the premium quoted was $3,500. However, after the commenter shopped around for better rates, the same company quoted the commenter a more favorable premium of $1,300.
OOIDA believes that the $75,000 bond requirement helps to increase carriers' comfort in dealing with brokers they do not know and as such helps promote efficiency in the marketplace. According to OOIDA:
“Many of OOIDA's members are small business men and women who operate under their own federal operating authority and rely upon brokers to find freight to meet their business goals. Part of the efficiency of the current transportation marketplace is that brokers match motor carriers available to haul freight and shippers needing to move freight—parties who do not have an ongoing relationship, but who might make mutually beneficial connections on a load by load basis. This efficiency in the marketplace is increased greatly when motor carriers feel comfortable taking loads from brokers who they do [not] know
OOIDA also argues that “raising the bond or trust amount to $75,000 is intended to reduce harm caused by undercapitalized brokers who steal transportation service from motor carriers—the protected parties under the broker bond or trust statute . . . The $10,000 bond or trust was simply not sufficient to serve its intended purpose—to protect the motor carriers from non-payment by brokers.” OOIDA also comments on the connection between the new $75,000 financial responsibility requirement and the National Transportation Policy (NTP) at 49 U.S.C. 13101. According to OOIDA, “[b]y this statute, Congress burnished the national transportation goals of encouraging `sound economic conditions in transportation, including sound economic conditions among carriers;' 49 U.S.C. 13101(a)(1)(C), and acted to promote efficient transportation and to enable efficient and well-managed carriers to . . . maintain fair wages and working conditions. Sections 13101(a)(2)(B)&(F).”
Stuart Looney states:
“The purpose for requiring the posting of a bond is well established as furthering protection to the general public. The public is well served with this requirement as freight brokering is an easy entry undertaking and is fraught with many thinly capitalized and reasonably unprofessional participants.”
The Surety & Fidelity Association of America (SFAA) believes a bond requirement of less than $75,000 would deprive shippers and carriers of the additional protection that Congress thought was necessary. According to SFAA “the intent of the bond is to protect shippers and motor carriers . . . There are a number of cases in which the $10,000 bond was not sufficient to pay all claims in the full amount. . . .” SFAA cited multiple cases for its proposition.
SFAA also argues that the surety bond:
The Transportation Intermediaries Association (TIA) indicates that eliminating the bond requirement is “not acceptable” to shippers or carriers. According to TIA, 2 major trucking organizations, the American Trucking Associations (ATA) and OOIDA have supported increasing the bond well above the new $75,000 amount. According to TIA, in a 2009 letter, “ATA cited a study they conducted indicating that only 13 percent of carriers' claims against brokers were satisfied by the $10,000 bond.” According to TIA, in recent years, its members have seen shippers demand $100,000 bonds to exclusively protect one shipper.
Werner Enterprises, Inc. (Werner) argues that “[t]he eroded value of the bond since it was last adjusted to $10,000 in 1977” means “there is essentially no real security for broker misconduct.”
Veles Logistics Inc. (Veles), which describes itself as a “small group of owner-operators,” believes the $75,000 bond will help to get rid of “unstable unsafe financially weak and fraudulent brokers.” Veles also believes the new bond requirement will increase the prices of loads by eliminating “third and fourth and fifth resellers out of the freight moving chain.”
Scott Housely argues:
“The brokerage limit as it stand[s] at $75,000.00 addresses a larger problem of unethical brokers who have not invested in the industry and don't intend to. Carriers in the past had little recourse in collecting bad debt from brokers or the shippers that they worked for due to the transient nature of many brokers. The limit as it stands does not [impede] any good brokers and enhances the relationship with the asset based carriers who are the backbone of the entire system. Please keep the current rule in place.”
OOIDA expresses concern that if FMCSA granted AIPBA's request, the Agency would not have the discretion to return to the $10,000 bond limit; the Agency would have to allow brokers to operate without having a bond. OOIDA argues:
“The application would have the effect of permitting all brokers to operate without a broker bond or trust of
Werner states:
“The bond cost is a problem for some brokers for good reason. A bond such as this which is designed to guaranty the integrity and ability of a party to respond for their failures to another party is priced not only upon the total exposure of the company writing the bond but also upon the financial strength of the party being bonded. Our experience was that the cost of our $10,000 bond was $77 per year which increased to $338 for a $75,000 bond. The cost increase is not significant. Companies that are experiencing higher costs may be the companies for whom the shippers and motor carriers need protection.”
TIA states:
It is ironic that those making the argument to eliminate the bond increase because some brokers and forwarders cannot afford it, actually make the case for the higher bond. Congress determined that companies should not handle other people's money if they cannot afford to protect it. Broker and forwarder bonds are available in the marketplace today for less than $6,000 per year.
TIA argues that when the cost for the bond is spread over an average of 5 loads per day, the bond premium works out to be less than $5.00 per load.
FMCSA has considered AIPBA's exemption request and all of the comments received, including AIPBA's subsequent comments, and FMCSA denies the request. FMCSA does not have the authority to disregard Congress's directive in the revised statutory provision by exempting all property brokers and freight forwarders from the bond requirement. Essentially, AIPBA's opposition to the increase in the bond amount is a challenge to Congress's judgment that the increase is necessary and appropriate, indeed in the public interest.
Furthermore, even if the Agency had the authority to grant AIPBA's exemption application, AIPBA's request does not meet the three part statutory test in 49 U.S.C. 13541. Specifically, FMCSA finds that the $75,000 bond requirement at 49 U.S.C. 13906(b)-(c) is necessary to carry out the transportation policy of section 13101, and is needed to protect shippers from the abuse of market power. . . .”
In Section 32918 of MAP-21, Congress expressly mandated that all FMCSA regulated brokers and freight forwarders have a minimum of $75,000 in financial security. 49 U.S.C. 13906(b),(c). AIPBA asks the Agency to permanently exempt all property brokers and freight forwarders subject to section 32918's $75,000 bond requirement. FMCSA is denying AIPBA's exemption application because the Agency lacks the authority to issue the kind of blanket exemption that AIPBA seeks.
While section 13541 gives the Agency broad authority to exempt certain persons or transactions, FMCSA does not have the authority to effectively nullify a statute by exempting the entire class of persons subject to the bond requirement, as AIPBA requests. 49 U.S.C. 13541(a);
Even if FMCSA had the authority to grant AIPBA's exemption application, a blanket exemption covering all brokers and freight forwarders is not in the public interest. “Congress is presumed to legislate in the public interest.”
First, FMCSA finds that granting AIPBA's request would undermine the purpose of the bond requirement—the protection of shippers and motor carriers that utilize brokers and freight forwarders as third party intermediaries. FMCSA's predecessor, the Interstate Commerce Commission (ICC), very clearly stated that “ `[t]he legislative history . . . clearly reveals that the primary purpose of Congress in regulating motor transportation brokers is to protect carriers and the traveling and shipping public against dishonest and financially unstable middlemen in the transportation industry.' ”
According to OOIDA, “[t]he $10,000 bond or trust was simply not sufficient to serve its intended purpose—to protect the motor carriers from non-payment by brokers.” And, as SFAA notes, “the intent of the bond is to protect shippers and motor carriers. A bond in a lesser amount would deprive shippers and carriers of the additional protection that Congress thought was necessary. There are a number of cases in which the $10,000 bond was not sufficient to pay all claims in the full amount. . . .” Moreover, according to TIA, in 2009, “ATA cited a study they conducted indicating that only 13 percent of carriers' claims against brokers were satisfied by the $10,000 bond.” This unanimity of input from members of the three industries most affected by the $75,000 requirement (transportation intermediaries, motor carriers and the surety bond industry) is noteworthy. Given that the purpose of the financial security requirement is to protect shippers and motor carriers, and the widespread view that the previous $10,000 requirement
On the other hand, in its exemption application, AIPBA argues that the $75,000 broker surety bond amount is “not in the public interest.” AIPBA argues that the $75,000 broker bond would:
In its January 22, 2014, comments in response to FMCSA's
FMCSA acknowledges that the number of FMCSA-registered brokers and freight forwarders declined after the $75,000 bond requirement went into effect on October 1, 2013. Between September 2013 and December 2013, the number of freight forwarders with active authority dropped from 2,351 to 925. The number of freight forwarders then increased to 1,208 by December 2014. During this same period, the number of active brokers dropped from 21,375 to 13,839, and then increased to 15,471 in December 2014. However, AIPBA has provided no proof of a causal connection between the broker license revocations and an adverse impact on consumer prices or an adverse impact on rates for truckers.
Moreover, even if AIPBA had shown that the $75,000 requirement caused all of the consequences it alleges, it has not focused on the key public interest implicated in the broker bond—the protection of motor carriers and shippers. It has not provided, nor have we discerned, any evidence that shippers or motor carriers would be adequately protected by the pre-MAP-21 bond requirement.
In its exemption application, AIPBA asserts that “[t]he $75,000 broker surety bond amount is not necessary to protect shippers from the abuse of market power.” To the contrary, AIPBA asserts that “[e]xemption from the increased broker amount will protect shippers from an abuse of market power. The unnecessarily high $75,000 broker bond requirement will cause the majority of property brokers to leave the marketplace, which will expose shippers to abuses of market power by the few large property brokers able to stay in business.” In its subsequent comments, AIPBA reiterates its assertion that the new “minimum financial security is not necessary to protect shippers from abuse of market power.” AIPBA argues that “the new minimum security amount is the direct result of collusion to abuse market power. The exemption would help stop the loss of property brokers and provide more options for shippers, which would protect shippers.” Other commenters did not address the abuse of market power.
Based on the record before it, FMCSA cannot find that application of the $75,000 broker/freight forwarder bond requirement under 49 U.S.C. 13906(b),(c) “is not needed to protect shippers from the abuse of market power. . . .” 49 U.S.C. 13541(a)(2). While AIPBA hypothesizes that a smaller brokerage industry will abuse its market power with regard to shippers, it
Finally, in its application, AIPBA argues that the $75,000 bond requirement is contrary to the transportation policy of 49 U.S.C. 13101, because it violates the federal government's policy to “encourage fair competition, and reasonable rates for transportation by motor carriers of property” and to “allow a variety of quality and price options to meet changing market demands and the diverse requirements of the shipping and traveling public. . . .” 49 U.S.C. 13101(a)(2)(A), (D). AIPBA argues that the new broker bond amount “will likely result in a loss of tens of thousands of jobs and higher consumer prices as a matter of supply and demand.” Further, according to AIPBA, “per Kevin Reid of the National Association for Minority Truckers, the anti-competitive effects of the new broker bond requirement will detrimentally affect the participation of minorities in the motor carrier system, which is another violation of the transportation policy.”
In its docket comments in this proceeding, AIPBA argues that “a $75,000 bond to protect carriers is not necessary to implement the national transportation policy because there is no shipper bond to protect carriers when they receive loads without the involvement of an intermediary.” Further, AIPBA argues that “enforcement of the new financial security minimum is contrary to the national transportation policy of 49 U.S.C. 13101 because it restricts opportunity, competition and reasonable rates.”
On the other hand, with regard to the National Transportation Policy (NTP), OOIDA argues that Congress's new $75,000 requirement “burnished the national transportation goals of encouraging `sound economic conditions in transportation, including sound economic conditions among carriers;' 49 U.S.C. 13101(a)(1)(C), and acted to promote efficient transportation and to enable efficient and well-managed carriers to . . . maintain fair wages and working conditions. Sections 13101(a)(2)(B)&(F).” OOIDA's point is well taken.
While AIPBA is correct that the NTP provides that the policy of the United States Government is to “encourage fair competition, and reasonable rates for transportation by motor carriers of property,” “allow a variety of quality and price options to meet changing market demands and the diverse requirements of the shipping and traveling public”, 49 U.S.C. 13101(a)(2)(A), (D), and “promote greater participation by minorities in the motor carrier system,” 49 U.S.C. 3101(a)(2)(J), these are not the only elements of the NTP. Among other goals, the NTP provides that federal transportation policy includes “promot[ing] efficiency in the motor carrier transportation system . . . ,” 49 U.S.C. 13101(a)(2)(B), meeting the needs of shippers, 49 U.S.C. 13101(a)(2)(C), and “enabl[ing] efficient and well-managed carriers to earn adequate profits, attract capital, and maintain fair wages and working conditions. . . .” 49 U.S.C. 13101(a)(2)(F).
FMCSA finds that application of the $75,000 broker and freight forwarder financial responsibility requirements under 49 U.S.C. 13906(b), (c) is “necessary to carry out the transportation policy of section 13101. . . .” 49 U.S.C. 13541(a)(1). First, Congress set that amount as the minimum requirement and in so doing, must be presumed to have acted in a manner consistent with the NTP. Second, as OOIDA, TIA and SFAA have shown, the previous $10,000 bond was inadequate in the event of broker financial problems. In such instances, both shippers and motor carriers faced losses. Accordingly, applying the new $75,000 bond amount is necessary to meet the “needs of shippers,” 49 U.S.C. 13101(a)(2)(C), and to allow motor carriers to “earn adequate profits [and] attract capital,” 49 U.S.C. 13101(a)(2)(F), as directed by the NTP.
Moreover, AIPBA has not shown why applying the new $75,000 requirement is not necessary to carry out those provisions of the NTP. FMCSA does not believe that AIPBA has provided evidence that there has been a decrease in motor carrier competition or an increase in shipping rates due to the implementation of the $75,000 bond requirement. Indeed at p. 5 of their docket comments, AIPBA admits that rates have actually decreased. Further, aside from an unsubstantiated projection, AIPBA makes no showing that the new $75,000 requirement will undermine the NTP's goal of “promot[ing] greater participation by minorities in the motor carrier system. . . .” 49 U.S.C. 13101(a)(2)(J).
FMCSA does not find that the $75,000 financial responsibility requirement for brokers/freight forwarders is “not necessary to carry out the transportation policy of section 13101. . . .” 49 U.S.C. 13541(a)(1). Nor does FMCSA find that continued regulation under section 13906(b), (c) “is not needed to protect shippers from the abuse of market power” or that the transaction or service at issue is of “limited scope. . . .” 49 U.S.C. 13541(a)(2). Finally, granting the exemption requested by AIPBA is not in the public interest. 49 U.S.C. 13541(a)(3). Accordingly, AIBPA's request is denied.
Federal Transit Administration (FTA), DOT.
Notice of Intent (NOI) to prepare an Environmental Impact Statement (EIS) and Section 4(f) Evaluation.
The Federal Transit Administration (FTA) and the Metropolitan Atlanta Rapid Transit Authority (MARTA) issue this Notice of Intent (NOI) to prepare an Environmental Impact Statement (EIS) and an evaluation per 49 U.S.C, 303 and 23 CFR 774 (“Section 4(f)”) for the extension of high capacity, rapid transit in the Georgia (GA) 400 corridor in north Fulton County, GA from Dunwoody to Alpharetta. The EIS and Section 4(f) Evaluation will be prepared in accordance with regulations implementing the National Environmental Policy Act (NEPA) and 40 CFR parts 1500 through 1508, Section 4(f), as well as FTA's regulations and guidance implementing NEPA (23 CFR 771).
The purpose of this NOI is to: (1) Advise the public and agencies that MARTA in coordination with the FTA is preparing an EIS for the proposed project; (2) provide information including previous planning studies and decision, purpose and need, and alternatives being considered; and, (3) invite public and agency participation in the EIS process, which includes a
The dates, times, and locations of the Scoping meetings are:
•
•
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All meetings will be held from 6:30 p.m. to 8:00 p.m. Directional signage will be posted at all meeting locations to inform participants of the meeting room number and location.
All meeting locations are considered private property. With the exception of on-duty law enforcement and/or security officials, weapons will not be allowed on the premises of any meeting locations under any circumstances. If there are questions concerning weapons policies for Scoping meeting locations or if translation, signing services, or other special accommodations are needed, please contact MARTA's Office of External Affairs, Toni Thornton at
Mr. Stan Mitchell, Environmental Protection Specialist, FTA Region IV, 230 Peachtree Street NW., Suite 1400, Atlanta, GA 30303 or email:
FTA and MARTA will undertake a Scoping process that will allow the public and interested agencies to comment on the scope of the environmental review process. Scoping is the process of determining the scope, focus, and content of an EIS. NEPA Scoping has specific objectives, identifying issues that will be examined in detail during the EIS, while at the same time limiting consideration and development of issues that are not truly significant to the purpose and need for the project. FTA and MARTA invite all interested individuals, members of the public, Native American tribes, and Federal, State, and local agencies to review and comment on the scope of the Draft EIS.
To facilitate public and agency comment, a Scoping Information Packet will be prepared for review and will be available before each Scoping meeting and for handout at each Scoping meeting. This packet will include draft descriptions of the project purpose and need, the alternatives considered, impacts to be assessed, early alternatives that are currently not being considered, and the public outreach and agency coordination process.
The project study area is located in Fulton County, Georgia, and includes small portions of the cities of Sandy Springs, Roswell, Milton, Dunwoody, Johns Creek and Alpharetta. The corridor study area extends approximately 12 miles along GA 400 from North Springs heavy rail station (the current northern terminus of the MARTA heavy rail service) northward to Windward Parkway near the Fulton/Forsyth county line.
MARTA invites comments on the following preliminary statement of the project's purpose and need:
The purpose of the GA 400 Corridor project is to provide high capacity transit (bus and/or rail) through the corridor study area, improve transit linkages and coverage to communities within the study area, and enhance mobility and accessibility to and within the study area by providing a more robust transit network that offers an alternative to automobile travel.
The GA 400 Corridor is the transportation spine of northern Fulton County, one of the fastest growing sub-regions in the metro-Atlanta region. The corridor is home to many employment centers, including Perimeter Center in the southern portion of the corridor, one of the largest employment centers in the region. Transit service to and within the study area is provided primarily by MARTA heavy rail and bus. MARTA heavy rail service extends from Downtown Atlanta to major retail and employment centers, including the Medical Center and Perimeter Center in Dunwoody and Sandy Springs in the southern portion of the corridor. MARTA bus service in the corridor study area primarily functions as feeder service to the North Springs heavy rail station from areas to the north, including Roswell, Alpharetta and Milton. The Georgia Regional Transportation Authority (GRTA) also operates two express bus routes during peak hours that connect the southern portion of the GA 400 corridor to/from north and southeast destinations outside the GA 400 corridor.
The following needs for the proposed project stem from existing conditions and deficiencies in the corridor study area:
• Travel demand—Increased travel demand and traffic congestion;
• Transit mobility—There is inadequate transit connectivity within the northern Fulton County study area and between the study area and DeKalb, Gwinnett, and Cobb Counties and central Atlanta. In addition, east-west transit connectivity is inadequate. The limited routes across the Chattahoochee River reflect the inadequate transit connectivity;
• Transit travel times—Transit travel times are not competitive with auto travel times due to the lack of express service; this is true for north-south trips within the study area and for trips with origins and destinations outside the study area. Transit and auto travel times cannot be compared for east-west trips as there is no east-west transit service; and,
• Economic development—Traffic congestion caused by insufficient transportation system capacity affects both personal travel and goods movement, which constrains economic development opportunities.
In 2011, MARTA initiated the GA 400 Corridor Transit Initiative Alternatives Analysis (AA) to analyze the corridor based on current trends and conditions.
The LPA is a HRT line that would cross to the west side of Georgia 400 north of North Springs Station but south of Spalding Dr. This alternative would have a second crossover back to the east side of GA 400 north of the Chattahoochee River. The HRT alternative received the strongest public support throughout the study process due to the higher level of transit service for corridor commuters and residents. In addition, two BRT alignments will be considered as lower-cost options as part of the DEIS. Stakeholder input received during Early Scoping, poor performance shown in technical study and preliminary analysis eliminated the LRT alternative. The MARTA Board of Directors adopted the HRT transit concept as the LPA for the GA 400 corridor along with consideration of the additional BRT alternatives on March 5, 2015.
The results of the AA study, Early Scoping, and the Preliminary Engineering and Environmental Analysis study are available at
Based on the technical analysis and input received from the public and stakeholders regarding the GA 400 corridor, the following proposed alternatives, along with a brief description for each, will be evaluated during the EIS:
FTA and MARTA will evaluate project-specific direct, indirect, and cumulative effects, including benefits, to the existing human and natural environmental setting in which the Build Alternatives could be located. The permanent or long-term effects to be investigated during this study include effects to public parks and recreation lands (Section 4(f) Evaluation), traffic and transportation, land use and socioeconomic, visual character and aesthetics, noise and vibration, historical and archaeological resources, community effects, and natural resources. Temporary effects during construction may include effects to transportation and traffic, air quality, water quality, noise and vibration, natural resources, and encounters with hazardous materials and contaminated soils.
The analysis will be undertaken in conformity with Federal environmental laws, regulations, and executive orders applicable to the proposed project during the environmental review process. These requirements include but are not limited to NEPA, Council on Environmental Quality (CEQ) regulations, FTA guidance and relevant environmental planning guidelines, Section 106 of the National Historic Preservation Act (NHPA), Section 4(f) of the Department of Transportation Act, Executive Order 12898 regarding minority and low-income populations, Executive Order 11990 regarding the protection of wetlands, the Clean Water Act, the Endangered Species Act of 1973, and the Clean Air Act of 1970 along with other applicable Federal, state, and local laws and regulations. Opportunities for review and comment on the potential effects will be provided to the public and agencies. Comments received will be considered in the development of the final scope and content of the EIS. The final scope and content of the EIS will be documented in the Scoping Summary Report and the Annotated Outline for the EIS.
The regulations implementing NEPA and FTA guidance call for public involvement in the EIS process. In accordance with these regulations and guidance, FTA and MARTA will: (1) Extend an invitation to other Federal and non-Federal (state and/or local) agencies and Native American Tribes that may have an interest in the proposed project to become participating agencies (any interested agency that does not receive an invitation can notify any of the contact persons listed earlier in this NOI); (2) provide opportunity for involvement by participating agencies and the public to help define the purpose and need for the proposed project, as well as the range of alternatives for consideration in the EIS; and (3) establish a plan for coordinating public and agency participation in, and comment on, the environmental review process.
Input on a Public Involvement Plan will be solicited at Scoping meetings and on the project Web site. The documents will outline public and agency involvement for the project. Once completed, these documents will be available on the project Web site or through written request to the MARTA Project Manager.
The Paperwork Reduction Act seeks, in part, to minimize the cost of the taxpayer of the creation, collection, maintenance, use, dissemination, and disposition of information. Consistent with this goal and with the principles of
With the publication of this NOI, the Scoping process and the public comment period for the project begins allowing the public to offer input on the scope of the EIS until May 11, 2015. In accordance with the Federal regulations, this date is at least 45 days following the publication of this NOI. Public comments will be received through those methods explained earlier in this NOI and will be incorporated into a Scoping Summary Report. The Scoping Summary Report will detail the scope of the EIS and the potential environmental effects that will be considered during the study period. After the completion of the Draft EIS, a public and agency review period will allow for input on the Draft EIS and these comments will be incorporated into the Final EIS for this project. In accordance with Section 1319 of the Moving Ahead for Progress in the 21st Century Act (MAP-21), Accelerated Decision-making in Environmental Reviews, FTA may consider the use of errata sheets attached to the DEIS in place of a traditional Final EIS and/or development a single environmental decision document that consists of a Final EIS and a Record of Decision (ROD), if certain conditions exist following the conclusion of the public and agency review period for the project's Draft EIS.
Department of the Treasury.
Notice.
The Department of the Treasury will submit the following information collection requests to the Office of Management and Budget (OMB) for review and clearance in accordance with the Paperwork Reduction Act of 1995, Public Law 104-13, on or after the date of publication of this notice.
Comments should be received on or before April 30, 2015 to be assured of consideration.
Send comments regarding the burden estimate, or any other aspect of the information collection, including suggestions for reducing the burden, to (1) Office of Information and Regulatory Affairs, Office of Management and Budget, Attention: Desk Officer for Treasury, New Executive Office Building, Room 10235, Washington, DC 20503, or email at
Copies of the submission(s) may be obtained by calling (202) 927-5331, email at
In order to apply to be a member of the Internal Revenue Service Advisory Council (IRSAC), the Information Reporting Program Advisory Committee (IRPAC), Advisory Committee on Tax Exempt and Government Entities, or the Electronic Tax Administration Advisory Committee (ETAAC), applicants must submit a Membership Application. Selection of committee members is made based on the FACA's requirements and the potential member's background and qualifications. Therefore, an application is needed to ascertain the desired skills set for membership. The information will also be used to perform Federal Income Tax, FBI, and practitioner checks as required of all members and applicants to the Committees or Council.
The tax check waiver permits the Internal Revenue Service (IRS) to release information about the applicant which would otherwise be confidential. This information will be used in connection with my application for appointment to membership in one of the IRS Advisory Committee/Council. It is necessary for the purpose of ensuring that all panel members are tax compliant. Information provided will be used to qualify or disqualify individuals to serve as panel members. The information will be used as appropriate by the Taxpayer Advocate service staff, and other appropriate IRS personnel.
The Highway and Transportation Funding Act of 2014 (HATFA), Public Law 113-159, was enacted on August 8, 2014, and was effective retroactively for single employer defined benefit pension plans, optional for plan years beginning in 2013 and mandatory for plan years beginning in 2014. Notice 2014-53 provides guidance on these changes to the funding stabilization rules for single-employer pension plans.
Internal Revenue Service (IRS), Department of the Treasury.
Request for applications.
The Internal Revenue Service (IRS) requests applications of individuals to be considered for selection as members of the Electronic Tax Administration Advisory Committee (ETAAC). Nominations should describe and document the proposed member's qualification for ETAAC membership, including the applicant's knowledge of regulations and the applicant's past or current affiliations and dealings with the particular tax segment or segments of the community that the applicant wishes to represent on the council. Applications will be accepted for current vacancies from qualified individuals and from professional and public interest groups that wish to have representation on ETAAC. Submittal of an application and resume is required.
The ETAAC provides an organized public forum for discussion of electronic tax administration issues in support of the overriding goal that paperless filing should be the preferred and most convenient method of filing tax and information returns. ETAAC members convey the public's perception of IRS electronic tax administration activities, offer constructive observations about current or proposed policies, programs, and procedures, and suggest improvements.
The IRS seeks a diverse group of individuals to represent various groups including: (1) Tax practitioners and preparers, (2) tax software developers, (3) large and small business, (4) employers and payroll service providers, (5) individual taxpayers, (6) financial industry (payers, payment options and best practices), (7) system integrators or technology providers, (8) digital or online service providers, (9) academic (marketing, sales or technical perspectives), (10) trusts and estates, (11) tax exempt organizations, and (12) state and local governments.
This is a volunteer position and members will serve a three-year term on the ETAAC to allow for a rotation in membership which ensures that different perspectives are represented. Travel expenses within government guidelines will be reimbursed. Potential candidates must pass an IRS tax compliance check and Federal Bureau of Investigation (FBI) background investigation.
The complete application package must be received no later than Friday, May 22, 2015.
Applications should be sent to Internal Revenue Service, 1111 Constitution Ave. NW., Attn: ETAAC
Sean Parman at (202) 317-6247 or Rose Smith at (202) 317-6248, or send an email to
The establishment and operation of the Electronic Tax Administration Advisory Committee (ETAAC) is required by the Internal Revenue Service (IRS) Restructuring and Reform Act of 1998 (RRA 98), Title II, Section 2001(b)(2). ETAAC follows a charter in accordance with the provisions of the Federal Advisory Committee Act (FACA), 5 U.S.C., App. 2. The ETAAC provides continued input into the development and implementation of the IRS's strategy for electronic tax administration. The ETAAC will research, analyze, consider, and make recommendations on a wide range of electronic tax administration issues and will provide input into the development of the strategic plan for electronic tax administration. Members will provide an annual report to Congress by June 30th.
Applicants must complete the application, which includes describing and documenting your qualifications for membership to the Committee. Submit a short (one or two page) statement, including recent examples, addressing your specific skills and qualifications as they relate to the following: (1) Filing, preparing, or processing tax or information returns/requests electronically (
Equal opportunity practices will be followed in all appointments to the ETAAC in accordance with Department of Treasury and IRS policies. The IRS has a special interest in assuring that women and men, members of all races and national origins, and individuals with disabilities have an opportunity to serve on advisory committees: and therefore, extends particular encouragement to nominations from such appropriately qualified individuals.
In accordance with section 999(a)(3) of the Internal Revenue Code of 1986, the Department of the Treasury is publishing a current list of countries which require or may require participation in, or cooperation with, an international boycott (within the meaning of section 999(b)(3) of the Internal Revenue Code of 1986).
On the basis of the best information currently available to the Department of the Treasury, the following countries require or may require participation in, or cooperation with, an international boycott (within the meaning of section 999(b)(3) of the Internal Revenue Code of 1986).
Department of the Treasury.
Notice.
The Department of the Treasury 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, Public Law 104-13, on or after the date of publication of this notice.
Comments should be received on or before April 30, 2015 to be assured of consideration.
Send comments regarding the burden estimate, or any other aspect of the information collection, including suggestions for reducing the burden, to (1) Office of Information and Regulatory Affairs, Office of Management and Budget, Attention: Desk Officer for Treasury, New Executive Office Building, Room 10235, Washington, DC 20503, or email at
Copies of the submission may be obtained by emailing
Office of Foreign Assets Control, Treasury.
Notice.
The Department of the Treasury's Office of Foreign Assets Control (OFAC) is publishing the name of six individuals, 28 entities, and 11 vessels whose property and interests in property have been unblocked pursuant to the Cuban Assets Control Regulations, 31 CFR part 515.
The unblocking and removal from the list of Specially Designated Nationals and Blocked Persons (SDN List) of the individuals, entities, and vessels identified in this notice is effective March 24, 2015.
Assistant Director, Sanctions Compliance & Evaluation, Department of the Treasury, Office of Foreign Assets Control, Washington, DC 20220, Tel: (202) 622-2490.
The SDN List and additional information concerning OFAC are available from OFAC's Web site (
On March 24, 2015, the Associate Director of OFAC removed from the SDN List the individuals, entities, and vessels listed below, whose property and interests in property were blocked pursuant to the Cuban Assets Control Regulations:
1. STERN, Alfred Kaufman, Prague, Czech Republic (individual) [CUBA].
2. PADRON TRUJILLO, Amado, Panama (individual) [CUBA].
3. CASTELL VALDEZ, Osvaldo Antonio, Panama (individual) [CUBA].
4. DUQUE, Carlos Jaen, Panama (individual) [CUBA].
5. ABDELNUR, Nury de Jesus, Panama (individual) [CUBA].
6. DELGADO ARSENIO, Antonio, Panama (individual) [CUBA].
7. KOL INVESTMENTS, INC., Miami, FL, United States [CUBA].
8. TRAVEL SERVICES, INC., Hialeah, FL, United States [CUBA].
9. ABASTECEDORA NAVAL Y INDUSTRIAL, S.A. (a.k.a. ANAINSA), Panama [CUBA].
10. AGENCIA DE VIAJES GUAMA (a.k.a. GUAMA TOUR; a.k.a. GUAMATUR, S.A.; a.k.a. VIAJES GUAMA TOURS), Bal Harbour Shopping Center, Via Italia, Panama City, Panama [CUBA].
11. AVALON, S.A., Colon Free Zone, Panama [CUBA].
12. BEWELL CORPORATION, INC., Panama [CUBA].
13. CARBONICA, S.A., Panama [CUBA].
14. CARIBBEAN HAPPY LINES (a.k.a. CARIBBEAN HAPPY LINES CO.), Panama [CUBA].
15. CARIBSUGAR, S.A., Panama [CUBA].
16. CARISUB, S.A., Panama [CUBA].
17. CHAMET IMPORT, S.A., Panama [CUBA].
18. COMPANIA PESQUERA INTERNACIONAL, S.A., Panama [CUBA].
19. FAMESA INTERNATIONAL, S.A., Panama [CUBA].
20. GLOBAL MARINE OVERSEAS, INC., Panama [CUBA].
21. HERMANN SHIPPING CORP., INC., Panama [CUBA].
22. HEYWOOD NAVIGATION CORPORATION, c/o MELFI MARINE CORPORATION S.A., Oficina 7, Edificio Senorial, Calle 50, Apartado 31, Panama City 5, Panama [CUBA].
23. INVERSIONES LUPAMAR, S.A. (a.k.a. LUPAMAR INVESTMENT COMPANY), Panama [CUBA]. \
24. LOUTH HOLDINGS, S.A., Panama [CUBA].
25. PESCADOS Y MARISCOS DE PANAMA, S.A. (a.k.a. PESMAR S.A.; a.k.a. PEZMAR S.A.), Panama City, Panama [CUBA].
26. PIRAMIDE INTERNATIONAL, Panama [CUBA].
27. RADIO SERVICE, S.A., Panama [CUBA].
28. RECICLAJE INDUSTRIAL, S.A., Panama [CUBA].
29. SIBONEY INTERNACIONAL, S.A., Edificio Balmoral, 82 Via Argentina, Panama City, Panama; Venezuela [CUBA].
30. TALLER DE REPARACIONES NAVALES, S.A. (a.k.a. TARENA, S.A.), Panama City, Panama [CUBA].
31. TECHNIC DIGEMEX CORP., Calle 34 No. 4-50, Office 301, Panama City, Panama [CUBA].
32. TEMIS SHIPPING CO., Panama [CUBA].
33. TREVISO TRADING CORPORATION, Edificio Banco de Boston, Panama City, Panama [CUBA].
34. POCHO NAVIGATION CO. LTD., c/o EMPRESA DE NAVEGACION MAMBISA, Apartado 543, San Ignacio 104, Havana, Cuba [CUBA].
35. ALEGRIA DE PIO Unknown vessel type (Naviera Maritima de Arosa, Spain) (vessel) [CUBA].
36. CARIBBEAN SALVOR (9H2275) Tug 669DWT 856GRT Malta flag (Compania Navegacion Golfo S.A.) (vessel) [CUBA].
37. HARNMAN H (f.k.a. PEONY ISLANDS) (5BXH) Bulk Cargo 26,400DWT 15,864GRT Cyprus flag (PEONY SHIPPING CO. LTD. (SDN)) (vessel) [CUBA].
38. HYALITE Unknown vessel type (Whiteswan Shipping Co., Ltd., Cyprus) (vessel) [CUBA].
39. NEW GROVE (f.k.a. KASPAR) (P3QJ3) General Cargo 1,909DWT 754GRT Cyprus flag (Oakgrove Shipping Co. Ltd.) (vessel) [CUBA].
40. PINECONE (f.k.a. GRETE) (P3QH3) General Cargo 1,941DWT 753GRT Cyprus flag (Pinecone Shipping Co. Ltd.) (vessel) [CUBA].
41. RAVENS (9H2485) General Cargo 2,468DWT 1,586GRT Malta flag (ATAMALLO SHIPPING CO. LTD. (a.k.a. ANTAMALLO SHIPPING CO. LTD.) (SDN)) (vessel) [CUBA].
42. ROSE ISLANDS Unknown vessel type (Shipley Shipping Corp., Panama) (vessel) [CUBA].
43. TEPHYS (f.k.a. PAMIT C) (H2RZ) General Cargo 15,123DWT 8,935GRT Cyprus flag (Tephys Shipping Co. Ltd.) (vessel) [CUBA].
44. WEST ISLANDS (C4IB) General Cargo 15,136DWT 9,112GRT Cyprus flag (WEST ISLAND SHIPPING CO. LTD. (SDN)) (vessel) [CUBA].
45. BROTHERS (f.k.a. TULIP ISLANDS) (C4QK) Bulk Carrier 25,573DWT 16,605GRT Cyprus flag (Ciflare Shipping Co. Ltd.) (vessel) [CUBA].
U.S.-China Economic and Security Review Commission.
Notice; correction.
The U.S.-China Commission published a document in the
Rickisha Berrien-Lopez, 202-624-1454.
Office of the Secretary, Agriculture; Office of the Secretary, Interior; National Oceanic and Atmospheric Administration, Commerce.
Revised interim rules with request for comment.
The Departments of Agriculture, the Interior, and Commerce are jointly revising the procedures they established in November 2005 for expedited trial-type hearings required by the Energy Policy Act of 2005. The hearings are conducted to expeditiously resolve disputed issues of material fact with respect to conditions or prescriptions developed for inclusion in a hydropower license issued by the Federal Energy Regulatory Commission under the Federal Power Act. The Departments are also revising the procedures for considering alternative conditions and prescriptions submitted by a party to a license proceeding.
You may submit comments, identified by any of the Regulation Identifier Numbers (RINs) shown above (0596-AC42, 1090-AA91, or 0648-AU01), by either of the methods listed below. Comments submitted to any one of the three Departments will be shared with the others, so it is not necessary to submit comments to all three Departments.
1.
2.
a. Deputy Chief, National Forest Systems, c/o WO Lands Staff, Department of Agriculture, Mail stop 1124, 1400 Independence Avenue SW., Washington, DC 20250-1124;
b. Office of Hearings and Appeals, 801 N. Quincy Street, Suite 300, Arlington, Virginia 22203; or
c. Chief, Habitat Protection Division, Office of Habitat Conservation, National Marine Fisheries Service, 1315 East-West Highway, Silver Spring, MD 20910.
Washington Office Director, Lands and Realty Management, Forest Service, U.S. Department of Agriculture, 202-205-1769; John Rudolph, Solicitor's Office, Department of the Interior, 202-208-3553; or Melanie Harris, Office of Habitat Conservation, National Marine Fisheries Service, 301-427-8636. Persons who use a telecommunications device for the deaf (TDD) may call the Federal Information Relay Service (FIRS) at 800-877-8339.
The Departments of Agriculture, the Interior, and Commerce (the Departments) are revising the interim final rules they published jointly in November 2005 to implement section 241 of the Energy Policy Act of 2005. That section created additional procedures applicable to conditions or prescriptions that a Department develops for inclusion in a hydropower license issued by Federal Energy Regulatory Commission (FERC). Specifically, section 241 amended sections 4 and 18 of the Federal Power Act (FPA) to provide for trial-type hearings on disputed issues of material fact with respect to a Department's conditions or prescriptions; and it added a new section 33 to the FPA, allowing parties to propose alternative conditions and prescriptions.
The Departments are promulgating three substantially similar rules—one for each agency—with a common preamble. The rules and preamble address a few issues that were left open in the 2005 rulemaking, such as who has the burden of proof in a trial-type hearing and whether a trial-type hearing is an administrative remedy that a party must exhaust before challenging conditions or prescriptions in court. In addition, the rules and preamble respond to the public comments we received on the 2005 rules, and they make a number of changes reflecting our experience in implementing those rules.
The rules are being made effective as revised interim final rules, so that interested parties and the agencies may avail themselves of improvements being made to the procedures adopted in 2005. The Departments are also requesting comments on additional ways the rules can be improved.
A detailed explanation of the revisions is provided below, but some of the highlights of the revised rules are as follows:
• The rules clarify the availability of the trial-type hearing and alternatives processes in the situation where a Department has previously reserved its authority to include conditions or prescriptions in a hydropower license, and it now decides to exercise that authority. The rules also extend the period of time for a party to request a hearing or submit an alternative in that situation.
• The rules extend a few of the deadlines in the 2005 rules, while not adopting some commenters' recommendations that the Departments significantly expand the hearing schedule. Specifically, parties are given 5 additional days to take each of the following steps: file a notice of intervention and response; update their witness and exhibit lists and submit written testimony following discovery; prepare for the hearing; and submit post-hearing briefs.
• The rules allow for a stay, not to exceed 120 days, to facilitate settlement negotiations among the parties. As necessary, the parties would coordinate with FERC regarding any effect on the time frame established for the license proceeding.
• The rules adopt the unanimous position of the Administrative Law Judges (ALJs) in the cases adjudicated to date, that the party requesting a hearing has the burden of proof.
• The rules accept the argument of some commenters that the ALJ decision can come after the statutory 90-day period specified for the hearing itself. However, the rules require that the decision come no later than 120 days after the case was referred to the ALJ, to keep the whole process within FERC's time frame for the license proceeding.
• The rules allow a party who has participated in a trial-type hearing and has filed an alternative condition or prescription to submit a revised alternative within 20 days after the ALJ decision, based on the facts as found by the ALJ.
• The rules clarify that FPA section 33 requires a Department to prepare an equal consideration statement only
• Finally, the preamble provides additional guidance on the term “disputed issues of material fact.”
You may submit your comments by either of the methods listed in the
Please make your comments as specific as possible and explain the reason for any changes you recommend. Where possible, your comments should reference the specific section or paragraph of the rules that you are addressing.
We will make comments available for public review during regular business hours. To review the comments, you may contact any of the individuals listed in the
Before including your personal address, telephone number, email address, or other personal identifying information in your comment, you should be aware that your entire comment—including your personal identifying information—may be made publicly available at any time. While you can ask us in your comments to withhold your personal identifying information from public review, we cannot guarantee that we will be able to do so.
On November 17, 2005, at 70 FR 69804, the Departments jointly published interim final rules implementing section 241 of the Energy Policy Act of 2005 (EPAct), Public Law 109-58. Section 241 of EPAct amended FPA sections 4(e) and 18, 16 U.S.C. 797(e), 811, to provide that any party to a license proceeding before FERC is entitled to a determination on the record, after opportunity for an agency trial-type hearing of no more than 90 days, of any disputed issues of material fact with respect to mandatory conditions or prescriptions developed by one or more of the three Departments for inclusion in a hydropower license. EPAct section 241 also added a new FPA section 33, 16 U.S.C. 823d, allowing any party to the license proceeding to propose an alternative condition or prescription, and specifying the consideration that the Departments must give to such alternatives.
The interim final rules were made immediately effective, but a 60-day comment period was provided for the public to suggest changes to the interim regulations. The Departments stated in the preamble that, based on the comments received and the initial results of implementation, they would consider publication of revised final rules. Since that time, the Departments have gained experience under the interim regulations necessary to properly evaluate the comments received, and have developed these revised interim final rules.
The November 17, 2005, preamble to the interim final rules contains additional background information that the reader may wish to consult concerning EPAct, the FPA, FERC's integrated licensing process (ILP), the trial-type hearing process, and the alternative conditions and prescriptions process.
The Departments received substantive comments on the interim final rules from the following organizations:
• American Public Power Association, Sacramento Municipal Utility District, and Public Utility District No. 1 of Snohomish County, Washington;
• Association of California Water Agencies;
• Center for Biological Diversity (CBD);
• Edison Electric Institute and National Hydropower Association (EEI/NHA);
• Georgia Department of Natural Resources, Wildlife Resources Division;
• Greater Yellowstone Coalition (GYC);
• Hoopa Valley Tribe (HVT);
• Hydropower Reform Coalition (HRC);
• Idaho Rivers United;
• Los Angeles Department of Water and Power
• Ohio Department of Natural Resources;
• PacifiCorp;
• Ponderay Newsprint Company;
• Power Authority of the State of New York;
• Public Utility District No. 1 of Pend Oreille County, Washington;
• Public Utility District No. 2 of Grant County, Washington; and
• Southern Company.
The Departments also received about 3,000 nearly identical letters from individuals expressing concern about the environmental effects of the new procedures. Taken together, the comments were extensive and very helpful to the Departments in determining what changes were needed to the interim regulations. Responses to the comments are provided below in the section-by-section analysis of the revised regulations.
Following publication of the interim final rules, lawsuits were filed challenging certain aspects of the rulemaking.
In
In
Another notable legal development since publication of the interim final rule was the issuance of the decision in
For example, in one holding, the court discussed the relationships among the delegated authorities possessed by FERC and the Departments, respectively, under the FPA. Noting that the conditioning authority conferred on the Secretaries by section 4(e) is mandatory and independent of FERC's authorities, the court stated,
In July 2009, NHA and HRC sent a joint letter to the three Departments, asking that an additional 60-day comment period be provided before publication of final rules. The organizations noted that they and their members had gained extensive experience with the interim final rules since their initial comments were submitted in January 2006, and they now have additional comments to offer on ways to improve the trial-type hearing and alternatives processes.
The Departments have decided to grant NHA and HRC's request. Instead of publishing final rules, we are publishing these revised interim final rules with a 60-day comment period. Under this approach, we are putting into effect several improvements to the November 2005 interim final rules, while providing the public with updated information on which to base additional comments, including our responses to the prior comments we received.
In September 2010, GAO released Report GAO-10-770 entitled, “Hydropower Licensing: Stakeholders' Views on the Energy Policy Act Varied, but More Consistent Information Needed.” The report analyzed implementation of EPAct section 241 since 2005 and made two recommendations. The first recommendation was that the Secretaries of Agriculture, Commerce, and the Interior
As noted by GAO, the interim final rules already require each Department to file with FERC, along with any modified condition or prescription the Department adopts, a statement explaining (i) the basis for the modified condition or prescription and (ii), if the Department is not adopting a proposed alternative, its reasons for not doing so. 7 CFR 1.673(c); 43 CFR 45.73(c); 50 CFR 221.73(c).
However, the Departments pointed out in their comments to GAO that, in some cases, a license party that submitted an alternative condition or prescription later withdraws it, often as a result of negotiations with the Department. In cases where there is no longer an alternative to consider because a proposed alternative has been voluntarily withdrawn, the statutory requirement to provide a reason for not adopting an alternative does not apply. The Departments' written statement will, however, include an explanatory notation indicating that a proposed alternative was voluntarily withdrawn.
GAO's second recommendation was that the Departments “[i]ssue final rules governing the use of the section 241 provisions after providing an additional period for notice and an opportunity for public comment and after considering their own lessons learned from their experience with the interim rules.” GAO Report at 19. As explained above, we are publishing these revised interim final rules with a 60-day comment period, as requested by NHA and HRC and as recommended by GAO.
In developing the interim final regulations, the Departments anticipated that the Department of Commerce involvement in licensing proceedings under the FPA would be limited to issuance of fishway prescriptions under FPA section 18. This was consistent with Commerce's traditional experience in implementing the FPA. The Commerce regulations therefore referenced only the National Marine Fisheries Service (NMFS) and section 18 of the Act.
However, in the years since promulgation of the interim final regulations, alternative energy projects that would use new technologies to harness tidal and wave energy have been increasingly proposed for development. As applicants have moved into the marine environment in proposing projects to be licensed by FERC, impacts not traditionally associated with licenses under the FPA have emerged. For example, projects have been proposed within areas designated as National Marine Sanctuaries.
These developments have necessarily required broader interest and involvement in the licensing process throughout the Department of Commerce, including within the National Marine Sanctuary Program (NMSP). In 2006, in response to a proposal to site a wave energy project within the Olympic Coast National Marine Sanctuary, NMSP filed conditions with FERC under FPA section 4(e) to address impacts of the proposed Makah Bay Offshore Wave Pilot Project (Project No. 12751-001, applicant Finavera Renewables Ocean Energy, Ltd.). It is likely that the interest and involvement of Commerce agencies beyond NMFS will continue and will include the need to address impacts other than to fish migration under section 18.
While the wording of the current regulations does not foreclose issuance of such conditions, and the procedures of EPAct would be available under the
The following discussion explains the changes made to the regulations published in November 2005 and provides the Departments' response to the comments received. Regulations that have not been changed and that were not the subject of public comments are not discussed. The reader may wish to consult the section-by-section analysis in the interim final rules for additional explanation of all the regulations.
Three separate versions of the revised interim final regulations are provided, one version each for Agriculture, Interior, and Commerce. The structure and content of the regulations are substantially similar, but there are variations, such as to account for differences in the names of the Departments and their organizational components. The three versions also vary somewhat in their references to conditions and prescriptions, since Agriculture does not develop prescriptions under FPA section 18, while Interior and Commerce may develop either conditions or prescriptions or both.
For each section discussed below, the CFR title, section number, and heading for each Department are shown, 7 CFR for Agriculture, 43 CFR for Interior, and 50 CFR for Commerce.
Paragraphs (a)(1)-(2) of these sections in the interim final rules provided that the trial-type hearing process in these regulations applies to mandatory conditions and prescriptions developed by a Department under FPA section 4(e) or 18 and does not apply to recommendations that a Department may submit to FERC under FPA section 10(a) or (j). The Departments have expanded paragraph (a)(2) in the final rules to exclude more generally provisions that a Department may submit to FERC under any authority other than FPA section 4(e) or 18. Such provisions would include recommendations under section 10(a) or (j), terms and conditions under section 30(c), or any other provisions not submitted under section 4(e) or 18.
Commenters raised four sets of issues concerning the applicability of the EPAct hearing and alternatives processes, as set forth in paragraphs (c) and (d) of these regulations.
The Departments agree that applying the EPAct provisions to licensing proceedings pending at the time of enactment does not constitute retroactive application. The same allegation of retroactive application was considered and rejected by the court in
Some commenters asserted that these processes should be available, not only when the Department subsequently exercises reserved conditioning or prescriptive authority, but also when the Department initially decides to reserve its authority. According to these commenters, the reservation of authority is a decision not to impose a condition or prescription, with consequences for natural resources, and should be subject to the hearing and alternatives processes.
Under the terms of EPAct, license applicants and other parties are entitled to trial-type hearings with respect to conditions or prescriptions that a Department deems necessary. Similarly, the opportunity to propose an alternative arises when the Department deems a condition or prescription to be necessary. Thus, under EPAct, it is only when a Department affirmatively exercises its discretion to mandate a condition or prescription that the hearing and alternatives processes are triggered. Allowing for trial-type hearings and alternatives when the agencies have not exercised this authority would be both inconsistent with the legislation and an inefficient use of the Departments' resources. Consequently, the revised interim final regulations continue to provide that the hearing and alternatives processes are available only when a Department submits a preliminary condition or prescription to FERC, either during the initial licensing proceeding or subsequently through the exercise of reserved authority.
Section 241 of EPAct does not itself contain an express exhaustion requirement, and there have been no court decisions addressing the issue of exhaustion in the context of EPAct trial-type hearings to date. Whether the doctrine of exhaustion applies to a given claim will be determined by the court based on the specific circumstances involved, such as whether any exhaustion provision from another statute applies, the nature of the claim being raised, and the applicability of any exhaustion defenses.
The Departments note that license parties have ample opportunities to provide input into the processes for developing mandatory conditions and prescriptions. In addition to the trial-type hearing and alternatives processes, the FERC licensing process provides opportunities for parties to comment on a Department's preliminary conditions or prescriptions, and on FERC's environmental assessment or draft environmental impact statement that discusses such preliminary conditions or prescriptions, See,
No changes have been made to the regulations in response to the comments on this issue.
These sections define the meaning of various terms used in the regulations. They are unchanged from the interim regulations, except for two address changes and the following two modifications.
First, a definition of “modified condition or prescription” has been added, as recommended by a commenter.
Second, the definition of “preliminary condition or prescription” has been revised by changing “a” to “any” in the first line and by omitting the citations to FERC's regulations in the last line. While the Departments make every effort to submit their preliminary conditions and prescriptions in accordance with the requirements in FERC's regulations, circumstances on occasion may necessitate the submission of a preliminary condition or prescription after FERC's regulatory deadline.
Some commenters suggested that the Departments clarify the definition of “material fact” in these sections to expressly exclude allegations of law or policy, or any argument directed at whether a preliminary condition or prescription should be adopted, modified, or rejected, or whether a proposed alternative should be adopted or rejected. The comments cited several specific examples of issues that parties have sought to raise in trial-type hearing proceedings that the commenters considered inappropriate.
The Departments agree that the commenters accurately described both the intent of the statute and interim regulations and the experience to date in trial-type hearing proceedings. The regulations clearly prohibit an ALJ from rendering a conclusion on the ultimate question of whether a condition or prescription should be affirmed, modified, or withdrawn, because that conclusion is reserved to the Secretary's discretion and expert judgment. 7 CFR 1.660(b)(3), 43 CFR 45.60(b)(3), 50 CFR 221.60(b)(3). Therefore, the November 2005 preamble made clear that issues of law or policy are not appropriate for resolution in a trial-type hearing. 70 FR at 69809.
The Departments do not find it necessary to change the regulatory text on this point but are including an extended preamble discussion of “disputed issues of material fact,” which provides further clarification and draws from the Departments' experience to date under the rules. See section IV.A. below.
Some commenters requested that the regulations allow extensions of time for filing hearing requests, notices of intervention, or answers upon a showing of extraordinary circumstances. The interim final rules provided that no extension of time could be granted for these particular filings. 7 CFR 1.603(b), 43 CFR 45.3(b), 50 CFR 221.3(b). The revised interim final regulations do not incorporate these requested changes, but we have extended the time for filing a notice of intervention and response (see 7 CFR 1.622, 43 CFR 45.22, 50 CFR 221.22).
As noted in the preamble to the interim final rules, strict time limitations are necessary to ensure timely completion of the hearing and alternatives processes and to avoid delays in the FERC licensing proceeding. 70 FR at 69809. Parties with a significant interest in the proceeding will presumably have already participated in the pre-filing consultation, scoping, and study processes for at least 3 years prior to the submission of preliminary conditions or prescriptions. A substantial and voluminous record will also have been developed during that time. Most parties should therefore be sufficiently prepared to respond to the Departments' preliminary conditions or prescriptions and prepare a hearing request or notice of intervention and response within the allotted time, without the need for extensions.
The preamble to the interim rules also explained that, as a practical matter, no ALJ would be available prior to referral to rule on an extension motion. According to the commenters, an ALJ is not necessary to rule on extension requests and “the Departments could make such a determination during their initial adequacy review of the hearing request or alternate condition.” HRC Comments at 41. The Departments disagree. These rules establish stringent time frames to which all parties must abide, absent an extension granted by a neutral and impartial ALJ or a provision of these rules.
The commenters further observed that the hearing request imposes a significant burden on all parties that should be avoided if there is an available resolution that simply needs time to succeed. A new provision for a limited stay of the proceedings to allow settlement negotiations should provide an opportunity for such resolution. See 7 CFR 1.624, 43 CFR 45.24, 50 CFR 221.24, discussed below.
These sections from the interim regulations dealing with pending applications have been removed and replaced in the revised interim final regulations. They applied to license proceedings in which (1) a Department had filed a preliminary condition or prescription before the November 17, 2005, effective date of the regulations, and (2) FERC had not issued a license as of that date. They provided that hearing requests and alternatives in such cases would be due on or before December 19, 2005. All license parties in such proceedings that wished to request a hearing or submit alternatives by the latter date have done so, and all but one of those cases has since been resolved.
Some commenters raised concerns that there would be no comment opportunity on alternative conditions and prescriptions in pending cases where review under the National Environmental Policy Act (NEPA) had already been completed when the interim final rules were issued. They suggested that, for such cases, the regulations require reissuance or supplementation of the NEPA document. Under 7 CFR 1.674, 43 CFR 45.74, and 50 CFR 221.74, the Department must consider evidence and supporting material provided by any license party or otherwise reasonably available to it, including information on the environmental effects of conditions, prescriptions, and alternatives. On a case-by-case basis, FERC should consider whether supplemental NEPA analysis is appropriate under 40 CFR 1502.9.
In place of the removed interim regulations dealing with pending applications (discussed above), the revised interim final regulations include tables summarizing the steps in the trial-type hearing and alternatives processes and indicating the deadlines generally applicable to each step. The regulations state that, if the deadlines in the tables are in any way inconsistent with the deadlines as set by other sections of the regulations or by the ALJ, the deadlines as set by those other sections or by the ALJ control.
For example, under 7 CFR 1.603, 43 CFR 45.3, or 50 CFR 221.3, a deadline as shown in the table may be extended because it falls on a Saturday, Sunday, or holiday, or because the ALJ has granted a motion to extend it. See also 7 CFR 1.631(c), 43 CFR 45.31(c), and 50 CFR 221.31(c). The deadlines in the table may also be extended if the hearing requester and the Department agree to a stay to allow for settlement negotiations under 7 CFR 1.624, 43 CFR 45.24, or 50 CFR 221.24, discussed below.
Three minor changes have been made to these sections regarding representation of a party in the hearing process. Environmental organizations objected that the regulations did not allow them to designate one organization to represent another, as they have done in the past. In response to this comment, paragraph (b)(3) has been revised to change “officer or full-time employee” to “officer or agent,” leaving it up to an organization to decide what type of agent it wishes to designate to represent its interests.
Paragraph (c) has been revised to clarify that an individual representing himself or herself must file a notice or appearance, as must any other representative of a party.
And a new paragraph (d) has been added to expressly authorize the administrative law judge (ALJ) to require a party that has more than one representative to designate a lead representative for service of documents under 7 CFR 1.613, 43 CFR 45.13, or 50 CFR 221.13. This authority was implicit in the interim rules.
Two minor changes have been made to these regulations. Paragraph (a)(2) has been revised to state that service copies of a document may be printed on both sides of a page, to save paper. And paragraph (a)(4) has been revised to increase the minimum font size from 10 to 11 points to improve readability.
Paragraph (b) of these regulations has been revised to specify that an original and two copies of any document must be filed with the appropriate office under paragraph (a). This change will facilitate the expedited hearing process. Under paragraph (b)(2), supporting materials, which may be burdensome to copy, may be submitted in the form of a hard-copy original and an electronic copy on compact disc or other suitable media.
Several commenters suggested that the Departments revise the regulations to allow parties to file documents electronically, using email or FERC's eFiling system. The Departments agree that, in many circumstances, the electronic transmission of documents is a preferable means of providing documents to another party. As a result, the revised regulations in 7 CFR 1.613, 43 CFR 45.13, and 50 CFR 221.13 allow for electronic
The Departments disagree with the commenters' suggestion to use FERC's
Paragraph (d) dealing with nonconforming documents has been revised by deleting the second sentence concerning minor defects, which had stated that parties may be notified of “minor” technical defects and given a chance to correct them. Commenters objected that no definition of a “minor” defect was provided, thus presenting a risk of inconsistent and subjective interpretations. Commenters proposed the following definition: “For this purpose, `minor' means that the filing is substantively in compliance with the requirements for the filing.” HRC comments at 57.
This proposed definition fails to provide additional clarity and has not been adopted. Rather than trying to catalogue possible defects as “minor” or “major,” the Departments have deleted the second sentence. The revised interim final regulation thus puts parties on notice that non-conforming documents may be rejected, thereby helping to ensure compliance with technical filing requirements. The form, content, and filing requirements in the regulations are straightforward and clear, and the Departments expect compliance for documents to be accepted. It remains within the Departments' discretion to determine the appropriate remedy for failure to comply with these requirements.
These regulations have been revised in response to comments advocating the use of electronic means of service.
For service on
First, paragraph (c)(4) has been revised in 7 CFR 1.613 and 50 CFR 221.13 and has been added to 43 CFR 45.13. Under this paragraph, service may be made by electronic means if the party to be served has consented to that means of service in writing. However, if the serving party learns that the document did not reach the party to be served, the serving party must re-serve the document by another method. This provision, which is modeled on Rule 5(b) of the Federal Rules of Civil Procedure (FRCP), takes the place of former paragraph (c)(4)(ii) both in 7 CFR 1.613 and 50 CFR 221.13, which required the person served by electronic mail to acknowledge receipt of the document.
Second, the introductory language in paragraph (c) has been revised to allow the ALJ to order methods of service other than those enumerated in paragraphs (c)(1) through (c)(4), upon agreement of the parties.
With respect to agency personnel to be served, the Departments do not believe that any changes to the regulations are needed. Under paragraph (a)(1), a request for a hearing must be served on each license party; FERC's service list for the license proceeding will identify the persons or entities to be served and their addresses. Under paragraph (a)(2), a notice of intervention and response must be served on the Departmental entity that developed the preliminary condition or prescription; the preliminary condition or prescription will identify the persons or entities to be served and their addresses. Subsequent documents in the hearing process will be served on the Departmental representatives identified in the Department's answer or notice under 7 CFR 1.625, 43 CFR 45.25, and 50 CFR 221.25.
Some commenters suggested amending these sections to require that the agency rationale for its preliminary conditions or prescriptions include a clear and concise statement of the material facts relied upon and an “analysis of the project's impacts on the resources the agency administers.” HRC comments at 33.
The Departments agree that the rationale for a preliminary condition or prescription must contain sufficient information to enable license parties to identify disputed issues of material fact in light of the relevant legal standards under the FPA. The Departments' rationales also generally identify the nature of project-related impacts on agency-managed resources that their conditions or prescriptions are designed to address. However, EPAct is not reasonably interpreted to require the Departments to catalogue every fact considered in developing a preliminary condition or prescription. Accordingly, the Departments are not amending the regulatory text on this point.
The Departments received comments on various aspects of these regulations, including the time for filing hearing requests, page limits, and reliance on new evidence.
The Departments disagree with this proposal (except in cases where the Department is issuing conditions or prescriptions pursuant to reservations of authority, as discussed below). As the commenters recognize, the Departments have tried “to conform the trial-type hearing to the ILP schedule” (EEI/NHA comments at 21). Even though FERC's ILP schedule provides parties with 45 days to submit comments on preliminary conditions and prescriptions, the 30-day deadline for filing trial-type hearing requests is necessary both to fit the hearing process within the time frame established by FERC for each license proceeding, as required by EPAct, and to provide intervenors and the Department with sufficient time to evaluate hearing requests and prepare responses before the matter is referred to an ALJ. The 30-day deadline applies to any request for a hearing on a preliminary condition or prescription submitted to FERC before the license is issued.
Accordingly, paragraph (a)(2) of these regulations has been revised to provide a longer period of time—60 days as compared to 30 days—for a license party to request a hearing on disputed issues of material fact with respect to a preliminary condition or prescription in situations where the Department is exercising its reserved authority after the license has been issued.
As set forth in the interim final rules, the trial-type hearing procedures were carefully crafted to work within FERC's time frame, as required by Congress, while affording interested parties an opportunity to present evidence on disputed issues of material fact with respect to the Departments' mandatory conditions and prescriptions. 70 FR at 69806. Holding a hearing after submission of preliminary conditions and prescriptions allows for resolution of disputed factual issues at the most relevant time—before the Department completes necessary modifications to the conditions or prescriptions, before the close of the NEPA comment period, and before completion of the final environmental impact statement (EIS).
This approach also promotes efficiency by allowing the Departments to assess all relevant information—including any ALJ opinion, comments on FERC's NEPA document, and alternative conditions or prescriptions with supporting information—and to modify the conditions or prescriptions in one coordinated effort.
Providing for trial-type hearings solely at the modified stage is not a reasonable or efficient use of resources. Issuance of an ALJ opinion
The Departments disagree with comments that holding an adversarial hearing at the preliminary stage will jeopardize the possibility of settlement. The Departments' experience has been that several cases have settled after
The revised interim final regulations therefore continue the approach taken in the interim regulations of scheduling the trial-type hearing process immediately following the issuance of preliminary conditions and prescriptions. Nevertheless, the Departments acknowledge that exceptional circumstances may arise where facts not in existence and not anticipated at an earlier stage necessitate a new preliminary condition or prescription. This circumstance would be handled on a case-by-case basis, in coordination with FERC as necessary.
Nevertheless, having considered this comment and the purpose of the rule, the Departments have concluded that the required list of specific citations to supporting information and the list of exhibits need not be included in the page restrictions. The rule has been revised accordingly for the hearing request and the notice of intervention and response. See 7 CFR 1.621(d), 43 CFR 45.21(d), 50 CFR 221.21(d) and 7 CFR 1.622(d), 43 CFR 45.22(d), 50 CFR 221.22(d). This change will provide the parties with additional space to describe the disputed issues of material fact and to summarize expected witness testimony.
While the Departments share the commenters' interest in ensuring an expeditious and fair trial-type hearing, we disagree with the proposal to include a “good cause” requirement. Such a requirement could harm the Department's ability to rely on relevant information from the parties, such as newly completed studies, that might assist the Department in evaluating conditions and fishway prescriptions. Moreover, such a requirement may run counter to the parties' and the Department's interests in ensuring a “full and accurate disclosure of the facts.” 7 CFR 1.651(a), 43 CFR 45.51(a), 50 CFR 221.51(a).
Commenters objected that the 15-day period provided in the interim regulations for filing a notice of intervention and response to a hearing request was too short, pointing out that the Departments have 30 days to file their answers under interim 7 CFR 1.624(a), 43 CFR 45.24(a), and 50 CFR 221.24(a). While the Departments need the additional time to coordinate with each other and with the respective ALJ offices regarding the possible consolidation of related hearing requests, the Departments agree that a 15-day intervention and response period is very tight.
As revised, paragraph (a)(1)(ii) of these regulations gives license parties 20 days for filing a notice of intervention and response, thus adding 5 days to the overall hearing process. A diagram of the trial-type hearing process under these revised interim final rules is found in the discussion of 7 CFR 1.660, 43 CFR 45.60, and 50 CFR 221.60, below.
Paragraph (a)(2) has also been revised, to clarify the permissible scope of a notice of intervention and response.
Paragraph (b)(3) has been added, requiring an intervenor to state whether or not it consents to service by electronic means and, if so, by what means.
Finally, paragraph (d) has been revised to specify that citations to scientific studies, literature, and other documented information do not count against the page limits for the response.
These sections, including the section headings, have been revised slightly to focus on the substance rather than the timing of the Departments' interagency coordination regarding multiple hearing requests. A decision on consolidation of hearing requests must still be made before the Departments file their responses under revised 7 CFR 1.625, 43 CFR 45.25, and 50 CFR 221.25; but it is not necessary to specify the timing of steps within the interagency coordination process.
The introductory language to paragraph (c) has also been revised to clarify that two or more hearing requests may be consolidated only in part, which could be appropriate if they have only some issues in common.
Some commenters proposed that the regulations provide for consecutive rather than simultaneous 90-day hearings for those cases that the Departments do not consolidate. Similarly, they proposed that a consolidated hearing involving two Departments last up to 180 days and a consolidated hearing involving three Departments last up to 270 days. The Departments do not agree that EPAct affords this level of flexibility regarding timing.
EPAct requires that any trial-type hearing be conducted within the time frame established by FERC for each license proceeding. To fulfill this requirement, trial-type hearings are generally completed 180 days or so before completion of the final NEPA document and license issuance. Those 180 days are needed to complete several procedural steps, including the comment period on FERC's draft NEPA document, submission of revised alternatives, review of comments on the draft NEPA document, preparation of the alternatives analysis, modification of conditions or prescriptions, issuance of FERC's final NEPA document, and license issuance. Many if not all of these steps are dependent on receipt of the ALJ's decision.
Increasing the overall time frame for hearings from 90 to 180 or 270 days—either through consecutive 90-day hearings or one extended consolidated
Some commenters questioned the authority of the Departments to consolidate hearing requests, thereby giving an ALJ for one Department the authority to decide disputed issues of material fact for another. This issue is addressed below in connection with 7 CFR 1.660(d), 43 CFR 45.60(d), and 50 CFR 221.60(d).
These sections are new and reflect the Departments' experience in implementing the interim final rules, which did not contain any provision for a stay of the hearing process. As noted previously, the Departments have been able to settle several cases after hearing requests were filed. However, in other cases, the Departments found that settlement might have been possible, but once the hearing request was referred to the ALJ, the expedited hearing schedule left little time for further settlement discussions. Under these revised interim final regulations, before a case is referred to the ALJ, the hearing requester and the Department may agree to stay the hearing process for a limited period of time, not to exceed 120 days, to allow for settlement discussions. The Department's agreement to a stay will be based on its judgment as to the likelihood of achieving settlement within the period of the potential stay.
If necessary, the relevant Department and hearing requester(s) may request that FERC revise the time frame established for the license proceeding to accommodate the stay period and any subsequent hearing process that may be necessary if negotiations fail. FERC's regulations at 18 CFR 5.29(g) provide that FERC will consider such requests on a case-by-case basis. However, during our consultation process on these rules, FERC staff noted that the ILP is designed to allow for collaboration and coordination early in the process, with the goal that disagreements are worked out prior to the NEPA document stage. FERC staff expressed concern that allowance of stays of the trial-type hearing proceeding could encourage participants to wait until this late date to work out their differences.
A stay would not affect the deadline for filing a notice of intervention and response, so that the hearing requester and the Department will be aware of other parties' interest in the case.
These sections have been renumbered because of the insertion of the stay provisions just discussed. Revisions to paragraph (a) adjust the deadline for the Departments to file their answers to accommodate the change made to 7 CFR 1.622(a)(1)(ii), 43 CFR 45.22(a)(1)(ii), and 50 CFR 221.22(a)(1)(ii) regarding notices of intervention and responses and the addition of 7 CFR 1.624, 43 CFR 45.24, and 50 CFR 221.24 regarding stays. The 50 days allowed for the Department's answer runs from the deadline for filing a hearing request, and it therefore includes the additional 5 days allowed above for filing a notice of intervention and response. Thus, the increase from 45 to 50 days in paragraph (a) will not further extend the overall hearing process.
Paragraph (b)(3) has been added in response to comments. It requires the Department to provide a copy of any scientific studies, literature, and other documented information it relies on that are not already in the license proceeding record, as is required of the other parties by 7 CFR 1.621(b)(3), 43 CFR 45.21(b)(3), and 50 CFR 221.21(b)(3) and by 7 CFR 1.622(b)(2), 43 CFR 45.22(b)(2), and 50 CFR 221.22(b)(2).
Paragraph (b)(4) has also been added, requiring the Department to state whether or not it consents to service by electronic means and, if so, by what means.
The Departments received comments on various aspects of these regulations, including the content of the answer, filing a notice in lieu of an answer, and potential methods for avoiding an evidentiary hearing.
The Departments disagree that the regulations should be changed. The primary function of the answer is to present the Department's position on whether the hearing request raises issues that are factual, material, and in dispute. The answer may narrow the issues for a hearing or avoid one altogether if there is no disagreement between the primary parties (the hearing requester and the party Department) as to the facts. Given that intervenors cannot raise new issues, it is not necessary to respond to a notice of intervention and response in the same way as to a hearing request.
Further, reviewing every allegation raised in notices of intervention and responses would likely require extensive effort at the same time the Department is reviewing the hearing request, consulting with other Departments regarding consolidation, assembling exhibits and identifying witnesses, and preparing an answer or notice. Nothing precludes a Department from noting its position on statements in other filings, if doing so may narrow the issues for hearing. Since the regulations allow any party to the licensing proceeding to file a hearing request, intervenors are not prejudiced by this decision not to adopt the commenters' suggestion.
These commenters also stated that, if an answer remains permissive rather than mandatory, “a Department's failure to file an answer should be deemed a denial of the hearing request for failure to raise a disputed issue of material fact.” HRC comments at 35. It appears from the context that by “denial” the commenters mean rejection of the hearing request. As discussed below, the Departments favor leaving the
EPAct section 241 expressly entitles any party to the FERC license proceeding to “a determination on the record, after opportunity for an agency trial-type hearing . . . on any disputed issues of material fact” relating to mandatory conditions and prescriptions. Importantly, section 241 requires that the Departments' implementing regulations provide hearing parties the opportunity to undertake discovery and cross-examine witnesses. Thus, Congress did not contemplate that a “ `paper hearing' or other procedures” would suffice.
HRC's approach would grant the Department a gatekeeper role in determining what issues actually go to hearing. Although failure to raise a disputed issue of material fact should result in dismissal of a hearing request or component issue, the Departments believe that this determination is more appropriately left to an independent ALJ. Thus, unless the hearing process is stayed for a limited time for settlement negotiations under 7 CFR 1.624, 43 CFR 45.24, 50 CFR 221.24, the regulations require referral of any hearing request, answer, and intervention to the appropriate ALJ's office, which can then determine the existence of disputed issues of material fact. This approach benefits all parties by providing necessary transparency and avoiding any appearance of bias in making the important threshold determination of whether particular issues warrant a hearing.
In response to this comment, the Departments have considered their cumulative experience thus far with early evaluation of alternatives in connection with hearing requests filed under the interim final rule. As explained below (in discussing 7 CFR 1.671, 43 CFR 45.71, and 50 CFR 221.71), early, informal evaluation of proposed alternatives in conjunction with hearing requests has led to several successful settlements. The resulting condition or prescription may differ from both the Department's preliminary condition or prescription and any proposed alternative. In revising its condition or prescription pursuant to a settlement, the Department would have to follow any applicable requirements for considering available information. Nothing in the FPA requires a Department to seek public comment on a settlement that avoids the need for a hearing. The Departments believe that developing conditions and prescriptions that achieve resource protection while avoiding litigation furthers the goals of the FPA (and particularly the EPAct amendments) and should be encouraged where feasible.
Revisions to paragraph (b) of these regulations (renumbered like the previous section) track the changes to 7 CFR 1.612(b)(1), 43 CFR 45.12(b)(1), and 50 CFR 221.12(b)(1) concerning the number of copies.
Paragraph (c)(4) has been revised to require the referral notice to specify the effective date of the referral, which will be the basis for computing other time periods during the hearing process—see 7 CFR 1.630, 43 CFR 45.30, and 50 CFR 221.30 concerning docketing; 7 CFR 1.640(a), 43 CFR 45.40(a), and 50 CFR 221.40(a) concerning the prehearing conference; 7 CFR 1.641(d), 43 CFR 45.41(d), and 50 CFR 221.41(d) concerning discovery motions; and 7 CFR 1.660(a)(2), 43 CFR 45.60(a)(2), and 50 CFR 221.60(a)(2) concerning the ALJ's decision. This change will eliminate the confusion that occasionally arose under the interim regulations as to the date on which a referral notice was “issued.”
The interim final regulations provide that the Department receiving a hearing request will refer it to an appropriate ALJ office for a hearing by sending a “referral” package, which includes a “referral notice.” See 7 CFR 1.625(b)(5), 43 CFR 45.25(b)(5), 50 CFR 221.25(b)(5). The referral notice must include, among other things, “the date on which [the agency] is referring the case for docketing.” 7 CFR 1.625(c), 43 CFR 45.25(c), 50 CFR 221.25(c). In establishing deadlines for key milestones in the hearing procedure (such as docketing of the case by the ALJ, filing motions, setting the initial prehearing conference, etc.), a number of provisions refer to the “issuance of the referral notice” as the triggering event for calculating deadlines. See,
Because the interim final regulations used slightly varying terminology throughout and did not define the “issuance” date, there was a potential for confusion as to how deadlines should be calculated. Despite the provision noting that the referral notice should state the date on which the agency “is referring” the case, there was potential to construe the triggering date as being either the date the notice was sent from the referring agency, the date it was received by the ALJ, or (if different) the date stated as the
Corresponding changes have been made to various other provisions of the revised interim final regulations. These changes are intended to make clear that, where any provision sets forth a period of time after referral of the case within which an act or event must take place, the trigger for calculating the due date will be the “effective date” stated in the text of the referral notice. This may or may not be the same as the date the notice was written, the date it was sent out from the Department, or the date it was received by the ALJ. This approach is consistent with the intent of the original regulations. If the text of the referral notice does not set forth an “effective date,” then the effective date will be the date shown as the date the notice was sent out from the Department.
The introductory language to these regulations has been revised to include the phrase, “relating to any . . . Department's condition or prescription that has been referred to the ALJ for hearing,” previously found in interim 7 CFR 1.631(i), 43 CFR 45.31(i), and 50 CFR 221.31(i). That phrase properly covers the entire hearing process, not merely the ALJ's decision.
Paragraph (b) has been revised to affirm the authority of the ALJ to issue subpoenas under 7 CFR 1.647, 43 CFR 45.47, and 50 CFR 221.47.
Paragraph (c) has been added to allow the ALJ to shorten or enlarge the time periods set forth in the hearing process regulations generally. Several interim regulations specified that the ALJ could change the time period otherwise applicable, while others did not. The revised interim final regulations omit those context-specific authorizations in favor of this general authority of the ALJ to adjust time periods as necessary to effectively manage the hearing process. However, the revised interim final regulations state that the ALJ cannot extend the time period for rendering a decision on the disputed issues of material fact past the deadline set in 7 CFR 1.660(a)(2), 43 CFR 45.60(a)(2), or 50 CFR 221.60(a)(2), except in the extraordinary situation where the ALJ must be replaced under 7 CFR 1.632, 43 CFR 45.32, or 50 CFR 221.32 dealing with unavailability or 7 CFR 1.633, 43 CFR 45.33, or 50 CFR 221.33 dealing with disqualification.
Some commenters suggested that the regulations be amended to state expressly that the ALJ is authorized only to issue a decision limited to disputed issues of material fact and may not address the propriety of the Department's condition or prescription. Specifically, the commenters recommended that language from preamble to the interim final rules (70 FR at 69814) be incorporated into the regulations.
The Departments find that the regulations already adequately state this principle, and thus regulatory changes are not needed. While the commenters focused on the provisions at 7 CFR 1.631(i), 43 CFR 45.31(i), and 50 CFR 221.31(i), a separate provision of the regulations at 7 CFR 1.660(b), 43 CFR 45.60(b), and 50 CFR 221.60(b) specifies the content of an ALJ decision. That section provides that an ALJ decision must contain “findings of fact on all disputed issues of material fact” (paragraph (b)(1)) and only those “conclusions of law necessary to make the findings of fact” (paragraph (b)(2)). Paragraph (b)(3) then specifies, “The decision [of the ALJ] will not contain conclusions as to whether any preliminary condition or prescription should be adopted, modified, or rejected, or whether any proposed alternative should be adopted or rejected.” The experience of the Departments to date is that ALJs well understand the limitations on their authority under EPAct.
These commenters suggested further that 7 CFR 1.631(j), 43 CFR 45.31(j), and 50 CFR 221.31(j) be amended to specify that the ALJ is empowered, not just to “[t]ake any action authorized by law,” but in particular, to “summarily dispose of a proceeding, or part of a proceeding,” as provided under a comparable provision in the FERC procedural regulations, citing 18 CFR 385.504(b)(9). The commenters suggested that a new provision be added that lays out the procedures for summary disposition, either on motion of a party or at the initiative of the ALJ, following the example of the FERC regulations at 18 CFR 385.217.
The Departments agree that ALJs have the inherent authority to summarily dispose of a proceeding that fails to raise legitimate disputed issues of material fact; failure to raise such issues means the ALJ lacks jurisdiction to hear the matter. ALJs have recognized and used this authority in ruling on motions to dismiss in trial-type-hearings conducted under the interim final rules. The Departments conclude that adding language to the regulations to make this authority explicit would be beneficial and thus are adding a new paragraph (j) expressly setting forth this authority.
However, the Departments find it unnecessary to add a provision to these regulations comparable to 18 CFR 385.217. The term “disputed issue of material fact” has a distinct legal meaning in the context of these regulations, and whether or not such issues have been presented determines whether the ALJ has jurisdiction to hear any part of the matter. The inquiry is governed by the particular definition of “material fact” and related parameters set forth in these regulations. It would be confusing to litigants to set forth a new provision that uses a similar phrase in a different context (“genuine issue of fact material to the decision of a proceeding or part of a proceeding”), as the referenced FERC provision (or FRCP 56) does.
Paragraph (a)(2)(iii) in the interim regulations imposed a 10-page limit for motions, but the regulations contained no page limit for responses. The revised interim final regulations increase the page limit for motions in paragraph (a)(2)(iii) to 15 pages, including supporting arguments, and impose the same page limit for responses to motions in paragraph (c).
Two minor changes have been made to these sections. As mentioned previously, paragraph (a) has been revised to set the date for the initial prehearing conference at about 20 days after the effective date—rather than after “issuance”—of the referral notice under 7 CFR 1.626(c)(4), 43 CFR 45.26(c)(4), or 50 CFR 221.26(c)(4). And the list of topics to be covered in the initial prehearing conference under paragraph (a)(1)(iv) has been revised by adding the exchange of exhibits that will be offered as evidence under 7 CFR 1.654, 43 CFR 45.54, and 50 CFR 221.54.
Some commenters suggested that parties to a trial-type hearing be required to make “all reasonable efforts” to resolve procedural disputes before the pre-hearing conference, which they reason is critical to the effective conduct of that conference. HRC Comments at 47. The Departments believe the existing requirement that parties make “a good faith effort” is sufficient.
The same commenters suggested that the scope of the prehearing conference be limited to issues raised in each party's hearing requests or intervention and response. The commenters reasoned that this limitation is necessary to ensure that parties are not burdened with discussing matters beyond their expertise.
The Departments agree with this proposal in part and have revised paragraph (d) to provide that “(e)ach party's representative must be fully prepared for a discussion of all issues
These commenters further stated that parties to a trial-type hearing should always have the option of participating in the prehearing conference via telephone. They argued that prohibiting participation by telephone could create an unfair advantage for parties that have a greater ability to travel.
The revised interim final rule confirms that the prehearing conference will ordinarily be held via telephone, but preserves the flexibility established in the interim final rules for the ALJ to set the venue for a prehearing conference. This flexibility is important for cases where the ALJ and the parties would benefit from participating in a prehearing conference in person. The ALJ must retain the discretion to make this determination. In-person prehearing conferences may be justified in various circumstances, including cases where parties are located in close geographic proximity or where a large number of parties must interact with each other and the ALJ to resolve procedural and substantive issues.
Finally, the commenters suggested that the final rules allow a party who shows “good cause” for not attending a prehearing conference to object to any agreements or orders resulting from the prehearing conference. HRC Comments at 48-49. The commenters reasoned that parties are given only a few days' notice prior to the prehearing conference and may not be able to attend due to preexisting or unforeseen circumstances, such as lack of resources, travel delays, or medical emergencies.
The ALJ's ability to manage attendance at the prehearing conference is critical to ensuring timely resolution of issues in these expedited trial-type hearings. The revised interim final rules do not adopt the commenters' suggestion, but preserve the ALJ's discretion to accommodate a party who fails to attend a prehearing conference by not waiving that party's objection to any agreements or orders resulting from the conference. Parties may notify the ALJ if they have concerns about the schedule for the prehearing conference or will be unable to attend.
Minor editorial changes have been made to paragraphs (a)(1), (a)(2), (g), and (h)(1) in these regulations for greater clarity. The latter three changes are intended to clarify that paragraphs (g) and (h) are not separate bases for discovery but are subject to and further qualify the general provisions in paragraphs (a) and (b) applicable to all discovery requests.
As mentioned previously, paragraph (d) has been revised to set the deadline for discovery motions at 7 days after the effective date—rather than after the “issuance”—of the referral notice under 7 CFR 1.626(c)(4), 43 CFR 45.26(c)(4), or 50 CFR 221.26(c)(4).
Paragraph (h)(4) has been added to provide that, unless otherwise agreed to by the parties or authorized by the ALJ upon a showing of extraordinary circumstances, a deposition is limited to 1 day of 7 hours. This limitation is modeled on FRCP 30(d)(2).
Some commenters recommended that discovery be authorized to begin immediately upon referral of a case to an ALJ, and argued that requiring authorization from an ALJ or agreement of the parties (as the current regulations do) needlessly limits discovery rights. The commenters recommended that the Departments adopt the approach of the FERC regulations at 18 CFR 385.402(a) and 385.403(a), which authorize discovery to begin without the need for ALJ involvement unless there are discovery disputes.
The Departments disagree that the regulations should be changed. As noted in the preamble to the interim final rules, discovery procedures must be limited in this specialized trial-type hearing context to fit within the expedited time frame mandated by section 241 of EPAct. See 70 FR at 69812. In addition, discovery must be carefully managed to ensure that it is appropriate in light of the particular history of the underlying licensing proceeding. In most cases, the licensing proceeding will have been ongoing for a number of years, and the parties will be familiar with the key documents and issues that have been developed. Further, the Department will have already filed an administrative record to support its preliminary condition or prescription, thus making wide-ranging discovery unnecessary.
Moreover, the current regulations already provide for discovery to begin promptly and continue for an adequate time. Where the parties agree, discovery may begin right away, without a need for an authorizing order of the ALJ. Any discovery motions must be expeditiously filed, within 7 days of referral of the case to the ALJ. This prompt filing enables the parties to begin as soon as possible to formulate their discovery requests and to review one another's discovery requests. See 7 CFR 1.641(d), 43 CFR 45.41(d), 50 CFR 221.41(d).
The regulations further require the parties to make a good faith effort to reach agreement regarding discovery prior to the prehearing conference. See 7 CFR 1.640(d)(2), 43 CFR 45.40(d)(2), 50 CFR 221.40(d)(2). Because the scope
These commenters also suggested that the Departments should model the trial-type hearing discovery procedures on the FERC rules at 18 CFR part 385, subpart D. The Departments do not find it necessary to adopt procedures developed in the much broader FERC context. For the reasons discussed above, the limited procedures under these regulations are appropriate and adequately flexible for expedited trial-type hearing proceedings.
Moreover, contrary to the commenters' suggestions, the procedures for initiating discovery under these regulations are not more onerous than FERC's. Discovery under the FERC procedures is not necessarily automatic, as Rule 410 of the FERC procedures states that a presiding officer “may, by order,
The mechanisms included in these regulations are also similar to those under the FRCP. See Rule 26(d) (providing that, for most kinds of cases, parties are prohibited from directing discovery requests to other parties prior to conferring with other parties to develop a proposed discovery plan under Rule 26(f)).
For these reasons, no changes to the discovery provisions are needed.
Paragraph (b)(1) of these regulations has been revised to give the parties 10 days after the completion of discovery to update their witness and exhibit lists, as compared to 5 days in the interim regulations. The same change has been made to 7 CFR 1.652(a)(1)(iii), 43 CFR 45.52(a)(1)(iii), and 50 CFR 221.52(a)(1)(iii) concerning the submission of written testimony. The additional time will assist the parties in preparing their cases for trial.
This change will add 5 days to the overall hearing process, in addition to the 5 days added by 7 CFR 1.622(a)(1)(ii), 43 CFR 45.22(a)(1)(ii), and 50 CFR 221.22(a)(1)(ii) concerning notices of intervention and responses. A diagram of the trial-type hearing process under these revised interim final rules is found in the discussion of 7 CFR 1.660, 43 CFR 45.60, and 50 CFR 221.60, below.
A new paragraph (a)(2) has been added to these regulations, stating that, unless the parties agree otherwise, a party may propound no more than 25 interrogatories, counting discrete subparts as separate interrogatories, unless the ALJ approves a higher number upon a showing of good cause. This limitation is modeled on FRCP 33(a).
Some commenters suggested that the regulations pose unnecessary hurdles to parties wishing to participate in a deposition via telephonic conference call, to record a deposition on videotape, or to offer testimony during the trial via telephone. They stated that the regulations, as written, allow parties to block others from participating in depositions and at the hearing via telephone, which may prejudice parties who lack the means to participate in person. The commenters stated that no party should be allowed to veto another's ability to participate by conference call or video conference, and the ALJ should not be allowed to prohibit witnesses from submitting testimony by telephone or video, in light of advances in technology.
Specifically, the commenters suggested that the language “if agreed to by the parties, or approved in the ALJ's order” in paragraph (c)(4) of these regulations be struck from the provision regarding the participation in depositions by telephonic means and that the phrase “subject to any conditions the parties may agree to or the ALJ may impose” in paragraph (g) be struck from the provision regarding recording of depositions on videotape. The commenters also recommended that the phrase “the ALJ may by order allow” be struck from 7 CFR 1.652(c), 43 CFR 45.52(c), and 50 CFR 221.52(c) and be replaced with the phrase “the ALJ will allow” in the provision regarding allowing witness testimony by telephonic conference call during the trial.
The Departments disagree that the regulations need to be amended. As written, the regulations do not prevent parties from participating in depositions via telephonic conference call, from recording depositions on videotape, or from offering testimony during the trial via telephone or video recording. Rather, the regulations offer parties the opportunity to address such matters by agreement. If the parties are unable to agree, the regulations appropriately allow the ALJ to manage these matters within his or her discretion, with input from the parties as appropriate. Because the ALJ will be in the best position to evaluate the parties' relative abilities to participate and the other needs in the case (need for expedition versus need for live testimony, availability of technologies, costs, etc.), this issue is best addressed on a case-by-case basis, as the current regulations contemplate.
Minor editorial changes have been made to paragraph (a)(1) and (a)(2) of these regulations to clarify that, while it is up to each party to decide whether or
As revised, paragraph (a) of these regulations states that the hearing will be held at the time and place set during the prehearing conference, generally within 25 days after the completion of discovery, an increase from the 15 days provided in the interim regulations. This 25-day period includes the 5 days previously added by 7 CFR 1.642(b)(1), 43 CFR 45.42(b)(1), and 50 CFR 221.42(b)(1) concerning updated witness and exhibit lists, so the net increase is a further 5 days, to assist the parties in preparing their cases for trial.
Thus, the regulatory changes discussed to this point add a total of 15 days to the overall hearing process: 5 days for the notice of intervention and response under 7 CFR 1.622(a)(1)(ii), 43 CFR 45.22(a)(1)(ii), and 50 CFR 221.22(a)(1)(ii); 5 days for the updated witness and exhibit lists under 7 CFR 1.642(b)(1), 43 CFR 45.42(b)(1), and 50 CFR 221.42(b)(1); and 5 days for the start of the hearing under 7 CFR 1.650, 43 CFR 45.50, and 50 CFR 221.50. See the trial-type hearing process diagram in the discussion of 7 CFR 1.660, 43 CFR 45.60, and 50 CFR 221.60, below.
Some commenters observed that the interim regulations are silent on the location of the trial-type hearing, other than stating that the location will be decided at the prehearing conference. They suggested that each hearing be held in a field location commonly used by the parties to discuss matters concerning the hydropower project that is the subject of the hearing or, if such a locale is not possible, in Washington, DC. The commenters thus recommended that paragraph (a) of these regulations be amended to include as a final sentence, “A location local to the project and convenient to the parties will be preferred.” HRC Comments at 46.
The Departments agree that the hearings should be held in a location that is convenient to the parties whenever possible. However, no change in the regulatory language is necessary. As the rule is currently written, the ALJ has discretion to manage hearing locations. As the ALJs have done in prior cases, the Departments expect that an ALJ will take into consideration factors such as convenience to the parties and to the ALJ, the location of witnesses, and the availability of adequate hearing facilities when determining the location of a hearing.
Paragraph (a) of these regulations has been revised to clarify that the parties' right to present evidence is qualified by the requirements of other regulations governing the parties' initial pleadings and prehearing submissions.
Two changes have been made to these sections with respect to written direct testimony. First, paragraph (a) has been revised to distinguish between direct testimony for each party's initial case and direct rebuttal testimony. As revised, the regulations provide that all direct testimony for each party's initial case must be prepared and submitted in written form; it will be up to the ALJ to decide whether to allow rebuttal testimony, and if so, whether to require that it be submitted in written form also.
Second, as previously mentioned, paragraph (a)(1)(iii) has been revised to increase from 5 days to 10 days the time that the parties have to submit their written testimony. These are the same additional 5 days provided by revised 7 CFR 1.642(b)(1), 43 CFR 45.42(b)(1), and 50 CFR 221.42(b)(1) concerning updated witness and exhibit lists, and they do not further extend the overall hearing process.
The interim regulations specified that the standard of proof applicable to a trial-type hearing is a preponderance of the evidence. The interim final rule did not address the issue of which party bears the burden of proof, other than to request comments on that question. 70 FR at 69813.
Commenters generally supported the rule with respect to the standard of proof; and they agreed that the burden of persuasion should be assigned, in accordance with 5 U.S.C. 556(d), to the party that is “the proponent of [the] rule or order.” They disagreed, however, as to which party is the “proponent.”
According to EEI/NHA, “In the mandatory conditioning context, the proponent is the Department that seeks to impose a condition on a license.” EEI/NHA comments at 19. PacifiCorp and Southern Co. filed comments agreeing with EEI/NHA. According to HRC, on the other hand,
The hearing requester is undoubtedly the proponent of a final decision by the ALJ resolving disputed issues of material facts in the requester's favor. While the Secretary's filing of mandatory conditions gives rise to the dispute, the conditions themselves are not the subject of the hearing. The conditions, and whether they are supported by substantial evidence, are only reviewable under FPA section 313[,] 16 U.S.C. 825
The question of which party bears the burden of persuasion has been addressed in six proceedings initiated under the interim final rules. Each of six independent ALJs, including at least one from each Department, concluded that the hearing requester bears the burden of persuasion.
The Departments concur with HRC and the unanimous position of the ALJs on this issue. That position is consistent with the general rule that the burden of persuasion lies with the party seeking relief. See
A hearing request under EPAct section 241 is a challenge to the factual basis for a Department's preliminary condition or prescription. The validity of the condition or prescription is not itself at issue, as EPAct allows for a hearing only on disputed issues of material fact, and the ALJ has no authority to adopt, modify, or reject a preliminary condition or prescription.
The revised interim final regulations add a new paragraph (a) concerning the burden of persuasion and retain the standard of proof from the interim regulations in paragraph (b). The combined effect of the burden of persuasion and the standard of proof is that, in order for the hearing requester to prevail on any given issue, it must establish by a preponderance of the evidence that the facts are as the requester asserts, rather than as the Department asserts. If the ALJ finds that it is more likely than not that the facts are as the Department asserts, or that the evidence is so closely balanced that there is no preponderance in either direction, the requester will have failed to meet its burden of persuasion and the Department's factual assertions on the issue will stand.
Paragraph (a)(1) of these regulations has been revised to increase the time that the parties have to file their post-hearing briefs from 10 days to 15 days. This change will add 5 days to the overall hearing process, beyond the 15 days added by regulatory changes discussed previously. See the trial-type hearing process diagram, below.
Commenters raised a number of issues related to these regulations, including the timing and finality of the ALJ's decision and the ability of an ALJ from one Department to render a decision for another Department.
The Departments received numerous comments about the tight time frames in the interim regulations and also received several suggestions for revisions extending certain procedural steps. In particular, several commenters argued that the time for the ALJ's decision should fall outside the 90-day hearing time frame. EEI/NHA argued that the Departments had misconstrued the statute on this issue:
[T]he extraordinarily compressed hearing schedule is inconsistent with the plain language of section 241, which provides that a “determination on the record,”
The Departments agree in part. The provisions of EPAct and the APA that the commenters cite do provide a basis for considering the post-hearing briefing and decision stages of the hearing process to be outside the 90-day requirement. However, other provisions of EPAct militate against EEI/NHA's expansive view that the 90-day period should not begin until discovery and other prehearing stages have been completed, and that the briefing and decision stages should extend for 75 days beyond the end of the 90-day period.
First, EPAct required the three Departments to “establish jointly, by rule, the procedures for such expedited trial-type hearing, including the opportunity to undertake discovery and cross-examine witnesses.” A schedule that allowed 90 days just for the taking of evidence at the hearing could hardly be considered “expedited.” Moreover, the statute's specific mention of discovery indicates that Congress intended the 90 days to cover both prehearing and hearing procedures.
Second, EEI/NHA cites APA section 557 to support its argument that post-trial briefing should not be considered part of the 90-day hearing process, but rather part of the “decision.” EEI/NHA notes that this separate section addressing decisions specifically affords parties the opportunity to offer proposed findings of fact and conclusions. The relevant APA section, however, is 557(c), which expressly applies only to “a recommended, initial, or tentative decision, or a decision on agency review of the decision of subordinate employees.” 5 U.S.C. 557(c). The ALJ's opinion in an EPAct trial-type hearing does not fall within any of these decisional categories. The preamble to the interim final rules recognized that the EPAct trial-type hearing decision is not the type contemplated by section 557(c). 70 FR at 69814. And at least one ALJ has recognized the unique nature of EPAct trial-type hearings, noting in the burden of proof context that the hearing provisions of the APA “do not however directly or clearly apply to the postures of the parties in this unique new proceeding authorized by the EPAct.”
Third, EPAct section 241 requires that the trial-type hearing be conducted “within the time frame established by
In any event, EPAct requires the Departments to afford license parties an “opportunity for an agency trial-type hearing of
In light of the competing considerations, the Departments have decided to extend some of the time frames in the hearing process that seemed particularly tight. As noted previously, 5 days have been added to the period for filing a notice of intervention and response, which occurs before the case is referred to the ALJ. Five days each have likewise been added to the periods for filing updated witness lists, exhibit lists, and written testimony, for commencing the hearing, and for filing post-hearing briefs, all of which occur after the case has been referred to the ALJ.
Under this schedule, assuming a 5-day evidentiary hearing, the post-hearing briefs would be filed about 90 days after the case has been referred to the ALJ, as opposed to 75 days under the interim regulations. Under revised 7 CFR 1.660(a)(1), 43 CFR 45.60(a)(1), and 50 CFR 221.60(a)(1), the ALJ would then have 15 days after the deadline for filing the post-hearing briefs, which is 30 days from the close of the hearing, to render his or her decision. This timing means that the ALJ decision would be issued within 105 days after the case was referred to him or her. If necessitated by the length of the evidentiary hearing, the desirability of reply briefs, or other circumstances, the ALJ could extend the deadline for his or her decision under revised 7 CFR 1.631(c), 43 CFR 45.31(c), and 50 CFR 221.31(c), but not past 120 days after the case was referred to the ALJ, under 7 CFR 1.660(a)(2), 43 CFR 45.60(a)(2), and 50 CFR 221.60(a)(2).
Thus, the Departments have decided to keep the (initial) post-hearing briefing within the 90-day schedule; but based on EEI/NHA's argument, have allowed the ALJ 15 to 30 days past the 90-day period to render his or her decision. Even if the ALJ takes the full 30 days, resulting in a decision 120 days after the case was referred, the decision would come before comments are due to FERC on its draft NEPA document under FERC's usual schedule set forth in 18 CFR 5.25(c). Even as extended, therefore, the trial-type hearing can be conducted “within the time frame established by [FERC] for each license proceeding,” as required by EPAct.
The following diagram shows the overall trial-type hearing process under the revised interim final rules. The number above each arrow shows the maximum number of days normally allowed from the completion of the previous step to the completion of the next step, while the number below each arrow shows the cumulative number of days from the beginning of the trial-type hearing process to the completion of the next step in the process.
Regardless of what practice is followed for other aspects of the licensing process before FERC, EPAct mandates that disputed issues of material fact with respect to conditions and prescriptions “
The Departments' view is supported by the district court's holding in
The Secretaries' authority to determine whether to issue mandatory conditions and prescribe fishways is not undercut by this approach. While the ALJ may determine specific facts, the resource agencies retain the responsibility of determining the weight and significance to be accorded such facts in finalizing mandatory conditions or prescriptions, in light of the resource agencies' objectives for the resources they manage. The Departments also have an obligation to ensure that their modified conditions and prescriptions are supported by substantial evidence as informed by all relevant information in the administrative record, which may include new information that was not available during the hearing.
The Departments also note that, contrary to the commenter's suggestion, both EPAct and the interim final regulations clearly preserve the Secretaries' discretion to determine whether to issue conditions or prescriptions and how to structure them. The regulations are clear that the ALJ is empowered to render only factual findings. While conclusions of law necessary to reach those findings (such as rulings regarding the admissibility of evidence) may be made, the ALJs may not include substantive legal conclusions with their final determinations.
Nevertheless, to avoid confusion over different possible meanings of the term “final,” the Departments have revised
As amended by EPAct, FPA sections 4(e) and 18 provide that “[a]ll disputed issues of material fact raised by any party shall be determined in a single trial-type hearing
The interim final rules explained that hearing requests received by NOAA would be referred to an appropriate ALJ office outside the Department of Commerce because neither NOAA nor the Department of Commerce has a staff of ALJs. See 70 FR at 69810. NOAA is taking this opportunity to clarify that, for any trial-type hearings arising with respect to NOAA conditions or prescriptions under FPA sections 4(e) or 18, the United States Coast Guard Office of Administrative Law Judges, within the Department of Homeland Security, is an appropriate forum.
Authority to refer trial-type hearings involving NOAA under the FPA to the Coast Guard's Office of ALJs is set forth at 15 U.S.C. 1541, which provides that,
As with the change to 7 CFR 1.621(a)(2), 43 CFR 45.21(a)(2), and 50 CFR 221.21(a)(2) discussed above, paragraph (a)(2) of these regulations has been revised to provide a longer period of time—60 days as compared to 30 days—for a license party to submit a proposed alternative condition or prescription to a Department in cases where the Department is exercising its reserved authority after issuance of a license under 7 CFR 1.601(d)(2), 43 CFR 45.1(d)(2), or 50 CFR 221.1(d)(2).
Several commenters requested that the Departments extend the deadline for filing alternative conditions and prescriptions because they believe the interim regulations do not provide sufficient time to prepare alternatives or attempt informal resolution of contested issues. Specifically, these commenters suggested that the Departments extend the existing deadline for filing alternatives from 30 days to 45 days
The Departments have decided to retain a concurrent filing deadline for requests for hearings and proposals of alternative conditions. As explained in the preamble to the interim final rules, the 30-day deadline for filing alternative conditions and prescriptions provides several benefits for the parties, FERC, and the Departments. See 70 FR 69807. Among these benefits are, first, that early submission of proposed alternatives helps ensure that such proposals are available to FERC during the development of its draft NEPA document. Second, the concurrent filing may help inform any settlement negotiations, thus potentially avoiding the need for a trial-type hearing.
Both of these concerns remain relevant and have been reaffirmed in the Departments' experience implementing the interim final regulations. In practice, there have been a number of cases where the relevant parties were able to settle disputes without the need for a trial-type hearing. In several of those cases, the Departments found that having proposed alternatives in hand to review along with the hearing request furthered the goal of identifying conditions and prescriptions that achieved necessary resources protection while avoiding litigation.
Also in practice, parties did not appear to be unduly burdened by the requirement to concurrently file hearing requests with proposed alternatives, as reflected in the number of alternatives filed in a timely manner. We previously noted how proposed alternatives may factor into settlement discussions (see discussion of 7 CFR 1.625, 43 CFR 45.25, and 50 CFR 22.25).
A diagram of the overall alternative condition and prescription process under these revised interim final rules is found in the discussion of 7 CFR 1.673, 43 CFR 45.73, and 50 CFR 221.73, below.
These sections are new. They provide that, within 20 days after issuance of the ALJ's decision in a trial-type hearing, a license party may file a revised alternative condition or prescription, if two conditions are met. First, the party must have previously filed a proposed alternative under 7 CFR 1.671, 43 CFR 45.71, or 50 CFR 221.71. And second, the revised proposed alternative must be designed to respond to one or more specific findings of fact by the ALJ.
These sections afford an opportunity to license parties who have previously proposed an alternative to submit a revised alternative, if the facts as found by the ALJ following the trial-type hearing are different from those assumed by the party as the basis for its original alternative. The revised proposed alternative must identify the specific ALJ findings that it addresses and how the revised alternative differs from the original alternative. Filing a revised alternative will constitute a withdrawal of the original alternative.
These sections have been redesignated because of the insertion of the revised proposed alternative provisions just discussed. They have also been renamed to focus on the timing of the Department's filing of its modified condition or prescription. Under paragraph (a), the Department will generally take action on any proposed alternative and file its modified condition or prescription within 60 days after the deadline for filing comments on FERC's draft NEPA document under 18 CFR 5.25(c) unless additional time is needed to complete supplemental analysis of the modified condition or prescription. This will typically be 75-90 days after the deadline for the parties to file revised alternatives under 7 CFR 1.672, 45 CFR 45.72, or 50 CFR 221.72, depending on when the ALJ decision is issued and any necessary supplemental analysis is completed. However, under new paragraph (b), if the Department needs additional time to complete the steps set forth in paragraph (a), it will so inform FERC within that same 60-day period.
The following diagram shows the overall alternative condition and prescription process under the revised rules. The number above each arrow shows the maximum number of days normally allowed from the completion of the previous step to the completion of the next step, while the number below each arrow shows the cumulative number of days from the beginning of the alternatives process to the completion of the next step in the process.
HRC suggested that the regulations expressly provide instructions to parties who wish to submit comments regarding proposed alternative conditions or prescriptions. It noted that the regulations already obligate the Departments to consider “evidence and supporting material provided by any license party,” comments on the preliminary condition or prescription, and comments on FERC's draft or final NEPA documents. HRC suggested that the list of material to be considered in reviewing an alternative implies that any comments received on alternatives will be considered, without specifying how that should be done.
HRC proposed that paragraph (a) of these regulations be amended to expressly include comments received on the proposed alternative. It further recommended that a new paragraph (e) be added to provide a discrete comment period on alternative conditions and prescriptions. Such comments, HRC suggested, should be accepted from any member of the public, whether or not they are parties to the license proceeding. According to HRC, the Departments cannot rely solely on comments submitted to the FERC on the draft NEPA document.
Finally, HRC suggested adding a completely new section (to come after 7 CFR 1.671, 43 CFR 45.71, and 50 CFR 221.71) to address how comments on the proposed alternative may be submitted. It suggested that the regulations include: A 60-day comment period on proposed alternatives; filing and service requirements for comments similar to those for proposed alternatives; a requirement that parties provide specific citations to scientific studies, literature, and other documents and to supply copies of materials not already in the licensing proceeding; and a statement that parties may also file comments on the FERC NEPA document addressing the proposed alternative within the time frame established by FERC.
The Departments disagree that a specific comment process for alternatives is needed. The statute lays out specific criteria for acceptance of an alternative, and the existing regulations require that the proponent submit information on each of the criteria. The regulations also require that alternatives and supporting documents be served on each party to the license proceeding, so that interested parties will have notice. Any license party is free to submit comments, either supporting or opposing a proposed alternative; and the Departments will consider comment materials timely submitted by all parties.
As discussed below, the Departments are amending the regulations at 7 CFR 1.674, 43 CFR 45.74, and 50 CFR 221.74 to clarify that they will consider information regarding alternatives submitted by any license party by the close of the FERC NEPA comment period.
Paragraph (a) of these regulations (redesignated like the previous section), has been revised slightly to clarify that a Department's burden in reviewing any proposed alternatives is to consider evidence and supporting material provided by any license party or otherwise
As mentioned above, a new paragraph (c) has been added to specify that the Department will consider evidence and supporting material provided by any license party by the deadline for filing comments on FERC's draft NEPA document under 18 CFR 5.25(c). Given the complexity of the issues and the volume of material to be analyzed in the typical case, the Departments cannot reasonably be expected to continue to accept and incorporate new information right up until the FERC filing deadline for modified conditions and prescriptions.
Finally, paragraph (d) (as redesignated) has been revised to specify that, if an alternative submitted by a license party under 7 CFR 1.671, 43 CFR 45.71, or 50 CFR 221.71 was subsequently withdrawn, the Department will include in its statement to FERC an explanatory notation that a proposed alternative was voluntarily withdrawn. This provision responds to GAO's recommendation that the Department provide additional information in cases where an alternative was withdrawn,
The Departments received comments on various aspects of these regulations, including the consideration to be given alternative conditions and prescriptions, the meaning of “substantial evidence,” “adequate protection,” and “cost,” and the applicability of FPA section 33.
The same commenters also proposed a two-tiered approach under which alternatives not meeting the section 33 criteria for required acceptance would be moved into a category of alternatives that the Department “may consider.” HRC comments at 66. According to this proposal, where multiple alternatives have been submitted that do not meet the statutory criteria for required acceptance, “[a]ll of these alternatives are then compared to the original condition the Department proposed, and the Department makes a determination as to which best protects the resource.” HRC comments at 66.
The commenters' proposal appears to impose a new substantive standard for selection of “second tier” alternatives—a standard that Congress did not require. These regulations are limited to implementing the specific requirements of section 33. No regulation is needed to address Departmental action where an alternative fails to meet the statutory criteria, as the Departments retain discretion to consider all record documents. The commenters' proposed revisions have not been adopted.
The “adequate protection” standard in section 33(a)(2) applies specifically to the alternatives analysis process for conditions under FPA section 4(e). Section 4(e) in turn authorizes the Secretaries of the Interior, Commerce, and Agriculture to condition hydropower licenses on provisions deemed “necessary for the
Determining what constitutes “adequate protection” when developing section 4(e) conditions falls within the sole authority and discretion of the relevant Secretary, and the answer will vary among cases and reservations depending on a variety of factors. Similarly, the relevant Secretary has sole authority and discretion to determine if a proposed alternative condition rises to the level of “adequate protection.” As such, the Departments do not believe that further clarification is feasible or necessary.
Some commenters argued that the plain language of FPA section 33(a)(4) and (b)(4) must be interpreted to require that the Department file a written statement explaining the basis for its condition or prescription and show that it gave “equal consideration” to the factors identified in the statute whether or not a party has submitted a proposed alternative condition or prescription. Some commenters further suggested that a statement must be prepared for both preliminary and modified (final) conditions and prescriptions.
The operative statutory language states,
The Departments disagree that the statute requires a written statement demonstrating “equal consideration” of the statutory factors in cases where no alternatives have been submitted. In determining the plain meaning of statutory language, the reviewing body
Section 33 is entitled “Alternative conditions and prescriptions,” and it lays out a sequential series of steps for considering proposed alternatives and reaching a final determination. Section 33(a)(l) permits any party to a hydropower license proceeding to propose an alternative condition. Under section 33(a)(2), the Secretary must accept an alternative if it “(A) provides for the adequate protection and utilization of the reservation; and (B) will either, as compared to the condition initially [deemed necessary] by the Secretary[,] (i) cost significantly less to implement; or (ii) result in improved operation of the project works for electricity production.” 16 U.S.C. 823d(a)(2).
When evaluating an alternative, section 33(a)(3) directs the Secretary to consider evidence otherwise available concerning “the implementation costs or operational impacts for electricity production of a proposed alternative.” And section 33(a)(4) directs the Secretary to submit a statement “with any condition under section 4(e) or alternative condition [the Secretary] accepts” to demonstrate that the Secretary “gave equal consideration to the effects of the condition adopted and alternatives not accepted.” 16 U.S.C. 823d(a)(4). Again, the language at section 823d(b) (regarding fishway prescriptions) is substantially identical.
Thus, a contextual analysis of section 33 shows that the equal consideration requirement is triggered by the submission of an alternative condition or prescription. The requirement does not apply at the preliminary condition or prescription stage, since no alternatives have been submitted at that stage. And it does not apply at the modified condition or prescription stage, unless a license party has proposed an alternative.
This contextual analysis of section 33 is buttressed by an important practical consideration. In the absence of an alternative that has been proposed and supported by a license party under 7 CFR 1.671(b), 43 CFR 45.71(b), or 50 CFR 221.71(b), the Departments will generally lack sufficient information about the factors listed in section 33(a)(4) and (b)(4)—energy supply, distribution, cost, and use; flood control; navigation; water supply; air quality; and other aspects of environmental quality—to provide a meaningful equal consideration statement.
Nevertheless, the Departments as a matter of course submit written explanations of the basis for their conditions or prescriptions, together with record materials supporting those conditions or prescriptions. See redesignated 7 CFR 1.674(c)(1)(i), (2); 43 CFR 45.74(c)(1)(i), (2); or 50 CFR 221.74(c)(1)(i), (2). And as a matter of policy, in cases where a Department determines that it has sufficient information and staff resources to provide a meaningful analysis of the statutory factors even in the absence of an alternative, it may do so. No changes to the regulations are needed in response to the commenters' concern.
As noted previously, some commenters urged that the final rules provide additional guidance on the types of issues that are appropriate for resolution in a trial-type hearing under EPAct. A “disputed issue of material fact” must meet three fundamental requirements: The matter raised must (1) concern a “fact,” (2) be “material,” and (3) be “disputed.” These are distinct inquiries, and all three must be fully considered by an ALJ.
In the context of ordinary litigation, an issue of fact is one that would typically be left to a jury in a proceeding where a jury is the trier of fact.
While this statement provides a useful starting point, the analogy to jury facts may be somewhat confusing in the context of EPAct trial-type hearings because the ALJ is the factfinder. And while Federal litigation may involve a range of issues from purely factual to purely legal, with some mixed issues, trial-type hearings under these rules are limited to resolving “disputed issues of material fact.” Clear and specialized standards must be applied to hearing requests under these regulations.
To determine whether an issue is “factual” for purposes of these regulations, it helps to first distinguish matters of fact from matters of law and policy. Substantive legal issues are excluded from the scope of the hearing. ALJs are empowered to render legal conclusions only to the extent necessary to facilitate the presentation of evidence and conduct of the trial on the underlying factual issues. See 7 CFR 1.60(b)(1)(ii), 43 CFR 45.60(b)(1)(ii), 50 CFR 221.60(b)(1)(ii); 70 FR at 69814.
It would not be appropriate, for example, to hold a hearing on whether or not a measure that the Secretary is considering prescribing would constitute a “fishway,” which is a term that has been partially defined by Congress. Public Law 102-486, § 1701(b), 106 Stat. 3008 (1992). Nor is the ALJ empowered to decide what substantive standards must be met to justify the Secretary's exercise of discretion under sections 4(e) and 18 (
Matters of policy are also not appropriate for a trial-type hearing. Examples of such matters include what types and levels of adverse effects to a species from a project would be “acceptable,” or what kinds of mitigation measures may be desirable or “necessary” to protect a resource. These
Having ruled out legal and policy issues, it is next useful to consider whether an issue presented may be either proved or disproved by a preponderance of the evidence. Good examples of factual inquiries that lend themselves to resolution via trial-type hearings are set forth in the November 2005 preamble—whether a fishery was historically warm water or cold water, and whether fish historically were present above a dam. 70 FR at 69809. Using the framework discussed above, these are clearly “historical facts” (or “jury facts”). Such issues may be resolved based on available evidence and do not involve attempts to predict what may happen in the future.
To be appropriate for resolution, a factual issue must be “material” to a Secretary's consideration of the preliminary condition or prescription,
In addition to the Department's stated basis for the preliminary condition or prescription, the ALJ must be aware of the relevant legal framework governing the exercise of conditioning and prescriptive authority. Only factual issues that involve the kinds of considerations that the Secretary may legally take into account should be viewed as potentially affecting the Secretary's ultimate decision. In other words, whether an issue of fact is “material” must be decided with reference to the substantive law governing the Department's exercise of authority under the FPA.
Other issues that are not material to a Department's preliminary condition or prescription include those that blur the distinction between the EPAct trial-type hearing process and the separate alternatives process created under new FPA section 33. Trial-type hearings are limited to resolving disputed issues of material fact relating to a Department's own preliminary condition or prescription. Where the hearing requester's purpose is to establish facts that may support an alternative proposed under the distinct section 33 process, but that do not otherwise affect the Department's ultimate decision whether to affirm, modify, or withdraw its preliminary prescription or condition, then the issue raised is not “material” to that condition or prescription.
Such matters must be resolved by the relevant Department through the section 33 process, and the ALJ should not make findings that would preempt the Department's review. For example, it would be inappropriate to ask the ALJ to resolve whether an alternative method of passing fish would be more desirable or more effective than the method prescribed by the Secretary.
EPAct provides for a hearing only where specific material facts are actually in dispute. The implementing regulations thus require that a hearing requester specifically identify the factual statements made or relied upon by an agency that are disputed. 7 CFR 1.621(b)(2)(i), 43 CFR 45.(b)(2)(i), 50 CFR 221.21(b)(2)(i). Further, the agency has the option of stipulating to the facts as presented in the hearing request. 7 CFR 1.621(b)(1)(i), 43 CFR 45.(b)(1)(i), 50 CFR 221.24(b)(1)(i). Such a stipulation will mean that there is no dispute to be resolved through a trial-type hearing.
Some commenters argued that the Departments should maintain a separation of functions during the EPAct section 241 trial-type hearing. Section 241 trial-type hearings are conducted by each Department's independent adjudicative body—the Office of Hearings and Appeals for the Department of the Interior, the Office of Administrative Law Judges for the Department of Agriculture, and the United States Coast Guard's Office of Administrative Law Judges for the Department of Commerce. Each of these ALJ offices is an independent entity with its own staff that is entirely separate from the conditioning or prescribing agency. Departmental staff that develop conditions or prescriptions or participate in the trial-type hearing have no more input into the ALJ's decision-making than the other parties to the hearing process and are subject to the same prohibition on ex parte communication. 7 CFR 1.634, 43 CFR 45.34, 50 CFR 221.34. The final rule therefore does not need a provision regarding separation of functions in section 241 trial-type hearings.
Citing 5 U.S.C. 554(d)(2), these commenters further argued that Departmental staff involved in preparing preliminary conditions or prescriptions and representing the agency in the trial-type hearing are barred by the APA's separation of functions provision from advising senior staff and officials on any decision related to modified conditions, prescriptions, or section 33 alternatives.
The Departments disagree. Section 554 provides that in every case of
A Department's decision whether and how to modify the preliminary conditions or prescriptions does not constitute “an adjudication required by statute to be determined on the record after opportunity for an agency hearing.” See 2 K. Davis, Administrative Law Treatise § 10:7 (1979). Although FPA section 33 establishes specific criteria for considering alternatives, neither EPAct nor the FPA requires the Departments to conduct an on-the-record hearing for this separate and distinct phase.
Moreover, section 554(d)(2) only bars participation in decisions or agency reviews pursuant to 5 U.S.C. 557. Section 557 by its terms applies to initial hearing decisions or recommendations by a qualified presiding employee with the potential for subsequent agency review. Modifying preliminary conditions or prescriptions involves no such hearing, no presiding employee, and no initial or recommended decision. Instead, the Department conducts the appropriate review and analysis and provides modified conditions or prescriptions to FERC with accompanying written findings. 7 CFR 1.673, 43 CFR 45.73, 50 CFR 221.73. Accordingly, section 554 does not apply to the Departments' decision whether and how to modify preliminary conditions or prescriptions.
EEI and NHA cite
Some commenters argued that the section 33 alternatives process constitutes a quasi-judicial proceeding and thus should be subject to the APA's prohibition on ex parte communications. Under 5 U.S.C. 557(d)(1), no interested person outside the agency shall make or knowingly cause to be made to any member of the body comprising the agency, administrative law judge, or other employee who is or may reasonably be expected to be involved in the decisional process of the proceeding, an ex parte communication relevant to the merits of the proceeding.
As discussed previously, section 557 by its terms applies only to on-the-record hearings required by statute. Section 33 calls for a process of agency analysis subject to specific statutory criteria, but neither EPAct nor the FPA requires the Departments to conduct an on-the-record hearing when considering alternative conditions and prescriptions. As such, the APA's prohibition on ex parte communication does not apply to the section 33 alternatives process.
Pursuant to EPAct's requirement that the agencies promulgate rules implementing EPAct section 241 “in consultation with the Federal Energy Regulatory Commission,” the agencies have consulted with FERC regarding the content of these revised interim final rules.
The rules in this document are significant. Although these rules will not have an adverse effect or an annual effect of $100 million or more on the economy, OMB has determined that the expedited trial-type hearing and alternatives processes represent a novel approach to public participation and administrative review and have interagency implications. Therefore, OMB has reviewed these rules under Executive Order 12866.
Executive Order 13563 reaffirms the principles of Executive Order 12866 while calling for improvements in the nation's regulatory system to promote predictability; to reduce uncertainty; and to use the best, most innovative, and least burdensome tools for achieving regulatory ends. The executive order directs agencies to consider regulatory approaches that reduce burdens and maintain flexibility and freedom of choice for the public where these approaches are relevant, feasible, and consistent with regulatory objectives. Executive Order 13563 emphasizes further than regulations must be based on the best available science and that the rulemaking process must allow for public participation and an open exchange of ideas. These revised interim final rules have been developed in a manner consistent with these requirements.
As noted previously, the court in
Even if these rules were not exempt, they will not have a significant economic effect on a substantial number of small entities, for the reasons explained in the preamble to the November 17, 2005, interim final rules, 70 FR 69815-16. Because these rules are exempt, a regulatory flexibility analysis is not required and, thus, none was prepared.
These rules are not major under the Small Business Regulatory Enforcement Fairness Act, 5 U.S.C. 804(2).
1. As explained above, these rules will not have an annual effect on the economy of $ 100 million or more.
2. These rules will not cause a major increase in costs or prices for consumers, individual industries, Federal, State, or local government agencies, or geographic regions. A hearing process for disputed issues of material fact with respect to the Departments' conditions and prescriptions will not affect costs or prices.
3. These rules will not have significant, adverse effects on competition, employment, investment, productivity, innovation, or the ability of United States-based enterprises to compete with foreign-based enterprises. Implementing the 2005 amendments to the FPA by establishing the hearing procedures in these rules should have no effects, adverse or beneficial, on competition, employment, investment, productivity, innovation, or the ability
In accordance with the Unfunded Mandates Reform Act, 2 U.S.C. 1531
1. These rules will not have a significant or unique effect on State, local, or Tribal governments or the private sector.
2. These rules will not produce an unfunded Federal mandate of $100 million or more on State, local, or Tribal governments in the aggregate or on the private sector in any year;
In accordance with Executive Order 12630, the Departments conclude that these rules will not have significant takings implications. The conditions and prescriptions included in hydropower licenses relate to operation of hydropower facilities on resources not owned by the applicant,
In accordance with Executive Order 13132, the Departments find that these rules do not have sufficient federalism implications to warrant the preparation of a Federalism Assessment. There is no foreseeable effect on States from establishing hearing procedures for disputed issues of material fact regarding Departmental conditions and prescriptions. The rules 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. The rules will not preempt State law. Therefore, a Federalism Assessment is not required.
In accordance with Executive Order (E.O.) 12988, the Departments have determined that these rules will not unduly burden the judicial system and that they meet the requirements of sections 3(a) and 3(b)(2) of E.O. 12988. The rules provide clear language as to what is allowed and what is prohibited. Litigation regarding FERC hydropower licenses currently begins with a rehearing before FERC and then moves to Federal appeals court. By offering a trial-type hearing on disputed issues of material fact with respect to conditions and prescriptions developed by the Departments, the rules will likely result in a decrease in the number of proceedings that are litigated before FERC and in court.
With respect to the hearing process, these rules are exempt from the requirements of the Paperwork Reduction Act, 44 U.S.C. 3501
The purpose of the information collection in this rulemaking is to provide an opportunity for license parties to propose an alternative condition or prescription. Responses to this information collection are voluntary. At the time of our request for OMB approval in 2009, we estimated that an average of 62 alternatives would be submitted per year over the next 3 years. We estimated that the average burden for preparing and submitting an alternative would be 200 hours; thus, the total information collection burden was estimated to be 12,400 hours per year.
The Departments have analyzed their respective rules in accordance with NEPA, Council on Environmental Quality (CEQ) regulations, 40 CFR part 1500, and the Departments' internal NEPA guidance. CEQ regulations, at 40 CFR 1508.4, define a “categorical exclusion” as a category of actions that a department has determined normally do not, individually or cumulatively, have a significant effect on the human environment, and, therefore in the absence of extraordinary circumstances, neither an environmental assessment nor an environmental impact statement is required. The regulations further direct each department to adopt NEPA procedures, including categorical exclusions. 40 CFR 1507.3.
Each Department has determined that these rules are categorically excluded from further environmental analysis under NEPA in accordance with its own authorities, listed below. These rules promulgate regulations of an administrative and procedural nature relating to trial-type hearings and the submission and analysis of alternatives as mandated under FPA, as amended by EPAct. They do not individually or cumulatively have a significant impact on the human environment and, therefore, neither an EA nor an EIS under NEPA is required. The relevant authorities for each Department are as follows:
Agriculture: 7 CFR 1b.3(b); Forest Service Handbook 1909.15, 31.12.
Interior: 43 CFR part 46.
Commerce: NOAA Administrative Order 216-6, sections 5.05 and 6.03c3(i).
Under the criteria in Executive Order 13175, the Departments have assessed the impact of these rules and have determined that they do not directly affect federally recognized Indian tribes or tribal resources. The rules are procedural and administrative in nature. However, conditions and actions associated with an actual hydropower licensing proposal may directly affect tribal resources; therefore the Departments will continue to consult with tribal governments when developing section 4(e) conditions and section 18 prescriptions needed to address the management of those resources.
In accordance with Executive Order 13211, the Departments find that these rules will not have substantial direct effects on energy supply, distribution, or use, including shortfall in supply or price increase. Analysis by FERC has found that, on average, installed capacity increased through licensing by 4.06 percent, and the average annual generation loss, attributable largely to increased flows to protect aquatic resources, was 1.59 percent. (Report on Hydroelectric Licensing Policies, Procedures, and Regulations: Comprehensive Review and
In developing this rule, we did not conduct or use a study, experiment, or survey requiring peer review under the Data Quality Act, Public Law 106-554.
We are required by Executive Orders 12866 and 12988 and by the Presidential Memorandum of June 1, 1998, to write all rules in plain language. This means that each rule we publish must:
(1) Be logically organized;
(2) Use the active voice to address readers directly;
(3) Use clear language rather than jargon;
(4) Be divided into short sections and sentences; and
(5) Use lists and tables wherever possible.
If you feel that we have not met these requirements, send us comments by one of the methods listed in the
Administrative practice and procedure, Fisheries, Hydroelectric power, Indians—lands, National forests, National parks, National wildlife refuge system, Public land, Waterways, Wildlife.
Administrative practice and procedure, Fisheries, Hydroelectric power, Indians—lands, National forests, National parks, National wildlife refuge system, Public land, Waterways, Wildlife.
Administrative practice and procedure, Fisheries, Hydroelectric power, Indians—lands, National forests, National parks, National wildlife refuge system, Public land, Waterways, Wildlife.
For the reasons set forth in the preamble, the Departments of Agriculture, the Interior, and Commerce amend titles 7, 43, and 50 of the Code of Federal Regulations as follows:
5 U.S.C. 301, unless otherwise noted.
16 U.S.C. 797(e), 811, 823d.
(a)
(2) The hearing process under this part does not apply to recommendations that the Forest Service may submit to FERC under FPA section 10(a), 16 U.S.C. 803(a).
(3) The FPA also grants the Department of Commerce and the Department of the Interior the authority to develop mandatory conditions and prescriptions for inclusion in a hydropower license. Where the Forest Service and either or both of these other Departments develop conditions or prescriptions to be included in the same hydropower license and where the Departments agree to consolidate the hearings under § 1.623:
(i) A hearing conducted under this subpart will also address disputed issues of material fact with respect to any condition or prescription developed by one of the other Departments; or
(ii) A hearing requested under this subpart will be conducted by one of the other Departments, pursuant to 43 CFR 45.1
(4) The regulations in §§ 1.601 through 1.660 will be construed and applied to each hearing process to achieve a just and speedy determination, consistent with adequate consideration of the issues involved and the provisions of § 1.660(a).
(b)
(c)
(d)
(2) This subpart also applies to any exercise of the Forest Service's reserved authority under paragraph (c) of this section with respect to a hydropower license issued before or after November 17, 2005.
As used in this subpart:
(1) Federal land managed by the Forest Service; and
(2) The Deputy Chief of the National Forest System, located in the Forest Service's Washington, DC, office.
(1) A license party that has filed a timely request for a hearing under:
(i) Section 1.621; or
(ii) Either 43 CFR 45.21 or 50 CFR 221.21, with respect to a hearing process consolidated under § 1.623;
(2) A license party that has filed a timely notice of intervention and response under:
(i) Section 1.622; or
(ii) Either 43 CFR 45.22 or 50 CFR 221.22, with respect to a hearing process consolidated under § 1.623;
(3) The Forest Service; and
(4) Any other Department that has filed a preliminary condition or prescription, with respect to a hearing process consolidated under § 1.623.
(1) Is authorized by a party to represent the party in a hearing process under this subpart; and
(2) Has filed an appearance under § 1.610.
(a)
(1) The day of the act or event from which the period begins to run is not included.
(2) The last day of the period is included.
(i) If that day is a Saturday, Sunday, or Federal holiday, the period is extended to the next business day.
(ii) The last day of the period ends at 5 p.m. at the place where the filing or other action is due.
(3) If the period is less than 7 days, any Saturday, Sunday, or Federal holiday that falls within the period is not included.
(b)
(2) An extension of time to file any other document under this subpart may be granted only upon a showing of good cause.
(i) To request an extension of time, a party must file a motion under § 1.635 stating how much additional time is needed and the reasons for the request.
(ii) The party must file the motion before the applicable time period expires, unless the party demonstrates extraordinary circumstances that justify a delay in filing.
(iii) The ALJ may grant the extension only if:
(A) It would not unduly prejudice other parties; and
(B) It would not delay the decision under § 1.660.
(a) The following table summarizes the steps in the trial-type hearing process under this subpart and indicates the deadlines generally applicable to each step. If the deadlines in this table are in any way inconsistent with the deadlines as set by other sections of this subpart or by the ALJ, the deadlines as set by those other sections or by the ALJ control.
(b) The following table summarizes the steps in the alternatives process under this subpart and indicates the deadlines generally applicable to each step. If the deadlines in this table are in any way inconsistent with the deadlines as set by other sections of this subpart, the deadlines as set by those other sections control.
(a)
(b)
(1) An attorney;
(2) A partner, if the entity is a partnership;
(3) An officer or agent, if the entity is a corporation, association, or unincorporated organization;
(4) A receiver, administrator, executor, or similar fiduciary, if the entity is a receivership, trust, or estate; or
(5) An elected or appointed official or an employee, if the entity is a Federal, State, Tribal, county, district, territorial, or local government or component.
(c)
(1) Meet the form and content requirements for documents under § 1.611;
(2) Include the name and address of the party on whose behalf the appearance is made;
(3) If the representative is an attorney, include a statement that he or she is a member in good standing of the bar of the highest court of a state, the District of Columbia, or any territory or commonwealth of the United States (identifying which one); and
(4) If the representative is not an attorney, include a statement explaining his or her authority to represent the entity.
(d)
(e)
(a)
(1) Measure 8
(2) Be printed on just one side of the page (except that service copies may be printed on both sides of the page);
(3) Be clearly typewritten, printed, or otherwise reproduced by a process that yields legible and permanent copies;
(4) Use 11 point font size or larger;
(5) Be double-spaced except for footnotes and long quotations, which may be single-spaced;
(6) Have margins of at least 1 inch; and
(7) Be bound on the left side, if bound.
(b)
(1) The name of the case under §§ 1.610 through 1.660 and the docket number, if one has been assigned;
(2) The name and docket number of the license proceeding to which the case under §§ 1.610 through 1.660 relates; and
(3) A descriptive title for the document, indicating the party for whom it is filed and the nature of the document.
(c)
(d)
(a)
(1) Before NFS refers a case for docketing under § 1.626, any documents must be filed with NFS by directing them to the “Deputy Chief, NFS.”
(i) For delivery by regular mail, address to USDA Forest Service, Attn: Lands Staff, Mail Stop 1124, 1400 Independence Ave. SW., Washington, DC 20250-1124.
(ii) For delivery by hand or private carrier, deliver to USDA Forest Service, Yates Bldg. (4 SO), 201 14th Street SW., Washington, DC (SW. corner of 14th Street and Independence Ave. SW.); phone (202) 205-1248; facsimile (703) 605-5117. Hand deliverers must obtain an official date-time-stamp from Lands Staff.
(2) The Forest Service will notify the parties of the date on which NFS refers a case for docketing under § 1.626. After that date, any documents must be filed with:
(i) The Hearing Clerk, if OALJ will be conducting the hearing. The Hearing Clerk's address, telephone number, and facsimile number are set forth in § 1.602; or
(ii) The hearings component of or used by another Department, if that Department will be conducting the
(b)
(i) By hand delivery of the original document and two copies;
(ii) By sending the original document and two copies by express mail or courier service; or
(iii) By sending the document by facsimile if:
(A) The document is 20 pages or less, including all attachments;
(B) The sending facsimile machine confirms that the transmission was successful; and
(C) The original of the document and two copies are sent by regular mail on the same day.
(2) Parties are encouraged, and may be required by the ALJ, to supplement any filing by providing the appropriate office with an electronic copy of the document on compact disc or other suitable media. With respect to any supporting material accompanying a request for hearing, a notice of intervention and response, or an answer, the party may submit in lieu of an original and two hard copies:
(i) An original; and
(ii) One copy on a compact disc or other suitable media.
(c)
(d)
(a)
(1) A complete copy of any request for a hearing under § 1.621 must be delivered or sent to FERC and each license party, using one of the methods of service in paragraph (c) of this section or under 18 CFR 385.2010(f)(3) for license parties that have agreed to receive electronic service.
(2) A complete copy of any notice of intervention and response under § 1.622 must be:
(i) Delivered or sent to FERC, the license applicant, any person who has filed a request for hearing under § 1.621, and the Forest Service office that submitted the preliminary conditions to FERC, using one of the methods of service in paragraph (c) of this section; and
(ii) Delivered or sent to any other license party using one of the methods of service in paragraph (c) of this section or under 18 CFR 385.2010(f)(3) for license parties that have agreed to receive electronic service, or by regular mail.
(3) A complete copy of any answer or notice under § 1.625 and any other document filed by any party to the hearing process must be delivered or sent to every other party to the hearing process, using one of the methods of service in paragraph (c) of this section.
(b)
(c)
(1) By hand delivery of the document;
(2) By sending the document by express mail or courier service for delivery on the next business day;
(3) By sending the document by facsimile if:
(i) The document is 20 pages or less, including all attachments;
(ii) The sending facsimile machine confirms that the transmission was successful; and
(iii) The document is sent by regular mail on the same day; or
(4) By sending the document, including all attachments, by electronic means if the party to be served has consented to that means of service in writing. However, if the serving party learns that the document did not reach the party to be served, the serving party must re-serve the document by another method set forth in paragraph (c) of this section (including another electronic means, if the party to be served has consented to that means in writing).
(d)
(1) The name, address, and other contact information of each party's representative on whom the document was served;
(2) The means of service, including information indicating compliance with paragraph (c)(3) or (c)(4) of this section, if applicable; and
(3) The date of service.
(a)
(2) If any of the documents relied upon are not already in the license proceeding record, the Forest Service must:
(i) File them with FERC at the time it files its preliminary conditions; and
(ii) Provide copies to the license applicant.
(b)
(a)
(1) Be a license party; and
(2) File with NFS, at the appropriate address provided in § 1.612(a)(1), a written request for a hearing:
(i) For a case under § 1.601(d)(1), within 30 days after the Forest Service files a preliminary condition with FERC; or
(ii) For a case under § 1.601(d)(2), within 60 days after the Forest Service files a preliminary condition with FERC.
(b)
(1) A numbered list of the factual issues that you allege are in dispute, each stated in a single, concise sentence;
(2) The following information with respect to each issue:
(i) The specific factual statements made or relied upon by the Forest Service under § 1.620(a) that you dispute;
(ii) The basis for your opinion that those factual statements are unfounded or erroneous; and
(iii) The basis for your opinion that any factual dispute is material.
(3) With respect to any scientific studies, literature, and other
(4) A statement indicating whether or not you consent to service by electronic means under § 1.613(c)(4) and, if so, by what means.
(c)
(1) For each witness listed, you must provide:
(i) His or her name, address, telephone number, and qualifications; and
(ii) A brief narrative summary of his or her expected testimony.
(2) For each exhibit listed, you must specify whether it is in the license proceeding record.
(d)
(2) For each witness, the information provided under paragraph (c)(1) of this section may not exceed one page.
(a)
(i) Be a license party; and
(ii) File with NFS, at the appropriate address provided in § 1.612(a)(1), a notice of intervention and a written response to any request for a hearing within 20 days after the deadline in § 1.621(a)(2).
(2) A notice of intervention and response must be limited to one or more of the issues of material fact raised in the hearing request and may not raise additional issues.
(b)
(1) If you agree with the information provided by the Forest Service under § 1.620(a) or by the requester under § 1.621(b), your response may refer to the Forest Service's explanation or the requester's hearing request for support.
(2) If you wish to rely on additional information or analysis, your response must provide the same level of detail with respect to the additional information or analysis as required under § 1.621(b).
(3) Your notice of intervention and response must also indicate whether or not you consent to service by electronic means under § 1.613(c)(4) and, if so, by what means.
(c)
(1) For each witness listed, you must provide:
(i) His or her name, address, telephone number, and qualifications; and
(ii) A brief narrative summary of his or her expected testimony; and
(2) For each exhibit listed, you must specify whether it is in the license proceeding record.
(d)
(2) For each witness, the information provided under paragraph (c)(1) of this section may not exceed one page.
(a)
(1) Whether any of the other Departments has also filed a preliminary condition or prescription relating to the license with FERC; and
(2) If so, whether the other Department has also received a hearing request with respect to the preliminary condition or prescription.
(b)
(1) Whether the cases should be consolidated for hearing under paragraphs (c)(3)(ii) through (iv) of this section; and
(2) If so, which Department will conduct the hearing on their behalf.
(c)
(1) All hearing requests with respect to any conditions from the same Department will be consolidated for hearing.
(2) All hearing requests with respect to any prescriptions from the same Department will be consolidated for hearing.
(3) All or any portion of the following may be consolidated for hearing, if the Departments involved determine that there are common issues of material fact or that consolidation is otherwise appropriate:
(i) Two or more hearing requests with respect to any condition and any prescription from the same Department;
(ii) Two or more hearing requests with respect to conditions from different Departments;
(iii) Two or more hearing requests with respect to prescriptions from different Departments; or
(iv) Two or more hearing requests with respect to any condition from one Department and any prescription from another Department.
(a) Prior to referral to the ALJ, the hearing requester and the Forest Service may by agreement stay the hearing process under this subpart for a period not to exceed 120 days to allow for settlement discussions, if the stay period and any subsequent hearing process (if required) can be accommodated within the time frame established for the license proceeding.
(b) Any stay of the hearing process will not affect the deadline for filing a notice of intervention and response, if any, pursuant to § 1.622(a)(1)(ii).
(a)
(b)
(1) For each of the numbered factual issues listed under § 1.621(b)(1), NFS's answer must explain the Forest Service's position with respect to the issues of material fact raised by the requester, including one or more of the following statements as appropriate:
(i) That the Forest Service is willing to stipulate to the facts as alleged by the requester;
(ii) That the Forest Service believes the issue listed by the requester is not a factual issue, explaining the basis for such belief;
(iii) That the Forest Service believes the issue listed by the requester is not material, explaining the basis for such belief; or
(iv) That the Forest Service agrees that the issue is factual, material, and in dispute.
(2) NFS's answer must also indicate whether the hearing request will be consolidated with one or more other hearing requests under § 1.623 and, if so:
(i) Identify any other hearing request that will be consolidated with this hearing request; and
(ii) State which Department will conduct the hearing and provide contact
(3) If the Forest Service plans to rely on any scientific studies, literature, and other documented information that are not already in the license proceeding record, a copy of each item must be provided with NFS's answer.
(4) NFS's answer must also indicate whether or not the Forest Service consents to service by electronic means under § 1.613(c)(4) and, if so, by what means.
(c)
(1) For each witness listed, the Forest Service must provide:
(i) His or her name, address, telephone number, and qualifications; and
(ii) A brief narrative summary of his or her expected testimony.
(2) For each exhibit listed, the Forest Service must specify whether it is in the license proceeding record.
(d)
(2) For each witness, the information provided under paragraph (c)(1) of this section may not exceed one page.
(e)
(1) The Forest Service is deemed to agree that the issues listed by the requester are factual, material, and in dispute;
(2) The Forest Service may file a list of witnesses and exhibits with respect to the request only as provided in § 1.642(b); and
(3) NFS must include with its case referral under § 1.623 a notice in lieu of answer containing the information required by paragraph (b)(2) of this section, if the hearing request will be consolidated with one or more other hearing requests under § 1.623, and the statement required by paragraph (b)(4) of this section.
(a)
(1) If the hearing is to be conducted by USDA, NFS will refer the case to the OALJ.
(2) If the hearing is to be conducted by another Department, NFS will refer the case to the hearings component used by that Department.
(b)
(1) Two copies of any preliminary condition under § 1.620;
(2) The original and one copy of any hearing request under § 1.621;
(3) The original and one copy of any notice of intervention and response under § 1.622;
(4) The original and one copy of any answer or notice in lieu of answer under § 1.625; and
(5) The original and one copy of a referral notice under paragraph (c) of this section.
(c)
(1) The name, address, telephone number, and facsimile number of the Department hearings component that will conduct the hearing;
(2) The name, address, and other contact information for the representative of each party to the hearing process;
(3) An identification of any other hearing request that will be consolidated with this hearing request; and
(4) The effective date of the case referral to the appropriate Department hearings component.
(d)
(2) The Forest Service must serve a copy of the referral notice on FERC and each party to the hearing by one of the methods identified in § 1.613(c)(1) and (c)(2).
(a) If NFS refers the case to the OALJ, these regulations will continue to apply to the hearing process.
(b) If NFS refers the case to the Department of Interior's Office of Hearing and Appeals, the regulations at 43 CFR 45.1
(c) If NFS refers the case to the Department of Commerce's designated ALJ office, the regulations at 50 CFR 221.1
Within 5 days after the effective date stated in the referral notice under § 1.626(c)(4), 43 CFR 45.26(c)(4), or 50 CFR 221.26(c)(4):
(a) The Hearing Clerk must:
(1) Docket the case;
(2) Assign an ALJ to preside over the hearing process and issue a decision; and
(3) Issue a docketing notice that informs the parties of the docket number and the ALJ assigned to the case; and
(b) The ALJ must issue a notice setting the time, place, and method for conducting an initial prehearing conference under § 1.640. This notice may be combined with the docketing notice under paragraph (a)(3) of this section.
The ALJ will have all powers necessary to conduct a fair, orderly, expeditious, and impartial hearing process relating to Forest Service's or other Department's condition or prescription that has been referred to the ALJ for hearing, including the powers to:
(a) Administer oaths and affirmations;
(b) Issue subpoenas under § 1.647;
(c) Shorten or enlarge time periods set forth in these regulations, except that the deadline in § 1.660(a)(2) can be extended only if the ALJ must be replaced under § 1.632 or 1.633;
(d) Rule on motions;
(e) Authorize discovery as provided for in §§ 1.641 through 1.647;
(f) Hold hearings and conferences;
(g) Regulate the course of hearings;
(h) Call and question witnesses;
(i) Exclude any person from a hearing or conference for misconduct or other good cause;
(j) Summarily dispose of any hearing request or issue as to which the ALJ determines there is no disputed issue of material fact;
(k) Issue a decision consistent with § 1.660(b) regarding any disputed issue of material fact; and
(l) Take any other action authorized by law.
(a) If the ALJ becomes unavailable or otherwise unable to perform the duties described in § 1.631, the Hearing Clerk will designate a successor.
(b) If a hearing has commenced and the ALJ cannot proceed with it, a successor ALJ may do so. At the request of a party, the successor ALJ may recall any witness whose testimony is material and disputed, and who is available to testify again without undue burden. The successor ALJ may, within his or her discretion, recall any other witness.
(a) The ALJ may withdraw from a case at any time the ALJ deems himself or herself disqualified.
(b) At any time before issuance of the ALJ's decision, any party may move that the ALJ disqualify himself or herself for personal bias or other valid cause.
(1) The party must file the motion promptly after discovering facts or other reasons allegedly constituting cause for disqualification.
(2) The party must file with the motion an affidavit or declaration setting forth the facts or other reasons in detail.
(c) The ALJ must rule upon the motion, stating the grounds for the ruling.
(1) If the ALJ concludes that the motion is timely and meritorious, he or she must disqualify himself or herself and withdraw from the case.
(2) If the ALJ does not disqualify himself or herself and withdraw from the case, the ALJ must continue with the hearing process and issue a decision.
(a) Ex parte communications with the ALJ or his or her staff are prohibited in accordance with 5 U.S.C. 554(d).
(b) This section does not prohibit ex parte inquiries concerning case status or procedural requirements, unless the inquiry involves an area of controversy in the hearing process.
(a)
(1) A motion made at a hearing may be stated orally on the record, unless the ALJ directs that it be reduced to writing.
(2) Any other motion must:
(i) Be in writing;
(ii) Comply with the requirements of §§ 1.610 through 1.613 with respect to form, content, filing, and service; and
(iii) Not exceed 15 pages, including all supporting arguments.
(b)
(i) Its purpose and the relief sought;
(ii) The facts constituting the grounds for the relief sought; and
(iii) Any applicable statutory or regulatory authority.
(2) A proposed order must accompany the motion.
(c)
(d)
(e)
(f)
(a)
(1) The initial prehearing conference will be used:
(i) To identify, narrow, and clarify the disputed issues of material fact and exclude issues that do not qualify for review as factual, material, and disputed;
(ii) To consider the parties' motions for discovery under § 1.641 and to set a deadline for the completion of discovery;
(iii) To discuss the evidence on which each party intends to rely at the hearing;
(iv) To set deadlines for submission of written testimony under § 1.652 and exchange of exhibits to be offered as evidence under § 1.654; and
(v) To set the date, time, and place of the hearing.
(2) The initial prehearing conference may also be used:
(i) To discuss limiting and grouping witnesses to avoid duplication;
(ii) To discuss stipulations of fact and of the content and authenticity of documents;
(iii) To consider requests that the ALJ take official notice of public records or other matters;
(iv) To discuss the submission of written testimony, briefs, or other documents in electronic form; and
(v) To consider any other matters that may aid in the disposition of the case.
(b)
(c)
(d)
(2) Before the date set for the initial prehearing conference, the parties' representatives must make a good faith effort:
(i) To meet in person, by telephone, or by other appropriate means; and
(ii) To reach agreement on discovery and the schedule of remaining steps in the hearing process.
(e)
(f)
(g)
(a)
(1) Written interrogatories as provided in § 1.643;
(2) Depositions of witnesses as provided in paragraph (h) of this section; and
(3) Requests for production of designated documents or tangible things or for entry on designated land for inspection or other purposes.
(b)
(1) That the discovery will not unreasonably delay the hearing process;
(2) That the information sought:
(i) Will be admissible at the hearing or appears reasonably calculated to lead to the discovery of admissible evidence;
(ii) Is not already in the license proceeding record or otherwise obtainable by the party;
(iii) Is not cumulative or repetitious; and
(iv) Is not privileged or protected from disclosure by applicable law;
(3) That the scope of the discovery is not unduly burdensome;
(4) That the method to be used is the least burdensome method available;
(5) That any trade secrets or proprietary information can be adequately safeguarded; and
(6) That the standards for discovery under paragraphs (f) through (h) of this section have been met, if applicable.
(c)
(1) Pursuant to an agreement of the parties; or
(2) By filing a motion that:
(i) Briefly describes the proposed method(s), purpose, and scope of the discovery;
(ii) Explains how the discovery meets the criteria in paragraphs (b)(1) through (b)(6) of this section; and
(iii) Attaches a copy of any proposed discovery request (written interrogatories, notice of deposition, or request for production of designated documents or tangible things or for entry on designated land).
(d)
(e)
(2) An objection must explain how, in the objecting party's view, the discovery sought does not meet the criteria in paragraphs (b)(1) through (6) of this section.
(f)
(1) If a party wants to discover such materials, it must show:
(i) That it has substantial need of the materials in preparing its own case; and
(ii) That the party is unable without undue hardship to obtain the substantial equivalent of the materials by other means.
(2) In ordering discovery of such materials when the required showing has been made, the ALJ must protect against disclosure of the mental impressions, conclusions, opinions, or legal theories of an attorney.
(g)
(1) The expert is expected to be a witness at the hearing; or
(2) The expert is relied on by another expert who is expected to be a witness at the hearing, and the party shows:
(i) That it has a compelling need for the information; and
(ii) That it cannot practicably obtain the information by other means.
(h)
(i) Will be unable to attend the hearing because of age, illness, or other incapacity; or
(ii) Is unwilling to attend the hearing voluntarily, and the party is unable to compel the witness's attendance at the hearing by subpoena.
(2) Paragraph (h)(1)(ii) of this section does not apply to any person employed by or under contract with the party seeking the deposition.
(3) A party may depose a senior Department employee only if the party shows:
(i) That the employee's testimony is necessary in order to provide significant, unprivileged information that is not available from any other source or by less burdensome means; and
(ii) That the deposition would not significantly interfere with the employee's ability to perform his or her government duties.
(4) Unless otherwise stipulated to by the parties or authorized by the ALJ upon a showing of extraordinary circumstances, a deposition is limited to 1 day of 7 hours.
(i)
(a)
(1) Was incomplete or incorrect when made; or
(2) Though complete and correct when made, is now incomplete or incorrect in any material respect.
(b)
(2) If a party wishes to include any new witness or exhibit on its updated list, it must provide an explanation of why it was not feasible for the party to include the witness or exhibit on its list under § 1.621(c), § 1.622(c), or § 1.625(c).
(c)
(2) Paragraph (c)(1) of this section does not apply if the failure to disclose was substantially justified or is harmless.
(3) A party may object to the admission of evidence under paragraph (c)(1) of this section before or during the hearing.
(4) The ALJ will consider the following in determining whether to exclude evidence under paragraphs (c)(1) through (3) of this section:
(i) The prejudice to the objecting party;
(ii) The ability of the objecting party to cure any prejudice;
(iii) The extent to which presentation of the evidence would disrupt the orderly and efficient hearing of the case;
(iv) The importance of the evidence; and
(v) The reason for the failure to disclose, including any bad faith or willfulness regarding the failure.
(a)
(1) A party wishing to propound interrogatories must file a motion under § 1.641(c); and
(2) A party may propound no more than 25 interrogatories, counting discrete subparts as separate interrogatories, unless the ALJ approves a higher number upon a showing of good cause.
(b)
(1) Grant the motion and approve the use of some or all of the proposed interrogatories; or
(2) Deny the motion.
(c)
(1) Each approved interrogatory must be answered separately and fully in writing.
(2) The party or its representative must sign the answers to interrogatories under oath or affirmation.
(d)
(1) The information may be obtained from an examination of records, or from a compilation, abstract, or summary based on such records;
(2) The burden of obtaining the information from the records is substantially the same for all parties;
(3) The answering party specifically identifies the individual records from which the requesting party may obtain the information and where the records are located; and
(4) The answering party provides the requesting party with reasonable opportunity to examine the records and make a copy, compilation, abstract, or summary.
(a)
(1) The time and place that the deposition is to be taken;
(2) The name and address of the person before whom the deposition is to be taken;
(3) The name and address of the witness whose deposition is to be taken; and
(4) Any documents or materials that the witness is to produce.
(b)
(1) Grant the motion and approve the taking of the deposition, subject to any conditions or restrictions the ALJ may impose; or
(2) Deny the motion.
(c)
(1) The deposition will be taken at the time and place agreed to by the parties or indicated in the ALJ's order.
(2) The deposition may be taken before any disinterested person authorized to administer oaths in the place where the deposition is to be taken.
(3) Any party that objects to the taking of a deposition because of the disqualification of the person before whom it is to be taken must do so:
(i) Before the deposition begins; or
(ii) As soon as the disqualification becomes known or could have been discovered with reasonable diligence.
(4) A deposition may be taken by telephone conference call, if agreed to by the parties or approved in the ALJ's order.
(d)
(e)
(f)
(1) Any other party may obtain a copy of the transcript at its own expense.
(2) Unless waived by the deponent, the deponent will have 3 days after receiving the transcript to read and sign it.
(3) The person before whom the deposition was taken must certify the transcript following receipt of the signed transcript from the deponent or expiration of the 3-day review period, whichever occurs first.
(g)
(1) The video recording may be in conjunction with an oral examination by telephone conference held under paragraph (c)(4) of this section.
(2) After the deposition has been taken, the person recording the deposition must:
(i) Provide a copy of the videotape to any party that requests it, at the requesting party's expense; and
(ii) Attach to the videotape a statement identifying the case and the deponent and certifying the authenticity of the video recording.
(h)
(a)
(1) The production of designated documents for inspection and copying, other than documents that are already in the license proceeding record;
(2) The production of designated tangible things for inspection, copying, testing, or sampling; or
(3) Entry on designated land or other property for inspection and measuring, surveying, photographing, testing, or sampling either the property or any designated object or operation on the property.
(b)
(1) Grant the motion and approve the use of some or all of the proposed requests; or
(2) Deny the motion.
(c)
(a) Upon motion of a party, the ALJ may impose sanctions under paragraph (b) of this section if any party:
(1) Fails to comply with an order approving discovery; or
(2) Fails to supplement or amend a response to discovery under § 1.642(a).
(b) The ALJ may impose one or more of the following sanctions:
(1) Infer that the information, testimony, document, or other evidence withheld would have been adverse to the party;
(2) Order that, for the purposes of the hearing, designated facts are established;
(3) Order that the party not introduce into evidence, or otherwise rely on to
(i) That the party improperly withheld; or
(ii) That the party obtained from another party in discovery;
(4) Allow another party to use secondary evidence to show what the information, testimony, document, or other evidence withheld would have shown; or
(5) Take other appropriate action to remedy the party's failure to comply.
(a)
(2) A party may request a subpoena for a senior Department employee only if the party shows:
(i) That the employee's testimony is necessary in order to provide significant, unprivileged information that is not available from any other source or by less burdensome means; and
(ii) That the employee's attendance would not significantly interfere with the ability to perform his or her government duties.
(b)
(2) Service must be made by hand delivering a copy of the subpoena to the person named therein.
(3) The person serving the subpoena must:
(i) Prepare a certificate of service setting forth:
(A) The date, time, and manner of service; or
(B) The reason for any failure of service; and
(ii) Swear to or affirm the certificate, attach it to a copy of the subpoena, and return it to the party on whose behalf the subpoena was served.
(c)
(2) A witness who is not a party and who attends a deposition or hearing at the request of any party without having been subpoenaed is entitled to the same fees and mileage expenses as if he or she had been subpoenaed. However, this paragraph does not apply to Federal employees who are called as witnesses by the Forest Service or another Department.
(d)
(2) The motion must be filed:
(i) Within 5 days after service of the subpoena; or
(ii) At or before the time specified in the subpoena for compliance, if that is less than 5 days after service of the subpoena.
(3) The ALJ may quash or modify the subpoena if it:
(i) Is unreasonable;
(ii) Requires production of information during discovery that is not discoverable; or
(iii) Requires disclosure of irrelevant, privileged, or otherwise protected information.
(e)
(a) Except as provided in paragraph (b) of this section, the hearing will be held at the time and place set at the initial prehearing conference under § 1.640, generally within 25 days after the date set for completion of discovery.
(b) On motion by a party or on the ALJ's initiative, the ALJ may change the date, time, or place of the hearing if he or she finds:
(1) That there is good cause for the change; and
(2) That the change will not unduly prejudice the parties and witnesses.
Each party has the following rights during the hearing, as necessary to assure full and accurate disclosure of the facts:
(a) To present testimony and exhibits, consistent with the requirements in §§ 1.621(c), 1.622(c), 1.625(c), 1.642(b), and 1.652;
(b) To make objections, motions, and arguments; and
(c) To cross-examine witnesses and to conduct re-direct and re-cross examination as permitted by the ALJ.
(a)
(1) Prepared written testimony must:
(i) Have line numbers inserted in the left-hand margin of each page;
(ii) Be authenticated by an affidavit or declaration of the witness;
(iii) Be filed within 10 days after the date set for completion of discovery; and
(iv) Be offered as an exhibit during the hearing.
(2) Any witness submitting written testimony must be available for cross-examination at the hearing.
(b)
(c)
(1) The arrangements for the call must let each party listen to and speak to the witness and each other within the hearing of the ALJ.
(2) The ALJ will ensure the full identification of each speaker so the reporter can create a proper record.
(3) The ALJ may issue a subpoena under § 1.647 directing a witness to testify by telephonic conference call.
(a)
(1) Was present or represented at the taking of the deposition; or
(2) Had reasonable notice of the taking of the deposition.
(b)
(2) The ALJ will exclude from evidence any question and response to which an objection:
(i) Was noted at the taking of the deposition; and
(ii) Would have been sustained if the witness had been personally present and testifying at a hearing.
(3) If a party offers only part of a deposition in evidence:
(i) An adverse party may require the party to introduce any other part that ought in fairness to be considered with the part introduced; and
(ii) Any other party may introduce any other parts.
(c)
(a)
(2) Each exhibit offered by a party must be marked for identification.
(3) Any party who seeks to have an exhibit admitted into evidence must provide:
(i) The original of the exhibit to the reporter, unless the ALJ permits the substitution of a copy; and
(ii) A copy of the exhibit to the ALJ.
(b)
(1) The party offering the exhibit must:
(i) Designate the matter offered as evidence;
(ii) Segregate and exclude the material not offered in evidence, to the extent practicable; and
(iii) Provide copies of the entire document to the other parties appearing at the hearing.
(2) The ALJ must give the other parties an opportunity to inspect the entire document and offer in evidence any other portions of the document.
(c)
(2) The ALJ must give the other parties appearing at the hearing an opportunity to show the contrary of an officially noticed fact.
(3) Any party requesting official notice of a fact after the conclusion of the hearing must show good cause for its failure to request official notice during the hearing.
(d)
(2) If received in evidence at the hearing, a stipulation is binding on the stipulating parties.
(3) A stipulation may be written or made orally at the hearing.
(a)
(i) Relevant, reliable, and probative; and
(ii) Not privileged or unduly repetitious or cumulative.
(2) The ALJ may exclude evidence if its probative value is substantially outweighed by the risk of undue prejudice, confusion of the issues, or delay.
(3) Hearsay evidence is admissible. The ALJ may consider the fact that evidence is hearsay when determining its probative value.
(4) The Federal Rules of Evidence do not directly apply to the hearing, but may be used as guidance by the ALJ and the parties in interpreting and applying the provisions of this section.
(b)
(a)
(1) The Forest Service will secure the services of a reporter and pay the reporter's fees to provide an original transcript to the OALJ on an expedited basis.
(2) Each party must pay the reporter for any copies of the transcript obtained by that party.
(b)
(2) Unless a party files a timely motion under paragraph (b)(1) of this section, the transcript will be presumed to be correct and complete, except for obvious typographical errors.
(3) As soon as practicable after the close of the hearing and after consideration of any motions filed under paragraph (b)(1) of this section, the ALJ will issue an order making any corrections to the transcript that the ALJ finds are warranted.
(a) Any party who has filed a request for a hearing has the burden of persuasion with respect to the issues of material fact raised by that party.
(b) The standard of proof is a preponderance of the evidence.
(a) The hearing record will close when the ALJ closes the hearing, unless he or she directs otherwise.
(b) Evidence may not be added after the hearing record is closed, but the transcript may be corrected under § 1.656(b).
(a)
(2) A party may file a reply brief only if requested by the ALJ. The deadline for filing a reply brief, if any, will be set by the ALJ.
(3) The ALJ may limit the length of the briefs to be filed under this section.
(b)
(i) A concise statement of the case;
(ii) A separate section containing proposed findings regarding the issues of material fact, with supporting citations to the hearing record;
(iii) Arguments in support of the party's position; and
(iv) Any other matter required by the ALJ.
(2) A reply brief, if requested by the ALJ, must be limited to any issues identified by the ALJ.
(c)
(i) Such an exhibit may be reproduced, within reasonable limits, in an appendix to the brief.
(ii) Any pertinent analysis of an exhibit may be included in a brief.
(2) If a brief exceeds 20 pages, it must contain:
(i) A table of contents and of points made, with page references; and
(ii) An alphabetical list of citations to legal authority, with page references.
(a)
(1) 30 days after the close of the hearing under § 1.658; or
(2) 120 days after the effective date stated in the referral notice under § 1.626(c)(4), 43 CFR 45.26(c)(4), or 50 CFR 221.26(c)(4).
(b)
(i) Findings of fact on all disputed issues of material fact;
(ii) Conclusions of law necessary to make the findings of fact (such as rulings on materiality and on the admissibility of evidence); and
(iii) Reasons for the findings and conclusions.
(2) The ALJ may adopt any of the findings of fact proposed by one or more of the parties.
(3) The decision will not contain conclusions as to whether any preliminary condition or prescription should be adopted, modified, or rejected, or whether any proposed alternative should be accepted or rejected.
(c)
(1) Serve the decision on each party to the hearing;
(2) Prepare a list of all documents that constitute the complete record for the hearing process (including the decision) and certify that the list is complete; and
(3) Forward to FERC the complete record for the hearing process, along with the certified list prepared under paragraph (c)(2) of this section, for inclusion in the record for the license proceeding. Materials received in electronic form,
(d)
(a)
(2) A document is considered filed on the date it is received. However, any document received after 5 p.m. at the place where the filing is due is considered filed on the next regular business day.
(b)
(i) One of the methods of service in § 1.613(c); or
(ii) Regular mail.
(2) The provisions of § 1.613(d) regarding a certificate of service apply to service under this subpart.
(a)
(1) Be a license party; and
(2) File a written proposal with NFS, at the appropriate address provided in § 1.612(a)(1):
(i) For a case under § 1.601(d)(1), within 30 days after the Forest Service files its preliminary conditions with FERC; or
(ii) For a case under § 1.601(d)(2), within 60 days after the Forest Service files its proposed conditions with FERC.
(b)
(1) A description of the alternative, in an equivalent level of detail to the Forest Service's preliminary condition;
(2) An explanation of how the alternative will provide for the adequate protection and utilization of the reservation;
(3) An explanation of how the alternative, as compared to the preliminary condition, will:
(i) Cost significantly less to implement; or
(ii) Result in improved operation of the project works for electricity production;
(4) An explanation of how the alternative will affect:
(i) Energy supply, distribution, cost, and use;
(ii) Flood control;
(iii) Navigation;
(iv) Water supply;
(v) Air quality; and
(vi) Other aspects of environmental quality; and
(5) Specific citations to any scientific studies, literature, and other documented information relied on to support your proposal, including any assumptions you are making (
(a) Within 20 days after issuance of the ALJ's decision under § 1.660, you may file with NFS, at the appropriate address provided in § 1.612(a)(1), a revised proposed alternative condition if:
(1) You previously filed a proposed alternative that met the requirements of § 1.671; and
(2) Your revised proposed alternative is designed to respond to one or more findings of fact by the ALJ.
(b) Your revised proposed alternative must:
(1) Satisfy the content requirements for a proposed alternative under § 1.671(b); and
(2) Identify the specific ALJ finding(s) to which the revised proposed alternative is designed to respond and how the revised proposed alternative differs from the original alternative.
(c) Filing a revised proposed alternative will constitute a withdrawal of the previously filed proposed alternative.
(a) Except as provided in paragraph (b) of this section, if any license party proposes an alternative to a preliminary condition or prescription under § 1.671,the Forest Service will do the following within 60 days after the deadline for filing comments on FERC's draft NEPA document under 18 CFR 5.25(c):
(1) Analyze under § 1.674 any alternative condition proposed under § 1.671 or 1.672; and
(2) File with FERC:
(i) Any condition the Forest Service adopts as its modified condition; and
(ii) The Forest Service's analysis of the modified condition and any proposed alternative.
(b) If the Forest Service needs additional time to complete the steps set forth in paragraphs (a)(1) and (2) of this section, it will so inform FERC within 60 days after the deadline for filing comments on FERC's draft NEPA document under 18 CFR 5.25(c).
(a) In deciding whether to accept an alternative proposed under § 1.671 or § 1.672, the Forest Service must consider evidence and supporting material provided by any license party or otherwise reasonably available to the Forest Service, including:
(1) Any evidence on the implementation costs or operational impacts for electricity production of the proposed alternative;
(2) Any comments received on the Forest Service's preliminary condition;
(3) Any ALJ decision on disputed issues of material fact issued under § 1.660 with respect to the preliminary condition;
(4) Comments received on any draft or final NEPA documents; and
(5) The license party's proposal under § 1.671 or § 1.672.
(b) The Forest Service must accept a proposed alternative if the Forest
(1) Will, as compared to the Forest Service's preliminary condition:
(i) Cost significantly less to implement; or
(ii) Result in improved operation of the project works for electricity production; and
(2) Will provide for the adequate protection and utilization of the reservation.
(c) For purposes of paragraphs (a) and (b) of this section, the Forest Service will consider evidence and supporting material provided by any license party by the deadline for filing comments on FERC's NEPA document under 18 CFR 5.25(c).
(d) When the Forest Service files with FERC the condition that the Forest Service adopts as its modified condition under § 1.673(a)(2), it must also file:
(1) A written statement explaining:
(i) The basis for the adopted condition;
(ii) If the Forest Service is not accepting any pending alternative, its reasons for not doing so; and
(iii) If any alternative submitted under § 1.671 was subsequently withdrawn by the license party, that the alternative was withdrawn; and
(2) Any study, data, and other factual information relied on that is not already part of the licensing proceeding record.
(e) The written statement under paragraph (d)(1) of this section must demonstrate that the Forest Service gave equal consideration to the effects of the condition adopted and any alternative not accepted on:
(1) Energy supply, distribution, cost, and use;
(2) Flood control;
(3) Navigation;
(4) Water supply;
(5) Air quality; and
(6) Preservation of other aspects of environmental quality.
Yes. This subpart contains provisions in §§ 1.670 through 1.674 that would collect information from the public. It therefore requires approval by the Office of Management and Budget (OMB) under the Paperwork Reduction Act of 1995, 44 U.S.C. 3501
16 U.S.C. 797(e), 811, 823d.
(a)
(2) The hearing process under this part does not apply to provisions that DOI may submit to FERC under any
(3) The FPA also grants the Department of Agriculture and the Department of Commerce the authority to develop mandatory conditions, and the Department of Commerce the authority to develop mandatory prescriptions, for inclusion in a hydropower license. Where DOI and either or both of these other Departments develop conditions or prescriptions to be included in the same hydropower license and where the Departments agree to consolidate the hearings under § 45.23:
(i) A hearing conducted under this part will also address disputed issues of material fact with respect to any condition or prescription developed by one of the other Departments; or
(ii) A hearing requested under this part will be conducted by one of the other Departments, pursuant to 7 CFR 1.601
(4) The regulations in subparts A and B of this part will be construed and applied to each hearing process to achieve a just and speedy determination, consistent with adequate consideration of the issues involved and the provisions of § 45.60(a).
(b)
(c)
(d)
(2) This part also applies to any exercise of DOI's reserved authority under paragraph (c) of this section with respect to a hydropower license issued before or after November 17, 2005.
As used in this part:
(1) A license party that has filed a timely request for a hearing under:
(i) Section 45.21; or
(ii) Either 7 CFR 1.621 or 50 CFR 221.21, with respect to a hearing process consolidated under § 45.23;
(2) A license party that has filed a timely notice of intervention and response under:
(i) Section 45.22; or
(ii) Either 7 CFR 1.622 or 50 CFR 221.22, with respect to a hearing process consolidated under § 45.23;
(3) Any bureau whose preliminary condition or prescription has been filed with FERC; and
(4) Any other Department that has filed a preliminary condition or prescription, with respect to a hearing process consolidated under § 45.23.
(1) Is authorized by a party to represent the party in a hearing process under this subpart; and
(2) Has filed an appearance under § 45.10.
(a)
(1) The day of the act or event from which the period begins to run is not included.
(2) The last day of the period is included.
(i) If that day is a Saturday, Sunday, or Federal holiday, the period is extended to the next business day.
(ii) The last day of the period ends at 5 p.m. at the place where the filing or other action is due.
(3) If the period is less than 7 days, any Saturday, Sunday, or Federal holiday that falls within the period is not included.
(b)
(2) An extension of time to file any other document under subpart B of this part may be granted only upon a showing of good cause.
(i) To request an extension of time, a party must file a motion under § 45.35 stating how much additional time is needed and the reasons for the request.
(ii) The party must file the motion before the applicable time period expires, unless the party demonstrates extraordinary circumstances that justify a delay in filing.
(iii) The ALJ may grant the extension only if:
(A) It would not unduly prejudice other parties; and
(B) It would not delay the decision under § 45.60.
(a) The following table summarizes the steps in the trial-type hearing process under subpart B of this part and indicates the deadlines generally applicable to each step. If the deadlines in this table are in any way inconsistent with the deadlines as set by other sections of this part or by the ALJ, the deadlines as set by those other sections or by the ALJ control.
(b) The following table summarizes the steps in the alternatives process under subpart C of this part and indicates the deadlines generally applicable to each step. If the deadlines in this table are in any way inconsistent with the deadlines as set by other sections of this part, the deadlines as set by those other sections control.
(a)
(b)
(1) An attorney;
(2) A partner, if the entity is a partnership;
(3) An officer or agent, if the entity is a corporation, association, or unincorporated organization;
(4) A receiver, administrator, executor, or similar fiduciary, if the entity is a receivership, trust, or estate; or
(5) An elected or appointed official or an employee, if the entity is a Federal, State, Tribal, county, district, territorial, or local government or component.
(c)
(1) Meet the form and content requirements for documents under § 45.11;
(2) Include the name and address of the party on whose behalf the appearance is made;
(3) If the representative is an attorney, include a statement that he or she is a member in good standing of the bar of the highest court of a state, the District of Columbia, or any territory or commonwealth of the United States (identifying which one); and
(4) If the representative is not an attorney, include a statement explaining his or her authority to represent the entity.
(d)
(e)
(a)
(1) Measure 8
(2) Be printed on just one side of the page (except that service copies may be printed on both sides of the page);
(3) Be clearly typewritten, printed, or otherwise reproduced by a process that yields legible and permanent copies;
(4) Use 11 point font size or larger;
(5) Be double-spaced except for footnotes and long quotations, which may be single-spaced;
(6) Have margins of at least 1 inch; and
(7) Be bound on the left side, if bound.
(b)
(1) The name of the case under this subpart and the docket number, if one has been assigned;
(2) The name and docket number of the license proceeding to which the case under this subpart relates; and
(3) A descriptive title for the document, indicating the party for whom it is filed and the nature of the document.
(c)
(d)
(a)
(1) Before OEPC refers a case for docketing under § 45.26, any documents must be filed with OEPC. OEPC's address, telephone number, and facsimile number are set forth in § 45.2.
(2) OEPC will notify the parties of the date on which it refers a case for docketing under § 45.26. After that date, any documents must be filed with:
(i) The Hearings Division, if DOI will be conducting the hearing. The Hearings Division's address, telephone number, and facsimile number are set forth in § 45.2; or
(ii) The hearings component of or used by another Department, if that Department will be conducting the hearing. The name, address, telephone number, and facsimile number of the appropriate hearings component will be provided in the referral notice from OEPC.
(b)
(i) By hand delivery of the original document and two copies;
(ii) By sending the original document and two copies by express mail or courier service; or
(iii) By sending the document by facsimile if:
(A) The document is 20 pages or less, including all attachments;
(B) The sending facsimile machine confirms that the transmission was successful; and
(C) The original of the document and two copies are sent by regular mail on the same day.
(2) Parties are encouraged, and may be required by the ALJ, to supplement any filing by providing the appropriate
(i) An original; and
(ii) One copy on a compact disc or other suitable media.
(c)
(d)
(a)
(1) A complete copy of any request for a hearing under § 45.21 must be delivered or sent to FERC and each license party, using one of the methods of service in paragraph (c) of this section or under 18 CFR 385.2010(f)(3) for license parties that have agreed to receive electronic service.
(2) A complete copy of any notice of intervention and response under § 45.22 must be:
(i) Delivered or sent to FERC, the license applicant, any person who has filed a request for hearing under § 45.21, and any bureau, using one of the methods of service in paragraph (c) of this section; and
(ii) Delivered or sent to any other license party using one of the methods of service in paragraph (c) of this section or under 18 CFR 385.2010(f)(3) for license parties that have agreed to receive electronic service, or by regular mail.
(3) A complete copy of any answer or notice under § 45.25 and any other document filed by any party to the hearing process must be delivered or sent on every other party to the hearing process, using one of the methods of service in paragraph (c) of this section.
(b)
(c)
(1) By hand delivery of the document;
(2) By sending the document by express mail or courier service for delivery on the next business day;
(3) By sending the document by facsimile if:
(i) The document is 20 pages or less, including all attachments;
(ii) The sending facsimile machine confirms that the transmission was successful; and
(iii) The document is sent by regular mail on the same day; or
(4) By sending the document, including all attachments, by electronic means if the party to be served has consented to that means of service in writing. However, if the serving party learns that the document did not reach the party to be served, the serving party must re-serve the document by another method set forth in paragraph (c) of this section (including another electronic means, if the party to be served has consented to that means in writing).
(d)
(1) The name, address, and other contact information of each party's representative on whom the document was served;
(2) The means of service, including information indicating compliance with paragraph (c)(3) or (c)(4) of this section, if applicable; and
(3) The date of service.
(a)
(2) If any of the documents relied upon are not already in the license proceeding record, DOI must:
(i) File them with FERC at the time it files the preliminary condition or prescription;
(ii) Provide copies to the license applicant; and
(iii) In the case of a condition developed by the Bureau of Indian Affairs, provide copies to the affected Indian tribe.
(b)
(a)
(1) Be a license party; and
(2) File with OEPC, at the address provided in§ 45.2, a written request for a hearing:
(i) For a case under § 45.1(d)(1), within 30 days after DOI files a preliminary condition or prescription with FERC; or
(ii) For a case under § 45.1(d)(2), within 60 days after DOI files a preliminary condition or prescription with FERC.
(b)
(1) A numbered list of the factual issues that you allege are in dispute, each stated in a single, concise sentence;
(2) The following information with respect to each issue:
(i) The specific factual statements made or relied upon by DOI under § 45.20(a) that you dispute;
(ii) The basis for your opinion that those factual statements are unfounded or erroneous; and
(iii) The basis for your opinion that any factual dispute is material.
(3) With respect to any scientific studies, literature, and other documented information supporting your opinions under paragraphs (b)(2)(ii) and (b)(2)(iii) of this section, specific citations to the information relied upon. If any such document is not already in the license proceeding record, you must provide a copy with the request; and
(4) A statement indicating whether or not you consent to service by electronic means under § 45.13(c)(4) and, if so, by what means.
(c)
(1) For each witness listed, you must provide:
(i) His or her name, address, telephone number, and qualifications; and
(ii) A brief narrative summary of his or her expected testimony.
(2) For each exhibit listed, you must specify whether it is in the license proceeding record.
(d)
(2) For each witness, the information provided under paragraph (c)(1) of this section may not exceed one page.
(a)
(i) Be a license party; and
(ii) File with OEPC, at the address provided in§ 45.2, a notice of intervention and a written response to any request for a hearing within 20 days after the deadline in § 45.21(a)(2).
(2) A notice of intervention and response must be limited to one or more of the issues of material fact raised in the hearing request and may not raise additional issues.
(b)
(1) If you agree with the information provided by DOI under § 45.20(a) or by the requester under § 45.21(b), your response may refer to DOI's explanation or the requester's hearing request for support.
(2) If you wish to rely on additional information or analysis, your response must provide the same level of detail with respect to the additional information or analysis as required under § 45.21(b).
(3) Your notice of intervention and response must also indicate whether or not you consent to service by electronic means under § 45.13(c)(4) and, if so, by what means.
(c)
(1) For each witness listed, you must provide:
(i) His or her name, address, telephone number, and qualifications; and
(ii) A brief narrative summary of his or her expected testimony; and
(2) For each exhibit listed, you must specify whether it is in the license proceeding record.
(d)
(2) For each witness, the information provided under paragraph (c)(1) of this section may not exceed one page.
(a)
(1) Whether a preliminary condition or prescription relating to the license has been filed with FERC on behalf of any other bureau or Department; and
(2) If so, whether the other bureau or Department has also received a hearing request with respect to the preliminary condition or prescription.
(b)
(1) Whether the cases should be consolidated for hearing under paragraphs (c)(3)(ii) through (iv) of this section; and
(2) If so, which Department will conduct the hearing on their behalf.
(c)
(1) All hearing requests with respect to any conditions from the same Department will be consolidated for hearing.
(2) All hearing requests with respect to any prescriptions from the same Department will be consolidated for hearing.
(3) All or any portion of the following may be consolidated for hearing, if the bureaus and Departments involved determine that there are common issues of material fact or that consolidation is otherwise appropriate:
(i) Two or more hearing requests with respect to any condition and any prescription from the same Department;
(ii) Two or more hearing requests with respect to conditions from different Departments;
(iii) Two or more hearing requests with respect to prescriptions from different Departments; or
(iv) Two or more hearing requests with respect to any condition from one Department and any prescription from another Department.
(a) Prior to referral to the ALJ, the hearing requester and the Department may by agreement stay the hearing process under this subpart for a period not to exceed 120 days to allow for settlement discussions, if the stay period and any subsequent hearing process (if required) can be accommodated within the time frame established for the license proceeding.
(b) Any stay of the hearing process will not affect the deadline for filing a notice of intervention and response, if any, pursuant to § 45.22(a)(1)(ii).
(a)
(b)
(1) For each of the numbered factual issues listed under § 45.21(b)(1), the answer must explain the bureau's position with respect to the issues of material fact raised by the requester, including one or more of the following statements as appropriate:
(i) That the bureau is willing to stipulate to the facts as alleged by the requester;
(ii) That the bureau believes the issue listed by the requester is not a factual issue, explaining the basis for such belief;
(iii) That the bureau believes the issue listed by the requester is not material, explaining the basis for such belief; or
(iv) That the bureau agrees that the issue is factual, material, and in dispute.
(2) The answer must also indicate whether the hearing request will be consolidated with one or more other hearing requests under § 45.23 and, if so:
(i) Identify any other hearing request that will be consolidated with this hearing request; and
(ii) State which Department will conduct the hearing and provide contact information for the appropriate Department hearings component.
(3) If the bureau plans to rely on any scientific studies, literature, and other documented information that are not already in the license proceeding record, it must provide a copy with its answer.
(4) The answer must also indicate whether or not the bureau consents to service by electronic means under § 45.13(c)(4) and, if so, by what means.
(c)
(1) For each witness listed, the bureau must provide:
(i) His or her name, address, telephone number, and qualifications; and
(ii) A brief narrative summary of his or her expected testimony.
(2) For each exhibit listed, the bureau must specify whether it is in the license proceeding record.
(d)
(2) For each witness, the information provided under paragraph (c)(1) of this section may not exceed one page.
(e)
(1) The bureau is deemed to agree that the issues listed by the requester are factual, material, and in dispute;
(2) The bureau may file a list of witnesses and exhibits with respect to the request only as provided in § 45.42(b); and
(3) The bureau must file a notice containing the information required by paragraph (b)(2) of this section, if the hearing request will be consolidated with one or more other hearing requests under § 45.23, and the statement required by paragraph (b)(4) of this section.
(a)
(1) If the hearing is to be conducted by DOI, OEPC will refer the case to the Hearings Division.
(2) If the hearing is to be conducted by another Department, OEPC will refer the case to the hearings component used by that Department.
(b)
(1) Two copies of any preliminary condition or prescription under § 45.20;
(2) The original and one copy of any hearing request under § 45.21;
(3) The original and one copy of any notice of intervention and response under § 45.22;
(4) The original and one copy of any answer under § 45.25; and
(5) The original and one copy of a referral notice under paragraph (c) of this section.
(c)
(1) The name, address, telephone number, and facsimile number of the Department hearings component that will conduct the hearing;
(2) The name, address, and other contact information for the representative of each party to the hearing process;
(3) An identification of any other hearing request that will be consolidated with this hearing request; and
(4) The effective date of the case referral to the appropriate Department hearings component.
(d)
(2) OEPC must serve a copy of the referral notice on FERC and each party to the hearing by one of the methods identified in § 45.13(c)(1) and (2).
(a) If OEPC refers the case to the Hearings Division, the regulations in this subpart will continue to apply to the hearing process.
(b) If OEPC refers the case to the United States Department of Agriculture's Office of Administrative Law Judges, the regulations at 7 CFR 1.601
(c) If OEPC refers the case to the Department of Commerce's designated ALJ office, the regulations at 50 CFR 221.1
Within 5 days after the effective date stated in the referral notice under § 45.26(c)(4), 7 CFR 1.626(c)(4), or 50 CFR 221.26(c)(4):
(a) The Hearings Division must:
(1) Docket the case;
(2) Assign an ALJ to preside over the hearing process and issue a decision; and
(3) Issue a docketing notice that informs the parties of the docket number and the ALJ assigned to the case; and
(b) The ALJ must issue a notice setting the time, place, and method for conducting an initial prehearing conference under § 45.40. This notice may be combined with the docketing notice under paragraph (a)(3) of this section.
The ALJ will have all powers necessary to conduct a fair, orderly, expeditious, and impartial hearing process relating to any bureau's or other Department's condition or prescription that has been referred to the ALJ for hearing, including the powers to:
(a) Administer oaths and affirmations;
(b) Issue subpoenas under § 45.47;
(c) Shorten or enlarge time periods set forth in these regulations, except that the deadline in § 45.60(a)(2) can be extended only if the ALJ must be replaced under § 45.32 or 45.33;
(d) Rule on motions;
(e) Authorize discovery as provided for in this subpart;
(f) Hold hearings and conferences;
(g) Regulate the course of hearings;
(h) Call and question witnesses;
(i) Exclude any person from a hearing or conference for misconduct or other good cause;
(j) Summarily dispose of any hearing request or issue as to which the ALJ determines there is no disputed issue of material fact;
(k) Issue a decision consistent with § 45.60(b) regarding any disputed issue of material fact; and
(l) Take any other action authorized by law.
(a) If the ALJ becomes unavailable or otherwise unable to perform the duties described in § 45.31, the Hearings Division will designate a successor.
(b) If a hearing has commenced and the ALJ cannot proceed with it, a successor ALJ may do so. At the request of a party, the successor ALJ may recall any witness whose testimony is material and disputed, and who is available to testify again without undue burden. The successor ALJ may, within his or her discretion, recall any other witness.
(a) The ALJ may withdraw from a case at any time the ALJ deems himself or herself disqualified.
(b) At any time before issuance of the ALJ's decision, any party may move that the ALJ disqualify himself or herself for personal bias or other valid cause.
(1) The party must file the motion promptly after discovering facts or other reasons allegedly constituting cause for disqualification.
(2) The party must file with the motion an affidavit or declaration setting forth the facts or other reasons in detail.
(c) The ALJ must rule upon the motion, stating the grounds for the ruling.
(1) If the ALJ concludes that the motion is timely and meritorious, he or she must disqualify himself or herself and withdraw from the case.
(2) If the ALJ does not disqualify himself or herself and withdraw from the case, the ALJ must continue with the hearing process and issue a decision.
(a) Ex parte communications with the ALJ or his or her staff are prohibited in accordance with 5 U.S.C. 554(d).
(b) This section does not prohibit ex parte inquiries concerning case status or procedural requirements, unless the inquiry involves an area of controversy in the hearing process.
(a)
(1) A motion made at a hearing may be stated orally on the record, unless the ALJ directs that it be reduced to writing.
(2) Any other motion must:
(i) Be in writing;
(ii) Comply with the requirements of this subpart with respect to form, content, filing, and service; and
(iii) Not exceed 15 pages, including all supporting arguments.
(b)
(i) Its purpose and the relief sought;
(ii) The facts constituting the grounds for the relief sought; and
(iii) Any applicable statutory or regulatory authority.
(2) A proposed order must accompany the motion.
(c)
(d)
(e)
(f)
(a)
(1) The initial prehearing conference will be used:
(i) To identify, narrow, and clarify the disputed issues of material fact and exclude issues that do not qualify for review as factual, material, and disputed;
(ii) To consider the parties' motions for discovery under § 45.41 and to set a deadline for the completion of discovery;
(iii) To discuss the evidence on which each party intends to rely at the hearing;
(iv) To set deadlines for submission of written testimony under § 45.52 and exchange of exhibits to be offered as evidence under § 45.54; and
(v) To set the date, time, and place of the hearing.
(2) The initial prehearing conference may also be used:
(i) To discuss limiting and grouping witnesses to avoid duplication;
(ii) To discuss stipulations of fact and of the content and authenticity of documents;
(iii) To consider requests that the ALJ take official notice of public records or other matters;
(iv) To discuss the submission of written testimony, briefs, or other documents in electronic form; and
(v) To consider any other matters that may aid in the disposition of the case.
(b)
(c)
(d)
(2) Before the date set for the initial prehearing conference, the parties' representatives must make a good faith effort:
(i) To meet in person, by telephone, or by other appropriate means; and
(ii) To reach agreement on discovery and the schedule of remaining steps in the hearing process.
(e)
(f)
(g)
(a)
(1) Written interrogatories as provided in § 45.43;
(2) Depositions of witnesses as provided in paragraph (h) of this section; and
(3) Requests for production of designated documents or tangible things or for entry on designated land for inspection or other purposes.
(b)
(1) That the discovery will not unreasonably delay the hearing process;
(2) That the information sought:
(i) Will be admissible at the hearing or appears reasonably calculated to lead to the discovery of admissible evidence;
(ii) Is not already in the license proceeding record or otherwise obtainable by the party;
(iii) Is not cumulative or repetitious; and
(iv) Is not privileged or protected from disclosure by applicable law;
(3) That the scope of the discovery is not unduly burdensome;
(4) That the method to be used is the least burdensome method available;
(5) That any trade secrets or proprietary information can be adequately safeguarded; and
(6) That the standards for discovery under paragraphs (f) through (h) of this section have been met, if applicable.
(c)
(1) Pursuant to an agreement of the parties; or
(2) By filing a motion that:
(i) Briefly describes the proposed method(s), purpose, and scope of the discovery;
(ii) Explains how the discovery meets the criteria in paragraphs (b)(1) through (b)(6) of this section; and
(iii) Attaches a copy of any proposed discovery request (written interrogatories, notice of deposition, or request for production of designated documents or tangible things or for entry on designated land).
(d)
(e)
(2) An objection must explain how, in the objecting party's view, the discovery sought does not meet the criteria in paragraphs (b)(1) through (6) of this section.
(f)
(1) If a party wants to discover such materials, it must show:
(i) That it has substantial need of the materials in preparing its own case; and
(ii) That the party is unable without undue hardship to obtain the substantial equivalent of the materials by other means.
(2) In ordering discovery of such materials when the required showing has been made, the ALJ must protect against disclosure of the mental impressions, conclusions, opinions, or legal theories of an attorney.
(g)
(1) The expert is expected to be a witness at the hearing; or
(2) The expert is relied on by another expert who is expected to be a witness at the hearing, and the party shows:
(i) That it has a compelling need for the information; and
(ii) That it cannot practicably obtain the information by other means.
(h)
(i) Will be unable to attend the hearing because of age, illness, or other incapacity; or
(ii) Is unwilling to attend the hearing voluntarily, and the party is unable to compel the witness's attendance at the hearing by subpoena.
(2) Paragraph (h)(1)(ii) of this section does not apply to any person employed by or under contract with the party seeking the deposition.
(3) A party may depose a senior Department employee only if the party shows:
(i) That the employee's testimony is necessary in order to provide significant, unprivileged information that is not available from any other source or by less burdensome means; and
(ii) That the deposition would not significantly interfere with the employee's ability to perform his or her government duties.
(4) Unless otherwise stipulated to by the parties or authorized by the ALJ upon a showing of extraordinary circumstances, a deposition is limited to 1 day of 7 hours.
(i)
(a)
(1) Was incomplete or incorrect when made; or
(2) Though complete and correct when made, is now incomplete or incorrect in any material respect.
(b)
(2) If a party wishes to include any new witness or exhibit on its updated list, it must provide an explanation of why it was not feasible for the party to include the witness or exhibit on its list under § 45.21(c), § 45.22(c), or § 45.25(c).
(c)
(2) Paragraph (c)(1) of this section does not apply if the failure to disclose was substantially justified or is harmless.
(3) A party may object to the admission of evidence under paragraph (c)(1) of this section before or during the hearing.
(4) The ALJ will consider the following in determining whether to exclude evidence under paragraphs (c)(1) through (3) of this section:
(i) The prejudice to the objecting party;
(ii) The ability of the objecting party to cure any prejudice;
(iii) The extent to which presentation of the evidence would disrupt the orderly and efficient hearing of the case;
(iv) The importance of the evidence; and
(v) The reason for the failure to disclose, including any bad faith or willfulness regarding the failure.
(a)
(1) A party wishing to propound interrogatories must file a motion under § 45.41(c); and
(2) A party may propound no more than 25 interrogatories, counting discrete subparts as separate interrogatories, unless the ALJ approves a higher number upon a showing of good cause.
(b)
(1) Grant the motion and approve the use of some or all of the proposed interrogatories; or
(2) Deny the motion.
(c)
(1) Each approved interrogatory must be answered separately and fully in writing.
(2) The party or its representative must sign the answers to interrogatories under oath or affirmation.
(d)
(1) The information may be obtained from an examination of records, or from a compilation, abstract, or summary based on such records;
(2) The burden of obtaining the information from the records is substantially the same for all parties;
(3) The answering party specifically identifies the individual records from
(4) The answering party provides the requesting party with reasonable opportunity to examine the records and make a copy, compilation, abstract, or summary.
(a)
(1) The time and place that the deposition is to be taken;
(2) The name and address of the person before whom the deposition is to be taken;
(3) The name and address of the witness whose deposition is to be taken; and
(4) Any documents or materials that the witness is to produce.
(b)
(1) Grant the motion and approve the taking of the deposition, subject to any conditions or restrictions the ALJ may impose; or
(2) Deny the motion.
(c)
(1) The deposition will be taken at the time and place agreed to by the parties or indicated in the ALJ's order.
(2) The deposition may be taken before any disinterested person authorized to administer oaths in the place where the deposition is to be taken.
(3) Any party that objects to the taking of a deposition because of the disqualification of the person before whom it is to be taken must do so:
(i) Before the deposition begins; or
(ii) As soon as the disqualification becomes known or could have been discovered with reasonable diligence.
(4) A deposition may be taken by telephone conference call, if agreed to by the parties or approved in the ALJ's order.
(d)
(e)
(f)
(1) Any other party may obtain a copy of the transcript at its own expense.
(2) Unless waived by the deponent, the deponent will have 3 days after receiving the transcript to read and sign it.
(3) The person before whom the deposition was taken must certify the transcript following receipt of the signed transcript from the deponent or expiration of the 3-day review period, whichever occurs first.
(g)
(1) The video recording may be in conjunction with an oral examination by telephone conference held under paragraph (c)(4) of this section.
(2) After the deposition has been taken, the person recording the deposition must:
(i) Provide a copy of the videotape to any party that requests it, at the requesting party's expense; and
(ii) Attach to the videotape a statement identifying the case and the deponent and certifying the authenticity of the video recording.
(h)
(a)
(1) The production of designated documents for inspection and copying, other than documents that are already in the license proceeding record;
(2) The production of designated tangible things for inspection, copying, testing, or sampling; or
(3) Entry on designated land or other property for inspection and measuring, surveying, photographing, testing, or sampling either the property or any designated object or operation on the property.
(b)
(1) Grant the motion and approve the use of some or all of the proposed requests; or
(2) Deny the motion.
(c)
(a) Upon motion of a party, the ALJ may impose sanctions under paragraph (b) of this section if any party:
(1) Fails to comply with an order approving discovery; or
(2) Fails to supplement or amend a response to discovery under § 45.42(a).
(b) The ALJ may impose one or more of the following sanctions:
(1) Infer that the information, testimony, document, or other evidence withheld would have been adverse to the party;
(2) Order that, for the purposes of the hearing, designated facts are established;
(3) Order that the party not introduce into evidence, or otherwise rely on to support its case, any information, testimony, document, or other evidence:
(i) That the party improperly withheld; or
(ii) That the party obtained from another party in discovery;
(4) Allow another party to use secondary evidence to show what the information, testimony, document, or other evidence withheld would have shown; or
(5) Take other appropriate action to remedy the party's failure to comply.
(a)
(2) A party may request a subpoena for a senior Department employee only if the party shows:
(i) That the employee's testimony is necessary in order to provide
(ii) That the employee's attendance would not significantly interfere with the ability to perform his or her government duties.
(b)
(2) Service must be made by hand delivering a copy of the subpoena to the person named therein.
(3) The person serving the subpoena must:
(i) Prepare a certificate of service setting forth:
(A) The date, time, and manner of service; or
(B) The reason for any failure of service; and
(ii) Swear to or affirm the certificate, attach it to a copy of the subpoena, and return it to the party on whose behalf the subpoena was served.
(c)
(2) A witness who is not a party and who attends a deposition or hearing at the request of any party without having been subpoenaed is entitled to the same fees and mileage expenses as if he or she had been subpoenaed. However, this paragraph does not apply to Federal employees who are called as witnesses by a bureau or other Department.
(d)
(2) The motion must be filed:
(i) Within 5 days after service of the subpoena; or
(ii) At or before the time specified in the subpoena for compliance, if that is less than 5 days after service of the subpoena.
(3) The ALJ may quash or modify the subpoena if it:
(i) Is unreasonable;
(ii) Requires production of information during discovery that is not discoverable; or
(iii) Requires disclosure of irrelevant, privileged, or otherwise protected information.
(e)
(a) Except as provided in paragraph (b) of this section, the hearing will be held at the time and place set at the initial prehearing conference under § 45.40, generally within 25 days after the date set for completion of discovery.
(b) On motion by a party or on the ALJ's initiative, the ALJ may change the date, time, or place of the hearing if he or she finds:
(1) That there is good cause for the change; and
(2) That the change will not unduly prejudice the parties and witnesses.
Each party has the following rights during the hearing, as necessary to assure full and accurate disclosure of the facts:
(a) To present testimony and exhibits, consistent with the requirements in §§ 45.21(c), 45.22(c), 45.25(c), 45.42(b), and 45.52;
(b) To make objections, motions, and arguments; and
(c) To cross-examine witnesses and to conduct re-direct and re-cross examination as permitted by the ALJ.
(a)
(1) Prepared written testimony must:
(i) Have line numbers inserted in the left-hand margin of each page;
(ii) Be authenticated by an affidavit or declaration of the witness;
(iii) Be filed within 10 days after the date set for completion of discovery; and
(iv) Be offered as an exhibit during the hearing.
(2) Any witness submitting written testimony must be available for cross-examination at the hearing.
(b)
(c)
(1) The arrangements for the call must let each party listen to and speak to the witness and each other within the hearing of the ALJ.
(2) The ALJ will ensure the full identification of each speaker so the reporter can create a proper record.
(3) The ALJ may issue a subpoena under § 45.47 directing a witness to testify by telephonic conference call.
(a)
(1) Was present or represented at the taking of the deposition; or
(2) Had reasonable notice of the taking of the deposition.
(b)
(2) The ALJ will exclude from evidence any question and response to which an objection:
(i) Was noted at the taking of the deposition; and
(ii) Would have been sustained if the witness had been personally present and testifying at a hearing.
(3) If a party offers only part of a deposition in evidence:
(i) An adverse party may require the party to introduce any other part that ought in fairness to be considered with the part introduced; and
(ii) Any other party may introduce any other parts.
(c)
(a)
(2) Each exhibit offered by a party must be marked for identification.
(3) Any party who seeks to have an exhibit admitted into evidence must provide:
(i) The original of the exhibit to the reporter, unless the ALJ permits the substitution of a copy; and
(ii) A copy of the exhibit to the ALJ.
(b)
(1) The party offering the exhibit must:
(i) Designate the matter offered as evidence;
(ii) Segregate and exclude the material not offered in evidence, to the extent practicable; and
(iii) Provide copies of the entire document to the other parties appearing at the hearing.
(2) The ALJ must give the other parties an opportunity to inspect the entire document and offer in evidence any other portions of the document.
(c)
(2) The ALJ must give the other parties appearing at the hearing an opportunity to show the contrary of an officially noticed fact.
(3) Any party requesting official notice of a fact after the conclusion of the hearing must show good cause for its failure to request official notice during the hearing.
(d)
(2) If received in evidence at the hearing, a stipulation is binding on the stipulating parties.
(3) A stipulation may be written or made orally at the hearing.
(a)
(i) Relevant, reliable, and probative; and
(ii) Not privileged or unduly repetitious or cumulative.
(2) The ALJ may exclude evidence if its probative value is substantially outweighed by the risk of undue prejudice, confusion of the issues, or delay.
(3) Hearsay evidence is admissible. The ALJ may consider the fact that evidence is hearsay when determining its probative value.
(4) The Federal Rules of Evidence do not directly apply to the hearing, but may be used as guidance by the ALJ and the parties in interpreting and applying the provisions of this section.
(b)
(a)
(1) The Hearings Division will secure the services of a reporter and pay the reporter's fees to provide an original transcript to the Hearings Division on an expedited basis.
(2) Each party must pay the reporter for any copies of the transcript obtained by that party.
(b)
(2) Unless a party files a timely motion under paragraph (b)(1) of this section, the transcript will be presumed to be correct and complete, except for obvious typographical errors.
(3) As soon as practicable after the close of the hearing and after consideration of any motions filed under paragraph (b)(1) of this section, the ALJ will issue an order making any corrections to the transcript that the ALJ finds are warranted.
(a) Any party who has filed a request for a hearing has the burden of persuasion with respect to the issues of material fact raised by that party.
(b) The standard of proof is a preponderance of the evidence.
(a) The hearing record will close when the ALJ closes the hearing, unless he or she directs otherwise.
(b) Evidence may not be added after the hearing record is closed, but the transcript may be corrected under § 45.56(b).
(a)
(2) A party may file a reply brief only if requested by the ALJ. The deadline for filing a reply brief, if any, will be set by the ALJ.
(3) The ALJ may limit the length of the briefs to be filed under this section.
(b)
(i) A concise statement of the case;
(ii) A separate section containing proposed findings regarding the issues of material fact, with supporting citations to the hearing record;
(iii) Arguments in support of the party's position; and
(iv) Any other matter required by the ALJ.
(2) A reply brief, if requested by the ALJ, must be limited to any issues identified by the ALJ.
(c)
(i) Such an exhibit may be reproduced, within reasonable limits, in an appendix to the brief.
(ii) Any pertinent analysis of an exhibit may be included in a brief.
(2) If a brief exceeds 20 pages, it must contain:
(i) A table of contents and of points made, with page references; and
(ii) An alphabetical list of citations to legal authority, with page references.
(a)
(1) 30 days after the close of the hearing under § 45.58; or
(2) 120 days after the effective date stated in the referral notice under § 45.26(c)(4), 7 CFR 1.626(c)(4), or 50 CFR 221.26(c)(4).
(b)
(i) Findings of fact on all disputed issues of material fact;
(ii) Conclusions of law necessary to make the findings of fact (such as rulings on materiality and on the admissibility of evidence); and
(iii) Reasons for the findings and conclusions.
(2) The ALJ may adopt any of the findings of fact proposed by one or more of the parties.
(3) The decision will not contain conclusions as to whether any preliminary condition or prescription should be adopted, modified, or rejected, or whether any proposed alternative should be accepted or rejected.
(c)
(1) Serve the decision on each party to the hearing;
(2) Prepare a list of all documents that constitute the complete record for the hearing process (including the decision) and certify that the list is complete; and
(3) Forward to FERC the complete record for the hearing process, along with the certified list prepared under paragraph (c)(2) of this section, for inclusion in the record for the license proceeding. Materials received in electronic form,
(d)
(a)
(2) A document is considered filed on the date it is received. However, any document received after 5 p.m. at the place where the filing is due is considered filed on the next regular business day.
(b)
(i) One of the methods of service in § 45.13(c); or
(ii) Regular mail.
(2) The provisions of § 45.13(d) regarding a certificate of service apply to service under this subpart.
(a)
(1) Be a license party; and
(2) File a written proposal with OEPC:
(i) For a case under § 45.1(d)(1), within 30 days after DOI files a preliminary condition or prescription with FERC; or
(ii) For a case under § 45.1(d)(2), within 60 days after DOI files a proposed condition or prescription with FERC.
(b)
(1) A description of the alternative, in an equivalent level of detail to DOI's preliminary condition or prescription;
(2) An explanation of how the alternative:
(i) If a condition, will provide for the adequate protection and utilization of the reservation; or
(ii) If a prescription, will be no less protective than the fishway prescribed by DOI;
(3) An explanation of how the alternative, as compared to the preliminary condition or prescription, will:
(i) Cost significantly less to implement; or
(ii) Result in improved operation of the project works for electricity production;
(4) An explanation of how the alternative will affect:
(i) Energy supply, distribution, cost, and use;
(ii) Flood control;
(iii) Navigation;
(iv) Water supply;
(v) Air quality; and
(vi) Other aspects of environmental quality; and
(5) Specific citations to any scientific studies, literature, and other documented information relied on to support your proposal, including any assumptions you are making (
(a) Within 20 days after issuance of the ALJ's decision under § 45.60, you may file with OEPC a revised proposed alternative condition or prescription if:
(1) You previously filed a proposed alternative that met the requirements of § 45.71; and
(2) Your revised proposed alternative is designed to respond to one or more findings of fact by the ALJ.
(b) Your revised proposed alternative must:
(1) Satisfy the content requirements for a proposed alternative under § 45.71(b); and
(2) Identify the specific ALJ finding(s) to which the revised proposed alternative is designed to respond and how the revised proposed alternative differs from the original alternative.
(c) Filing a revised proposed alternative will constitute a withdrawal of the previously filed proposed alternative.
(a) Except as provided in paragraph (b) of this section, if any license party proposes an alternative to a preliminary condition or prescription under § 45.71, DOI will do the following within 60 days after the deadline for filing comments on FERC's draft NEPA document under 18 CFR 5.25(c):
(1) Analyze under § 45.74 any alternative condition or prescription proposed under § 45.71 or 45.72; and
(2) File with FERC:
(i) Any condition or prescription that DOI adopts as its modified condition or prescription; and
(ii) DOI's analysis of the modified condition or prescription and any proposed alternative.
(b) If DOI needs additional time to complete the steps set forth in paragraphs (a)(1) and (a)(2) of this section, it will so inform FERC within 60 days after the deadline for filing comments on FERC's draft NEPA document under 18 CFR 5.25(c).
(a) In deciding whether to accept an alternative proposed under § 45.71 or 45.72, DOI must consider evidence and supporting material provided by any license party or otherwise reasonably available to DOI, including:
(1) Any evidence on the implementation costs or operational impacts for electricity production of the proposed alternative;
(2) Any comments received on DOI's preliminary condition or prescription;
(3) Any ALJ decision on disputed issues of material fact issued under § 45.60 with respect to the preliminary condition or prescription;
(4) Comments received on any draft or final NEPA documents; and
(5) The license party's proposal under § 45.71 or 45.72.
(b) DOI must accept a proposed alternative if it determines, based on substantial evidence provided by any license party or otherwise reasonably available to DOI, that the alternative:
(1) Will, as compared to DOI's preliminary condition or prescription:
(i) Cost significantly less to implement; or
(ii) Result in improved operation of the project works for electricity production; and
(2) Will:
(i) If a condition, provide for the adequate protection and utilization of the reservation; or
(ii) If a prescription, be no less protective than DOI's preliminary prescription.
(c) For purposes of paragraphs (a) and (b) of this section, DOI will consider evidence and supporting material provided by any license party by the deadline for filing comments on FERC's NEPA document under 18 CFR 5.25(c).
(d) When DOI files with FERC the condition or prescription that DOI adopts as its modified condition or prescription under § 45.73(a)(2), it must also file:
(1) A written statement explaining:
(i) The basis for the adopted condition or prescription;
(ii) If DOI is not accepting any pending alternative, its reasons for not doing so; and
(iii) If any alternative submitted under § 45.71 was subsequently withdrawn by the license party, that the alternative was withdrawn; and
(2) Any study, data, and other factual information relied on that is not already part of the licensing proceeding record.
(e) The written statement under paragraph (d)(1) of this section must demonstrate that DOI gave equal consideration to the effects of the condition or prescription adopted and any alternative not accepted on:
(1) Energy supply, distribution, cost, and use;
(2) Flood control;
(3) Navigation;
(4) Water supply;
(5) Air quality; and
(6) Preservation of other aspects of environmental quality.
Yes. This rule contains provisions that would collect information from the public. It therefore requires approval by the Office of Management and Budget (OMB) under the Paperwork Reduction Act of 1995, 44 U.S.C. 3501
16 U.S.C. 797(e), 811, 823d.
(a)
(2) The hearing process under this part does not apply to provisions that the Department of Commerce may submit to FERC under any authority other than FPA section 4(e) and 18, including recommendations under FPA section 10(a) or (j), 16 U.S.C. 803(a), (j), or terms and conditions under FPA section 30(c), 16 U.S.C. 823a(c).
(3) The FPA also grants the Department of Agriculture and the Department of the Interior the authority to develop mandatory conditions, and the Department of the Interior the authority to develop mandatory prescriptions, for inclusion in a hydropower license. Where the Department of Commerce and either or both of these other Departments develop conditions or prescriptions to be included in the same hydropower license and where the Departments
(i) A hearing conducted under this part will also address disputed issues of material fact with respect to any condition or prescription developed by one of the other Departments; or
(ii) A hearing requested under this part will be conducted by one of the other Departments, pursuant to 7 CFR 1.601
(4) The regulations in subparts A and B of this part will be construed and applied to each hearing process to achieve a just and speedy determination, consistent with adequate consideration of the issues involved and the provisions of § 221.60(a).
(b)
(c)
(d)
(2) This part also applies to any exercise of NOAA's reserved authority under paragraph (c) of this section with respect to a hydropower license issued before or after November 17, 2005.
As used in this part:
(1) A license party that has filed a timely request for a hearing under:
(i) Section 221.21; or
(ii) Either 7 CFR 1.621 or 43 CFR 45.21, with respect to a hearing process consolidated under § 221.23;
(2) A license party that has filed a timely notice of intervention and response under:
(i) Section 221.22; or
(ii) Either 7 CFR 1.622 or 43 CFR 45.22, with respect to a hearing process consolidated under § 221.23;
(3) NOAA; and
(4) Any other Department that has filed a preliminary condition or prescription, with respect to a hearing process consolidated under § 221.23.
(1) Is authorized by a party to represent the party in a hearing process under this subpart; and
(2) Has filed an appearance under § 221.10.
(a)
(1) The day of the act or event from which the period begins to run is not included.
(2) The last day of the period is included.
(i) If that day is a Saturday, Sunday, or Federal holiday, the period is extended to the next business day.
(ii) The last day of the period ends at 5 p.m. at the place where the filing or other action is due.
(3) If the period is less than 7 days, any Saturday, Sunday, or Federal holiday that falls within the period is not included.
(b)
(2) An extension of time to file any other document under subpart B of this part may be granted only upon a showing of good cause.
(i) To request an extension of time, a party must file a motion under § 221.35 stating how much additional time is needed and the reasons for the request.
(ii) The party must file the motion before the applicable time period expires, unless the party demonstrates extraordinary circumstances that justify a delay in filing.
(iii) The ALJ may grant the extension only if:
(A) It would not unduly prejudice other parties; and
(B) It would not delay the decision under § 221.60.
(a) The following table summarizes the steps in the trial-type hearing process under subpart B of this part and indicates the deadlines generally applicable to each step. If the deadlines in this table are in any way inconsistent with the deadlines as set by other sections of this part or by the ALJ, the deadlines as set by those other sections or by the ALJ control.
(b) The following table summarizes the steps in the alternatives process under subpart C of this part and indicates the deadlines generally applicable to each step. If the deadlines in this table are in any way inconsistent with the deadlines as set by other sections of this part, the deadlines as set by those other sections control.
(a)
(b)
(1) An attorney;
(2) A partner, if the entity is a partnership;
(3) An officer or agent, if the entity is a corporation, association, or unincorporated organization;
(4) A receiver, administrator, executor, or similar fiduciary, if the entity is a receivership, trust, or estate; or
(5) An elected or appointed official or an employee, if the entity is a Federal, State, Tribal, county, district, territorial, or local government or component.
(c)
(1) Meet the form and content requirements for documents under § 221.11;
(2) Include the name and address of the party on whose behalf the appearance is made;
(3) If the representative is an attorney, include a statement that he or she is a member in good standing of the bar of the highest court of a state, the District of Columbia, or any territory or commonwealth of the United States (identifying which one); and
(4) If the representative is not an attorney, include a statement explaining his or her authority to represent the entity.
(d)
(e)
(a)
(1) Measure 8
(2) Be printed on just one side of the page (except that service copies may be printed on both sides of the page);
(3) Be clearly typewritten, printed, or otherwise reproduced by a process that yields legible and permanent copies;
(4) Use 11 point font size or larger;
(5) Be double-spaced except for footnotes and long quotations, which may be single-spaced;
(6) Have margins of at least 1 inch; and
(7) Be bound on the left side, if bound.
(b)
(1) The name of the case under this subpart and the docket number, if one has been assigned;
(2) The name and docket number of the license proceeding to which the case under this subpart relates; and
(3) A descriptive title for the document, indicating the party for whom it is filed and the nature of the document.
(c)
(d)
(a)
(1) Before NOAA refers a case for docketing under § 221.26, any documents must be filed with the Office of Habitat Conservation. The Office of Habitat Conservation's address, telephone number, and facsimile number are set forth in § 221.2.
(2) NOAA will notify the parties of the date on which it refers a case for docketing under § 221.26. After that date, any documents must be filed with:
(i) The Department of Commerce's designated ALJ office, if the Department of Commerce will be conducting the hearing. The name, address, telephone number, and facsimile number of the designated ALJ office will be provided in the referral notice from NOAA; or
(ii) The hearings component of or used by another Department, if that Department will be conducting the hearing. The name, address, telephone number, and facsimile number of the appropriate hearings component will be provided in the referral notice from NOAA.
(b)
(i) By hand delivery of the original document and two copies;
(ii) By sending the original document and two copies by express mail or courier service; or
(iii) By sending the document by facsimile if:
(A) The document is 20 pages or less, including all attachments;
(B) The sending facsimile machine confirms that the transmission was successful; and
(C) The original of the document and two copies are sent by regular mail on the same day.
(2) Parties are encouraged, and may be required by the ALJ, to supplement any filing by providing the appropriate office with an electronic copy of the document on compact disc or other suitable media. With respect to any supporting material accompanying a request for hearing, a notice of intervention and response, or an
(i) An original; and
(ii) One copy on a compact disc or other suitable media.
(c)
(d)
(a)
(1) A complete copy of any request for a hearing under § 221.21 must be delivered or sent to FERC and each license party, using one of the methods of service in paragraph (c) of this section or under 18 CFR 385.2010(f)(3) for license parties that have agreed to receive electronic service.
(2) A complete copy of any notice of intervention and response under § 221.22 must be:
(i) Delivered or sent to FERC, the license applicant, any person who has filed a request for hearing under § 221.21, and NOAA, using one of the methods of service in paragraph (c) of this section; and
(ii) Delivered or sent to any other license party using one of the methods of service in paragraph (c) of this section or under 18 CFR 385.2010(f)(3) for license parties that have agreed to receive electronic service, or by regular mail.
(3) A complete copy of any answer or notice under § 221.25 and any other document filed by any party to the hearing process must be delivered or sent on every other party to the hearing process, using one of the methods of service in paragraph (c) of this section.
(b)
(c)
(1) By hand delivery of the document;
(2) By sending the document by express mail or courier service for delivery on the next business day;
(3) By sending the document by facsimile if:
(i) The document is 20 pages or less, including all attachments;
(ii) The sending facsimile machine confirms that the transmission was successful; and
(iii) The document is sent by regular mail on the same day; or
(4) By sending the document, including all attachments, by electronic means if the party to be served has consented to that means of service in writing. However, if the serving party learns that the document did not reach the party to be served, the serving party must re-serve the document by another method set forth in paragraph (c) of this section (including another electronic means, if the party to be served has consented to that means in writing).
(d)
(1) The name, address, and other contact information of each party's representative on whom the document was served;
(2) The means of service, including information indicating compliance with paragraph (c)(3) or (c)(4) of this section, if applicable; and
(3) The date of service.
(a)
(2) If any of the documents relied upon are not already in the license proceeding record, NOAA must:
(i) File them with FERC at the time it files the preliminary condition or prescription;
(ii) Provide copies to the license applicant; and
(b)
(a)
(1) Be a license party; and
(2) File with the Office of Habitat Conservation, at the address provided in § 221.2, a written request for a hearing:
(i) For a case under § 221.1(d)(1), within 30 days after NOAA files a preliminary condition or prescription with FERC; or
(ii) For a case under § 221.1(d)(2), within 60 days after NOAA files a preliminary condition or prescription with FERC.
(b)
(1) A numbered list of the factual issues that you allege are in dispute, each stated in a single, concise sentence;
(2) The following information with respect to each issue:
(i) The specific factual statements made or relied upon by NOAA under § 221.20(a) that you dispute;
(ii) The basis for your opinion that those factual statements are unfounded or erroneous; and
(iii) The basis for your opinion that any factual dispute is material.
(3) With respect to any scientific studies, literature, and other documented information supporting your opinions under paragraphs (b)(2)(ii) and (b)(2)(iii) of this section, specific citations to the information relied upon. If any such document is not already in the license proceeding record, you must provide a copy with the request; and
(4) A statement indicating whether or not you consent to service by electronic means under § 221.13(c)(4) and, if so, by what means.
(c)
(1) For each witness listed, you must provide:
(i) His or her name, address, telephone number, and qualifications; and
(ii) A brief narrative summary of his or her expected testimony.
(2) For each exhibit listed, you must specify whether it is in the license proceeding record.
(d)
(2) For each witness, the information provided under paragraph (c)(1) of this section may not exceed one page.
(a)
(i) Be a license party; and
(ii) File with the Office of Habitat Conservation, at the address provided in
(2) A notice of intervention and response must be limited to one or more of the issues of material fact raised in the hearing request and may not raise additional issues.
(b)
(1) If you agree with the information provided by NOAA under § 221.20(a) or by the requester under § 221.21(b), your response may refer to NOAA's explanation or the requester's hearing request for support.
(2) If you wish to rely on additional information or analysis, your response must provide the same level of detail with respect to the additional information or analysis as required under § 221.21(b).
(3) Your notice of intervention and response must also indicate whether or not you consent to service by electronic means under § 221.13(c)(4) and, if so, by what means.
(c)
(1) For each witness listed, you must provide:
(i) His or her name, address, telephone number, and qualifications; and
(ii) A brief narrative summary of his or her expected testimony; and
(2) For each exhibit listed, you must specify whether it is in the license proceeding record.
(d)
(2) For each witness, the information provided under paragraph (c)(1) of this section may not exceed one page.
(a)
(1) Whether any of the other Departments has also filed a preliminary condition or prescription relating to the license with FERC; and
(2) If so, whether the other Department has also received a hearing request with respect to the preliminary condition or prescription.
(b)
(1) Whether the cases should be consolidated for hearing under paragraphs (c)(3)(ii) through (c)(3)(iv) of this section; and
(2) If so, which Department will conduct the hearing on their behalf.
(c)
(1) All hearing requests with respect to any conditions from the same Department will be consolidated for hearing.
(2) All hearing requests with respect to any prescriptions from the same Department will be consolidated for hearing.
(3) All or any portion of the following may be consolidated for hearing, if the Departments involved determine that there are common issues of material fact or that consolidation is otherwise appropriate:
(i) Two or more hearing requests with respect to any condition and any prescription from the same Department;
(ii) Two or more hearing requests with respect to conditions from different Departments;
(iii) Two or more hearing requests with respect to prescriptions from different Departments; or
(iv) Two or more hearing requests with respect to any condition from one Department and any prescription from another Department.
(a) Prior to referral to the ALJ, the hearing requester and NOAA may by agreement stay the hearing process under this subpart for a period not to exceed 120 days to allow for settlement discussions, if the stay period and any subsequent hearing process (if required) can be accommodated within the time frame established for the license proceeding.
(b) Any stay of the hearing process will not affect the deadline for filing a notice of intervention and response, if any, pursuant to § 221.22(a)(1)(ii).
(a)
(b)
(1) For each of the numbered factual issues listed under § 221.21(b)(1), the answer must explain NOAA's position with respect to the issues of material fact raised by the requester, including one or more of the following statements as appropriate:
(i) That NOAA is willing to stipulate to the facts as alleged by the requester;
(ii) That NOAA believes the issue listed by the requester is not a factual issue, explaining the basis for such belief;
(iii) That NOAA believes the issue listed by the requester is not material, explaining the basis for such belief; or
(iv) That NOAA agrees that the issue is factual, material, and in dispute.
(2) The answer must also indicate whether the hearing request will be consolidated with one or more other hearing requests under § 221.23 and, if so:
(i) Identify any other hearing request that will be consolidated with this hearing request; and
(ii) State which Department will conduct the hearing and provide contact information for the appropriate Department hearings component.
(3) If NOAA plans to rely on any scientific studies, literature, and other documented information that are not already in the license proceeding record, it must provide a copy with its answer.
(4) The answer must also indicate whether or not NOAA consents to service by electronic means under § 221.13(c)(4) and, if so, by what means.
(c)
(1) For each witness listed, NOAA must provide:
(i) His or her name, address, telephone number, and qualifications; and
(ii) A brief narrative summary of his or her expected testimony.
(2) For each exhibit listed, NOAA must specify whether it is in the license proceeding record.
(d)
(2) For each witness, the information provided under paragraph (c)(1) of this section may not exceed one page.
(e)
(1) NOAA is deemed to agree that the issues listed by the requester are factual, material, and in dispute;
(2) NOAA may file a list of witnesses and exhibits with respect to the request only as provided in § 221.42(b); and
(3) NOAA must file a notice containing the information required by paragraph (b)(2) of this section, if the hearing request will be consolidated with one or more other hearing requests under § 221.23, and the statement required by paragraph (b)(4) of this section.
(a)
(1) If the hearing is to be conducted by NOAA, the Office of Habitat Conservation will refer the case to the Department of Commerce's designated ALJ office.
(2) If the hearing is to be conducted by another Department, the Office of Habitat Conservation will refer the case to the hearings component used by that Department.
(b)
(1) Two copies of any preliminary condition or prescription under § 221.20;
(2) The original and one copy of any hearing request under § 221.21;
(3) The original and one copy of any notice of intervention and response under § 221.22;
(4) The original and one copy of any answer under § 221.25; and
(5) The original and one copy of a referral notice under paragraph (c) of this section.
(c)
(1) The name, address, telephone number, and facsimile number of the Department hearings component that will conduct the hearing;
(2) The name, address, and other contact information for the representative of each party to the hearing process;
(3) An identification of any other hearing request that will be consolidated with this hearing request; and
(4) The effective date of the case referral to the appropriate Department hearings component.
(d)
(2) The Office of Habitat Conservation must serve a copy of the referral notice on FERC and each party to the hearing by one of the methods identified in § 221.13(c)(1) and (c)(2).
(a) If the Office of Habitat Conservation refers the case to the Department of Commerce's designated ALJ office, the regulations in this subpart will continue to apply to the hearing process.
(b) If the Office of Habitat Conservation refers the case to the United States Department of Agriculture's Office of Administrative Law Judges, the regulations at 7 CFR 1.601
(c) If the Office of Habitat Conservation refers the case to the Department of the Interior's Office of Hearings and Appeals, the regulations at 43 CFR 45.1
Within 5 days after the effective date stated in the referral notice under § 221.26(c)(4), 43 CFR 45.26(c)(4), or 7 CFR 1.626(c)(4):
(a) The Department of Commerce's designated ALJ office must:
(1) Docket the case;
(2) Assign an ALJ to preside over the hearing process and issue a decision; and
(3) Issue a docketing notice that informs the parties of the docket number and the ALJ assigned to the case; and
(b) The ALJ must issue a notice setting the time, place, and method for conducting an initial prehearing conference under § 221.40. This notice may be combined with the docketing notice under paragraph (a)(3) of this section.
The ALJ will have all powers necessary to conduct a fair, orderly, expeditious, and impartial hearing process relating to NOAA's or any other Department's condition or prescription that has been referred to the ALJ for hearing, including the powers to:
(a) Administer oaths and affirmations;
(b) Issue subpoenas under § 221.47;
(c) Shorten or enlarge time periods set forth in these regulations, except that the deadline in § 221.60(a)(2) can be extended only if the ALJ must be replaced under § 221.32 or 221.33;
(d) Rule on motions;
(e) Authorize discovery as provided for in this subpart;
(f) Hold hearings and conferences;
(g) Regulate the course of hearings;
(h) Call and question witnesses;
(i) Exclude any person from a hearing or conference for misconduct or other good cause;
(j) Summarily dispose of any hearing request or issue as to which the ALJ determines there is no disputed issue of material fact;
(k) Issue a decision consistent with § 221.60(b) regarding any disputed issue of material fact; and
(l) Take any other action authorized by law.
(a) If the ALJ becomes unavailable or otherwise unable to perform the duties described in § 221.31, the Department of Commerce's designated ALJ office will designate a successor.
(b) If a hearing has commenced and the ALJ cannot proceed with it, a successor ALJ may do so. At the request of a party, the successor ALJ may recall any witness whose testimony is material and disputed, and who is available to testify again without undue burden. The successor ALJ may, within his or her discretion, recall any other witness.
(a) The ALJ may withdraw from a case at any time the ALJ deems himself or herself disqualified.
(b) At any time before issuance of the ALJ's decision, any party may move that the ALJ disqualify himself or herself for personal bias or other valid cause.
(1) The party must file the motion promptly after discovering facts or other reasons allegedly constituting cause for disqualification.
(2) The party must file with the motion an affidavit or declaration setting forth the facts or other reasons in detail.
(c) The ALJ must rule upon the motion, stating the grounds for the ruling.
(1) If the ALJ concludes that the motion is timely and meritorious, he or she must disqualify himself or herself and withdraw from the case.
(2) If the ALJ does not disqualify himself or herself and withdraw from the case, the ALJ must continue with the hearing process and issue a decision.
(a) Ex parte communications with the ALJ or his or her staff are prohibited in accordance with 5 U.S.C. 554(d).
(b) This section does not prohibit ex parte inquiries concerning case status or procedural requirements, unless the inquiry involves an area of controversy in the hearing process.
(a)
(1) A motion made at a hearing may be stated orally on the record, unless the ALJ directs that it be reduced to writing.
(2) Any other motion must:
(i) Be in writing;
(ii) Comply with the requirements of this subpart with respect to form, content, filing, and service; and
(iii) Not exceed 15 pages, including all supporting arguments.
(b)
(i) Its purpose and the relief sought;
(ii) The facts constituting the grounds for the relief sought; and
(iii) Any applicable statutory or regulatory authority.
(2) A proposed order must accompany the motion.
(c)
(d)
(e)
(f)
(a)
(1) The initial prehearing conference will be used:
(i) To identify, narrow, and clarify the disputed issues of material fact and exclude issues that do not qualify for review as factual, material, and disputed;
(ii) To consider the parties' motions for discovery under § 221.41 and to set a deadline for the completion of discovery;
(iii) To discuss the evidence on which each party intends to rely at the hearing;
(iv) To set deadlines for submission of written testimony under § 221.52 and exchange of exhibits to be offered as evidence under § 221.54; and
(v) To set the date, time, and place of the hearing.
(2) The initial prehearing conference may also be used:
(i) To discuss limiting and grouping witnesses to avoid duplication;
(ii) To discuss stipulations of fact and of the content and authenticity of documents;
(iii) To consider requests that the ALJ take official notice of public records or other matters;
(iv) To discuss the submission of written testimony, briefs, or other documents in electronic form; and
(v) To consider any other matters that may aid in the disposition of the case.
(b)
(c)
(d)
(2) Before the date set for the initial prehearing conference, the parties' representatives must make a good faith effort:
(i) To meet in person, by telephone, or by other appropriate means; and
(ii) To reach agreement on discovery and the schedule of remaining steps in the hearing process.
(e)
(f)
(g)
(a)
(1) Written interrogatories as provided in § 221.43;
(2) Depositions of witnesses as provided in paragraph (h) of this section; and
(3) Requests for production of designated documents or tangible things or for entry on designated land for inspection or other purposes.
(b)
(1) That the discovery will not unreasonably delay the hearing process;
(2) That the information sought:
(i) Will be admissible at the hearing or appears reasonably calculated to lead to the discovery of admissible evidence;
(ii) Is not already in the license proceeding record or otherwise obtainable by the party;
(iii) Is not cumulative or repetitious; and
(iv) Is not privileged or protected from disclosure by applicable law;
(3) That the scope of the discovery is not unduly burdensome;
(4) That the method to be used is the least burdensome method available;
(5) That any trade secrets or proprietary information can be adequately safeguarded; and
(6) That the standards for discovery under paragraphs (f) through (h) of this section have been met, if applicable.
(c)
(1) Pursuant to an agreement of the parties; or
(2) By filing a motion that:
(i) Briefly describes the proposed method(s), purpose, and scope of the discovery;
(ii) Explains how the discovery meets the criteria in paragraphs (b)(1) through (b)(6) of this section; and
(iii) Attaches a copy of any proposed discovery request (written interrogatories, notice of deposition, or request for production of designated documents or tangible things or for entry on designated land).
(d)
(e)
(2) An objection must explain how, in the objecting party's view, the discovery sought does not meet the criteria in paragraphs (b)(1) through (b)(6) of this section.
(f)
(1) If a party wants to discover such materials, it must show:
(i) That it has substantial need of the materials in preparing its own case; and
(ii) That the party is unable without undue hardship to obtain the substantial equivalent of the materials by other means.
(2) In ordering discovery of such materials when the required showing has been made, the ALJ must protect against disclosure of the mental impressions, conclusions, opinions, or legal theories of an attorney.
(g)
(1) The expert is expected to be a witness at the hearing; or
(2) The expert is relied on by another expert who is expected to be a witness at the hearing, and the party shows:
(i) That it has a compelling need for the information; and
(ii) That it cannot practicably obtain the information by other means.
(h)
(i) Will be unable to attend the hearing because of age, illness, or other incapacity; or
(ii) Is unwilling to attend the hearing voluntarily, and the party is unable to compel the witness's attendance at the hearing by subpoena.
(2) Paragraph (h)(1)(ii) of this section does not apply to any person employed by or under contract with the party seeking the deposition.
(3) A party may depose a senior Department employee only if the party shows:
(i) That the employee's testimony is necessary in order to provide significant, unprivileged information that is not available from any other source or by less burdensome means; and
(ii) That the deposition would not significantly interfere with the employee's ability to perform his or her government duties.
(4) Unless otherwise stipulated to by the parties or authorized by the ALJ upon a showing of extraordinary circumstances, a deposition is limited to 1 day of 7 hours.
(i)
(a)
(1) Was incomplete or incorrect when made; or
(2) Though complete and correct when made, is now incomplete or incorrect in any material respect.
(b)
(2) If a party wishes to include any new witness or exhibit on its updated list, it must provide an explanation of why it was not feasible for the party to include the witness or exhibit on its list under §§ 221.21(c), 221.22(c), or 221.25(c).
(c)
(2) Paragraph (c)(1) of this section does not apply if the failure to disclose was substantially justified or is harmless.
(3) A party may object to the admission of evidence under paragraph (c)(1) of this section before or during the hearing.
(4) The ALJ will consider the following in determining whether to exclude evidence under paragraphs (c)(1) through (3) of this section:
(i) The prejudice to the objecting party;
(ii) The ability of the objecting party to cure any prejudice;
(iii) The extent to which presentation of the evidence would disrupt the orderly and efficient hearing of the case;
(iv) The importance of the evidence; and
(v) The reason for the failure to disclose, including any bad faith or willfulness regarding the failure.
(a)
(1) A party wishing to propound interrogatories must file a motion under § 221.41(c); and
(2) A party may propound no more than 25 interrogatories, counting discrete subparts as separate interrogatories, unless the ALJ approves a higher number upon a showing of good cause.
(b)
(1) Grant the motion and approve the use of some or all of the proposed interrogatories; or
(2) Deny the motion.
(c)
(1) Each approved interrogatory must be answered separately and fully in writing.
(2) The party or its representative must sign the answers to interrogatories under oath or affirmation.
(d)
(1) The information may be obtained from an examination of records, or from a compilation, abstract, or summary based on such records;
(2) The burden of obtaining the information from the records is substantially the same for all parties;
(3) The answering party specifically identifies the individual records from
(4) The answering party provides the requesting party with reasonable opportunity to examine the records and make a copy, compilation, abstract, or summary.
(a)
(1) The time and place that the deposition is to be taken;
(2) The name and address of the person before whom the deposition is to be taken;
(3) The name and address of the witness whose deposition is to be taken; and
(4) Any documents or materials that the witness is to produce.
(b)
(1) Grant the motion and approve the taking of the deposition, subject to any conditions or restrictions the ALJ may impose; or
(2) Deny the motion.
(c)
(1) The deposition will be taken at the time and place agreed to by the parties or indicated in the ALJ's order.
(2) The deposition may be taken before any disinterested person authorized to administer oaths in the place where the deposition is to be taken.
(3) Any party that objects to the taking of a deposition because of the disqualification of the person before whom it is to be taken must do so:
(i) Before the deposition begins; or
(ii) As soon as the disqualification becomes known or could have been discovered with reasonable diligence.
(4) A deposition may be taken by telephone conference call, if agreed to by the parties or approved in the ALJ's order.
(d)
(e)
(f)
(1) Any other party may obtain a copy of the transcript at its own expense.
(2) Unless waived by the deponent, the deponent will have 3 days after receiving the transcript to read and sign it.
(3) The person before whom the deposition was taken must certify the transcript following receipt of the signed transcript from the deponent or expiration of the 3-day review period, whichever occurs first.
(g)
(1) The video recording may be in conjunction with an oral examination by telephone conference held under paragraph (c)(4) of this section.
(2) After the deposition has been taken, the person recording the deposition must:
(i) Provide a copy of the videotape to any party that requests it, at the requesting party's expense; and
(ii) Attach to the videotape a statement identifying the case and the deponent and certifying the authenticity of the video recording.
(h)
(a)
(1) The production of designated documents for inspection and copying, other than documents that are already in the license proceeding record;
(2) The production of designated tangible things for inspection, copying, testing, or sampling; or
(3) Entry on designated land or other property for inspection and measuring, surveying, photographing, testing, or sampling either the property or any designated object or operation on the property.
(b)
(1) Grant the motion and approve the use of some or all of the proposed requests; or
(2) Deny the motion.
(c)
(a) Upon motion of a party, the ALJ may impose sanctions under paragraph (b) of this section if any party:
(1) Fails to comply with an order approving discovery; or
(2) Fails to supplement or amend a response to discovery under § 221.42(a).
(b) The ALJ may impose one or more of the following sanctions:
(1) Infer that the information, testimony, document, or other evidence withheld would have been adverse to the party;
(2) Order that, for the purposes of the hearing, designated facts are established;
(3) Order that the party not introduce into evidence, or otherwise rely on to support its case, any information, testimony, document, or other evidence:
(i) That the party improperly withheld; or
(ii) That the party obtained from another party in discovery;
(4) Allow another party to use secondary evidence to show what the information, testimony, document, or other evidence withheld would have shown; or
(5) Take other appropriate action to remedy the party's failure to comply.
(a)
(2) A party may request a subpoena for a senior Department employee only if the party shows:
(i) That the employee's testimony is necessary in order to provide significant, unprivileged information that is not available from any other source or by less burdensome means; and
(ii) That the employee's attendance would not significantly interfere with the ability to perform his or her government duties.
(b)
(2) Service must be made by hand delivering a copy of the subpoena to the person named therein.
(3) The person serving the subpoena must:
(i) Prepare a certificate of service setting forth:
(A) The date, time, and manner of service; or
(B) The reason for any failure of service; and
(ii) Swear to or affirm the certificate, attach it to a copy of the subpoena, and return it to the party on whose behalf the subpoena was served.
(c)
(2) A witness who is not a party and who attends a deposition or hearing at the request of any party without having been subpoenaed is entitled to the same fees and mileage expenses as if he or she had been subpoenaed. However, this paragraph does not apply to Federal employees who are called as witnesses by a Department.
(d)
(2) The motion must be filed:
(i) Within 5 days after service of the subpoena; or
(ii) At or before the time specified in the subpoena for compliance, if that is less than 5 days after service of the subpoena.
(3) The ALJ may quash or modify the subpoena if it:
(i) Is unreasonable;
(ii) Requires production of information during discovery that is not discoverable; or
(iii) Requires disclosure of irrelevant, privileged, or otherwise protected information.
(e)
(a) Except as provided in paragraph (b) of this section, the hearing will be held at the time and place set at the initial prehearing conference under § 221.40, generally within 25 days after the date set for completion of discovery.
(b) On motion by a party or on the ALJ's initiative, the ALJ may change the date, time, or place of the hearing if he or she finds:
(1) That there is good cause for the change; and
(2) That the change will not unduly prejudice the parties and witnesses.
Each party has the following rights during the hearing, as necessary to assure full and accurate disclosure of the facts:
(a) To present testimony and exhibits, consistent with the requirements in §§ 221.21(c), 221.22(c), 221.25(c), 221.42(b), and 221.52;
(b) To make objections, motions, and arguments; and
(c) To cross-examine witnesses and to conduct re-direct and re-cross examination as permitted by the ALJ.
(a)
(1) Prepared written testimony must:
(i) Have line numbers inserted in the left-hand margin of each page;
(ii) Be authenticated by an affidavit or declaration of the witness;
(iii) Be filed within 10 days after the date set for completion of discovery; and
(iv) Be offered as an exhibit during the hearing.
(2) Any witness submitting written testimony must be available for cross-examination at the hearing.
(b)
(c)
(1) The arrangements for the call must let each party listen to and speak to the witness and each other within the hearing of the ALJ.
(2) The ALJ will ensure the full identification of each speaker so the reporter can create a proper record.
(3) The ALJ may issue a subpoena under § 221.47 directing a witness to testify by telephonic conference call.
(a)
(1) Was present or represented at the taking of the deposition; or
(2) Had reasonable notice of the taking of the deposition.
(b)
(2) The ALJ will exclude from evidence any question and response to which an objection:
(i) Was noted at the taking of the deposition; and
(ii) Would have been sustained if the witness had been personally present and testifying at a hearing.
(3) If a party offers only part of a deposition in evidence:
(i) An adverse party may require the party to introduce any other part that ought in fairness to be considered with the part introduced; and
(ii) Any other party may introduce any other parts.
(c)
(a)
(2) Each exhibit offered by a party must be marked for identification.
(3) Any party who seeks to have an exhibit admitted into evidence must provide:
(i) The original of the exhibit to the reporter, unless the ALJ permits the substitution of a copy; and
(ii) A copy of the exhibit to the ALJ.
(b)
(1) The party offering the exhibit must:
(i) Designate the matter offered as evidence;
(ii) Segregate and exclude the material not offered in evidence, to the extent practicable; and
(iii) Provide copies of the entire document to the other parties appearing at the hearing.
(2) The ALJ must give the other parties an opportunity to inspect the entire document and offer in evidence any other portions of the document.
(c)
(2) The ALJ must give the other parties appearing at the hearing an opportunity to show the contrary of an officially noticed fact.
(3) Any party requesting official notice of a fact after the conclusion of the hearing must show good cause for its failure to request official notice during the hearing.
(d)
(2) If received in evidence at the hearing, a stipulation is binding on the stipulating parties.
(3) A stipulation may be written or made orally at the hearing.
(a)
(i) Relevant, reliable, and probative; and
(ii) Not privileged or unduly repetitious or cumulative.
(2) The ALJ may exclude evidence if its probative value is substantially outweighed by the risk of undue prejudice, confusion of the issues, or delay.
(3) Hearsay evidence is admissible. The ALJ may consider the fact that evidence is hearsay when determining its probative value.
(4) The Federal Rules of Evidence do not directly apply to the hearing, but may be used as guidance by the ALJ and the parties in interpreting and applying the provisions of this section.
(b)
(a)
(1) The Department of Commerce's designated ALJ office will secure the services of a reporter and pay the reporter's fees to provide an original transcript to the Department of Commerce's designated ALJ office on an expedited basis.
(2) Each party must pay the reporter for any copies of the transcript obtained by that party.
(b)
(2) Unless a party files a timely motion under paragraph (b)(1) of this section, the transcript will be presumed to be correct and complete, except for obvious typographical errors.
(3) As soon as practicable after the close of the hearing and after consideration of any motions filed under paragraph (b)(1) of this section, the ALJ will issue an order making any corrections to the transcript that the ALJ finds are warranted.
(a) Any party who has filed a request for a hearing has the burden of persuasion with respect to the issues of material fact raised by that party.
(b) The standard of proof is a preponderance of the evidence.
(a) The hearing record will close when the ALJ closes the hearing, unless he or she directs otherwise.
(b) Evidence may not be added after the hearing record is closed, but the transcript may be corrected under § 221.56(b).
(a)
(2) A party may file a reply brief only if requested by the ALJ. The deadline for filing a reply brief, if any, will be set by the ALJ.
(3) The ALJ may limit the length of the briefs to be filed under this section.
(b)
(i) A concise statement of the case;
(ii) A separate section containing proposed findings regarding the issues of material fact, with supporting citations to the hearing record;
(iii) Arguments in support of the party's position; and
(iv) Any other matter required by the ALJ.
(2) A reply brief, if requested by the ALJ, must be limited to any issues identified by the ALJ.
(c)
(i) Such an exhibit may be reproduced, within reasonable limits, in an appendix to the brief.
(ii) Any pertinent analysis of an exhibit may be included in a brief.
(2) If a brief exceeds 20 pages, it must contain:
(i) A table of contents and of points made, with page references; and
(ii) An alphabetical list of citations to legal authority, with page references.
(a)
(1) 30 days after the close of the hearing under § 221.58; or
(2) 120 days after the effective date stated in the referral notice under § 221.26(c)(4), 7 CFR 1.626(c)(4), or 43 CFR 45.26(c)(4).
(b)
(i) Findings of fact on all disputed issues of material fact;
(ii) Conclusions of law necessary to make the findings of fact (such as rulings on materiality and on the admissibility of evidence); and
(iii) Reasons for the findings and conclusions.
(2) The ALJ may adopt any of the findings of fact proposed by one or more of the parties.
(3) The decision will not contain conclusions as to whether any preliminary condition or prescription should be adopted, modified, or rejected, or whether any proposed alternative should be accepted or rejected.
(c)
(1) Serve the decision on each party to the hearing;
(2) Prepare a list of all documents that constitute the complete record for the hearing process (including the decision) and certify that the list is complete; and
(3) Forward to FERC the complete record for the hearing process, along with the certified list prepared under paragraph (c)(2) of this section, for inclusion in the record for the license proceeding. Materials received in electronic form,
(d)
(a)
(2) A document is considered filed on the date it is received. However, any document received after 5 p.m. at the place where the filing is due is considered filed on the next regular business day.
(b)
(i) One of the methods of service in § 221.13(c); or
(ii) Regular mail.
(2) The provisions of § 221.13(d) regarding a certificate of service apply to service under this subpart.
(a)
(1) Be a license party; and
(2) File a written proposal with the Office of Habitat Conservation, at the address set forth in § 221.2:
(i) For a case under § 221.1(d)(1), within 30 days after NOAA files a preliminary condition or prescription with FERC; or
(ii) For a case under § 221.1(d)(2), within 60 days after NOAA files a proposed condition or prescription with FERC.
(b)
(1) A description of the alternative, in an equivalent level of detail to NOAA's preliminary condition or prescription;
(2) An explanation of how the alternative:
(i) If a condition, will provide for the adequate protection and utilization of the reservation; or
(ii) If a prescription, will be no less protective than the fishway prescribed by NMFS;
(3) An explanation of how the alternative, as compared to the preliminary condition or prescription, will:
(i) Cost significantly less to implement; or
(ii) Result in improved operation of the project works for electricity production;
(4) An explanation of how the alternative will affect:
(i) Energy supply, distribution, cost, and use;
(ii) Flood control;
(iii) Navigation;
(iv) Water supply;
(v) Air quality; and
(vi) Other aspects of environmental quality; and
(5) Specific citations to any scientific studies, literature, and other documented information relied on to support your proposal, including any assumptions you are making (
(a) Within 20 days after issuance of the ALJ's decision under § 221.60, you may file with the Office of Habitat Conservation, at the address set forth in § 221.2, a revised proposed alternative condition or prescription if:
(1) You previously filed a proposed alternative that met the requirements of § 221.71; and
(2) Your revised proposed alternative is designed to respond to one or more findings of fact by the ALJ.
(b) Your revised proposed alternative must:
(1) Satisfy the content requirements for a proposed alternative under § 221.71(b); and
(2) Identify the specific ALJ finding(s) to which the revised proposed alternative is designed to respond and how the revised proposed alternative differs from the original alternative.
(c) Filing a revised proposed alternative will constitute a withdrawal of the previously filed proposed alternative.
(a) Except as provided in paragraph (b) of this section, if any license party proposes an alternative to a preliminary condition or prescription under § 221.71, NOAA will do the following within 60 days after the deadline for filing comments on FERC's draft NEPA document under 18 CFR 5.25(c):
(1) Analyze under § 221.74 any alternative condition or prescription proposed under § 221.71 or 221.72; and
(2) File with FERC:
(i) Any condition or prescription that NOAA adopts as its modified condition or prescription; and
(ii) Its analysis of the modified condition or prescription and any proposed alternative under § 221.74(c).
(b) If NOAA needs additional time to complete the steps set forth in paragraphs (a)(1) and (a)(2) of this section, it will so inform FERC within 60 days after the deadline for filing comments on FERC's draft NEPA document under 18 CFR 5.25(c).
(a) In deciding whether to accept an alternative proposed under § 221.71 or 221.72, NOAA must consider evidence and supporting material provided by any license party or otherwise reasonably available to NOAA, including:
(1) Any evidence on the implementation costs or operational impacts for electricity production of the proposed alternative;
(2) Any comments received on NOAA's preliminary condition or prescription;
(3) Any ALJ decision on disputed issues of material fact issued under § 221.60 with respect to the preliminary condition or prescription;
(4) Comments received on any draft or final NEPA documents; and
(5) The license party's proposal under § 221.71 or § 221.72.
(b) NOAA must accept a proposed alternative if NOAA determines, based on substantial evidence provided by any license party or otherwise reasonably available to NOAA, that the alternative:
(1) Will, as compared to NOAA's preliminary condition or prescription:
(i) Cost significantly less to implement; or
(ii) Result in improved operation of the project works for electricity production; and
(2) Will:
(i) If a condition, provide for the adequate protection and utilization of the reservation; or
(ii) If a prescription, be no less protective than NMFS's preliminary prescription.
(c) For purposes of paragraphs (a) and (b) of this section, NOAA will consider
(d) When NOAA files with FERC the condition or prescription that NOAA adopts as its modified condition or prescription under § 221.73(a)(2), it must also file:
(1) A written statement explaining:
(i) The basis for the adopted condition or prescription;
(ii) If NOAA is not accepting any pending alternative, its reasons for not doing so; and
(iii) If any alternative submitted under § 221.71 was subsequently withdrawn by the license party, that the alternative was withdrawn; and
(2) Any study, data, and other factual information relied on that is not already part of the licensing proceeding record.
(e) The written statement under paragraph (d)(1) of this section must demonstrate that NOAA gave equal consideration to the effects of the condition or prescription adopted and any alternative not accepted on:
(1) Energy supply, distribution, cost, and use;
(2) Flood control;
(3) Navigation;
(4) Water supply;
(5) Air quality; and
(6) Preservation of other aspects of environmental quality.
Yes. This rule contains provisions that would collect information from the public. It therefore requires approval by the Office of Management and Budget (OMB) under the Paperwork Reduction Act of 1995, 44 U.S.C. 3501
Office of Energy Efficiency and Renewable Energy, Department of Energy.
Notice of proposed rulemaking and announcement of public meeting.
The Energy Policy and Conservation Act of 1975 (EPCA), as amended, prescribes energy conservation standards for various consumer products and certain commercial and industrial equipment, including residential boilers. EPCA also requires the U.S. Department of Energy (DOE) to periodically determine whether more-stringent, amended standards would be technologically feasible and economically justified, and would save a significant amount of energy. In this notice, DOE proposes amended energy conservation standards for residential boilers. The notice also announces a public meeting to receive comment on these proposed standards and associated analyses and results.
The public meeting will be held at the U.S. Department of Energy, Forrestal Building, Room 8E-089, 1000 Independence Avenue SW., Washington, DC 20585. To attend, please notify Ms. Brenda Edwards at (202) 586-2945. Please note that foreign nationals visiting DOE Headquarters are subject to advance security screening procedures. Any foreign national wishing to participate in the meeting should advise DOE as soon as possible by contacting Ms. Edwards to initiate the necessary procedures. Please also note that any person wishing to bring a laptop computer or tablet into the Forrestal Building will be required to obtain a property pass. Visitors should avoid bringing laptops, or allow an extra 45 minutes. Persons may also attend the public meeting via webinar. For more information, refer to section VII, “Public Participation,” near the end of this notice.
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Written comments regarding the burden-hour estimates or other aspects of the collection-of-information requirements contained in this proposed rule may be submitted to Office of Energy Efficiency and Renewable Energy through the methods listed above and by email to
No telefacsimilies (faxes) will be accepted. For detailed instructions on submitting comments and additional information on the rulemaking process, see section VII of this document (Public Participation).
A link to the docket Web page can be found at:
For further information on how to submit a comment, review other public comments and the docket, or participate in the public meeting, contact Ms. Brenda Edwards at (202) 586-2945 or by email:
Mr. Ronald Majette, U.S. Department of Energy, Office of Energy Efficiency and Renewable Energy, Building Technologies Office, EE-5B, 1000 Independence Avenue SW., Washington, DC 20585-0121. Telephone: (202) 586-7935. Email:
Mr. Eric Stas, U.S. Department of Energy, Office of the General Counsel, GC-33, 1000 Independence Avenue SW., Washington, DC 20585-0121. Telephone: (202)-586-9507. Email:
For information on how to submit or review public comments, contact Ms. Brenda Edwards at (202) 586-2945 or by email:
Title III, Part B
Pursuant to EPCA, any new or amended energy conservation standard must be designed to achieve the maximum improvement in energy efficiency that is technologically feasible and economically justified. (42 U.S.C. 6295(o)(2)(A)) Furthermore, the new or amended standard must result in a significant conservation of energy. (42 U.S.C. 6295(o)(3)(B)) EPCA specifically provides that DOE must conduct a second round of energy conservation standards rulemaking for residential boilers. (42 U.S.C. 6295(f)(4)(C)) The statute also provides that not later than 6 years after issuance of any final rule establishing or amending a standard, DOE must publish either a notice of determination that standards for the product do not need to be amended, or a notice of proposed rulemaking including new proposed energy conservation standards. (42 U.S.C. 6295(m)(1)) DOE initiated this rulemaking as required by 42 U.S.C. 6295(f)(4)(C), but once complete, this rulemaking will also satisfy the 6-year review provision under 42 U.S.C. 6295(m)(1).
Furthermore, EISA 2007 amended EPCA to require that any new or amended energy conservation standard adopted after July 1, 2010, shall address standby mode and off mode energy consumption pursuant to 42 U.S.C. 6295(o). (42 U.S.C. 6295(gg)(3)) If feasible, the statute directs DOE to incorporate standby mode and off mode energy consumption into a single standard with the product's active mode energy use. If a single standard is not feasible, DOE may consider establishing a separate standard to regulate standby mode and off mode energy consumption.
In accordance with these and other statutory provisions discussed in this notice, DOE proposes amending the existing AFUE energy conservation standards and adopting new standby mode off mode electrical energy conservation standards for residential boilers. The proposed AFUE standards for each product class (described in section IV.A.2) are expressed as minimum annual fuel utilization efficiencies (AFUE), as determined by the DOE test method (described in section III.B), and are shown in Table I.1. Table I.2 shows the proposed standards for standby and off mode.
Table I.3 presents DOE's evaluation of the economic impacts of the proposed AFUE and standby mode and off mode standards on consumers of residential boilers, as measured by the average life-cycle cost (LCC) savings and the median payback period (PBP).
Estimates of the combined impact of the proposed AFUE and standby mode and off mode standards on the consumers are shown in Table I.5.
The industry net present value (INPV) is the sum of the discounted cash flows to the industry from the base year through the end of the analysis period (2014 to 2049). Using a real discount rate of 8.0 percent, DOE estimates that the INPV for manufacturers is $380.96 million.
DOE's analyses indicate that the proposed AFUE energy conservation standards for residential boilers would save a significant amount of energy. The lifetime energy savings for residential boilers purchased in the 30-year period that begins in the first full year of compliance with amended standards (2020-2049) amount to 0.21 quads
The cumulative net present value (NPV) of total consumer costs and savings for the proposed residential boilers AFUE standards ranges from $0.4 billion to $1.3 billion at 7-percent and 3-percent discount rates, respectively. This NPV expresses the estimated total value of future operating-cost savings minus the estimated increased product costs for residential boilers purchased in 2020-2049.
In addition, the proposed residential boilers AFUE standards would have significant environmental benefits. The energy savings would result in cumulative emission reductions of 12.9 million metric tons (Mt)
The value of the CO
Table I.5 summarizes the national economic benefits and costs expected to result from the proposed AFUE standards for residential boilers.
For the proposed standby mode and off mode standards, the lifetime energy savings for residential boilers purchased in the 30-year period that begins in the first full year of compliance with amended standards (2020-2049) amount to 0.045 quads. This is a savings of 18 percent relative to the standby energy use of these products in the base case without amended standards.
The cumulative NPV of total consumer costs and savings for the proposed standby mode and off mode standards for residential boilers ranges from $0.17 billion to $0.44 billion at 7-percent and 3-percent discount rates, respectively. This NPV expresses the estimated total value of future operating-cost savings minus the estimated increased product costs for residential boilers purchased in 2020-2049.
In addition, the proposed standby mode and off mode standards would have significant environmental benefits. The energy savings would result in cumulative emission reductions of 2.1 million metric tons (Mt) of carbon dioxide (CO
As noted above, the value of the CO
Table I.6 summarizes the national economic benefits and costs expected to result from the proposed standby mode and off mode standards for residential boilers.
The benefits and costs of today's proposed energy conservation standards, for residential boiler products sold in 2020-2049, can also be expressed in terms of annualized values. Benefits and costs for the AFUE standards are considered separately from benefits and costs for the standby mode and off mode electrical consumption standards, because for the reasons explained in section I.D below, it was not technically feasible to develop a single, integrated standard. The annualized monetary values are the sum of: (1) The annualized national economic value of the benefits from consumer operation of products that meet the proposed new or amended standards (consisting primarily of operating cost savings from using less energy, minus increases in product purchase price and installation costs, which is another way of representing consumer NPV), and (2) the annualized monetary value of the benefits of emission reductions, including CO
Although combining the values of operating savings and CO
Estimates of annualized benefits and costs of the proposed AFUE standards are shown in Table I.7. The results under the primary estimate are as follows. Using a 7-percent discount rate for benefits and costs other than CO
Estimates of annualized benefits and costs of the proposed standby mode and off mode standards are shown in Table I.8. The results under the primary estimate are as follows. Using a 7-percent discount rate for benefits and costs other than CO2 reduction (for which DOE used a 3-percent discount rate along with the average SCC series that uses a 3-percent discount rate ($40.5/t in 2015)), the estimated cost of the residential boiler standby mode and off mode standards proposed in today's rule is $9.31 million per year in increased equipment costs, while the estimated benefits are $28 million per year in reduced equipment operating costs, $3 million in CO2 reductions, and $0.09 million in reduced NO
DOE has tentatively concluded that the proposed standards (for both AFUE, as well as standby mode and off mode) represent the maximum improvement in energy efficiency that is technologically feasible and economically justified, and would result in the significant conservation of energy. DOE further notes that products achieving these standard levels are already commercially available for all product classes covered by today's proposal. Based on the analyses described above, DOE has tentatively concluded that the benefits of the proposed standards to the Nation (energy savings, positive NPV of consumer benefits, consumer LCC savings, and emission reductions) would outweigh the burdens (loss of INPV for manufacturers and LCC increases for some consumers).
DOE also considered more-stringent energy efficiency levels as trial standard levels, and is still considering them in this rulemaking. However, DOE has tentatively concluded that the potential burdens of the more-stringent energy efficiency levels would outweigh the projected benefits. Based on consideration of the public comments DOE receives in response to this notice and related information collected and analyzed during the course of this rulemaking effort, DOE may adopt energy efficiency levels presented in this notice that are either higher or lower than the proposed standards, or some combination of level(s) that incorporate the proposed standards in part.
DOE also added the annualized benefits and costs from the individual annualized tables to provide a combined benefit and cost estimate of the proposed AFUE and standby mode and
As discussed in section II.A of this NOPR, any final rule for amended or new energy conservation standards that is published on or after July 1, 2010 must address standby mode and off mode energy use. (42 U.S.C. 6295(gg)(3)) As a result, DOE has analyzed and is proposing new energy conservation
AFUE, the statutory metric for residential boilers, does not incorporate standby mode or off mode use of electricity, although it already fully addresses use in these modes of fossil fuels by gas-fired and oil-fired boilers. In the October 2010 test procedure final rule for residential furnaces and boilers, DOE determined that incorporating standby mode and off mode electricity consumption into a single standard for residential furnaces and boilers is not technically feasible. 75 FR 64621, 64626-64627 (Oct. 20, 2010). DOE concluded that a metric that integrates standby mode and off mode electricity consumption into AFUE is not technically feasible, because the standby mode and off mode energy usage, when measured, is essentially lost in practical terms due to rounding conventions for certifying furnace and boiler compliance with Federal energy conservation standards.
DOE is using the metrics just described—AFUE, P
The following section briefly discusses the statutory authority underlying today's proposal, as well as some of the relevant historical background related to the establishment of standards for residential boilers.
Title III, Part B
Pursuant to EPCA, DOE's energy conservation program for covered products consists essentially of four parts: (1) Testing; (2) labeling; (3) establishing Federal energy conservation standards; and (4) certification and enforcement procedures. The Federal Trade Commission (FTC) is primarily responsible for labeling, and DOE implements the remainder of the program. Subject to certain criteria and conditions, DOE is required to conduct a second round of rulemaking under 42 U.S.C. 6295(f)(4)(C) to consider amended energy conservation standards for residential boilers, and DOE is also required to consider amended standards under 42 U.S.C. 6295(m)(1) by July 15, 2014 (
DOE must follow specific statutory criteria for prescribing amended standards for covered products, including residential boilers. As indicated above, any amended standard for a covered product must be designed to achieve the maximum improvement in energy efficiency that is technologically feasible and economically justified. (42 U.S.C. 6295(o)(2)(A) and (3)(B)) Furthermore, DOE may not adopt any standard that would not result in the significant conservation of energy. (42 U.S.C. 6295(o)(3)) Moreover, DOE may not prescribe a standard: (1) For certain products, including residential boilers, if no test procedure has been established for the product, or (2) if DOE determines by rule that the proposed standard is not technologically feasible or economically justified. (42 U.S.C. 6295(o)(3)(A)-(B)) In deciding whether a proposed standard is economically justified, after receiving comments on the proposed standard, DOE must determine whether the benefits of the standard exceed its burdens. (42 U.S.C. 6295(o)(2)(B)(i)) DOE must make this determination by, to the greatest extent practicable, considering the following seven statutory factors:
(1) The economic impact of the standard on manufacturers and consumers of the products subject to the standard;
(2) The savings in operating costs throughout the estimated average life of the covered products in the type (or class) compared to any increase in the price, initial charges, or maintenance expenses for the covered products that are likely to result from the standard;
(3) The total projected amount of energy (or as applicable, water) savings likely to result directly from the standard;
(4) Any lessening of the utility or the performance of the covered products likely to result from the standard;
(5) The impact of any lessening of competition, as determined in writing by the Attorney General, that is likely to result from the standard;
(6) The need for national energy and water conservation; and
(7) Other factors the Secretary of Energy (Secretary) considers relevant.
EPCA, as codified, also contains what is known as an “anti-backsliding” provision, which prevents the Secretary from prescribing any amended standard that either increases the maximum allowable energy use or decreases the minimum required energy efficiency of a covered product. (42 U.S.C. 6295(o)(1)) Also, the Secretary may not prescribe an amended or new standard if interested persons have established by a preponderance of evidence that the standard is likely to result in the unavailability in the United States of any covered product type (or class) of performance characteristics (including reliability), features, sizes, capacities, and volumes that are substantially the same as those generally available in the United States. (42 U.S.C. 6295(o)(4))
Further, EPCA, as codified, establishes a rebuttable presumption that a standard is economically justified if the Secretary finds that the additional cost to the consumer of purchasing a product complying with an energy conservation standard level will be less than three times the value of the energy savings during the first year that the consumer will receive as a result of the standard, as calculated under the applicable test procedure. (42 U.S.C. 6295(o)(2)(B)(iii))
Additionally, 42 U.S.C. 6295(q)(1) specifies requirements when promulgating an energy conservation standard for a covered product that has two or more subcategories. DOE must specify a different standard level for a type or class of covered product that has the same function or intended use, if DOE determines that products within such group: (A) Consume a different kind of energy from that consumed by other covered products within such type (or class); or (B) have a capacity or other performance-related feature that other products within such type (or class) do not have and such feature justifies a higher or lower standard. (42 U.S.C. 6295(q)(1)) In determining whether a performance-related feature justifies a different standard for a group of products, DOE must consider such factors as the utility to the consumer of the feature and other factors DOE deems appropriate.
Federal energy conservation requirements generally supersede State laws or regulations concerning energy conservation testing, labeling, and standards. (42 U.S.C. 6297(a)-(c)) DOE may, however, grant waivers of Federal preemption for particular State laws or regulations, in accordance with the procedures and other provisions set forth under 42 U.S.C. 6297(d).
Finally, pursuant to the amendments contained in the Energy Independence and Security Act of 2007 (EISA 2007), Public Law 110-140, any final rule for new or amended energy conservation standards promulgated after July 1, 2010, is required to address standby mode and off mode energy use. (42 U.S.C. 6295(gg)(3)) Specifically, when DOE adopts a standard for a covered product after that date, it must, if justified by the criteria for adoption of standards under EPCA (42 U.S.C. 6295(o)), incorporate standby mode and off mode energy use into a single standard, or, if that is not feasible, adopt a separate standard for such energy use for that product. (42 U.S.C. 6295(gg)(3)(A)-(B)) DOE's current test procedures for residential boilers address standby mode and off mode energy use. In this rulemaking, DOE intends to adopt separate energy conservation standards to address standby mode and off mode energy use.
In a final rule published on July 28, 2008 (2008 final rule), DOE prescribed energy conservation standards for residential boilers manufactured on or after September 1, 2012. 73 FR 43611. These standards are set forth in DOE's regulations at 10 CFR 430.32(e)(2)(ii) and are repeated in Table II.1 below.
Given the somewhat complicated interplay of recent DOE rulemakings and statutory provisions related to residential boilers, DOE provides the following regulatory history as background leading to the present rulemaking. On November 19, 2007, DOE published a final rule in the
Only July 15, 2008, DOE issued a final rule technical amendment to the 2007 final rule, which was published in the
DOE initiated today's rulemaking pursuant to 42 U.S.C. 6295(f)(4)(C), which requires DOE to conduct a second round of amended standards rulemaking for residential boilers. EPCA, as amended by EISA 2007, also requires that not later than 6 years after issuance of any final rule establishing or amending a standard, DOE must publish either a notice of the determination that standards for the product do not need to be amended, or a notice of proposed rulemaking including proposed energy conservation standards. (42 U.S.C. 6295(m)(1)) As noted above, this rulemaking will satisfy both statutory provisions.
Furthermore, EISA 2007 amended EPCA to require that any new or amended energy conservation standard adopted after July 1, 2010, shall address standby mode and off mode energy consumption pursuant to 42 U.S.C. 6295(o). (42 U.S.C. 6295(gg)(3)) If feasible, the statute directs DOE to incorporate standby mode and off mode energy consumption into a single standard with the product's active mode energy use. If a single standard is not feasible, DOE may consider establishing a separate standard to regulate standby mode and off mode energy consumption. Consequently, DOE will consider standby mode and off mode energy use as part of this rulemaking for residential boilers.
DOE initiated this current rulemaking by issuing an analytical Framework Document, “Rulemaking Framework for Residential Boilers” (February 11, 2013). DOE published the notice of public meeting and availability of the Framework Document for residential boilers in the
The Framework Document explained the issues, analyses, and process that DOE anticipated using to develop energy conservation standards for residential boilers. DOE held a public meeting on March 13, 2013, to solicit comments from interested parties regarding DOE's analytical approach. The comment period for the Framework Document closed on March 28, 2013.
To further develop the energy conservation standards for residential boilers, DOE gathered additional information and performed an initial technical analysis. This process culminated in publication in the
A PDF copy of the supporting documentation is available at
The supporting documentation in the NODA provided an overview of the activities DOE undertook in developing potential amended energy conservation standards for residential boilers, and discussed the comments DOE received in response to the Framework Document. It also described the analytical methodology that DOE used and each analysis DOE had performed up to that point. These analyses were as follows:
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The nature and function of the analyses in this rulemaking, including the engineering analysis, energy-use characterization, markups to determine installed prices, LCC and PBP analyses, and national impacts, are summarized in the February 2014 notice. 79 FR 8122, 8124-28 (Feb. 11, 2014).
Statements received after publication of the Framework Document, at the Framework public meeting, and comments received after the publication of the NODA have helped identify issues involved in this rulemaking and have provided information that has contributed to DOE's resolution of these issues. The Department considered
DOE received 30 comments in response to the February 2014 NODA. These commenters include: A joint comment from the American Council for an Energy-Efficient Economy (ACEEE), the Appliance Standards Awareness Project (ASAP), the Alliance to Save Energy (ASE), the Natural Resources Defense Council (NRDC), and the Northeast Energy Efficiency Partnerships (NEEP); a comment from the Air-Conditioning, Heating, and Refrigeration Institute (AHRI); a comment from Edison Electric Institute (EEI); and a joint comment from the American Gas Association (AGA) and the American Public Gas Association (APGA). Manufacturers submitting written comments include: Energy Kinetics, Weil McLain, Weil McLain and various contractors and distributors (Weil McLain
DOE developed today's proposed rule after considering verbal and written comments, data, and information from interested parties that represent a variety of interests. The following discussion addresses issues raised by these commenters.
When evaluating and establishing energy conservation standards, DOE divides covered products into product classes by the type of energy used or by capacity or other performance-related features that justify a different standard. In making a determination whether a performance-related feature justifies a different standard, DOE must consider such factors as the utility of the feature to the consumer and other factors DOE deems appropriate. (42 U.S.C. 6295(q))
Existing energy conservation standards divide residential boilers into six product classes based on the fuel type (
The scope and product classes analyzed for today's NOPR are the same as those initially set forth proposed in the Framework Document and examined in DOE's initial analysis. Comments received relating to the scope of coverage are described in section IV.A of this proposed rule.
DOE's current energy conservation standards for residential boilers are expressed in terms of annual fuel utilization efficiency (
On October 20, 2010, DOE updated its test procedures for residential boilers in a final rule published in the
On July 10, 2013, DOE published a final rule in the
EPCA, as amended by EISA 2007, requires that DOE must review test procedures for all covered products at least once every 7 years. (42 U.S.C
• Adopt ANSI/ASHRAE 103-2007 by reference in place of the existing reference to ANSI/ASHRAE 103-1993;
• Modify the requirements for the measurement of condensate under steady-state conditions;
• Update references to installation manuals;
• Update the auxiliary electrical consumption calculation to include additional measurements of electrical consumption;
• Adopt a method for determining if the automatic means requirement has been met;
• Adopt a method for qualifying the use of the minimum draft factor, and
• Revising the required reporting precision for AFUE.
DOE received several comments from stakeholders relating to the residential furnace and boiler test procedure. These comments were considered and addressed in that rulemaking proceeding.
In each energy conservation standards rulemaking, DOE conducts a screening analysis based on information gathered on all current technology and prototype designs that could improve the efficiency of the products or equipment that are the subject of the rulemaking. As the first step in such an analysis, DOE develops a list of technology options for consideration in consultation with manufacturers, design engineers, and other interested parties. DOE then determines which of those means for improving efficiency are technologically feasible. DOE considers technologies incorporated in commercially-available products or in working prototypes to be technologically feasible. 10 CFR part 430, subpart C, appendix A, section 4(a)(4)(i).
After DOE has determined that particular technology options are technologically feasible, it further evaluates each technology option in light of the following additional screening criteria: (1) Practicability to manufacture, install, and service; (2) adverse impacts on product utility or availability; and (3) adverse impacts on health or safety. 10 CFR part 430, subpart C, appendix A, section 4(a)(4)(ii)-(iv). Additionally, it is DOE policy not to include in its analysis any proprietary technology that is a unique pathway to achieving a certain efficiency level. Section IV.B of this notice discusses the results of the screening analysis for residential boilers, particularly the designs DOE considered, those it screened out, and those that are the basis for the trial standard levels (TSLs) in this rulemaking. For further details on the screening analysis for this rulemaking, see chapter 4 of the NOPR technical support document (TSD).
When DOE proposes to adopt an amended standard for a type or class of covered product, it must determine the maximum improvement in energy efficiency or maximum reduction in energy use that is technologically feasible for such product. (42 U.S.C. 6295(p)(1)) Accordingly, in the engineering analysis, DOE determined the maximum technologically feasible (max-tech) improvements in energy efficiency for residential boilers, using the design parameters for the most-efficient products available on the market or in working prototypes. The max-tech levels that DOE determined for this rulemaking include efficiency levels currently only achieved through the use of condensing technology for both the gas fired hot water and the oil fired hot water product classes. Details regarding the max-tech efficiency levels determined for this rulemaking are described in section IV.C of this proposed rule and in chapter 5 of the NOPR TSD.
For each TSL, DOE projected energy savings from the products that are the subject of this rulemaking purchased in the 30-year period that begins in the year of compliance with amended standards (2020-2049).
DOE used its national impact analysis (NIA) spreadsheet model to estimate energy savings from potential amended standards for the products that are the subject of this rulemaking. The NIA spreadsheet model (described in section IV.H of this NOPR) calculates energy savings in site energy, which is the energy directly consumed by products at the locations where they are used. For electricity, DOE reports national energy savings on an annual basis in terms of primary (source) energy savings, which is the savings in the energy that is used to generate and transmit the site electricity. To calculate this quantity (
DOE also has begun to estimate full-fuel-cycle (FFC) energy savings, as discussed in DOE's statement of policy and notice of policy amendment. 76 FR 51282 (August 18, 2011), as amended at 77 FR 49701 (August 17, 2012). The FFC metric includes the energy consumed in extracting, processing, and transporting primary fuels (
To adopt more-stringent standards for a covered product, DOE must determine that such action would result in “significant” energy savings. (42 U.S.C. 6295(o)(3)(B)) Although the term “significant” is not defined in the Act, the U.S. Court of Appeals for the District of Columbia Circuit, in
EPCA provides seven factors to be evaluated in determining whether a potential energy conservation standard is economically justified. (42 U.S.C. 6295(o)(2)(B)(i)(I)-(VII)) The following sections discuss how DOE has addressed each of those seven factors in this rulemaking.
In determining the impacts of a potential amended standard on manufacturers, DOE conducts a manufacturer impact analysis (MIA), as discussed in section IV.J. DOE first uses an annual cash-flow approach to determine the quantitative impacts. This step includes both a short-term assessment—based on the cost and capital requirements during the period between when a regulation is issued and when entities must comply with the regulation—and a long-term assessment over a 30-year period. The industry-wide impacts analyzed include: (1) Industry net present value (INPV), which values the industry on the basis of expected future cash flows; (2) cash flows by year; (3) changes in revenue and income; and (4) other measures of impact, as appropriate. Second, DOE analyzes and reports the impacts on different types of manufacturers, including impacts on small manufacturers. Third, DOE considers the impact of standards on domestic manufacturer employment and manufacturing capacity, as well as the potential for standards to result in plant closures and loss of capital investment. Finally, DOE takes into account cumulative impacts of various DOE regulations and other regulatory requirements on manufacturers.
For individual consumers, measures of economic impact include the changes in LCC and PBP associated with new or amended standards. These measures are discussed further in the following section. For consumers in the aggregate, DOE also calculates the national net present value of the economic impacts applicable to a particular rulemaking. DOE also evaluates the LCC impacts of potential standards on identifiable subgroups of consumers that may be affected disproportionately by a national standard.
EPCA requires DOE to consider the savings in operating costs throughout the estimated average life of the covered product in the type (or class) compared to any increase in the price of, or in the initial charges for, or maintenance expenses of, the covered product that are likely to result from a standard. (42 U.S.C. 6295(o)(2)(B)(i)(II)) DOE conducts this comparison in its LCC and PBP analyses.
The LCC is the sum of the purchase price of a product (including its installation) and the operating expense (including energy, maintenance, and repair expenditures) discounted over the lifetime of the product. The LCC analysis requires a variety of inputs, such as product prices, product energy consumption, energy prices, maintenance and repair costs, product lifetime, and consumer discount rates. To account for uncertainty and variability in specific inputs, such as product lifetime and discount rate, DOE uses a distribution of values, with probabilities attached to each value. For its analysis, DOE assumes that consumers will purchase the covered products in the first year of compliance with amended standards.
The LCC savings and the PBP for the considered conservation levels are calculated relative to a base case that reflects projected market trends in the absence of amended standards. DOE identifies the percentage of consumers estimated to receive LCC savings or experience an LCC increase, in addition to the average LCC savings associated with a particular standard level. DOE's LCC and PBP analyses are discussed in further detail in section IV.F.
Although significant conservation of energy is a separate statutory requirement for adopting an energy conservation standard, EPCA requires DOE, in determining the economic justification of a standard, to consider the total projected energy savings that are expected to result directly from the standard. (42 U.S.C. 6295(o)(2)(B)(i)(III)) As discussed in section IV.H, DOE uses the NIA spreadsheet to project national energy savings.
In establishing product classes and in evaluating design options and the impact of potential standard levels, DOE evaluates potential standards that would not lessen the utility or performance of the considered products. (42 U.S.C. 6295(o)(2)(B)(i)(IV)) Based on data available to DOE, the standards proposed in this notice would not reduce the utility or performance of the products under consideration in this rulemaking.
EPCA directs DOE to consider the impact of any lessening of competition, as determined in writing by the Attorney General, that is likely to result from a proposed standard. (42 U.S.C. 6295(o)(2)(B)(i)(V)) It also directs the Attorney General to determine the impact, if any, of any lessening of competition likely to result from a proposed standard and to transmit such determination to the Secretary within 60 days of the publication of a proposed rule, together with an analysis of the nature and extent of the impact. (42 U.S.C. 6295(o)(2)(B)(ii)) DOE will
In evaluating the need for national energy conservation, DOE expects that the energy savings from the proposed standards are likely to provide improvements to the security and reliability of the nation's energy system. (42 U.S.C. 6295(o)(2)(B)(i)(VI)) Reductions in the demand for electricity also may result in reduced costs for maintaining the reliability of the nation's electricity system. DOE conducts a utility impact analysis to estimate how standards may affect the nation's needed power generation capacity, as discussed in section IV.M.
The proposed standards also are likely to result in environmental benefits in the form of reduced emissions of air pollutants and greenhouse gases associated with energy production. DOE reports the emissions impacts from today's proposed standards and from each TSL it considered and discussed in sections IV.K and V.B.6 of this NOPR. DOE also reports estimates of the economic value of emissions reductions resulting from the considered TSLs, as discussed in section IV.L.
EPCA allows the Secretary of Energy, in determining whether a standard is economically justified, to consider any other factors that the Secretary deems to be relevant. (42 U.S.C. 6295(o)(2)(B)(i)(VII)) To the extent interested parties submit any relevant information regarding economic justification that does not fit into the other categories described above, DOE could consider such information under “other factors.”
As set forth in 42 U.S.C. 6295(o)(2)(B)(iii), EPCA creates a rebuttable presumption that an energy conservation standard is economically justified if the additional cost to the consumer of a product that meets the standard is less than three times the value of the first year's energy savings resulting from the standard, as calculated under the applicable DOE test procedure. DOE's LCC and PBP analyses generate values used to calculate the effects that proposed energy conservation standards would have on the payback period for consumers. These analyses include, but are not limited to, the 3-year payback period contemplated under the rebuttable-presumption test. In addition, DOE routinely conducts an economic analysis that considers the full range of impacts to consumers, manufacturers, the Nation, and the environment, as required under 42 U.S.C. 6295(o)(2)(B)(i). The results of this analysis serve as the basis for DOE's evaluation of the economic justification for a potential standard level (thereby supporting or rebutting the results of any preliminary determination of economic justification). The rebuttable presumption payback calculation is discussed in section V.B.1 of this proposed rule.
This section addresses the analyses DOE has performed for this rulemaking with regard to residential boilers. Separate subsections will address each component of DOE's analyses.
DOE used three spreadsheet tools to estimate the impact of today's proposed standards. The first spreadsheet calculates LCCs and payback periods of potential standards. The second provides shipments forecasts, and then calculates national energy savings and net present value impacts of potential standards. Finally, DOE assessed manufacturer impacts, largely through use of the Government Regulatory Impact Model (GRIM). All three spreadsheet tools are available online at the rulemaking portion of DOE's Web site:
Additionally, DOE estimated the impacts on utilities and the environment that would be likely to result from potential amended standards for residential boilers. DOE used a version of EIA's National Energy Modeling System (NEMS) for the utility and environmental analyses.
DOE develops information that provides an overall picture of the market for the products concerned, including the purpose of the products, the industry structure, manufacturers, market characteristics, and technologies used in the products. This activity includes both quantitative and qualitative assessments, based primarily on publicly-available information. The subjects addressed in the market and technology assessment for this residential boilers rulemaking include: (1) A determination of the scope of the rulemaking and product classes; (2) manufacturers and industry structure; (3) quantities and types of products sold and offered for sale; (4) retail market trends; (5) regulatory and non-regulatory programs; and (6) technologies or design options that could improve the energy efficiency of the product(s) under examination. The key findings of DOE's market assessment are summarized below. See chapter 3 of the NOPR TSD for further discussion of the market and technology assessment.
EPCA defines residential boilers as a type of furnace. Specifically, the term “furnace” is defined as “a product which utilizes only single-phase electric current, or single-phase electric current or DC current in conjunction with natural gas, propane, or home heating oil, and which—
(A) is designed to be the principal heating source for the living space of a residence;
(B) is not contained within the same cabinet with a central air conditioner whose rated cooling capacity is above 65,000 Btu [British thermal units] per hour;
(C) is an electric central furnace, electric boiler, forced- air central furnace, gravity central furnace, or low pressure steam or hot water boiler; and
(D) has a heat input rate of less than 300,000 Btu per hour for electric boilers and low pressure steam or hot water boilers and less than 225,000 Btu per hour for forced-air central furnaces, gravity central furnaces, and electric central furnaces.”
(42 U.S.C. 6291(23))
DOE has incorporated this definition into its regulations in the Code of Federal Regulations (CFR) at 10 CFR 430.2. DOE has generally defined an electric boiler as an electrically powered furnace designed to supply low pressure steam or hot water for space heating applications, including a low pressure steam boiler that operates at or below 15 pounds per square inch gauge (psig) steam pressure and a hot water boiler that operates at or below 160 psig water
For this rulemaking, DOE proposes to maintain the scope of coverage as defined by its current regulations for this analysis of new and amended standards, which includes six product classes of boilers (gas-fired hot water boilers, gas-fired steam boilers, oil-fired hot water boilers, oil-fired steam boilers, electric hot water boilers, and electric steam boilers). DOE has not conducted an analysis of an AFUE standard level for electric boilers or combination appliance for the reasons explained below.
Combination appliances provide both space heating and domestic hot water to a residence. These products are available on the market in two major configurations, including a water heater fan-coil combination unit and a boiler tankless coil combination unit. Currently, manufacturers certify combination appliances by rating the efficiency of the unit when performing their primary function (
DOE did not include electric boilers in the analysis of amended AFUE standards. Electric boilers do not have an AFUE requirement under 10 CFR 430.32(e)(2)(ii). Electric boilers typically use electric resistance coils as their heating elements, which are highly efficient. Furthermore, the current DOE test procedure for determining AFUE classifies boilers as indoor units and, thus, considers jacket losses to be usable heat, because those losses would go to the conditioned space. The efficiency of these products already approaches 100 percent AFUE. Therefore, there are no options for increasing the rated AFUE of this product, and the impact of setting AFUE energy conservation standards for these products would be negligible. However, DOE has considered standby mode and off mode standards for electric boilers.
The proposed scope used for the analysis for this NOPR is the same as the scope used for the NODA analysis. In response to the NODA analysis, AGA and AGPA filed a joint comment which stated that DOE should clarify that gas-fired boilers that do not have an electrical supply requirement are not subject to this regulation. (AGA and AGPA, No. 21 at p. 2) DOE agrees that under EPCA, an exception already exists for boilers which are manufactured to operate without any need for electricity. (42 U.S.C. 6295(f)(3)(C); 10 CFR 430.32(e)(2)(iv)) Thus, DOE did not consider such products in the course of this analysis, and such products would not be covered by amended standards resulting from this process.
When evaluating and establishing energy conservation standards, DOE divides covered products into product classes by the type of energy used or by capacity or other performance-related features that justify a different standard. In making a determination whether a performance-related feature justifies a different standard, DOE must consider such factors as the utility to the consumer of the feature and other factors DOE determines are appropriate. (42 U.S.C. 6295(q)) For this rulemaking, DOE proposes to maintain the scope of coverage as defined by its current regulations for this analysis of standards, which includes six product classes of boilers. Table IV.1 lists the six proposed product classes.
Several interested parties suggested that the product classes should be further subdivided into condensing and non-condensing products for gas-fired hot water boilers. (Weil McLain No. 20 at p. 2, AGA and APGA No.21 at p. 2, HTP No. 31 at p. 2)
Weil McLain commented that condensing and noncondensing boilers should be in separate product classes because each presents significant options to have available for different applications. Weil McLain added that each type of boiler can provide a good solution to a residential boiler need, but the solution requires the correct application of the boiler to a particular home. In particular, Weil McLain commented that there are important differences between new installations and replacement installations for these products. (Weil McLain No. 20 at p. 2)
Similarly, AGA and APGA suggested that the gas-fired hot water boiler product class should be subdivided into condensing and non-condensing subclasses, such that DOE may consider establishing separate standards for Category I and Category IV gas boilers based on their different venting and condensing characteristics. Category I gas boilers are those that operate with a non-positive vent static pressure and with a vent gas temperature that avoids excessive condensate production in the vent. Category IV gas boilers are those that operate with a positive vent static pressure with a vent gas temperature that is capable of causing excessive condensation.
In response to these comments, DOE notes that, in evaluating and establishing energy conservation standards, EPCA directs DOE to divide covered products into classes based on differences including the type of energy used, capacity, or other performance-related feature that justifies a different standard for products having such feature. (42 U.S.C. 6295(q)) In deciding whether a feature justifies a different standard, DOE must consider factors such as the utility of the features to users. In evaluating Weil McLain's, AGA's, and AGPA's suggestion to consider separate product classes for non-condensing and condensing boilers (and specifically in AGA's and APGA's comments for boilers using Category I and Category IV venting), DOE considered the utility to consumers of condensing and non-condensing boilers, including the ability to use one venting type versus another. The utility derived
HTP suggested that the Department should consider separate residential boiler standards for new construction and retrofits. (HTP, No. 31 at p.2)
In response, as set forth in the statutory definition for “energy conservation standard,” DOE notes that EPCA directs the Department to establish performance standards that prescribe minimum levels of energy efficiency or maximum levels of energy use for covered products. (42 U.S.C. 6291(6)(A)) EPCA does not authorize setting multiple levels of efficiency for a given covered product, depending on where the product is installed in terms of home type (
In the NODA analysis, DOE identified 10 technology options that would be expected to improve the AFUE of residential boilers, as measured by the DOE test procedure: (1) Heat exchanger improvements; (2) modulating operation; (3) dampers; (4) direct vent; (5) pulse combustion; (6) premix burners; (7) burner derating; (8) low-pressure air-atomized oil burner; (9) delayed-action oil pump solenoid valve; and (10) electronic ignition.
DOE received no comments suggesting additional technology options in response to the NODA analysis, and thus, DOE has maintained the same list of technology options in the NOPR analysis. After identifying all potential technology options for improving the efficiency of residential boilers, DOE performed the screening analysis (see section IV.B of this NOPR or chapter 4 of the TSD) on these technologies to determine which could be considered further in the analysis and which should be eliminated.
DOE uses the following four screening criteria to determine which technology options are suitable for further consideration in an energy conservation standards rulemaking:
1.
2.
3.
4.
In sum, if DOE determines that a technology, or a combination of technologies, fails to meet one or more of the above four criteria, it will be excluded from further consideration in the engineering analysis. The reasons for eliminating any technology are discussed below.
The subsequent sections include comments from interested parties pertinent to the screening criteria, DOE's evaluation of each technology option against the screening analysis criteria, and whether DOE determined that a technology option should be excluded (“screened out”) based on the screening criteria.
During the NODA phase, DOE screened out pulse combustion as a technology option for improving AFUE and screened out control relay for boiler models with brushless permanent magnet motors as a technology option for reducing standby electric losses. DOE decided to screen out pulse combustion based on manufacturer feedback during the Framework public meeting indicating that pulse combustion boilers have had reliability issues in the past, and therefore, manufacturers do not consider this a viable option to improve efficiency. Further, manufacturers indicated that similar or greater efficiencies than those of pulse combustion boilers can be achieved using alternative technologies. For this reason, DOE is not including pulse combustion as a technology option, as it could reduce consumer utility (reliability). DOE decided to screen out using a control relay to depower BPM motors due to feedback received during the residential furnace rulemaking (which was reconfirmed during manufacturer interviews for the residential boiler rulemaking), which indicated that using a control relay to depower brushless permanent magnet
AHRI stated that neither direct vent nor burner derating should be included in the analysis since they are not currently practical ways to achieve higher levels of efficiency. (AHRI, No. 16 at p. 1)
In response, DOE agrees that burner derating should be screened out, and has done so for the NOPR analysis. Burner derating reduces the burner firing rate while keeping heat exchanger geometry and surface area and the fuel-air ratio the same, which increases the ratio of heat transfer surface area to energy input, and increases efficiency. However, the lower energy input means that less heat is provided to the user than with conventional burner firing rates. As a result of the decreased heat output of boilers with derated burners, DOE has screened out burner derating as a technology option, as it could reduce consumer utility.
For direct vent, DOE has found that boilers using this technology can improve AFUE by reducing the heat loss through draft, because direct vent systems are sealed systems in which combustion air is brought in from outside, rather than from the space surrounding the boiler. This reduces infiltration losses, and would improve AFUE. In addition, this technology has been demonstrated as technologically feasible and practicable to manufacture, install, and service, as it is currently offered in boiler models available on the market. In addition, DOE is not aware of any impacts on product utility or adverse impacts on safety that would result from the use of this technology. Thus, DOE has maintained direct vent as a technology option. However, it should be noted that this technology option was not considered to be a primary driver of increased efficiency in the engineering analysis (see section IV.C).
Through a review of each technology, DOE found that all of the other identified technologies met all four screening criteria and consequently, are suitable for further examination in DOE's analysis. In summary, DOE did not screen out the following technology options to improve AFUE: (1) Heat exchanger improvements; (2) modulating operation; (3) direct vent; (4) premix burners; (5) low-pressure air-atomized oil burner; and (6) delayed-action oil pump solenoid valve. DOE also maintained the following technology options to improve standby mode and off mode energy consumption: (1) Transformer improvements; and (2) switching mode power supply. All of these technology options are technologically feasible, given that the evaluated technologies are being used (or have been used) in commercially-available products or working prototypes. Therefore, all of the trial standard levels evaluated in this notice are technologically feasible. DOE also finds that all of the remaining technology options also meet the other screening criteria (
In the engineering analysis (corresponding to chapter 5 of the NOPR TSD), DOE establishes the relationship between the manufacturer selling price (MSP) and improved residential boiler efficiency. This relationship serves as the basis for cost-benefit calculations for individual consumers, manufacturers, and the Nation. DOE typically structures the engineering analysis using one of three approaches: (1) Design option; (2) efficiency level; or (3) reverse engineering (or cost-assessment). The design-option approach involves adding the estimated cost and efficiency of various efficiency-improving design changes to the baseline to model different levels of efficiency. The efficiency-level approach uses estimates of cost and efficiency at distinct levels of efficiency from publicly-available information, and information gathered in manufacturer interviews that is supplemented and verified through technology reviews. The reverse-engineering approach involves testing products for efficiency and determining cost from a detailed bill of materials (BOM) derived from reverse engineering representative products. The efficiency values range from that of a least-efficient boiler sold today (
As noted in section III.B, the active mode AFUE metric fully accounts for the fuel use consumption in active, standby and off modes whereas the standby and off mode metric (maximum wattage) only accounts for the electrical energy use in standby and off mode. In analyzing the technologies that would be likely to be employed to effect changes in these metrics, DOE found that the efficiency changes were mostly independent. For example, the primary means of improving AFUE is to improve the heat exchanger design, which would likely have little or no impact on standby and off mode electrical consumption. Similarly, the design options considered likely to be implemented for reducing standby mode and off mode electrical consumption are not expected to impact the AFUE. Therefore, DOE conducted separate engineering and cost-benefit analyses for each of these two metrics and their associated systems (fuel and electrical). In order to account for the total impacts of both proposed standards, DOE added the monetized impacts from these two separate analyses in the NIA, LCC, and MIA as a means of providing a cumulative impact on residential boilers. For the PBP, to estimate the cumulative impact for both standards, DOE determined the combined installed cost to the consumer and the first-year operating costs for each household. DOE requests comment on this approach and whether it is reasonable to assume that the design changes implemented by manufacturers in order to comply with the standby and off mode would be independent of those implemented to comply with AFUE standards.
DOE also requests comment on employing an alternative methodology to inform the selection of the appropriate technologically feasible and economically justified standard level, which would occur as follows: (1) First the agency would first consider the technological feasibility and economic justification of one standard (
For the NODA analysis of AFUE efficiency levels, DOE conducted the engineering analysis for residential boilers using a combination of the efficiency level and cost-assessment approaches. More specifically, DOE identified the efficiency levels for analysis and then used the cost-assessment approach to determine the technologies used and the associated manufacturing costs at those levels.
For the standby mode and off mode analyses, DOE adopted a design option approach, which allowed for the calculation of incremental costs through the addition of specific design options to a baseline model. DOE decided on this approach because it did not have sufficient data to execute an efficiency-level analysis, as manufacturers typically do not rate or publish data on the standby mode and or off mode energy consumption of their products.
DOE continued to use the same analytical approaches for the NOPR phase of this rulemaking as used in the NODA. In response to the NODA, DOE received specific comments from interested parties on certain aspects of the engineering analysis. A brief overview of the methodology, a discussion of the comments DOE received, DOE's response to those comments, and any adjustments made to the engineering analysis methodology or assumptions as a result of those comments is presented in the sections below. See chapter 5 of the NOPR TSD for additional details about the engineering analysis.
As noted above, for analysis of amended AFUE standards, DOE used an efficiency-level approach to identify incremental improvements in efficiency for each product class. An efficiency-level approach enabled DOE to identify incremental improvements in efficiency for efficiency-improving technologies that boiler manufacturers already incorporate in commercially-available models. After identifying efficiency levels for analysis, DOE used a cost-assessment approach (section IV.C.2) to determine the MPC at each efficiency level identified for analysis. This method estimates the incremental cost of increasing product efficiency. For the analysis of amended standby mode and off mode energy conservation standards, DOE used a design-option approach and identified efficiency levels that would result from implementing certain design options for reducing power consumption in standby mode and off mode.
In the analysis presented in the NODA, DOE selected baseline units typical of the least-efficient commercially-available residential boilers. DOE selected baseline units as reference points for each product class, against which it measured changes resulting from potential amended energy conservation standards. The baseline efficiency level in each product class represents the basic characteristics of products in that class. A baseline unit is a unit that just meets current Federal energy conservation standards and provides basic consumer utility.
DOE uses the baseline unit for comparison in several phases of the analyses, including the engineering analysis, LCC analysis, PBP analysis, and the NIA. To determine energy savings that will result from an amended energy conservation standard, DOE compares energy use at each of the higher energy efficiency levels to the energy consumption of the baseline unit. Similarly, to determine the changes in price to the consumer that will result from an amended energy conservation standard, DOE compares the price of a baseline unit to the price of a unit at each higher efficiency level.
DOE received no comments regarding the baseline efficiency levels and characteristics chosen for the NODA analysis of amended AFUE standards. Thus, DOE has maintained these baseline efficiency levels, which are equal to the current federal minimum standards for each product class in the NOPR analysis. Table IV.2 presents the baseline AFUE levels identified for each product class. Additional details on the selection of baseline efficiency levels may be found in chapter 5 of the NOPR TSD.
AHRI commented that the baseline efficiency levels shown in the engineering analysis are assumed to have dampers. AHRI asked for clarification as to the type of damper the baseline gas-fired hot water boilers are assumed to have in the analysis. (AHRI No. 22 at p. 3) In the engineering analysis, DOE assumed baseline gas-fired hot water boilers to have stack dampers, as described in chapter 5 of the TSD.
For the standby mode and off mode analysis, DOE identified baseline components as those that consume the most electricity during the operation of those modes. Since it would not be practical for DOE to test every boiler on the market to determine the baseline and since manufacturers do not currently report standby mode and off mode energy consumption, DOE “assembled” the most consumptive baseline components from the models tested to model the electrical system of a boiler with the expected maximum system standby mode and off mode power consumption observed during testing of boilers and similar equipment. Additional boiler standby mode and off mode testing was performed for the NOPR analysis and has led DOE to lower the standby mode and off mode baseline consumption level for each product class as compared to the NODA analysis. The baseline standby mode and off mode consumption levels used in the NOPR analysis are presented in Table IV.3.
Table IV.4 through Table IV.7 shows the efficiency levels DOE selected for the NOPR analysis of amended AFUE standards, along with a description of the typical technological change at each level. DOE seeks comment from interested parties regarding the typical technological change associated with each efficiency level.
HTP commented that it does not support an incremental increase in AFUE for gas hot water boilers. The commenter stated that appliances utilizing combustion technology that operates at efficiencies above 82 percent and below 90 percent AFUE will likely experience cyclic condensation within their venting and periods of high vent temperatures. HTP added that the safety and installation cost implications of operating within this range should be seriously considered. (HTP, No. 31 atp. 1)
The Department recognizes that efficiency levels within the non-condensing to condensing range could pose health or safety concerns under certain conditions, but the concerns can be resolved with proper product installations and venting system design. This is evidenced by the high number of models of products that are currently commercially available at these efficiency levels, as well as the lack of restrictions on the installation of these units (in terms of location) in installation manuals. Therefore, due to the significant product availability, DOE considered efficiency levels above 82 percent and below 90 percent in its analysis. However, DOE requests further comment from interested parties on non-condensing levels above 82 percent, as well as the appropriateness of considering such levels for amended energy conservation standards.
In addition, DOE considered whether changes to the residential furnaces and boilers test procedure, as proposed by the March 2015 test procedure NOPR would necessitate changes to the AFUE levels being analyzed. The primary change proposed in the test procedure included updating the incorporation by reference to ASHRAE 103-2007. As discussed in the March 2015 test procedure NOPR, adopting ASHRAE 103-2007 would not be expected to change the AFUE rating for single-stage products and would result in a
Table IV.8 through Table IV.13 show the efficiency levels DOE selected for the NOPR analysis of standby mode and off mode standards, along with a description of the typical technological change at each level. For the NOPR analysis, DOE has modified the baseline standby mode and off mode efficiency levels, as discussed in section IV.C.1.a. However, DOE has assumed the same impacts from the design options in the NOPR analysis, as was assumed for the NODA analysis. As a result, the change to the baseline standby mode and off mode power consumption have resulted in corresponding changes to the standby mode and off mode power consumption at each efficiency level.
“Standby mode” and “off mode” power consumption are defined in the DOE test procedure for residential furnaces and boilers. DOE defines “standby mode” as “the condition during the heating season in which the furnace or boiler is connected to the power source, and neither the burner, electric resistance elements, nor any electrical auxiliaries such as blowers or pumps, are activated.” 10 CFR part 430, subpart B, appendix N, section 2.8. “Off mode” is defined as “the condition during the non-heating season in which the furnace or boiler is connected to the power source, and neither the burner, electric resistance elements, nor any electrical auxiliaries such as the blowers or pumps, are activated.” 10 CFR part 430, subpart B, appendix N, section 2.6. A “seasonal off switch” is defined as “the switch on the furnace or boiler that, when activated, results in a measurable change in energy consumption between the standby and off modes.” 10 CFR part 430, subpart B, appendix N, section 2.7.
Through review of product literature and discussions with manufacturers, DOE has found that boilers generally do not have a seasonal off switch. Manufactures stated that if a switch is included with a product, it is primarily used as a service/repair switch, not for turning off the product during the off season. Therefore, DOE assumed that the standby mode and the off mode power consumption are equal. DOE requests comment on the efficiency levels analyzed for standby mode and off mode, and on the assumption that standby mode and off mode energy consumption (as defined by DOE) would be equal.
At the start of the engineering analysis, DOE identified the energy efficiency levels associated with residential boilers on the market using data gathered in the market assessment. DOE also identified the technologies and features that are typically incorporated into products at the baseline level and at the various energy efficiency levels analyzed above the baseline. Next, DOE selected products for the physical teardown analysis having characteristics of typical products on the market at the representative input capacity. DOE gathered information by performing a physical teardown analysis (see section IV.C.2.a) to create detailed BOMs, which included all components and processes used to manufacture the products. DOE used the BOMs from the teardowns as an input to a cost model, which was then used to calculate the manufacturing production cost (MPC) for products at various efficiency levels spanning the full range of efficiencies from the baseline to the maximum technology available (“max-tech”). DOE reexamined and revised its cost assessment performed for the NODA analysis based on additional teardowns and in response to comments received on the NODA analysis.
During the development of the engineering analysis for the NOPR, DOE held interviews with manufacturers to gain insight into the residential boiler industry, and to request feedback on the engineering analysis and assumptions that DOE used. DOE used the information gathered from these interviews, along with the information obtained through the teardown analysis and public comments, to refine the assumptions and data in the cost model. Next, DOE derived manufacturer markups using publicly-available residential boiler industry financial data in conjunction with manufacturers' feedback. The markups were used to convert the MPCs into MSPs. Further information on comments received and the analytical methodology is presented in the subsections below. For additional detail, see chapter 5 of the NOPR TSD.
To assemble BOMs and to calculate the manufacturing costs for the different components in residential boilers, DOE disassembled multiple units into their base components and estimated the materials, processes, and labor required for the manufacture of each individual component, a process referred to as a “physical teardown.” Using the data gathered from the physical teardowns, DOE characterized each component according to its weight, dimensions, material, quantity, and the manufacturing processes used to fabricate and assemble it.
DOE also used a supplementary method, called a “virtual teardown,” which examines published manufacturer catalogs and supplementary component data to estimate the major physical differences between a product that was physically disassembled and a similar product that was not. For supplementary virtual teardowns, DOE gathered product data such as dimensions, weight, and design features from publicly-available information, such as manufacturer catalogs. The initial teardown analysis for the NODA included 6 physical and 5 virtual teardowns of residential boilers. The NOPR teardown analysis included 16 physical and 4 virtual teardowns of residential boilers. The additional teardowns performed for the NOPR analysis allowed DOE to further refine the assumptions used to develop the MPCs.
DOE selected the majority of the physical teardown units in the gas hot water product class because it has the largest number of shipments. DOE conducted physical teardowns of twelve gas hot water boilers, five of which were non-condensing cast iron boilers, two were non-condensing copper boilers, and the remaining five were condensing boilers. DOE performed an additional two virtual teardowns of gas hot water boilers.
DOE also performed physical teardowns on two gas-fired steam boilers as well as two oil-fired hot water boilers. DOE conducted one virtual teardown of an oil steam boiler as well as a virtual teardown of an oil hot water boiler.
The teardown analysis allowed DOE to identify the technologies that manufacturers typically incorporate into their products, along with the efficiency levels associated with each technology or combination of technologies. The end result of each teardown is a structured BOM, which DOE developed for each of the physical and virtual teardowns. The BOMs incorporate all materials, components, and fasteners (classified as either raw materials or purchased parts and assemblies), and characterize the materials and components by weight, manufacturing processes used, dimensions, material, and quantity. The BOMs from the teardown analysis were then used as inputs to the cost model to calculate the MPC for each product that was torn down. The MPCs resulting from the teardowns were then used to develop an industry average MPC for each product class analyzed.
In response to the teardown analysis performed for the NODA, AHRI stated that it is not appropriate to perform a virtual teardown of a baseline 82-percent AFUE gas hot water boiler based on information developed by physically tearing down an 85-percent AFUE gas hot water boiler. (AHRI, No. 22 at p. 3) AHRI explained that the designs to achieve an 85-percent AFUE model are significantly different than that to build an 82-percent AFUE model, so it is not appropriate to do a virtual teardown of a baseline 82-percent AFUE model, as this approach assumes a commonality of design between an 85-percent AFUE model and an 82-percent AFUE model that is greater than it actually is. In response, DOE agrees that it is preferable to conduct a physical teardown at the baseline level as to not overstate the similarities between the baseline and higher efficiency levels. Accordingly, DOE has supplemented the virtual teardown conducted at the 82-percent AFUE baseline level for the gas-fired hot water boiler product class during the initial analysis with two physical teardowns at the baseline level for the NOPR analysis.
AHRI also stated that conducting a single teardown for the oil-fired hot water boiler product class is inadequate for this analysis. (AHRI, No. 22 at p. 3) In response to this comment, DOE has conducted an additional physical teardown for the oil-fired hot water boiler product class.
More information regarding details on the teardown analysis can be found in chapter 5 of the NOPR TSD.
The cost model is a spreadsheet that converts the materials and components in the BOMs into dollar values based on the price of materials, average labor rates associated with manufacturing and assembling, and the cost of overhead and depreciation, as determined based on manufacturer interviews and DOE expertise. To convert the information in the BOMs to dollar values, DOE collected information on labor rates, tooling costs, raw material prices, and other factors. For purchased parts, the cost model estimates the purchase price based on volume-variable price quotations and detailed discussions with manufacturers and component suppliers. For fabricated parts, the prices of raw metal materials
Burnham subsidiaries Crown Boiler, US Boiler, and New Yorker all commented that the material price for cast iron was not shown in chapter 5 of the TSD. (Crown Boiler, No. 24 at p. 1; US Boiler, No. 25 at p. 1; New Yorker, No. 26 at p. 1) DOE acknowledges that a large portion of the manufacturer production cost can typically be attributed to raw materials and the omission of the cost used for cast iron may make it difficult to review how DOE arrived at the MSPs. The omission of this value from chapter 5 of the NODA TSD was in error, and chapter 5 of the NOPR TSD corrects this deficiency.
Once the cost estimates for all the components in each teardown unit were finalized, DOE totaled the cost of materials, labor, and direct overhead used to manufacture a product in order to calculate the manufacturer production cost. The total cost of the product was broken down into two main costs: (1) The full manufacturer production cost, referred to as MPC; and (2) the non-production cost, which includes selling, general, and administration (SG&A) expenses; the cost of research and development; and interest from borrowing for operations or capital expenditures. DOE estimated the MPC at each efficiency level considered for each product class, from the baseline through the max-tech. After incorporating all of the assumptions into the cost model, DOE calculated the percentages attributable to each element of total production cost (
In developing the MPCs for the NODA analysis, DOE considered the draft type (
AHRI stated that it disagrees with the assumption that if the minimum efficiency level were to change, the percentage of models using inducer fans (
In response to AHRI's comment, DOE notes that AHRI did not provide any information as to how the mix of products with and without inducers might change in response to amended energy conservation standards. As mentioned above, for the NODA analysis, DOE used information gathered from a survey of models currently on the market to determine the percentages of units with and without inducer fans. DOE was unable to identify any better source of data or methodology for estimating the percentage of products which would have inducer fans under amended standards, so DOE maintained this methodology for the NOPR. DOE requests comments regarding how the mix of products with and without inducers would change under amended energy conservation standards, and how to best estimate and account for such changes in this analysis.
Crown Boiler stated that the incremental MPCs for EL1 and EL2 for gas-fired hot water and gas-fired steam boilers are optimistic and cannot be analyzed for accuracy. In addition, Crown Boiler stated that the incremental costs for the gas-fired product classes imply that DOE is assuming simple changes to the heat pin size to increase heat exchanger area, but that in reality, this change would be more complicated. Crown Boiler added that this is contradicted by the assumption of heat exchanger cost increase in non-condensing oil-fired boilers. The commenter stated that the use of larger heat transfer pins would likely require a wider heat exchanger to avoid excessive flue gas pressure drop. In addition, atmospheric boilers would probably require a taller draft hood to overcome the increased pressure drop caused by larger heat transfer pins. Crown Boiler also stated that the cost of sheet metal is not accounted for in the analysis. (Crown Boiler, No. 24 at p. 1)
As noted previously, DOE determined the incremental MPC at various efficiency levels for each product class by conducting physical and virtual teardowns. DOE determined the incremental cost between EL1 and EL2 for gas-fired hot water boilers in the NODA analysis using virtual teardowns, which are based on physical teardowns of similar units and then supplemented with catalog data. For the NOPR, DOE acquired additional data by conducting physical teardowns, which confirmed its observations from catalog data at the NODA analysis stage. Based on the observations from physical teardowns and manufacturer product literature and parts list, DOE found that many manufactures are able to increase the efficiency of their baseline gas-fired hot water boilers through the addition of baffles and/or a modest increase in heat transfer surface. Through product literature review, DOE has found it is common for manufacturers of non-condensing oil-fired boilers to derate the burner input (thereby increasing the ratio of heat transfer area to input rating) rather than create new cast iron patterns. However, as discussed previously, derating was screened out as a design option because it reduces the heating capability of the boiler. Therefore, DOE estimated the cost of improving efficiency as an increase in heat exchanger size, using information observed to model the appropriate amount of heat exchanger increase that would be required to improve efficiency. Based upon the different observed methods for improving efficiency, DOE's NODA and NOPR analyses reflect the different designs and different costs of achieving incremental AFUE increases in gas-fired and oil-fired boilers. The differential cost in efficiency improvement between gas-fired and oil-fired non-condensing boilers is also due in part to the larger representative input capacity of oil-fired boilers, as well as the larger heat exchanger design for oil-fired boilers (
In the NOPR analysis, DOE revised the cost model assumptions it used for the NODA analysis based on additional teardown analysis, updated pricing information (for raw materials and purchased parts), and additional manufacturer feedback. These changes resulted in refined MPCs and production cost percentages. Table IV.14 through Table IV.17 present DOE's estimates of the MPCs by AFUE efficiency level for this rulemaking.
Table IV.18 through Table IV.23 present's DOE's estimate estimates of the MPCs at each standby mode and off mode efficiency level for this rulemaking.
Chapter 5 of the NOPR TSD presents more information regarding the development of DOE's estimates of the MPCs for this rulemaking.
The result of the engineering analysis is a cost-efficiency relationship. DOE created cost-efficiency curves representing the cost-efficiency relationship for each product class that it examined. To develop the cost-efficiency relationships for residential boilers, DOE examined the cost differential to move from one efficiency level to the next for each manufacturer. DOE used the results of teardowns on a market-share-weighted average basis to determine the industry average cost increase to move from one efficiency level to the next. Additional details on how DOE developed the cost-efficiency relationships and related results are available in chapter 5 of the NOPR TSD, which also presents these cost-efficiency curves in the form of energy efficiency versus MPC.
The results indicate that cost-efficiency relationships are nonlinear. In other words, as efficiency increases, manufacturing becomes more difficult
To account for manufacturers' non-production costs and profit margin, DOE applies a non-production cost multiplier (the manufacturer markup) to the full MPC. The resulting MSP is the price at which the manufacturer can recover all production and non-production costs and earn a profit. To meet new or amended energy conservation standards, manufacturers typically introduce design changes to their product lines that increase manufacturer production costs. Depending on the competitive environment for these particular products, some or all of the increased production costs may be passed from manufacturers to retailers and eventually to consumers in the form of higher purchase prices. As production costs increase, manufacturers typically incur additional overhead. The MSP should be high enough to recover the full cost of the product (
To calculate the manufacturer markups, DOE used 10-K reports
In response to the NODA analysis, Crown Boiler, US Boiler, and New Yorker commented that the shipping costs were not discussed in chapter 5 of the TSD nor is it apparent that they were used to calculate MPC in the manufacturer markup. These commenters stated that depending on the situation, shipping costs may be borne by either the manufacturer or by the wholesaler, but either way, the shipping costs eventually become part of the installed cost of the boiler and, therefore, need to be taken into account. The commenters added that almost all condensing gas-fired boiler heat exchangers and burner systems are imported from Europe or Asia, and therefore, there are importation costs associated with condensing boilers. (Crown Boiler, No. 24 at p. 1; US Boiler, No. 25 at p. 1; New Yorker, No. 26 at p. 1)
For residential boilers, the Department has included transportation costs in its calculation of manufacturer selling price in both the NODA and the NOPR. Outbound freight is normally considered a sales expense and not a production cost. As discussed in section IV.C.2.e, when translating MPCs to MSPs, DOE applies a manufacturer mark-up to the MPC. This mark-up, based on an analysis of manufacturer SEC 10-K reports, includes outbound freight costs. Inbound freight costs are included in MPCs as a component of costs for purchased parts and raw materials. Chapter 5 of the NOPR TSD contains additional details about DOE's shipping cost assumptions.
Throughout the rulemaking process, DOE has sought and continues to seek feedback and insight from interested parties that would improve the information used in its analyses. DOE interviewed manufacturers as a part of the NOPR manufacturer impact analysis (see section IV.J.3). During the interviews, DOE sought feedback on all aspects of its analyses for residential boilers. For the engineering analysis, DOE discussed the analytical assumptions and estimates, cost model, and cost-efficiency curves with residential boiler manufacturers. DOE considered all the information manufacturers provided when refining the cost model and assumptions. However, DOE incorporated equipment and manufacturing process figures into the analysis as averages in order to avoid disclosing sensitive information about individual manufacturers' products or manufacturing processes. More details about the manufacturer interviews are contained in chapter 12 of the NOPR TSD.
DOE uses appropriate markups (
In the NODA, DOE characterized three distribution channels to describe how residential boiler products pass from the manufacturer to residential and commercial consumers: (1) Replacement market; (2) new construction, and (3) national accounts.
The new construction distribution channel is characterized as follows:
In the third distribution channel, the manufacturer sells the product to a wholesaler and then to the commercial consumer through a national account:
To develop markups for the parties involved in the distribution of the product, DOE utilized several sources, including: (1) The Heating, Air-Conditioning & Refrigeration Distributors International (HARDI) 2012 Profit Report
In addition to the markups, DOE derived State and local taxes from data provided by the Sales Tax Clearinghouse.
DOE did not receive comments on the markups analysis, and consequently, it retained the same approach for today's NOPR. Chapter 6 of the NOPR TSD provides further detail on the estimation of markups.
The purpose of the energy use analysis is to determine the annual energy consumption of residential boilers at different efficiencies in representative U.S. single-family homes, multi-family residences, and commercial buildings, and to assess the energy savings potential of increased boiler efficiency. DOE estimated the annual energy consumption of residential boilers at specified energy efficiency levels across a range of climate zones, building characteristics, and heating applications. The annual energy consumption includes the natural gas, liquid petroleum gas (LPG), oil, and/or electricity use by the boiler for space and water heating. The annual energy consumption of residential boilers is used in subsequent analyses, including the LCC and PBP analysis and the national impacts analysis.
For the residential sector, DOE consulted the Energy Information Administration's (EIA) 2009 Residential Energy Consumption Survey (RECS 2009) to establish a sample of households using residential boilers for each boiler product class.
DOE accounted for applications of residential boilers in commercial buildings because the intent of the analysis of consumer impacts is to capture the full range of usage conditions for these products. DOE considers the definition of “residential boiler” to be limited only by its capacity.
For the commercial building sample, DOE used the EIA's 2003 Commercial Building Energy Consumption Survey
To estimate the annual energy consumption of boilers meeting higher efficiency levels, DOE first calculated the heating load based on the RECS and CBECS estimates of the annual energy consumption of the boiler for each household. DOE estimated the house heating load by reference to the existing boiler's characteristics, specifically its capacity and efficiency (AFUE), as well as by the heat generated from the electrical components. The AFUE of the existing boilers was determined using the boiler vintage (the year of installation of the product) from RECS and historical data on the market share of boilers by AFUE. DOE then used the house heating load to determine the burner operating hours, which are needed to calculate the fossil fuel consumption and electricity consumption based on the DOE residential furnace and boiler test procedure. To calculate pump and other auxiliary components' electricity consumption, DOE utilized data from manufacturer product literature.
Additionally, DOE adjusted the energy use to normalize for weather by using long-term heating degree-day (HDD) data for each geographical region.
DOE is aware that some residential boilers have the ability to provide both space heating and domestic water heating, and that these products are widely available and may vary greatly in design. For these applications, DOE accounted for the boiler energy used for domestic water heating, which is part of the total annual boiler energy use. To accomplish this, DOE used the RECS 2009 and/or CBECS data to identify households or buildings with boilers that use the same fuel type for space and water heating, and then assumed that a fraction of these identified households/buildings use the boiler for both applications.
To calculate the annual water-heating energy use for each boiler efficiency level, DOE first calculated the water-heating load by multiplying the annual fuel consumption for water heating (derived from RECS or CBECS) by the AFUE of the existing boiler, adjusted for the difference between AFUE and recovery efficiency for water heating. DOE then calculated the boiler energy use for each efficiency level by multiplying the water-heating load by the AFUE of the selected efficiency level, adjusted for the difference between AFUE and recovery efficiency for water heating.
The Department calculated boiler electricity consumption for the circulating pump, the draft inducer,
The Department calculated boiler standby mode and off mode electricity consumption for times when the boiler is not in use for each efficiency level identified in the engineering analysis. DOE calculated boiler standby mode and off mode electricity consumption by multiplying the power consumption at each efficiency level by the number of standby mode and off mode hours. To calculate the annual number of standby mode and off mode hours for each sample household, DOE subtracted the estimated total burner operating hours (both for space heating and water heating) from the total hours in a year (8,760). Details of the method are provided in chapter 7 of the NOPR TSD.
AHRI disagreed with DOE's assumption that a residential boiler is in standby mode throughout the year. AHRI stated that the time when the boiler is in standby should be limited to the heating season; the remainder of the year the boiler is “off.” (AHRI, No. 22 at p. 5) DOE is not aware of any information on the extent to which consumers shut off the boiler when the heating season is over. For the NOPR, DOE estimated that 25 percent of consumers shut the boiler off.
See chapter 7 in the NOPR TSD for additional detail on the energy analysis and results for standby mode and off mode operation.
Commenting on the NODA, AHRI stated that, in basing the estimated energy consumption on RECS 2009 and CBECS 2003 data, the estimated energy use must be recalculated to account for the benefit of the automatic temperature reset means both for the baseline unit and the higher efficiency levels. For residential applications, AHRI suggested that an average of 10 percent savings would be a reasonable estimate. AHRI predicted that this revised analysis will show a smaller incremental energy savings resulting from an increased AFUE rating. (AHRI, No. 22 at pp. 5-6)
For the NOPR, DOE incorporated the impact of automatic temperature reset means on boiler energy use by adjusting AFUE based on a reduction in average return water temperature (RWT). DOE calculated the reduction in average RWT for single-stage boilers based on the duration of burner operating hours at reduced RWT. For modulating boilers, DOE used the average relationship
Energy Kinetics stated that the average oversizing factor of between three and four used in the NODA exceeds the 0.7 oversizing factor indicated in the AFUE standard. It argued that this oversizing has a clear and direct impact on annual efficiency due to idle losses, which are virtually ignored in AFUE. (Energy Kinetics, No. 19 at p. 1)
In the NODA analysis, DOE did not use an average oversizing factor of between three and four, but applied an oversize factor of 0.7 as specified in the existing DOE test procedure. The oversize factor was applied directly to the calculated input capacity of the boiler. DOE calculated the input capacity for the existing boiler of each housing/building unit based on information derived from the RECS and CBECs data. The equipment sizing approach determines the heating load of the sampled household/building by accounting for building characteristics impacting heat load. Following determination of the building heating load, equipment efficiency is applied to the heat load to calculate the boiler input capacity. Input capacity was then multiplied by an oversize factor of 0.7 as specified in the existing DOE test procedure. Using the oversized input capacity, DOE then rounded the input capacity up to the nearest typical equipment size, which in some cases resulted in oversize factors slightly more or less than 1.7. See appendix 7B for additional details of the boiler sizing methodology.
Energy Kinetics stated that temperature reset controls would be highly ineffective without accounting for idle loss. Energy Kinetics stated that idle loss or energy wasted at the end of the heating cycle (not during the burner operation), greatly impacts annual energy efficiency. (Energy Kinetics, No. 19 at p. 2)
Idle loss, as the term applies to residential heating boilers, is heat wasted when the burner is not firing. The idle losses are the heat from combustion that is not transferred to the heating water, including the products of combustion up the flue, the loss out of the heat exchanger walls and boiler's jacket (in the form of radiant, conductive, or convective transfer), and the loss down the drain as a condensate. Since no fuel is being consumed in the off-cycle, off-cycle losses, therefore, are important only to the extent that they must be replaced during the on-cycle by the burning of extra fuel (
Energy Kinetics also stated that AFUE assumes that the boiler is in the conditioned space and heat lost is gained in the conditioned space, but in practice, much of this heat energy is wasted in basements, up chimneys, and out draft hoods and draft regulators. (Energy Kinetics, No. 19 at p. 2)
The AFUE metric incorporates sensible and latent heat lost up chimneys and out draft hoods and draft regulators. Regarding losses in basements, for the NOPR analysis, DOE accounted for boiler jacket losses based on the installation location. For boilers installed in unconditioned basements and garages, DOE adjusted AFUE using a jacket loss factor, which was derived from the values provided by the existing DOE test procedure. For high-mass boilers, DOE used a jacket loss factor of 2.4 percent. For low-mass boilers, DOE assumed that the jacket losses were only 10 percent of those of a high-mass boiler (
Energy Kinetics stated that if combined heat and hot water boilers are considered to be in the conditioned space, then heat lost in summertime while heating domestic water should have an impact on air conditioning cooling loads. (Energy Kinetics, No. 19 at p. 2) For the NOPR, DOE estimated the share of combined heat and hot water boilers that are installed in the conditioned space, and estimated the impact of heat lost in summertime on air conditioning cooling loads. Details of the method are given in chapter 7 of the NOPR TSD.
Fire & Ice and Weil McLain
DOE accounts for boiler operational efficiency in specific installations by adjusting the AFUE of the sampled boiler based on an average system return water temperature. The criteria used to determine the return water temperature of the boiler system included consideration of building vintage, product type (condensing or non-condensing, single-stage or modulating), and whether the boiler employed an automatic means for adjusting water temperature. Using product type and system return water temperature, DOE developed and applied the AFUE adjustments based on average heating season return water temperatures. See appendix 7B for additional details.
In determining whether an energy conservation standard is economically justified, DOE considers the economic impact of potential standards on consumers. The effect of new or amended energy conservation standards on individual consumers usually involves a reduction in operating cost and an increase in purchase cost. DOE used the following two metrics to measure consumer impacts:
• LCC (life-cycle cost) is the total consumer cost of an appliance or product, generally over the life of the appliance or product. The LCC calculation includes total installed cost (equipment manufacturer selling price, distribution chain markups, sales tax, and installation costs), operating costs (energy, repair, and maintenance costs), product lifetime, and discount rate. Future operating costs are discounted to the time of purchase and summed over the lifetime of the appliance or product.
• PBP (payback period) measures the amount of time it takes consumers to recover the assumed higher purchase price of a more energy-efficient product through reduced operating costs. Inputs to the payback period calculation include the installed cost to the consumer and first-year operating costs.
For any given efficiency level, DOE measures the PBP and the change in LCC relative to an estimate of the base-case efficiency level. The base-case estimate reflects the market in the absence of amended energy conservation standards, including market trends for products that exceed the current energy conservation standards.
DOE analyzed the net effect of potential amended residential boiler standards on consumers by calculating the LCC and PBP for each efficiency level of each sample household using the engineering performance data, the energy-use data, and the markups. DOE performed the LCC and PBP analyses using a spreadsheet model combined with Crystal Ball (a commercially-available software program used to conduct stochastic analysis using Monte Carlo simulation and probability distributions) to account for uncertainty and variability among the input variables (
EPCA establishes a rebuttable presumption that a standard is economically justified if the Secretary finds that the additional cost to the consumer of purchasing a product complying with an energy conservation standard level will be less than three times the value of the energy (and, as applicable, water) savings during the first year that the consumer will receive as a result of the standard, as calculated under the test procedure in place for that standard. (42 U.S.C. 6295(o)(2)(B)(iii)) For each considered efficiency level, DOE determines the value of the first year's energy savings by calculating the quantity of those savings in accordance with the applicable DOE test procedure, and multiplying that amount by the average energy price forecast for the year in which compliance with the amended standards would be required.
DOE calculated the LCC and PBP for all consumers of residential boilers as if each were to purchase new product in the year that compliance with amended standards is required. As discussed above, DOE is conducting this rulemaking pursuant to 42 U.S.C. 6295(f)(4)(C), and consistent with that provision, DOE is applying a 5-year lead time for compliance with amended standards. (This rulemaking also satisfies DOE's 6-year-lookback review requirement under 42 U.S.C. 6295(m), a provision which calls for the same 5-year lead time for residential boilers.) At the time of preparation of the NOPR analysis, the expected issuance date was spring 2014, leading to an anticipated final rule publication in 2015. Accordingly, the projected compliance date for amended standards is early 2020. Therefore, for purposes of its analysis, DOE used January 1, 2020 as the beginning of compliance with potential amended standards for residential boilers.
As noted above, DOE's LCC and PBP analyses generate values that calculate the payback period for consumers of potential energy conservation standards, which includes, but is not limited to, the three-year payback period contemplated under the rebuttable presumption test. However, DOE routinely conducts a full economic analysis that considers the full range of impacts, including those to the consumer, manufacturer, Nation, and environment, as required under 42 U.S.C. 6295(o)(2)(B)(i). The results of this analysis serve as the basis for DOE to definitively evaluate the economic justification for a potential standard level (thereby supporting or rebutting the results of any preliminary determination of economic justification).
The primary inputs for establishing the total installed cost are the baseline consumer product price, standard-level consumer price increases, and installation costs (labor and material cost). Baseline consumer prices and standard-level consumer price increases were determined by applying markups to manufacturer price estimates, including sales tax where appropriate. The installation cost is added to the consumer price to arrive at a total installed cost.
Weil McLain stated that lumping all condensing and non-condensing boilers together to determine the average or median cost of a type of boiler does not provide the correct basis for making a decision. (Weil McLain, No. 20-1 at p. 3) In response, DOE's product cost analysis considers condensing and non-condensing boilers as separate efficiency levels and accounts for the specific characteristics of these designs. Details of the method are provided in chapter 8 of the NOPR TSD.
For the NODA, DOE projected future prices of residential boilers using inflation-adjusted producer price index (PPI) data for “heating equipment” from the Bureau of Labor Statistics.
DOE agrees that the broad category “heating equipment” may not be the best measure to apply to residential boilers. For the NOPR, DOE examined the PPI for cast iron heating boilers from 1987 to 2013 and for steel heating boilers from 1980 to 2013.
The Joint Commenters stated that it is expected that the installed cost of condensing boilers would decline between now and the compliance date of amended standards (2020). The Joint Commenters stated that the new ENERGY STAR specification, which requires condensing levels from gas-fired boilers, are expected to increase the market share of condensing gas boilers, resulting in a decline in equipment costs. Furthermore, the Joint Commenters encouraged DOE to explore ways to estimate learning rates for condensing technology. The Joint Commenters stated that analyzing price trends of whole categories of equipment fails to capture the price trends of the actual technologies that are employed to improve efficiency. The Joint Commenters would expect the price of condensing boilers to decline much faster than the price of all boilers. The Joint Commenters stated that the use of historic price trends of heating equipment to estimate learning rates for boilers implicitly assumes that prices of non-condensing and condensing boilers will change at the same rate, and will likely significantly underestimate future declines in the incremental cost of condensing boilers. (Joint Commenters, No. 27 at pp. 2-3)
DOE acknowledges that the product cost of condensing boilers may decline between now and the compliance date of amended standards as production increases and the technology matures. It also recognizes that experience in the manufacturing sector generally indicates
DOE estimated the costs associated with installing a boiler in a new housing unit or as a replacement for an existing boiler. Installation costs account for labor and material costs and any additional costs, such as venting and piping modifications and condensate disposal that might be required when installing products at various efficiency levels.
For replacement installations, DOE included a number of additional costs (“adders”) for a fraction of the sample households. For non-condensing boilers, these additional costs may account for updating of flue vent connectors, vent resizing, chimney relining, and, for a fraction of installations, the costs for a stainless steel vent. For condensing boilers, these additional costs included adding a new polyvinylchloride (PVC) flue vent, combustion air venting for direct vent installations (PVC), concealing vent pipes for indoor installations, addressing an orphaned water heater (by updating flue vent connectors, vent resizing, or chimney relining), and condensate removal.
Weil McLain stated that changes to the heat distribution system in an older home can include: Installing new piping and venting; lining the existing chimney; installing a more powerful circulating pump; installing a different, larger electrical service; and/or installing a condensate neutralizer to prevent damage to a cast iron drain or installing a condensate pump. Weil McLain stated that quotations from qualified contractors for the complete installation of a condensing boiler in a replacement application are generally at least 30-60 percent higher than the installation cost of a non-condensing boiler in the same application. (Weil McLain, No. 20-1 at pp. 3-4)
In response, DOE's analysis does account for venting, condensate, and electrical related costs to determine the overall installation cost for condensing boilers. According to the available data, the total installed cost, which is the sum of the installation cost and the product price, is on average 23 percent higher for condensing boilers compared to baseline products. See appendix 8D of the NOPR TSD for details on how DOE calculated the installation costs.
Crown Boiler, U.S. Boiler, and New Yorker Boiler stated that the LCC spreadsheet does not include the total cost of masonry chimneys, chimney relining, vent resizing, and orphaned water heaters (except for condensing boiler venting cost). They also suggested that DOE should consider vent system changes based on input from building inspectors and code officials. (Crown Boiler, No. 24 at p. 2; U.S. Boiler, No. 25 at p. 2; New Yorker Boiler, No. 26 at p. 2)
Gathering input from a representative sample of building inspectors and code officials was not possible in the time frame of the NOPR preparation. However, for the NOPR, DOE included disaggregated costs associated with different installation scenarios and requirements. These costs included the cost of chimney relining, vent resizing, orphaned water heaters, and condensate withdrawal. These costs can be found in appendix 8D of the NOPR TSD.
Crown Boiler, U.S. Boiler, and New Yorker Boiler stated that a 100 Mbh gas boiler would use a 5″ vent, not a 4″ Type B vent as shown in the LCC spreadsheet. They also stated that a 140 Mbh oil boiler would use a 6″ vent and cannot use a 4″ Type B vent as shown in the LCC spreadsheet. (Crown Boiler, No. 24 at p. 2; U.S. Boiler, No. 25 at p. 2; New Yorker Boiler, No. 26 at p. 2) DOE agrees that the vent size is correlated with boiler capacity. For the NOPR, DOE included a methodology that sized vent material based on the capacity of the boiler to be installed and accounted for the subsequent change in installation cost. Specifically, DOE modified the analysis to include the costs of 5″ and 6″ vent material where appropriate. Appendix 8D of the NOPR TSD contains more details on the installation cost methodology.
Crown Boiler, U.S. Boiler, and New Yorker Boiler stated that the National Fuel Gas Code (ANSI Z223.l/INFPA 54, 2012 Edition, paragraph 12.6.4.3) suggests EL0 gas boilers can be installed without vent modification. (Crown Boiler, No. 24 at p. 2; U.S. Boiler, No. 25 at p. 2; New Yorker Boiler, No. 26 at p. 2) DOE's LCC analysis accounts for an estimated fraction of 81 percent of boiler replacement installations that do not require vent modifications for EL 0 (baseline) for hot water gas boilers. The baseline may require chimney relining or vent resizing for boilers installed before 1995. See appendix 8D of the NOPR TSD for more details.
The Joint Commenters stated that the installation costs for condensing boilers will decline as contractors gain more experience installing condensing boilers, competition increases, and new venting systems for retrofits (including flexible polypropylene) are introduced to the market. The Joint Commenters encouraged DOE to evaluate whether polypropylene venting systems, which are designed for easy retrofit installations, would represent the lowest-cost venting option for some portion of installations. (Joint Commenters, No. 27 at pp. 2-3)
In response, DOE notes that condensing boilers already comprise more than one-third of boiler installations, so it is not clear that costs will decline due to experience and competition. DOE conducted a literature review to assess the polypropylene venting market in the U.S. For this rulemaking, DOE applied polypropylene venting as a venting option for the fraction of installations involving models or applications for which PVC piping is not recommended.
DOE also included installation adders for new construction installations related to potential amended standards. For non-condensing boilers, the only adder is a new metal flue vent (including a fraction with stainless steel venting). For condensing gas boilers, the adders include a new flue vent, combustion air venting for direct vent installations, accounting for a commonly-vented water heater, and condensate removal.
Crown Boiler, U.S. Boiler, and New Yorker Boiler stated that the only difference in residential boiler installation cost between retrofit and new construction applications in terms of placement and set-up should be the cost of removing the old boiler; trip charge, unit startup, check, and cleanup should apply equally to both types of installation. (Crown Boiler, No. 24 at p. 2; U.S. Boiler, No. 25 at p. 2; New Yorker Boiler, No. 26 at p. 2)
For the NOPR analysis, DOE assumes that boiler placement, set-up, start-up, check, trip charge, and cleanup costs are included in labor hours based on RS Means data for both new construction and replacements. The cost of removing the old boiler was only applied for replacement installations and not applied to new construction.
With regards to near-condensing boiler installations, for the NODA, DOE
For the NOPR, DOE included additional venting cost associated with stainless steel venting for a fraction of installations between 82-percent AFUE and 86-percent AFUE that require such venting. Such inclusion addresses potential safety concerns by preventing the corrosive impacts of condensation in the venting system. Because use of an inducer or forced draft fan creates conditions under which stainless steel venting is necessary to avoid condensation in some cases, DOE based the fraction requiring stainless steel venting on the percentage of models with inducer or forced draft fans and manufacturer literature.
The primary inputs for calculating the operating costs are product energy consumption, product efficiency, energy prices and forecasts, maintenance and repair costs, product lifetime, and discount rates. DOE uses discount rates to determine the present value of lifetime operating expenses. The discount rate used in the LCC analysis represents the rate from an individual consumer's perspective. Much of the data used for determining consumer discount rates comes from the Federal Reserve Board's triennial Survey of Consumer Finances.
The product energy consumption is the site energy use associated with providing space heating (and water heating in some cases) to the building. DOE utilized the methodology described in section IV.E to establish product energy use.
DOE considered whether boiler energy use would likely be impacted by a direct rebound effect, which occurs when a product that is made more efficient is used more intensively, such that the expected energy savings from the efficiency improvement may not fully materialize. For the NODA, DOE conducted a review of information that included a 2009 study examining empirical estimates of the rebound effect for various energy-using products.
The Joint Commenters stated that a 20-percent rebound effect is too high. The Joint Commenters stated that a 2012 ACEEE paper concluded that the most widely applicable estimates of rebound rates in the studies reviewed by Sorrell (referenced above) range from 1-12 percent. The Joint Commenters stated that a similar range is provided in a 2013 paper by Thomas and Azevedo which lists five space-heating studies with rebound rates ranging from 1-15 percent. (Joint Commenters, No. 27 at p. 4)
For the NOPR, DOE reviewed the 2012 ACEEE paper
AHRI recommended that the LCC and PBP analysis should incorporate the energy savings reduction attributable to the rebound effect. AHRI stated that the TSD does not provide information to explain what the increase in the consumer's utility is that offsets the 20-percent rebound effect identified in the analysis. Additionally, AHRI stated that the consumer's utility is not a quantifiable, monetary value, and it does not affect the cost of operation of the boiler. (AHRI, No. 22 at p. 5)
In response, the most likely reason for a direct rebound effect associated with higher-efficiency boilers is that the consumer would maintain a higher indoor temperature than before, or extend the heating season for longer periods. It is reasonable to presume that such a consumer receives greater indoor comfort than before. The increased comfort has a cost that is equal to the monetary value of the higher energy use. DOE could reduce the energy cost savings to account for the rebound effect, but then it would have to add the value of increased comfort in order to conduct a proper economic analysis. The approach that DOE uses—not reducing the energy cost savings to account for the rebound effect and not adding the value of increased comfort—assumes that the value of increased comfort is equal to the monetary value of the higher energy use. Although DOE cannot measure the actual value to the consumers of increased comfort, the monetary value of the higher energy use represents a lower bound for this quantity.
Using the most current data from the Energy Information Administration
AGA and APGA contended that the Department should use a marginal price analysis, which reflects the incremental gas costs most closely associated with changes in the amount of gas consumed by appliances of different efficiencies, when evaluating the impact of natural gas prices on the life-cycle-cost savings associated with standards. (AGA, APGA, No. 21 at p. 5) In response, in the analyses performed for the NODA and for the NOPR, average electricity and natural gas prices from the EIA data were adjusted using seasonal marginal price factors to derive monthly marginal electricity and natural gas prices. For a detailed discussion of the development of marginal energy price factors, see appendix 8C of the NOPR TSD.
The maintenance cost is the routine annual cost to the consumer of general maintenance for product operation. The frequency with which the maintenance occurs was derived from a consumer survey
The repair cost is the cost to the consumer for replacing or repairing components in the boiler that have failed. DOE estimated repair costs at each considered efficiency level using a variety of sources, including 2013 RS Means Facility Repair and Maintenance Data,
Weil McLain, Crown Boiler, U.S. Boiler, and New Yorker Boiler stated that condensing boilers generally cost more to maintain and repair than non-condensing boilers because condensing boilers have more complex and costly component parts that need more frequent service, adjustment, and repair. (Weil McLain, No. 20-1 at p. 3; Crown Boiler, No. 24 at p. 2; U.S. Boiler, No. 25 at p. 2; New Yorker Boiler, No. 26 at p. 2) In response, DOE's analysis does account for additional maintenance and repair costs for condensing boilers. Maintenance costs include checking the condensate withdrawal system, replacing the neutralizer filter, and flushing the secondary heat exchanger for condensing oil boilers in high-sulfur oil-fuel regions. In addition, higher repair costs for ignition, controls, gas valve, and inducer fan are included. For more details on DOE's methodology for calculating maintenance and repair costs, see appendix 8E of the NOPR TSD.
Product lifetime is the age at which an appliance is retired from service. DOE conducted an analysis of boiler lifetimes using a combination of historical boiler shipments (see section IV.G), American Housing Survey data on historical stock of boilers,
A number of commenters stated that condensing boilers generally have a shorter lifespan than non-condensing boilers. Weil McLain stated that condensing boilers generally have a shorter lifespan than non-condensing boilers because the condensing boilers are exposed to the corrosive effects of condensation, and because there are many more component parts to wear out. (Weil McLain, No. 20-1 at p. 3) Crown Boiler, U.S. Boiler, and New Yorker Boiler believe that there is a significant difference between expected lifetimes for non-condensing and condensing boilers, with the latter typically lasting less than 15 years. (Crown Boiler, No. 24 at p. 2; U.S. Boiler, No. 25 at p. 2; New Yorker Boiler, No. 26 at p. 2) Weil McLain, Crown Boiler, U.S. Boiler, and New Yorker Boiler stated that manufacturers generally offer shorter warranties for condensing boilers than for non-condensing boilers, indicating that manufacturers have found that condensing boilers have a shorter life expectancy than non-condensing boilers. (Weil McLain, No. 20-1 at pp. 4; Crown Boiler, No. 24 at p. 2; U.S. Boiler, No. 25 at p. 2; New Yorker Boiler, No. 26 at p. 2) AHRI stated that the 22-year median lifetime used for all boilers in the analysis is an invalid assumption for condensing gas boilers. AHRI stated that deriving lifetimes from a combination of shipment data, boiler stock, and RECS data assumes that there is an established population of units in the field that reflect the full range of lifetimes that apply to the product. AHRI stated that this is not the case, as condensing gas hot water boilers were just beginning to be introduced 22 years ago. AHRI stated that it is not possible to conclude from field data that condensing gas boilers have a median lifetime of 22 years when the number of such units installed 22 years ago likely accounts for 1 percent or less of all residential gas boilers currently in use. (AHRI, No. 22 at p. 2)
In response, DOE notes that in developing Boilers Specification Version 3.0 for the ENERGY STAR program in 2013, the Environmental Protection Agency (EPA) held numerous discussions with manufacturers and technical experts to explore the concern that condensing boilers may have a shorter lifetime. In the absence of data showing otherwise, EPA concluded that if condensing boilers are properly installed and maintained, the life expectancy should be similar to non-condensing boilers.
To estimate the share of consumers affected by a potential energy conservation standard at a particular efficiency level, DOE's LCC and PBP analysis considers the projected distribution (
For residential boilers, DOE first developed data on the current share of models in each product class that are of the different efficiencies based on the latest AHRI certification directory.
For the boiler standby mode and off mode, DOE assumed that 50 percent of shipments would be at the baseline efficiency level and 50 percent would be at the max-tech efficiency level (EL 3) for all product classes, based on characteristics of available models.
No comments were received on the base-case efficiency distributions, and DOE retained the same approach for the NOPR.
DOE uses forecasts of product shipments to calculate the national impacts of potential amended energy conservation standards on energy use, NPV, and future manufacturer cash flows. DOE develops shipment projections based on historical data and an analysis of key market drivers for each product. DOE estimated boiler shipments by projecting shipments in three market segments: (1) Replacements; (2) new housing; and (3) new owners in buildings that did not previously have a boiler. DOE also considered whether standards that require more-efficient boilers would have an impact on boiler shipments.
To project boiler replacement shipments, DOE developed retirement functions from the boiler lifetime estimates and applied them to the existing products in the housing stock. The existing stock of products is tracked by vintage and developed from historical shipments data.
To project shipments to the new housing market, DOE utilized a forecast of new housing construction and historic saturation rates of various boiler product types in new housing. DOE used
To estimate future shipments to new owners, DOE determined the fraction of residential boiler shipments that are to new owners with no previous boiler, based on a proprietary consumer survey.
Commenting on the NODA, AHRI stated that DOE's estimate that 80 percent of all gas-fired hot water boiler installations are replacements may be too low. (AHRI, No. 22 at p. 4) Based on this comment, DOE reexamined the available shipments data, and for the NOPR, DOE estimated that 93 percent of gas-fired hot water boiler installations are replacements or new owners, with the remaining 7 percent installed in new homes.
To estimate the impact of the projected price increase for the considered efficiency levels, DOE used a relative price elasticity approach. This approach gives some weight to the operating cost savings from higher-efficiency products. As is typical, the impact of higher boiler prices (at higher efficiency levels) is expressed as a percentage drop in market share for each year during the analysis period.
Weil McLain stated that a typical homeowner facing the prospect of installing a condensing high-efficiency boiler at a much higher product and installation cost (plus the cost of upgrading the heat distribution system) may decide to repair an older system instead. (Weil McLain, No. 20-1 at p. 5) In response, DOE acknowledges that if the amended standard were to require purchase of a condensing boiler, some consumers would choose to repair and thereby extend the life of their existing system. Because the proposed standards would not require the use of a condensing boiler, DOE concludes that any incremental shift towards repair instead of replacement would be minimal. DOE applied a relative price elasticity in the shipments model to estimate the change in shipments under potential amended standards at different efficiency (and installed cost) levels.
AGA and APGA stated that the Department should include a fuel switching analysis as part of the process of evaluating possible amended standards for residential boilers to help ensure that when evaluating different levels of efficiency for gas-fired hot water boilers, fuel switching to other energy sources that produce higher emissions and use more overall energy is not encouraged. (AGA, APGA, No. 21 at p. 5)
For the NOPR, DOE evaluated the potential for switching from gas-fired hot water boilers to other heating systems. Incentive for such switching would only exist if the amended standards were to require efficiency for gas-fired hot water boilers that would entail a significantly higher installed cost than the other heating options. Because DOE is not proposing an amended standard that would require condensing technology, DOE has tentatively concluded that consumer switching from gas-fired hot water boilers would be rare. Even if DOE were to adopt an amended standard that
The details and results of the shipments analysis can be found in chapter 9 of the NOPR TSD.
The NIA assesses the national energy savings (NES) and the net present value (NPV) from a national perspective of total consumer costs and savings expected to result from new or amended energy conservation standards at specific efficiency levels. DOE determined the NPV and NES for the potential standard levels considered for the residential boiler product classes analyzed.
To make the analysis more accessible and transparent to all interested parties, DOE used a computer spreadsheet model (as opposed to probability distributions) to calculate the energy savings and the national consumer costs and savings at each TSL.
To develop the NES, DOE calculates annual energy consumption for the base case and the standards cases. DOE calculates the annual energy consumption using per-unit annual energy use data multiplied by projected shipments. As explained in section IV.E, DOE incorporated a rebound effect for residential boilers, which is implemented by reducing the NES in each year.
To develop the national NPV of consumer benefits from potential energy conservation standards, DOE calculates annual energy expenditures and annual product expenditures for the base case and the standards cases. DOE calculates annual energy expenditures from annual energy consumption by incorporating forecasted energy prices, using shipment projections and average energy efficiency projections. DOE calculates annual product expenditures by multiplying the price per unit times the projected shipments. The aggregate difference each year between energy bill savings and increased product expenditures is the net savings or net costs. As discussed in section IV.F, DOE chose to not apply a trend to the manufacturer selling price (in real dollars) of residential boilers. For the NIA, DOE developed a sensitivity analysis that considered one scenario with a lower rate of price decline than the reference case and one scenario with a higher rate of price decline than the reference case. These scenarios are described in appendix 10C of the NOPR TSD.
A key component of the NIA is the energy efficiency forecasted over time for the base case (without new standards) and each of the standards cases. As discussed in section IV.F, DOE developed a distribution of efficiencies in the base case for 2020 (the year of anticipated compliance with an amended standard) for each residential boiler product class. Regarding the efficiency trend in the years after compliance, for the base case, DOE estimated that the overall market share of condensing gas-fired hot water boilers would grow from 44 percent to 63 percent by 2049, and the overall market share of condensing oil-fired hot water boilers would grow from 7 percent to 13 percent. DOE estimated that the base-case market shares of condensing gas-fired and oil-fired steam boilers will be negligible during the period of analysis. DOE assumed similar trends for the standards cases (albeit starting from a higher point). Details on how these efficiency trends were developed are provided in appendix 8H of the NOPR TSD.
To estimate the impact that amended energy conservation standards may have in the year compliance becomes required, DOE uses “roll-up” or “shift” scenarios in its standards rulemakings. Under the “roll-up” scenario, DOE assumes: (1) Product efficiencies in the base case that do not meet the new or amended standard level under consideration would “roll up” to meet that standard level; and (2) products at efficiencies above the standard level under consideration would not be affected. Under the “shift” scenario, DOE retains the pattern of the base-case efficiency distribution but re-orients the distribution at and above the new or amended minimum energy conservation standard. Because there is no reason to expect a shift, DOE used the “roll-up” scenario for the standards cases.
The national energy savings analysis involves a comparison of national energy consumption of the considered products in each potential standards case (TSL) with consumption in the base case with no new or amended energy conservation standards. DOE calculated the national energy consumption by multiplying the number of units (stock) of each product (by vintage or age) by the unit energy consumption (also by vintage). Vintage represents the age of the product. DOE calculated annual NES based on the difference in national energy consumption for the base case (without amended efficiency standards) and for each higher efficiency standard. DOE estimated energy consumption and savings based on site energy and converted the electricity consumption and savings to primary energy using annual conversion factors derived from the
DOE has historically presented NES in terms of primary energy savings. In the case of electricity use and savings, this quantity includes the energy consumed by power plants to generate delivered (site) electricity.
In response to the recommendations of a committee on “Point-of-Use and Full-Fuel-Cycle Measurement Approaches to Energy Efficiency Standards” appointed by the National Academy of Sciences, DOE announced its intention to use full-fuel-cycle (FFC) measures of energy use and greenhouse gas and other emissions in the national impact analyses and emissions analyses included in future energy conservation standards rulemakings. 76 FR 51281 (August 18, 2011). After evaluating the approaches discussed in the August 18, 2011 notice, DOE published a statement of amended policy in the
AGA and APGA stated that it is not clear if the NEMS-based methodology provides the most complete and accurate methodology for incorporating the full-fuel-cycle analysis in energy conservation standards because all the assumptions used in the program are not fully disclosed. AGA and APGA urged the Department to hold a public workshop to provide all stakeholders the opportunity to review and discuss the assumptions and analyses included in the model, and to make the model publically available for anyone who wishes to run the analysis. (AGA, APGA, No. 21 at p. 4)
In response, DOE notes that its Notice of Policy Amendment Regarding Full-Fuel-Cycle Analyses explains in some detail the reasoning for DOE's determination that NEMS is the most appropriate tool to calculate FFC measures of energy use and greenhouse gas and other emissions. 77 FR 49701 (August 17, 2012). The method and assumptions used to develop the FFC analysis are described in appendix 10B of the NOPR TSD, and are discussed in detail in the report referenced in that appendix. DOE does not have a separate FFC model, as it utilizes NEMS to derive multipliers that allow estimation of the FFC impacts of the energy savings identified for a given product. The methods and assumptions used in NEMS are fully described in the documentation provided by EIA.
In the case of natural gas, the FFC measure includes losses in transmission and distribution, as well as energy use and losses (including methane leakage) in natural gas production.
AHRI stated that the FFC NES values do not seem to reflect the greater FFC consumption of electricity because the primary and FFC energy savings in standby mode, which only uses electricity, are nearly the same. (AHRI, No. 22 at p. 5) In response, the primary energy savings for site use of electricity include the primary energy consumption by the electric generation sector. The FFC measure adds in energy that is used “upstream” in the production and transport of the primary fuels. This quantity, expressed as a percentage of the primary energy consumption, is relatively small. Hence, the FFC energy savings are only slightly larger than the primary energy savings.
The inputs for determining NPV are: (1) Total annual installed cost; (2) total annual savings in operating costs; (3) a discount factor to calculate the present value of costs and savings; (4) present value of costs; and (5) present value of savings. DOE calculated net savings each year as the difference between the base case and each standards case in terms of total savings in operating costs versus total increases in installed costs. DOE calculated savings over the lifetime of products shipped in the forecast period. DOE calculated NPV as the difference between the present value of operating cost savings and the present value of total installed costs. DOE used a discount factor based on real discount rates of 3 percent and 7 percent to discount future costs and savings to present values.
For the NPV analysis, DOE calculates increases in total installed costs as the difference in total installed cost between the base case and standards case (
DOE expresses savings in operating costs as decreases associated with the lower energy consumption of products bought in the standards case compared to the base efficiency case. Total savings in operating costs are the product of savings per unit and the number of units of each vintage that survive in a given year.
DOE estimates the NPV of consumer benefits using both a 3-percent and a 7-percent real discount rate. DOE uses these discount rates in accordance with guidance provided by the Office of Management and Budget (OMB) to Federal agencies on the development of regulatory analysis.
The Joint Commenters stated that in recent rulemakings for other products, it appears that DOE has placed significant emphasis on NPV at a 7-percent discount rate. They stated that DOE must consider NPV at both 3 percent and 7 percent as directed in OMB guidance, and it should weigh the NPV at a 3-percent discount rate more heavily. As noted in the Joint Comment, NRDC has explained why a 3-percent discount rate is more appropriate to use when considering national economic benefits in comments on previous rulemakings. NRDC stated in a previous comment that investments in energy efficiency reduce overall societal risk, and that the average rate of return on all investments is far below 7 percent.
OMB Circular A-4 states that the 7-percent discount rate is an estimate of the average before-tax rate of return to private capital in the U.S. economy. It approximates the opportunity cost of capital, and it is the appropriate discount rate whenever the main effect of a regulation is to displace or alter the use of capital in the private sector. Circular A-4 also states that when regulation primarily and directly affects private consumption, a lower discount rate is appropriate. The alternative most often used is sometimes called the “social rate of time preference,” which means the rate at which “society” discounts future consumption flows to their present value. If one takes the rate that the average saver uses to discount future consumption as a measure of the social rate of time preference, then the real rate of return on long-term government debt may provide a fair approximation. Over the last thirty years, this rate has averaged around 3 percent in real terms on a pre-tax basis. Energy conservation standards for appliances and equipment affect both the use of capital and private consumption. Accordingly, DOE believes that it would be inappropriate to weight the NPV at either discount rate more heavily than the other.
In the NOPR stage of a rulemaking, DOE conducts a consumer subgroup analysis. A consumer subgroup comprises a subset of the population that may be affected disproportionately by new or revised energy conservation standards (
For today's NOPR, DOE evaluated impacts of potential standards on two subgroups: (1) Senior-only households and (2) low-income households. DOE identified these households in the RECS sample and used the LCC and PBP spreadsheet model to estimate the impacts of the considered efficiency levels on these subgroups. To the extent possible, it utilized inputs appropriate for these subgroups. The consumer subgroup results for the residential boilers TSLs are presented in section
DOE performed an MIA to determine the financial impact of amended energy conservation standards on manufacturers of residential boilers and to estimate the potential impact of such standards on employment and manufacturing capacity. The MIA has both quantitative and qualitative aspects. The quantitative part of the MIA primarily relies on the Government Regulatory Impact Model (GRIM), an industry cash-flow model with inputs specific to this rulemaking. The key GRIM inputs are industry cost structure data, shipment data, product costs, and assumptions about markups and conversion costs. The key output is the industry net present value (INPV). DOE used the GRIM to calculate cash flows using standard accounting principles and to compare changes in INPV between a base case and various TSLs (the standards case). The difference in INPV between the base case and standards cases represents the financial impact of amended energy conservation standards on residential boiler manufacturers. DOE used different sets of assumptions (markup scenarios) to represent the uncertainty surrounding potential impacts on prices and manufacturer profitability as a result of amended standards. These different assumptions produce a range of INPV results. The qualitative part of the MIA addresses the proposed standard's potential impacts on manufacturing capacity and industry competition, as well as any differential impacts the proposed standard may have on any particular sub-group of manufacturers. The qualitative aspect of the analysis also addresses product characteristics, as well as any significant market or product trends. The complete MIA is outlined in chapter 12 of the NOPR TSD.
DOE conducted the MIA for this rulemaking in three phases. In the first phase of the MIA, DOE prepared an industry characterization based on the market and technology assessment, preliminary manufacturer interviews, and publicly available information. As part of its profile of the residential boilers industry, DOE also conducted a top-down cost analysis of manufacturers in order to derive preliminary financial inputs for the GRIM (
In the second phase of the MIA, DOE prepared an industry cash-flow analysis to quantify the potential impacts of amended energy conservation standards. In general, energy conservation standards can affect manufacturer cash flow in three distinct ways. These include: (1) Creating a need for increased investment; (2) raising production costs per unit; and (3) altering revenue due to higher per-unit prices and possible changes in sales volumes. DOE estimated industry cash flows in the GRIM at various potential standard levels using industry financial parameters derived in the first phase and the shipment scenario used in the NIA. The GRIM modeled both impacts from the AFUE energy conservation standards and impacts from standby mode and off mode energy conservation standards (
In the third phase of the MIA, DOE conducted structured, detailed interviews with a variety of manufacturers that represent approximately 46 percent of domestic residential boiler sales covered by this rulemaking. During these interviews, DOE discussed engineering, manufacturing, procurement, and financial topics to validate assumptions used in the GRIM. DOE also solicited information about manufacturers' views of the industry as a whole and their key concerns regarding this rulemaking. See section IV.J.3 for a description of the key issues manufacturers raised during the interviews.
Additionally, in the third phase, DOE also evaluated subgroups of manufacturers that may be disproportionately impacted by amended standards or that may not be accurately represented by the average cost assumptions used to develop the industry cash-flow analysis. For example, small manufacturers, niche players, or manufacturers exhibiting a cost structure that largely differs from the industry average could be more negatively affected by amended energy conservation standards. DOE identified one subgroup (small manufacturers) for a separate impact analysis.
To identify small businesses for this analysis, DOE applied the small business size standards published by the Small Business Administration (SBA) to determine whether a company is considered a small business. 65 FR 30836, 30848 (May 15, 2000), as amended at 65 FR 53533, 53544 (Sept. 5, 2000) and codified at 13 CFR part 121. To be categorized as a small business under North American Industry Classification System (NAICS) code 333414, “Heating Equipment (except Warm Air Furnaces) Manufacturing,” a residential boiler manufacturer and its affiliates may employ a maximum of 500 employees. The 500-employee threshold includes all employees in a business's parent company and any other subsidiaries. Based on this classification, DOE identified at least 13 residential boiler companies that qualify as small businesses. The residential boiler small manufacturer subgroup is discussed in section VI.B of this notice and in chapter 12 of the NOPR TSD.
DOE uses the GRIM to quantify the potential changes in cash flow due to amended standards that result in a higher or lower industry value. The GRIM was designed to conduct an annual cash-flow analysis using standard accounting principles that incorporates manufacturer costs, markups, shipments, and industry financial information as inputs. DOE thereby calculated a series of annual cash flows, beginning in 2014 (the base year of the analysis) and continuing to 2049. DOE summed the stream of annual discounted cash flows during this period to calculate INPVs at each TSL. For residential boiler manufacturers, DOE used a real discount rate of 8.0 percent, which was derived from industry financial information and then modified according to feedback received during manufacturer interviews. DOE also used the GRIM to model changes in costs, shipments, investments, and manufacturer margins that could result from amended energy conservation standards.
After calculating industry cash flows and INPV, DOE compared changes in INPV between the base case and each standards case. The difference in INPV between the base case and a standards case represents the financial impact of the amended energy conservation
For consideration of standby mode and off mode regulations, DOE modeled the impacts of the technology options for reducing electricity usage discussed in the engineering analysis (chapter 5 of the TSD). The GRIM analysis incorporates the incremental additions to the MPC of standby mode and off mode features and the resulting impacts on markups.
Due to the small cost of standby mode and off mode components relative to the overall cost of a residential boiler, DOE assumes that standards regarding standby mode and off mode features alone would not impact product shipment numbers. Additionally, DOE has tentatively concluded that the incremental cost of standby mode and off mode features would not have a differentiated impact on manufacturers of different product classes. Consequently, DOE models the impact of standby mode and off mode for the industry as a whole.
The electric boiler product classes were not analyzed in the GRIM for AFUE energy conservation standards. As a result, quantitative numbers for those product classes are not available in the GRIM analyzing standby mode and off mode standards. However, the standby mode and off mode technology options considered for electric boilers are identical to the technology options for all other residential boiler product classes. As a result, DOE expects the standby mode and off mode impacts on electric boilers to be of the same order of magnitude as the impacts on all other residential boiler product classes.
Manufacturing a higher-efficiency product is typically more expensive than manufacturing a baseline product due to the use of more complex components, which are typically more costly than baseline components. The changes in the MPCs of the analyzed products can affect the revenues, gross margins, and cash flow of the industry, making these product cost data key GRIM inputs for DOE's analysis.
In the MIA, DOE used the MPCs for each considered efficiency level calculated in the engineering analysis, as described in section IV.C and further detailed in chapter 5 of the NOPR TSD. In addition, DOE used information from its teardown analysis (described in chapter 5 of the TSD) to disaggregate the MPCs into material, labor, and overhead costs. To calculate the MPCs for products at and above the baseline, DOE performed teardowns and cost modeling that allowed DOE to estimate the incremental material, labor, and overhead costs for products above the baseline. These cost breakdowns and product markups were validated and revised with input from manufacturers during manufacturer interviews.
The GRIM estimates manufacturer revenues based on total unit shipment forecasts and the distribution of these values by efficiency level. Changes in sales volumes and efficiency mix over time can significantly affect manufacturer finances. For this analysis, the GRIM uses the NIA's annual shipment forecasts derived from the shipments analysis from 2014 (the base year) to 2049 (the end year of the analysis period). The shipments model divides the shipments of residential boilers into specific market segments. The model starts from a historical base year and calculates retirements and shipments by market segment for each year of the analysis period. This approach produces an estimate of the total product stock, broken down by age or vintage, in each year of the analysis period. In addition, the product stock efficiency distribution is calculated for the base case and for each standards case for each product class. The NIA shipments forecasts are, in part, based on a roll-up scenario. The forecast assumes that a product in the base case that does not meet the standard under consideration would “roll up” to meet the amended standard beginning in the compliance year of 2020. See section IV.G and chapter 9 of the NOPR TSD for additional details.
Amended energy conservation standards would cause manufacturers to incur one-time conversion costs to bring their production facilities and product designs into compliance. DOE evaluated the level of conversion-related expenditures that would be needed to comply with each considered efficiency level in each product class. For the MIA, DOE classified these conversion costs into two major groups: (1) Capital conversion costs; and (2) product conversion costs. Capital conversion costs are one-time investments in property, plant, and equipment necessary to adapt or change existing production facilities such that new compliant product designs can be fabricated and assembled. Product conversion costs are one-time investments in research, development, testing, marketing, and other non-capitalized costs necessary to make product designs comply with amended energy conservation standards.
To evaluate the level of capital conversion expenditures manufacturers would likely incur to comply with amended energy conservation standards, DOE used manufacturer interviews to gather data on the anticipated level of capital investment that would be required at each efficiency level. Based on manufacturer feedback, DOE developed a market-share-weighted manufacturer average capital expenditure which it then applied to the entire industry. DOE also made assumptions about which manufacturers would develop their own condensing heat exchanger production lines, in the event that efficiency levels using condensing technology were proposed. DOE supplemented manufacturer comments and tailored its analyses with estimates of capital expenditure requirements derived from the product teardown analysis and engineering analysis described in chapter 5 of the TSD.
DOE assessed the product conversion costs at each considered efficiency level by integrating data from quantitative and qualitative sources. DOE considered market-share-weighted feedback regarding the potential costs of each efficiency level from multiple manufacturers to estimate product conversion costs (
In general, DOE assumes that all conversion-related investments occur between the year of publication of the final rule and the year by which manufacturers must comply with the amended standards. The conversion cost figures used in the GRIM can be found in section V.B.2.a of this notice. For additional information on the
As discussed in the previous section, MSPs include direct manufacturing production costs (
Under the preservation of gross margin percentage markup scenario, DOE applied a single uniform “gross margin percentage” markup across all efficiency levels, which assumes that following amended standards, manufacturers would be able to maintain the same amount of profit as a percentage of revenue at all efficiency levels within a product class. As production costs increase with efficiency, this scenario implies that the absolute dollar markup will increase as well. Based on publicly-available financial information for manufacturers of residential boilers, as well as comments from manufacturer interviews, DOE assumed the average non-production cost markup—which includes SG&A expenses, R&D expenses, interest, and profit—to be 1.41 for all product classes. This markup scenario represents the upper bound of the residential boiler industry's profitability in the standards case because manufacturers are able to fully pass through additional costs due to standards to consumers.
DOE decided to include the preservation of per-unit operating profit scenario in its analysis because manufacturers stated that they do not expect to be able to mark up the full cost of production in the standards case, given the highly competitive nature of the residential boiler market. In this scenario, manufacturer markups are set so that operating profit one year after the compliance date of amended energy conservation standards is the same as in the base case on a per-unit basis. In other words, manufacturers are not able to garner additional operating profit from the higher production costs and the investments that are required to comply with the amended standards; however, they are able to maintain the same operating profit in the standards case that was earned in the base case. Therefore, operating margin in percentage terms is reduced between the base case and standards case. DOE adjusted the manufacturer markups in the GRIM at each TSL to yield approximately the same earnings before interest and taxes in the standards case as in the base case. The preservation of per-unit operating profit markup scenario represents the lower bound of industry profitability in the standards case. This is because manufacturers are not able to fully pass through to consumers the additional costs necessitated by residential boiler standards, as they are able to do in the preservation of gross margin percentage markup scenario.
DOE interviewed manufacturers representing approximately 55 percent of the residential boiler market by revenue. DOE contractors endeavor to conduct interviews with a representative cross section of manufacturers (including large and small manufacturers, covering all equipment classes and product offerings). DOE contractors reached out to all the small business manufacturers that were identified as part of the analysis, as well as larger manufacturers that have significant market share in the residential boilers market. These interviews were in addition to those DOE conducted as part of the engineering analysis. The information gathered during these interviews enabled DOE to tailor the GRIM to reflect the unique financial characteristics of the residential boiler industry. The information gathered during these interviews enabled DOE to tailor the GRIM to reflect the unique financial characteristics of the residential boiler industry. All interviews provided information that DOE used to evaluate the impacts of potential amended energy conservation standards on manufacturer cash flows, manufacturing capacities, and employment levels.
In interviews, DOE asked manufacturers to describe their major concerns with potential standards arising from a rulemaking involving residential boilers. Manufacturer interviews are conducted under non-disclosure agreements (NDAs), so DOE does not document these discussions in the same way that it does public comments in the comment summaries and DOE's responses throughout the rest of this notice. The following sections highlight the most significant of manufacturers' statements that helped shape DOE's understanding of potential impacts of an amended standard on the industry. Manufacturers raised a range of general issues for DOE to consider, including a diminished ability to serve the replacement market, concerns that condensing boilers may not perform as rated without heating system modifications, and concerns about reduced product durability. (DOE also considered all other concerns expressed by manufacturers in this analysis.) Below, DOE summarizes these issues, which were raised in manufacturer interviews, in order to obtain public comment and related data.
In interviews, several manufacturers pointed out that over 90 percent of residential boiler sales are transacted in the replacement channel, rather than the new construction channel. They stated that the current residential boiler market is structured around the legacy venting infrastructures that exist in the vast majority of homes and that any regulation that eliminated 82 to 83-percent efficient products would be very disruptive to the market. Manufacturers argued that under this scenario, consumers would face much higher installation costs, as well as complex challenges in changing the layout of the boiler room and upgrading their venting and heat distribution systems. Manufacturers argued that these considerations may induce consumers to explore other HVAC options and may cause them to leave the boiler market entirely. Manufacturers also asserted that the elimination of 82 to 83-percent efficient products could be disruptive to the market because several manufacturers would have to eliminate commodity products that generate a majority of their sales and be forced to sell products for which they are less vertically integrated, which may cause them to exit the market entirely. Some manufacturers speculated that if this scenario were to play out, it could result in the loss of a substantial number of American manufacturing jobs.
Accordingly, DOE has considered this feedback when developing its analysis of installation costs (see section IV.F.1), shipments analysis (see section IV.G), and employment impacts analysis (see section (V.B.2.b).
Several manufacturers argued out that condensing boilers may have overstated efficiencies in terms of actual results in the field if they are installed as replacements in legacy distribution systems that were designed to maintain hot water supply temperatures of 180-200 °F. Manufacturers stated that in these systems, return water temperatures will often be too high for condensing boilers to operate in condensing mode, thereby causing the boiler to be less efficient than its express rating. Manufacturers also stated that because condensing boilers are designed for lower maximum supply water temperatures, the heat distribution output of the heating system as a whole is often reduced, and the boiler may not be able to meet heat distribution requirements. This may require the implementation of additional heat distribution equipment within a particular system. Some manufacturers pointed out that reducing the supply water temperature also reduces the radiation component of some heat distribution units, which is essential for comfort and allows consumers to maintain a lower thermostat setting. Reducing the radiation component may require a higher thermostat setting to maintain comfort, thereby reducing overall system efficiency.
DOE recognizes this issue and considered it in the energy use analysis for residential boilers. See chapter 7 of the NOPR TSD for additional details.
Several manufacturers commented that higher-efficiency condensing boilers on the market have not demonstrated the same level of durability and reliability as lower-efficiency products. Manufacturers stated that condensing products require more upkeep and maintenance and generally do not last as long as non-condensing products. Several manufacturers pointed out that they generally incur large after-sale costs with their condensing products because of additional warranty claims. Maintenance calls for these boilers require more skilled technicians and occur more frequently than they do with non-condensing boilers.
DOE considered these comments when developing its estimates of repair and maintenance costs for residential boilers (see section IV.F.2.c) and product lifetime (IV.F.2.d).
In the emissions analysis, DOE estimated the reduction in power sector emissions of carbon dioxide (CO
Today's proposed standards would reduce use of fuel at the site and slightly reduce electricity use, thereby reducing power sector emissions. However, the highest efficiency levels (
DOE primarily conducted the emissions analysis using emissions factors for CO
For CH
EIA prepares the
Because the on-site operation of residential boilers requires use of fossil fuels and results in emissions of CO
SO
The attainment of emissions caps is typically flexible among EGUs and is enforced through the use of emissions allowances and tradable permits. Beginning in 2016, however, SO
CAIR established a cap on NO
The MATS limit mercury emissions from power plants, but they do not include emissions caps and, as such, the increase in electricity demand associated with the highest residential boiler efficiency levels would be expected to increase Hg emissions. DOE estimated mercury emissions using emissions factors based on
As part of the development of this proposed rule, DOE considered the estimated monetary benefits from the reduced emissions of CO
For today's NOPR, DOE is relying on a set of values for the social cost of carbon (SCC) that was developed by a Federal interagency process. A summary of the basis for these values is provided below, and a more detailed description of the methodologies used is provided as an appendix to chapter 14 of the NOPR TSD.
The SCC is an estimate of the monetized damages associated with an incremental increase in carbon emissions in a given year. It is intended to include (but is not limited to) changes in net agricultural productivity, human health, property damages from increased flood risk, and the value of ecosystem services. Estimates of the SCC are provided in dollars per metric ton of carbon dioxide. A domestic SCC value is meant to reflect the value of damages in the United States resulting from a unit change in carbon dioxide emissions, while a global SCC value is meant to reflect the value of damages worldwide.
Under section 1(b)(6) of Executive Order 12866, “Regulatory Planning and Review,” 58 FR 51735 (Oct. 4, 1993), agencies must, to the extent permitted by law, “assess both the costs and the benefits of the intended regulation and, recognizing that some costs and benefits are difficult to quantify, propose or adopt a regulation only upon a reasoned determination that the benefits of the intended regulation justify its costs.” The purpose of the SCC estimates presented here is to allow agencies to incorporate the monetized social benefits of reducing CO
As part of the interagency process that developed the SCC estimates, technical experts from numerous agencies met on a regular basis to consider public comments, explore the technical literature in relevant fields, and discuss key model inputs and assumptions. The main objective of this process was to develop a range of SCC values using a defensible set of input assumptions grounded in the existing scientific and economic literatures. In this way, key uncertainties and model differences transparently and consistently inform the range of SCC estimates used in the rulemaking process.
When attempting to assess the incremental economic impacts of carbon dioxide emissions, the analyst faces a number of challenges. A recent report from the National Research Council
Despite the limits of both quantification and monetization, SCC estimates can be useful in estimating the social benefits of reducing carbon dioxide emissions. The agency can estimate the benefits from reduced (or costs from increased) emissions in any future year by multiplying the change in emissions in that year by the SCC value appropriate for that year. The net present value of the benefits can then be calculated by multiplying each of these future benefits by an appropriate discount factor and summing across all affected years.
It is important to emphasize that the interagency process is committed to updating these estimates as the science and economic understanding of climate change and its impacts on society improves over time. In the meantime, the interagency group will continue to explore the issues raised by this analysis and consider public comments as part of the ongoing interagency process.
In 2009, an interagency process was initiated to offer a preliminary assessment of how best to quantify the benefits from reducing carbon dioxide emissions. To ensure consistency in how benefits are evaluated across agencies, the Administration sought to develop a transparent and defensible method, specifically designed for the rulemaking process, to quantify avoided climate change damages from reduced CO
After the release of the interim values, the interagency group reconvened on a regular basis to generate improved SCC estimates. Specifically, the group considered public comments and further explored the technical literature in relevant fields. The interagency group relied on three integrated assessment models commonly used to estimate the SCC: the FUND, DICE, and PAGE models. These models are frequently cited in the peer-reviewed literature and were used in the last assessment of the Intergovernmental Panel on Climate Change (IPCC). Each model was given equal weight in the SCC values that were developed.
Each model takes a slightly different approach to model how changes in emissions result in changes in economic damages. A key objective of the interagency process was to enable a consistent exploration of the three models, while respecting the different approaches to quantifying damages taken by the key modelers in the field. An extensive review of the literature was conducted to select three sets of input parameters for these models: Climate sensitivity, socio-economic and emissions trajectories, and discount rates. A probability distribution for climate sensitivity was specified as an input into all three models. In addition, the interagency group used a range of scenarios for the socio-economic parameters and a range of values for the discount rate. All other model features were left unchanged, relying on the model developers' best estimates and judgments.
In 2010, the interagency group selected four sets of SCC values for use in regulatory analyses. Three sets of values are based on the average SCC from three integrated assessment models, at discount rates of 2.5 percent, 3 percent, and 5 percent. The fourth set, which represents the 95th-percentile SCC estimate across all three models at a 3-percent discount rate, is included to represent higher-than-expected impacts from climate change further out in the tails of the SCC distribution. The values grow in real terms over time. Additionally, the interagency group determined that a range of values from 7 percent to 23 percent should be used to adjust the global SCC to calculate domestic effects, although preference is given to consideration of the global benefits of reducing CO
The SCC values used for today's notice were generated using the most recent versions of the three integrated assessment models that have been published in the peer-reviewed literature. Table IV.25 shows the updated sets of SCC estimates from the 2013 interagency update
It is important to recognize that a number of key uncertainties remain, and that current SCC estimates should be treated as provisional and revisable since they will evolve with improved scientific and economic understanding. The interagency group also recognizes that the existing models are imperfect and incomplete. The National Research Council report mentioned above points out that there is tension between the goal of producing quantified estimates of the economic damages from an incremental ton of carbon and the limits of existing efforts to model these effects. There are a number of analytical challenges that are being addressed by the research community, including research programs housed in many of the Federal agencies participating in the interagency process to estimate the SCC. The interagency group intends to periodically review and reconsider those estimates to reflect increasing knowledge of the science and economics of climate impacts, as well as improvements in modeling.
In summary, in considering the potential global benefits resulting from reduced CO
DOE multiplied the CO
As noted above, DOE has taken into account how amended energy conservation standards would reduce site NO
DOE is evaluating appropriate monetization of avoided SO
The utility impact analysis estimates several effects on the power generation industry that would result from the adoption of new or amended energy conservation standards. In the utility impact analysis, DOE analyzes the changes in installed electrical capacity and generation that would result for each trial standard level. The utility impact analysis uses a variant of NEMS,
Employment impacts from new or amended energy conservation standards include direct and indirect impacts. Direct employment impacts are any changes in the number of employees of manufacturers of the products subject to standards; the MIA addresses those impacts. Indirect employment impacts are changes in national employment that occur due to the shift in expenditures and capital investment caused by the purchase and operation of more-efficient appliances. Indirect employment impacts from standards consist of the jobs created or eliminated in the national economy, other than in the manufacturing sector being regulated, due to: (1) Reduced spending by end users on energy; (2) reduced spending on new energy supply by the utility industry; (3) increased consumer spending on the purchase of new products; and (4) the effects of those three factors throughout the economy.
One method for assessing the possible effects on the demand for labor of such shifts in economic activity is to compare sector employment statistics developed by the Labor Department's Bureau of Labor Statistics (BLS). BLS regularly publishes its estimates of the number of jobs per million dollars of economic activity in different sectors of the economy, as well as the jobs created elsewhere in the economy by this same economic activity. Data from BLS indicate that expenditures in the utility sector generally create fewer jobs (both directly and indirectly) than expenditures in other sectors of the economy.
For the amended standard levels considered in this NOPR, DOE estimated indirect national employment impacts using an input/output model of the U.S. economy called Impact of Sector Energy Technologies, Version 3.1.1 (ImSET).
For more details on the employment impact analysis, see chapter 16 of the NOPR TSD.
Fire & Ice, Weil McLain, and Weil McLain
HTP stated that it does not support an incremental increase in the allowable minimum efficiency of residential boilers, because appliances which operate at efficiencies between 82-percent and 90-percent AFUE are very likely to experience cyclic condensation within their venting and periods of high vent temperatures. (HTP, No. 31 at p. 1) Condensation in the venting system causes corrosion that may lead to safety concerns.
The Joint Commenters urged DOE to strongly consider condensing-level standards for both gas-fired and oil-fired hot water boilers, as the analysis found that such standards would yield positive average LCC savings for consumers. The Joint Commenters stated that the LCC savings for consumers at condensing levels may be higher than indicated in the analysis for the NODA, in part because of lower installation costs due to the introduction of advanced venting systems and declining equipment costs. (Joint Commenters, No. 27 at p. 1) Belyea Bros. stated that all furnaces sold and installed in Canada must have an AFUE of 90 or above, and it is illogical to not treat boilers the same as furnaces. (Belyea Bros., No. 17 at p. 1)
DOE examined the impacts of condensing-level standards for both gas-fired and oil-fired hot water boilers. Its analysis accounted for applicable venting system technology and expected product costs for condensing boilers. Although condensing-level standards would save a substantial amount of energy, DOE concluded that such standards are likely not economically justified. DOE has tentatively concluded that, at the TSLs that include condensing efficiency levels (TSL 4 and TSL 5), the benefits would be outweighed by the large reduction in
A number of parties stated that much greater savings than indicated with AFUE or combustion efficiency tests are seen when replacing conventional heating equipment with integrated heat and hot water systems. (Breda, No. 29 at p. 1; Hlavaty Plumb Heat Cool, No. 29 at p. 1; Maritime Energy, No. 29 at p. 1; OSI Comfort Specialists, No. 29 at p. 1; Petro Heating & Air Conditioning Services, No. 29 at p. 1; Sunshine Fuels & Energy Services, No. 29 at p. 1; Aiello Home Services, No. 29 at p. 1; Lombardi Oil, No. 29 at p. 1; Soundview Heating and Air Conditioning, No. 29 at p. 1; Stocker Home Energy Services, No. 29 at p. 1) DOE agrees that integrated heat and hot water systems can provide significant overall energy savings compared to use of separate heat and hot water systems, but DOE does not have authority to adopt standards that would require the use of integrated heat and hot water systems.
DOE developed trial standard levels (TSLs) that combine efficiency levels for each product class of residential boilers. The following section addresses the trial standard levels examined by DOE, the projected impacts of each of these levels if adopted as energy conservation standards for residential boilers, and the standards levels that DOE is proposing in today's NOPR. Additional details regarding the analyses conducted by DOE are contained in the publicly-available NOPR TSD supporting this notice.
Table V.1 presents the efficiency levels for each product class in each TSL that DOE has identified for residential boilers. TSL 5 consists of the max-tech efficiency levels. TSL 4 consists of those efficiency levels that provide the maximum NES with an NPV greater than zero at a 7-percent discount rate (see section V.B.3 for NPV results). TSL 3 consists of the efficiency levels that provide the highest NPV using a 7-percent discount rate, and that also result in a higher percentage of consumers that receive an LCC benefit than experience an LCC loss (see section V.B.1 for LCC results). TSL 2 consists of the intermediate efficiency levels. TSL 1 consists of the most common efficiency levels in the current market. Table V.1 and Table V.2 present the TSLs and the corresponding product class efficiency levels and AFUE levels that DOE considered for residential boilers.
Table V.3 presents the TSLs and the corresponding product class efficiency levels (by efficiency level) that DOE considered for boiler standby mode and off mode power consumption. Table V.4 presents the TSLs and the corresponding product class efficiency levels (expressed in watts) that DOE considered for boiler standby mode and off mode power consumption. For boiler product classes, DOE considered three efficiency levels.
DOE analyzed the economic impacts on residential boilers consumers by looking at the effects potential amended standards would have on the LCC and PBP. DOE also examined the impacts of potential standards on consumer subgroups. These analyses are discussed below.
To evaluate the net economic impact of potential amended energy conservation standards on consumers of residential boilers, DOE conducted LCC and PBP analyses for each TSL. In general, higher-efficiency products would affect consumers in two ways: (1) annual operating expense would decrease, and (2) purchase price would increase. Inputs used for calculating the LCC and PBP include total installed costs (
The key outputs of the LCC analysis are a mean LCC savings (or cost) and a median PBP relative to the base-case efficiency distribution for each product class of residential boilers, as well as the percentage of consumers for whom the LCC under an amended standard would decrease (net benefit), increase (net cost), or exhibit no change (no impact). No impacts occur when the base-case efficiency of the boiler of a particular household equals or exceeds the efficiency at a given TSL.
DOE also performed a PBP analysis as part of the consumer impact analysis. The PBP is the number of years it would take for the consumer to recover the increased costs of higher-efficiency product as a result of energy savings based on the operating cost savings. The PBP is an economic benefit-cost measure that uses benefits and costs without discounting. Chapter 8 of the NOPR TSD provides detailed information on the LCC and PBP analyses.
DOE's LCC and PBP analyses provide five key outputs for each efficiency level above the baseline, as reported in Table V.5 through Table V.8 for the considered AFUE TSLs. (Results for all efficiency levels are reported in chapter 8 of the NOPR TSD.) These outputs include the proportion of residential boiler purchases in which the purchase of a boiler compliant with the amended energy conservation standard creates a net LCC increase, no impact, or a net LCC savings for the consumer. Another output is the average LCC savings from standard-compliant products, as well as the median PBP for the consumer investment in standards-compliant products. Savings are measured relative to the base-case efficiency distribution (see section IV.F.2), not the baseline efficiency level.
Table V.9 through Table V.14 show the key LCC and PBP results for each product class for standby mode and off mode.
In the consumer subgroup analysis, DOE estimated the impacts of the considered AFUE TSLs on low-income and senior-only households. The average LCC savings and median payback periods for low-income and senior-only households are shown in Table V.15. Chapter 11 of the NOPR TSD presents detailed results of the consumer subgroup analysis.
As discussed in section III.E.2, EPCA establishes a rebuttable presumption that an energy conservation standard is economically justified if the increased purchase cost for a product that meets the standard is less than three times the value of the first-year energy savings resulting from the standard. Accordingly, DOE calculated a rebuttable-presumption PBP for each TSL for residential boilers based on average usage profiles. As a result, DOE calculated a single rebuttable-presumption payback value, and not a distribution of PBPs, for each TSL. However, DOE routinely conducts an economic analysis that considers the full range of impacts to the consumer, manufacturer, Nation, and environment, as required by EPCA under 42 U.S.C. 6295(o)(2)(B)(i). The results of that analysis serve as the basis for DOE to
As noted previously, DOE performed an MIA to estimate the impact of amended energy conservation standards on manufacturers of residential boilers. The following section describes the expected impacts on manufacturers at each considered TSL. DOE first discusses the impacts of potential AFUE standards and then turns to the impacts of potential standby mode and off mode standards. Chapter 12 of the NOPR TSD explains the analysis in further detail.
Table V.21 and Table V.22 depict the estimated financial impacts (represented by changes in INPV) of amended energy conservation standards on manufacturers of residential boilers, as well as the conversion costs that DOE expects manufacturers would incur for all product classes at each TSL. To evaluate the range of cash-flow impacts on the residential boiler industry, DOE modeled two different markup scenarios using different assumptions that correspond to the range of anticipated market responses to amended energy conservation standards: (1) The preservation of gross margin percentage scenario; and (2) the preservation of per-unit operating profit scenario. Each of these scenarios is discussed immediately below.
To assess the lower (less severe) end of the range of potential impacts, DOE modeled a preservation of gross margin percentage markup scenario, in which a uniform “gross margin percentage” markup is applied across all potential efficiency levels. In this scenario, DOE assumed that a manufacturer's absolute dollar markup would increase as production costs increase in the standards case.
To assess the higher (more severe) end of the range of potential impacts, DOE modeled the preservation of per-unit operating profit markup scenario, which assumes that manufacturers would not be able to generate greater operating profit on a per-unit basis in the standards case as compared to the base case. Rather, as manufacturers make the necessary investments required to convert their facilities to produce new standards-compliant products and incur higher costs of goods sold, their percentage markup decreases. Operating profit does not change in absolute dollars and decreases as a percentage of revenue.
As noted in the MIA methodology discussion (see IV.J.2), in addition to markup scenarios, the MPC, shipments, and conversion cost assumptions also affect INPV results.
The results in Table V.21 and Table V.22 show potential INPV impacts for residential boiler manufacturers; Table V.21 reflects the lower bound of impacts, and Table V.22 represents the upper bound.
Each of the modeled scenarios in the AFUE standards analysis results in a unique set of cash flows and corresponding industry values at each TSL. In the following discussion, the INPV results refer to the difference in industry value between the base case and each standards case that results from the sum of discounted cash flows from the base year 2014 through 2049, the end of the analysis period.
To provide perspective on the short-run cash flow impact, DOE discusses the change in free cash flow between the base case and the standards case at each TSL in the year before new standards would take effect. These figures provide an understanding of the magnitude of the required conversion costs at each TSL relative to the cash flow generated by the industry in the base case.
TSL 1 represents EL 1 for all product classes. At TSL 1, DOE estimates impacts on INPV for residential boiler manufacturers to range from -0.47 percent to -0.01 percent, or a change in INPV of -$1.79 million to -$0.04 million. At this potential standard level, industry free cash flow would be estimated to decrease by approximately 1.53 percent to $25.44 million, compared to the base-case value of $25.83 million in 2019, the year before the compliance date.
At TSL 1, DOE does not anticipate manufacturers would lose a significant portion of their INPV. This is largely due to the fact that the vast majority of shipments would already meet or exceed the efficiency levels prescribed at TSL 1. DOE projects that in 2020, the expected year of compliance, approximately 80 percent of residential boiler shipments would meet or exceed the efficiency levels at TSL 1. As a result, only a small percentage of residential boiler shipments would need to be converted at TSL 1, so DOE expects low conversion costs at this TSL. DOE expects residential boiler manufacturers to incur $1.32 million in product conversion costs for boiler redesign and testing. DOE does not expect the modest efficiency gains at this TSL to require any major product upgrades or capital investments.
At TSL 1, under the preservation of gross margin percentage scenario, the shipment-weighted average MPC increases by approximately 1 percent relative to the base-case MPC. Manufacturers are able to fully pass on this cost increase to consumers by design in this markup scenario. This slight price increase would not mitigate the $1.32 million in conversion costs estimated at TSL 1, resulting in slightly negative INPV impacts at TSL 1 under the this scenario.
Under the preservation of per-unit operating profit markup scenario, manufacturers earn the same operating profit as would be earned in the base case, but do not earn additional profit from their investments. The 1-percent MPC increase is outweighed by a slightly lower average markup and $1.32 million in conversion costs, resulting in small negative impacts at TSL 1.
TSL 2 sets the efficiency level at EL 1 for one product class (gas-fired steam boilers), EL 2 for two product classes (gas-fired hot water boilers and oil-fired hot water boilers) and EL 3 for one product class (oil-fired steam boilers). At TSL 2, DOE estimates impacts on INPV for residential boilers manufacturers to range from -0.70 percent to 0.63 percent, or a change in INPV of -$2.65 million to $2.39 million. At this potential standard level, industry free cash flow would be estimated to decrease by approximately 3.54 percent to $24.92 million, compared to the base-case value of $25.83 million in 2019, the year before the compliance date.
DOE does not anticipate manufacturers would lose a substantial portion of their INPV, because a large percentage of shipments would still meet or exceed the efficiency levels prescribed at this TSL. At TSL 2, DOE estimates that in 2020, 63 percent of residential boiler shipments would meet or exceed the efficiency levels analyzed. The drop in the percentage of compliant products is largely due to the fact that the oil-fired hot water product class would move to EL 2 and the oil-fired steam product class would move to EL 3. At these efficiency levels, DOE projects only 41 percent and 10 percent of shipments of hot water and steam oil-fired boilers, respectively, would meet
DOE expects conversion costs would increase, but would still remain small compared to total industry value, as most manufacturers have gas-fired boilers at the prescribed efficiency levels on the market and would only have to make minor changes to their production processes. While the percentage of oil-fired boilers at these efficiency levels on the market is lower, manufacturers did not cite any major investments that would have to be made to reach the efficiency levels at EL 2 for hot water products and EL 3 for steam products. Manufacturers also pointed out that gas-fired boiler shipments vastly out-pace oil-fired boiler shipments and that the market is continuing to trend towards gas-fired products. Overall, DOE estimates manufacturers would incur $1.69 million in product conversion costs for product redesign and testing and $0.90 million in capital conversion costs to make minor changes to their production lines.
At TSL 2, under the preservation of gross margin percentage scenario, the shipment-weighted average MPC increases by 2 percent relative to the base-case MPC. In this scenario, INPV impacts are slightly positive because of manufacturers' ability to pass the higher production costs to consumers outweighs the $2.59 million in conversion costs. Under the preservation of per-unit operating profit markup scenario, the 2-percent MPC increase is outweighed by a slightly lower average markup and $2.59 million in total conversion costs, resulting in minimally negative impacts at TSL 2.
TSL 3 represents EL 1 for one product class (gas-fired steam boilers), EL 2 for one product class (oil-fired hot water boilers), and EL 3 for two product classes (gas-fired hot water boilers and oil-fired steam boilers). At TSL 3, DOE estimates impacts on INPV for residential boiler manufacturers to range from -2.10 percent to 0.20 percent, or a change in INPV of -$7.99 million to $0.77 million. At this potential standard level, industry free cash flow would be estimated to decrease by approximately 5.49 percent in 2019, the year before compliance, to $24.41 million compared to the base-case value of $25.83 million.
While more significant than the impacts at TSL 2, the impacts on INPV at TSL 3 would still be relatively minor compared to the total industry value. Percentage impacts on INPV would be slightly positive to slightly negative at TSL 3. DOE does not anticipate that manufacturers would lose a significant portion of their INPV at this TSL. While less than the previous TSLs, DOE projects that in 2020, over half of total shipments would already meet or exceed the efficiency levels prescribed at TSL 3. DOE expects conversion costs to remain small at TSL 3 compared to the total industry value. DOE estimates that product conversion costs would increase as manufacturers would have to redesign a larger percentage of their offerings and may have to design new products to replace lower-efficiency commodity products. At this TSL, DOE estimates that residential boiler manufacturers would incur $3.38 million in product conversion costs. Manufacturers, however, did not cite any major changes that would need to be made to production equipment to achieve the efficiency levels at this TSL. DOE, therefore, estimates that capital conversion costs would remain at $0.90 million for the industry.
At TSL 3, under the preservation of gross margin percentage markup scenario, the shipment-weighted average MPC increases by 4 percent relative to the base-case MPC. In this scenario, INPV impacts are slightly positive because manufacturers' ability to pass the higher production costs to consumers outweighs the $4.28 million in total conversion costs. Under the preservation of per-unit operating profit markup scenario, the 4 percent MPC increase is slightly outweighed by a slightly lower average markup and $4.28 million in total conversion costs, resulting in minimally negative impacts at TSL 3.
TSL 4 represents EL 1 for one product class (gas-fired steam boilers), EL 3 for two product classes (oil-fired hot water boilers and oil-fired steam boilers), and EL 5 for one product class (gas-fired hot water boilers). At TSL 4, DOE estimates impacts on INPV for residential boiler manufacturers to range from −25.25 percent to −2.91 percent, or a change in INPV of −$96.21 million to −$11.08 million. At this potential standard level, industry free cash flow would be estimated to decrease by approximately 133.8 percent in the year before compliance (2019) to −$8.73 million relative to the base-case value of $25.83 million.
Percentage impacts on INPV are moderately to significantly negative at TSL 4. DOE projects that in 2020, only 28 percent of residential boiler shipments would meet or exceed the efficacy levels at TSL 4. DOE expects that conversion costs would increase significantly at this TSL due to the fact that manufacturers would meet these efficiency levels by using condensing heat exchangers in their gas-fired and oil-fired hot water boiler products.
While condensing products and condensing technology are not entirely unfamiliar to the companies that already make condensing products domestically, most manufacturers in the residential boiler industry have
These capital and production conversion expenses lead to the large reduction in cash flow in the years preceding the standard. DOE believes that only a few domestic manufacturers have the resources for this undertaking and believes that some large manufacturers and many smaller manufacturers would continue to source their heat exchangers. Ultimately, DOE estimates that manufacturers would incur $25.04 million in product conversion costs, as some manufacturers would be expected to attempt to add production capacity for condensing heat exchangers and others would have to design baseline products around a sourced condensing heat exchanger. In addition, DOE estimates that manufacturers would incur $60.13 million in capital conversion costs, which would be driven by capital investments in heat exchanger production lines.
At TSL 4, under the preservation of gross margin percentage markup scenario, the shipment-weighted average MPC increases by 37 percent relative to the base-case MPC. In this scenario, INPV impacts are slightly negative because manufacturers' ability to pass the higher production costs to consumers is slightly outweighed the $85.16 million in total conversion costs. Under the preservation of per-unit operating profit markup scenario, the 37-percent MPC increase is outweighed by a lower average markup of 1.37 (compared to 1.41 in the preservation of gross margin percentage markup scenario) and $85.16 million in total conversion costs, resulting in significantly negative impacts at TSL 4.
TSL 5 represents EL 2 for one product class (gas-fired steam boilers), EL 3 for two product classes (oil-fired hot water boilers and oil-fired steam boilers), and EL 6 for one product class (gas-fired hot water boilers). TSL 5 represents max-tech for all product classes. At TSL 5, DOE estimates impacts on INPV for residential boiler manufacturers to range from −36.59 percent to −0.13 percent, or a change in INPV of −$139.26 million to −$0.50 million. At this potential standard level, industry free cash flow would be estimated to decrease by approximately 161.64 percent in the year before compliance (2019) to −$15.92 million relative to the base-case value of $25.83 million.
At TSL 5, percentage impacts on INPV range from slightly negative to significantly negative. DOE estimates that in 2020, only 7 percent of residential boiler shipments would already meet or exceed the efficiency levels prescribed at TSL 5. DOE expects conversion costs to continue to increase at TSL 5, as almost all products on the market would have to be redesigned and new products would have to be developed. As with TSL 4, DOE believes that at these efficiency levels, some manufacturers would choose to develop their own condensing heat exchanger production, rather than continuing to source these components. DOE estimates that product conversion costs would increase to $36.59 million as manufacturers would have to redesign a larger percentage of their offerings, implement complex control systems, and meet max-tech for all product classes. DOE estimates that manufacturers would incur $68.41 million in capital conversion costs due to some manufacturers choosing to develop their own heat exchanger production and others having to increase the throughput of their existing condensing boiler production lines.
At TSL 5, under the preservation of gross margin percentage markup scenario, the shipment-weighted average MPC increases by 58 percent relative to the base-case MPC. In this scenario, INPV impacts are negative because manufacturers' ability to pass the higher production costs to consumers is outweighed by the $105.0 million in total conversion costs. Under the preservation of per-unit operating profit markup scenario, the 58-percent MPC increase is outweighed by a lower average markup of 1.36 and $105.0 million in total conversion costs, resulting in significantly negative impacts at TSL 5.
Standby mode and off mode standards results are presented in Table V.23 and Table V.24. The impacts of standby mode and off mode features were analyzed for the same product classes as the amended AFUE standards, but at different efficiency levels, which correspond to a different set of technology options for reducing standby mode and off mode energy consumption. Therefore, the TSLs in the standby mode and off mode analysis do not correspond to the TSLs in the AFUE analysis. Also, the electric boiler product classes were not analyzed in the GRIM for AFUE standards. As a result, quantitative numbers are also not available for the GRIM analyzing standby mode and off mode standards. However, the standby mode and off mode technology options considered for electric boilers are identical to the technology options for all other residential boiler product classes. Consequently, DOE expects the standby mode and off mode impacts on electric boilers to be of the same order of magnitude as the impacts on all other boiler product classes.
The impacts of standby mode and off mode features were analyzed for the same two markup scenarios to represent the upper and lower bounds of industry impacts for residential boilers that were used in the AFUE analysis: (1) A preservation of gross margin percentage scenario; and (2) a preservation of per-unit operating profit scenario. As with the AFUE analysis, the preservation of gross margin percentage represents the lower bound of impacts, while the preservation of per-unit operating profit scenario represents the upper bound of impacts.
Each of the modeled scenarios in the standby mode and off mode analyses results in a unique set of cash flows and corresponding industry values at each TSL. In the following discussion, the INPV results refer to the difference in industry value between the base case and each standards case that results from the sum of discounted cash flows from the base year 2014 through 2049, the end of the analysis period.
To provide perspective on the short-run cash flow impact, DOE discusses the change in free cash flow between the base case and the standards case at each TSL in the year before new standards would take effect. These figures provide an understanding of the magnitude of the required conversion costs at each TSL relative to the cash flow generated by the industry in the base case.
TSL 1 represents EL 1 for all product classes. At TSL 1, DOE estimates impacts on INPV for residential boiler manufacturers to decrease by less than one tenth of a percent in both markup scenarios, which corresponds to a change in INPV of −$0.19 million to −$0.07 million. At this potential standard level, industry free cash flow is estimated to decrease by approximately 0.24 percent to $25.77 million, compared to the base-case value of $25.83 million in 2019, the year before the compliance date.
At TSL 1, DOE does not anticipate that manufacturers would lose a significant portion of their INPV. This is largely due to the small incremental costs of standby mode and off mode components relative to the overall costs of residential boiler products. DOE expects residential boiler manufacturers to incur $0.21 million in product conversion costs at TSL 1, primarily for testing. DOE does not expect that manufacturers would incur any capital conversion costs, as the product upgrades will only involve integrating a purchase-part.
TSL 2 sets the efficiency level at EL 2 for all product classes. At TSL 2, DOE estimates impacts on INPV for residential boilers manufacturers to range from −0.27 percent to 0.05 percent, or a change in INPV of −$1.02 million to $0.20 million. At this potential standard level, industry free cash flow is estimated to decrease by approximately 0.24 percent to $25.77 million, compared to the base-case value of $25.83 million in 2019, the year before the compliance date.
At TSL 2, DOE does not anticipate that manufacturers would lose a significant portion of their INPV. This is largely due to the small incremental costs of standby mode and off mode components relative to the overall costs of residential boiler products. DOE expects residential boiler manufacturers to incur $0.21 million in product conversion costs at TSL 2, primarily for testing. DOE does not expect that manufacturers would incur any capital conversion costs, as the product upgrades will only involve integrating a purchase-part.
TSL 3 represents EL 3 for all product classes. At TSL 3, DOE estimates impacts on INPV for residential boiler manufacturers to range from −0.28 percent to 0.06 percent, or a change in INPV of −$1.08 million to $0.22 million. At this potential standard level, industry free cash flow is estimated to decrease by approximately 0.24 percent in the year before compliance to $25.77 million compared to the base case value of $25.83 million.
At TSL 3, DOE does not anticipate that manufacturers would lose a significant portion of their INPV. As with TSLs 1 and 2, this is largely due to the small incremental costs of standby mode and off mode components relative to the overall costs of residential boiler products. DOE expects residential boiler manufacturers to incur $0.21 million in product conversion costs at TSL 3, primarily for testing. DOE does not expect that manufacturers would incur any capital conversion costs, as the product upgrades will only involve integrating a purchase-part.
As noted in section III.B, DOE analyzed the AFUE standard and the standby and off mode standard independently. The AFUE metric accounts for the fuel use consumption whereas the standby and off mode metric accounts for the electrical energy use in standby and off mode. There are five trial standard levels under consideration for the AFUE standard
Both the AFUE standard and the standby and off mode standard could necessitate changes in manufacturer production costs, as well as conversion cost investments. The assumed design changes for the two standards in the engineering analysis are independent, therefore changes in manufacturing production costs and the conversion costs are additive. DOE expects that the costs to manufacturers would be mathematically the same regardless of whether or not the stand-by and off mode standards were combined or analyzed separately. However, DOE requests comment on whether an analysis that considers the cumulative costs of both standards when making technology choices would be more reflective of manufacturer decision making.
Using the current approach that considers AFUE and standby and off mode standards separately, the range of potential impacts of combined standards on INPV is determined by summing the range of potential changes in INPV from the AFUE standard and from the standby and off mode standard. Similarly, to estimate the combined conversion costs, DOE sums the estimated conversion costs from the two standards. DOE does not present the combined impacts of all possible combinations of AFUE and standby and off mode TSLs in this notice. However, DOE expects the combined impact of the TSLs proposed for AFUE and standby and off mode electrical consumption in this NOPR to range from −2.38 to 0.26 percent, which is approximately equivalent to a reduction of $9.07 million to an increase of $0.99 million.
To quantitatively assess the impacts of energy conservation standards on direct employment in the residential boiler industry, DOE used the GRIM to estimate the domestic labor expenditures and number of employees in the base case and at each TSL in 2020. DOE used statistical data from the U.S. Census Bureau's 2011 Annual Survey of Manufacturers (ASM),
The total labor expenditures in the GRIM are converted to domestic production employment levels by dividing production labor expenditures by the annual payment per production worker (production worker hours times the labor rate found in the U.S. Census Bureau's 2011 ASM). The estimates of production workers in this section cover workers, including line-supervisors who are directly involved in fabricating and assembling a product within the manufacturing facility. Workers performing services that are closely associated with production operations, such as materials handling tasks using forklifts, are also included as production labor. DOE's estimates only account for production workers who manufacture the specific products covered by this rulemaking. The total direct employment impacts calculated in the GRIM are the sum of the changes in the number of production workers resulting from the amended energy conservation standards for residential boilers, as compared to the base case. In general, more-efficient boilers are more complex and more labor intensive and require specialized knowledge about control systems, electronics, and the different metals needed for the heat exchanger. Per-unit labor requirements and production time requirements increase with higher energy conservation standards. As a result, the total labor calculations described in this paragraph (which are generated by the GRIM) are considered an upper bound to direct employment forecasts.
On the other hand, some manufacturers may choose not to make the necessary investments to meet the amended standards for all product classes. Alternatively, they may choose to relocate production facilities where conversion costs and production costs are lower. To establish a lower bound to negative employment impacts, DOE estimated the maximum potential job loss due to manufacturers either leaving the industry or moving production to foreign locations as a result of amended standards. In the case of residential boilers, most manufacturers agreed that higher standards would probably not push their production overseas due to shipping considerations. Rather, high enough standards could force manufacturers to rethink their business models. Instead of vertically integrated manufacturers, they would become assemblers and would source most of their components from overseas. This would mean any workers involved in casting metals that would be corroded in a condensing product would likely lose their jobs. These lower bound estimates were based on GRIM results, conversion cost estimates, and content from manufacturers interviews. The lower bound of employment is presented in Table V.25 below.
DOE estimates that in the absence of amended energy conservation standards, there would be 785 domestic production workers in the residential boiler industry in 2020, the year of compliance. DOE estimates that 90 percent of residential boilers sold in the United States are manufactured domestically. Table V.25 shows the range of the impacts of potential amended energy conservation standards on U.S. production workers of residential boilers.
At the upper end of the range, all examined TSLs show positive impacts on domestic employment levels. Producing more-efficient boilers tends to require more labor, and DOE estimates that if residential boiler manufacturers chose to keep their current production in the U.S., domestic employment could increase at each TSL. In interviews, several manufacturers who produce high-efficiency boiler products stated that a standard that went to condensing levels could cause them to hire more employees to increase their production capacity. Others stated that a condensing standard would require additional engineers to redesign production processes, as well as metallurgy experts and other workers with experience working with higher-efficiency products. DOE, however, acknowledges that particularly at higher standard levels, manufacturers may not keep their production in the U.S. and also may choose to restructure their businesses or exit the market entirely.
DOE does not expect any significant changes in domestic employment at TSL 1 or TSL 2. Most manufactures agreed that these efficiency levels would require minimal changes to their production processes and most employees would be retained. DOE estimates that there could be a small loss of domestic employment at TSL 3 due to the fact that some manufacturers would have to drop their 82 to 83-percent-efficient products, which several commented were their commodity products and drove a high percentage of their sales. Several manufacturers expressed that they could lose a significant number of employees at TSL 4 and TSL 5, due to the fact that these TSLs contain condensing efficiency levels for the gas-fired hot water boiler product class. These manufacturers have employees who work on production lines that produce cast iron sections and carbon steel or copper heat exchangers for lower to mid-efficiency products. If amended energy conservation standards were to require condensing efficiency levels, these employees would no longer be needed for that function, and manufacturers would have to decide whether to develop their own condensing heat exchanger production, source heat exchangers from Asia or Europe and assemble higher-efficiency products, or leave the market entirely.
DOE notes that its estimates of the impacts on direct employment are based on the analysis of amended AFUE energy efficiency standards only. Standby mode and off mode technology options considered in the engineering analysis would result in component swaps, which would not make the product significantly more complex and would not be difficult to implement. While some product development effort would be required, DOE does not expect the standby mode and off mode standard to meaningfully affect the amount of labor required in production. Consequently, DOE does not anticipate that the proposed standby mode and off mode standards will have a significant impact on direct employment.
DOE notes that the employment impacts discussed here are independent of the indirect employment impacts to the broader U.S. economy, which are documented in chapter 15 of the NOPR TSD.
Most residential boiler manufacturers stated that their current production is only running at 50-percent to 70-percent capacity and that any standard that does not propose efficiency levels where manufacturers would use condensing technology for hot water boilers would not have a large effect on capacity. The impacts of a potential condensing standard on manufacturer capacity are difficult to quantify. Some manufacturers who are already making condensing products with a sourced heat exchanger said they would likely be able to increase production using the equipment they already have by utilizing a second shift. Others said a condensing standard would idle a large portion of their business, causing stranded assets and decreased capacity. These manufactures would have to determine how to best increase their condensing boiler production capacity. DOE believes that some larger domestic manufacturers may choose to add production capacity for a condensing heat exchanger production line.
Manufacturers stated that in a scenario where a potential standard would require efficiency levels at which manufacturers would use condensing technology, there is concern about the level of technical resources required to redesign and test all products. The engineering analysis shows that increasingly complex components and control strategies are required as standard levels increase. Manufacturers commented in interviews that the industry would need to add electrical engineering and control systems engineering talent beyond current staffing to meet the redesign requirements of higher TSLs. Additional training might be needed for manufacturing engineers, laboratory technicians, and service personnel if condensing products were broadly adopted. However, because TSL 3 (the proposed level) would not require condensing standards, DOE does not expect manufacturers to face long-term capacity constraints due to the standard levels proposed in this notice.
Small manufacturers, niche equipment manufacturers, and manufacturers exhibiting a cost structure substantially different from the industry average could be affected disproportionately. Using average cost assumptions developed for an industry cash-flow estimate is inadequate to assess differential impacts among manufacturer subgroups.
For the residential boiler industry, DOE identified and evaluated the impact of amended energy conservation standards on one subgroup—small manufacturers. The SBA defines a “small business” as having 500 employees or less for NAICS 333414, “Heating Equipment (except Warm Air Furnaces) Manufacturing.” Based on this definition, DOE identified 13 manufacturers in the residential boiler industry that qualify as small businesses. For a discussion of the impacts on the small manufacturer subgroup, see the regulatory flexibility
While any one regulation may not impose a significant burden on manufacturers, the combined effects of recent or impending regulations may have serious consequences for some manufacturers, groups of manufacturers, or an entire industry. Assessing the impact of a single regulation may overlook this cumulative regulatory burden. In addition to energy conservation standards, other regulations can significantly affect manufacturers' financial operations. Multiple regulations affecting the same manufacturer can strain profits and lead companies to abandon product lines or markets with lower expected future returns than competing products. For these reasons, DOE conducts an analysis of cumulative regulatory burden as part of its rulemakings pertaining to appliance efficiency.
For the cumulative regulatory burden analysis, DOE looks at other regulations that could affect residential boiler manufacturers that will take effect approximately three years before or after the 2020 compliance date of amended energy conservation standards for these products. In interviews, manufacturers cited Federal regulations on equipment other than residential boilers that contribute to their cumulative regulatory burden. The compliance years and expected industry conversion costs of relevant amended energy conservation standards are indicated in the Table V.26. DOE has included certain Federal regulations in the Table V.26 that have compliance dates beyond the three-year range of DOE's analysis, because those regulations were cited multiple times by manufacturers in interviews and written comments; they are included here for reference.
In addition to Federal energy conservation standards, DOE identified other regulatory burdens that would affect manufacturers of residential boilers:
DOE is currently considering revisions to its test procedure for residential furnaces and boilers, and it is expected that a revised test procedure would increase testing burden for manufacturers. On July 28, 2008, DOE published a technical amendment to the 2007 furnaces and boilers final rule, whose purpose was to add design requirements established in the Energy Independence and Security Act of 2007 (EISA 2007). 73 FR 43611. These requirements prohibit constant-burning pilot lights for gas-fired hot water boilers and gas-fired steam boilers, and require an automatic means for adjusting the water temperature for gas-fired hot water boilers, oil-fired hot water boilers, and electric hot water boilers. The test procedure is expected to be revised to include two test methods to verify the functionality of
For each TSL, DOE projected energy savings for residential boilers purchased in the 30-year period that begins in the year of anticipated compliance with amended standards (2020-2049). The savings are measured over the entire lifetime of product purchased in the 30-year period. DOE quantified the energy savings attributable to each TSL as the difference in energy consumption between each standards case and the base case. Table V.27 presents the estimated primary energy savings for each considered TSL for AFUE standards, and Table V.28 presents the estimated FFC energy savings for each TSL for AFUE standards. Table V.29 presents the estimated primary energy savings for each considered TSL for standby mode and off mode, and Table V.30 presents the estimated FFC energy savings for each TSL for standby mode and off mode. The approach for estimating national energy savings is further described in section IV.H.
OMB Circular A-4
DOE estimated the cumulative NPV of the total costs and savings for consumers that would result from the TSLs considered for residential boilers. In accordance with OMB's guidelines on regulatory analysis,
Table V.32 shows the consumer NPV results for each AFUE TSL considered for residential boilers. In each case, the impacts cover the lifetime of products purchased in 2020-2049.
The NPV results based on the aforementioned nine-year analytical period are presented in Table V.33 for AFUE standards. The impacts are counted over the lifetime of products purchased in 2020-2028. As mentioned previously, such results are presented for informational purposes only and is not indicative of any change in DOE's analytical methodology or decision criteria.
The above results reflect the use of a flat trend to estimate the change in price for residential boilers over the analysis period (see section IV.H). DOE also conducted a sensitivity analysis that considered one scenario with a lower rate of price decline than the reference case and one scenario with a higher rate of price decline than the reference case. The results of these alternative cases are presented in appendix 10C of the NOPR TSD.
Table V.34 shows the consumer NPV results for each standby mode and off mode TSL considered for residential boilers. In each case, the impacts cover the lifetime of products purchased in 2020-2049.
DOE expects that amended energy conservation standards for residential boilers would reduce energy costs for consumers, with the resulting net savings being redirected to other forms of economic activity. Those shifts in spending and economic activity could affect the demand for labor. As described in section IV.N, DOE used an input/output model of the U.S. economy to estimate indirect employment impacts of the TSLs that DOE considered in this rulemaking. DOE understands that there are uncertainties involved in projecting employment impacts, especially changes in the later years of the analysis. Therefore, DOE generated results for near-term time frames (2020 to 2025), where these uncertainties are reduced.
The results suggest that the proposed standards would be likely to have a negligible impact on the net demand for labor in the economy. The net change in jobs is so small that it would be imperceptible in national labor statistics and might be offset by other, unanticipated effects on employment. Chapter 16 of the NOPR TSD presents detailed results regarding anticipated indirect employment impacts.
DOE has tentatively concluded that the amended standards it is proposing in this NOPR would not lessen the utility or performance of residential boilers.
DOE considered any lessening of competition that is likely to result from new or amended standards. The Attorney General determines the impact, if any, of any lessening of competition likely to result from a proposed standard, and transmits such determination in writing to the Secretary, together with an analysis of the nature and extent of such impact.
To assist the Attorney General in making such determination, DOE has provided DOJ with copies of this NOPR and the TSD for review. DOE will consider DOJ's comments on the proposed rule in preparing the final rule, and DOE will publish and respond to DOJ's comments in that document.
Enhanced energy efficiency, where economically justified, improves the Nation's energy security, strengthens the economy, and reduces the environmental impacts (costs) of energy production. Energy savings from amended standards for the residential boilers covered in this NOPR could also produce environmental benefits in the form of reduced emissions of air pollutants and greenhouse gases associated with electricity production. Table V.35 provides DOE's estimate of cumulative emissions reductions projected to result from the AFUE TSLs considered. Table V.36 provides DOE's estimate of cumulative emissions reductions projected to result from the TSLs considered in this rulemaking for standby mode and off mode boiler efficiency. The tables include both power sector emissions and upstream emissions. The emissions were calculated using the multipliers discussed in section IV.K. DOE reports annual emissions reductions for each TSL in chapter 13 of the NOPR TSD.
As part of the analysis for this proposed rule, DOE estimated monetary benefits likely to result from the reduced emissions of CO
Table V.37 presents the global value of CO
DOE is well aware that scientific and economic knowledge about the contribution of CO
DOE also estimated a range for the cumulative monetary value of the economic benefits associated with NO
The Secretary of Energy, in determining whether a standard is economically justified, may consider any other factors that the Secretary deems to be relevant. (42 U.S.C. 6295(o)(2)(B)(i)(VI)) No other factors were considered in this analysis.
The NPV of the monetized benefits associated with emissions reductions can be viewed as a complement to the NPV of the consumer savings calculated for each TSL considered in this rulemaking. Table V.41 presents the NPV values that result from adding the estimates of the potential economic benefits resulting from reduced CO
Although adding the value of consumer savings to the values of emission reductions provides a valuable perspective, two issues should be considered. First, the national operating cost savings are domestic U.S. consumer monetary savings that occur as a result of market transactions, while the value of CO
When considering proposed standards, the new or amended energy
For this NOPR, DOE considered the impacts of amended standards for residential boilers at each TSL, beginning with the maximum technologically feasible level, to determine whether that level was economically justified. Where the max-tech level was not justified, DOE then considered the next most efficient level and undertook the same evaluation until it reached the highest efficiency level that is both technologically feasible and economically justified and saves a significant amount of energy.
To aid the reader in understanding the benefits and/or burdens of each TSL, tables in this section summarize the quantitative analytical results for each TSL, based on the assumptions and methodology discussed herein. The efficiency levels contained in each TSL are described in section V.A. In addition to the quantitative results presented in the tables, DOE also considers other burdens and benefits that affect economic justification. These include the impacts on identifiable subgroups of consumer who may be disproportionately affected by a national standard (see section V.B.1.b), and impacts on employment. DOE discusses the impacts on direct employment in residential boiler manufacturing in section V.B.2.b, and discusses the indirect employment impacts in section V.B.3.c.
DOE also notes that the economics literature provides a wide-ranging discussion of how consumers trade off upfront costs and energy savings in the absence of government intervention. Much of this literature attempts to explain why consumers appear to undervalue energy efficiency improvements. There is evidence that consumers undervalue future energy savings as a result of: (1) A lack of information; (2) a lack of sufficient salience of the long-term or aggregate benefits; (3) a lack of sufficient savings to warrant delaying or altering purchases; (4) excessive focus on the short term, in the form of inconsistent weighting of future energy cost savings relative to available returns on other investments; (5) computational or other difficulties associated with the evaluation of relevant tradeoffs; and (6) a divergence in incentives (for example, renter versus owner or builder versus purchaser). Other literature indicates that with less than perfect foresight and a high degree of uncertainty about the future, consumers may trade off at a higher than expected rate between current consumption and uncertain future energy cost savings. This undervaluation suggests that regulation that promotes energy efficiency can produce significant net private gains (as well as producing social gains by, for example, reducing pollution).
In DOE's current regulatory analysis, potential changes in the benefits and costs of a regulation due to changes in consumer purchase decisions are included in two ways. First, if consumers forego a purchase of a product in the standards case, this decreases sales for product manufacturers and the cost to manufacturers is included in the MIA. Second, DOE accounts for energy savings attributable only to products actually used by consumers in the standards case; if a standard decreases the number of products purchased by consumers, this decreases the potential energy savings from an energy conservation standard. DOE provides estimates of changes in the volume of product purchases in chapter 9 of the NOPR TSD. DOE's current analysis does not explicitly control for heterogeneity in consumer preferences, preferences across subcategories of products or specific features, or consumer price sensitivity variation according to household income.
While DOE is not prepared at present to provide a fuller quantifiable framework for estimating the benefits and costs of changes in consumer purchase decisions due to an energy conservation standard, DOE is committed to developing a framework that can support empirical quantitative tools for improved assessment of the consumer welfare impacts of appliance standards. DOE has posted a paper that discusses the issue of consumer welfare impacts of appliance standards, and potential enhancements to the methodology by which these impacts are defined and estimated in the regulatory process.
Table V.43 and Table V.44 summarize the quantitative impacts estimated for each AFUE TSL for residential boilers. The national impacts are measured over the lifetime of residential boilers purchased in the 30-year period that begins in the year of compliance with amended standards (2020-2049). The energy savings, emissions reductions, and value of emissions reductions refer to full-fuel-cycle results. The efficiency levels contained in each TSL are described in section IV.A.
First, DOE considered TSL 5, the most efficient level (max-tech), which would save an estimated total of 1.71 quads of energy, an amount DOE considers significant. TSL 5 has an estimated NPV of consumer benefit of -$0.2 billion using a 7-percent discount rate, and $3.87 billion using a 3-percent discount rate.
The cumulative emissions reductions at TSL 5 are 100 million metric tons of CO
At TSL 5, the average LCC savings are $134 for gas-fired hot water boilers, $250 for gas-fired steam boilers, $273 for oil-fired hot water boilers, and $723 for oil-fired steam boilers. The median PBP is 22.1 years for gas-fired hot water boilers, 11.6 years gas-fired steam boilers, 21.4 years for oil-fired hot water boilers, and 10.5 years for oil-fired steam boilers. The share of consumers experiencing a net LCC benefit is 36 percent for gas-fired hot water boilers, 61 percent for gas-fired steam boilers, 38 percent for oil-fired hot water boilers, and 67 percent for oil-fired steam boilers, while the share of consumers experiencing a net LCC cost is 57 percent for gas-fired hot water boilers, 28 percent for gas-fired steam boilers, 54 percent for oil-fired hot water boilers, and 23 percent for oil-fired steam boilers.
At TSL 5, the projected change in INPV ranges from a decrease of $139.26 million to a decrease of $0.5 million. If the decrease of $139.26 million were to occur, TSL 5 could result in a net loss of 36.56 percent in INPV to manufacturers of covered residential boilers.
The Secretary tentatively concludes that, at TSL 5 for residential boilers, the benefits of energy savings, positive NPV of total consumer benefits at a 3-percent discount rate, average consumer LCC savings, emission reductions, and the estimated monetary value of the emissions reductions would be outweighed by the large reduction in industry value at TSL 5, the negative NPV of total consumer benefits at a 7-percent discount rate, and the high number of consumers experiencing a net LCC cost for gas-fired hot water boilers and oil-fired hot water boilers. Consequently, DOE has concluded that TSL 5 is not economically justified.
Next, DOE considered TSL 4, which would save an estimated total of 1.15 quads of energy, an amount DOE considers significant. TSL 4 has an estimated NPV of consumer benefit of $0.19 billion using a 7-percent discount rate, and $3.42 billion using a 3-percent discount rate.
The cumulative emissions reductions at TSL 4 are 70.2 million metric tons of CO
At TSL 4, the average LCC savings are $201 for gas-fired hot water boilers, $61 for gas-fired steam boilers, $273 for oil-fired hot water boilers, and $723 for oil-fired steam boilers. The median PBP is 18.8 years for gas-fired hot water boilers, 1.3 years gas-fired steam boilers, 21.4 years for oil-fired hot water boilers, and 10.5 years for oil-fired steam boilers. The share of consumers experiencing a net LCC benefit is 33 percent for gas-fired hot water boilers, 14 percent for gas-fired steam boilers, 38 percent for oil-fired hot water boilers, and 67 percent for oil-fired steam boilers, while the share of consumers experiencing a net LCC cost is 38 percent for gas-fired hot water boilers, 1 percent for gas-fired steam boilers, 54 percent for oil-fired hot water boilers, and 23 percent for oil-fired steam boilers.
At TSL 4, the projected change in INPV ranges from a decrease of $96.21 million to a decrease of $11.08 million. If the decrease of $96.21 million were to occur, TSL 4 could result in a net loss of 25.25 percent in INPV to manufacturers of covered residential boilers.
DOE strongly considered TSL 4, but based on the information available, the Secretary tentatively concludes that, at TSL 4 for residential boilers, the benefits of energy savings, positive NPV of total consumer benefits, average consumer LCC savings, emission reductions, and the estimated monetary value of the emissions reductions would be outweighed by the large reduction in industry value at TSL 4 and the high number of consumers experiencing a net LCC cost for gas-fired hot water boilers and oil-fired hot water boilers. Consequently, DOE has tentatively concluded that TSL 4 is not economically justified. However, DOE requests comments and data from interested parties that would assist DOE in making a final decision on the weighting of benefits and burdens for TSL 4, and DOE intends to reconsider adoption of TSL 4 in the final rule in light of any comments received.
Next, DOE considered TSL 3, which would save an estimated total of 0.21 quads of energy, an amount DOE considers significant. TSL 3 has an estimated NPV of consumer benefit of $0.36 billion using a 7-percent discount rate, and $1.28 billion using a 3-percent discount rate.
The cumulative emissions reductions at TSL 3 are 12.9 million metric tons of CO
At TSL 3, the average LCC savings are $123 for gas-fired hot water boilers, $61 for gas-fired steam boilers, $257 for oil-fired hot water boilers, and $723 for oil-fired steam boilers. The median PBP is 7.7 years for gas-fired hot water boilers, 1.3 years gas-fired steam boilers, 7.6 years for oil-fired hot water boilers, and 10.5 years for oil-fired steam boilers. The share of consumers experiencing a net LCC benefit is 30 percent for gas-fired hot water boilers, 14 percent for gas-fired steam boilers, 42 percent for oil-fired hot water boilers, and 67 percent for oil-fired steam boilers, while the share of consumers experiencing a net LCC cost is 13 percent for gas-fired hot water boilers, 1 percent for gas-fired steam boilers, 9 percent for oil-fired hot water boilers, and 23 percent for oil-fired steam boilers.
At TSL 3, the projected change in INPV ranges from a decrease of $7.99 million to an increase of $0.77 million. If the decrease of $7.99 million were to occur, TSL 3 could result in a net loss of 2.1 percent in INPV to manufacturers of covered residential boilers.
After considering the analysis and weighing the benefits and the burdens, DOE has tentatively concluded that at TSL 3 for residential boilers, the benefits of energy savings, positive NPV of consumer benefit, positive impacts on consumers (as indicated by positive average LCC savings, favorable PBPs, and a higher percentage of consumers who would experience LCC benefits as opposed to costs), emission reductions, and the estimated monetary value of the emissions reductions would outweigh the potential reductions in INPV for manufacturers. Accordingly, the
Based on the above considerations, DOE today proposes to adopt the AFUE energy conservation standards for residential boilers at TSL 3. Table V.45 presents the proposed energy conservation standards for residential boilers.
Table V.46 through Table V.47 summarize the quantitative impacts estimated for each TSL considered for residential boiler standby mode and off mode power. The national impacts are measured over the lifetime of residential boilers purchased in the 30-year period that begins in the year of compliance with amended standards (2020-2049). The energy savings, emissions reductions, and value of emissions reductions refer to full-fuel-cycle results. The efficiency levels contained in each TSL are described in section V.A.
First, DOE considered TSL 3, the most efficient level (max-tech), which would save an estimated total of 0.045 quads of energy, an amount DOE considers significant. TSL 3 has an estimated NPV of consumer benefit of $0.167 billion using a 7-percent discount rate, and $0.437 billion using a 3-percent discount rate.
The cumulative emissions reductions at TSL 3 are 2.05 million metric tons of CO
At TSL 3, the average LCC savings are $14 for gas-fired hot water boilers, $15 for gas-fired steam boilers, $15 for oil-fired hot water boilers, $15 for oil-fired steam boilers, $8 for electric hot water boilers, and $9 for electric steam boilers. The median PBP is 7.83 years for gas-fired hot water boilers, 7.39 years gas-fired steam boilers, 7.39 years for oil-fired hot water boilers, 8.35 years for oil-fired steam boilers, 10.98 years for electric hot water boilers, and 10.88 years for electric steam boilers. The share of consumers experiencing a net LCC benefit is 44 percent for gas-fired hot water boilers, 45 percent for gas-fired steam boilers, 38 percent for oil-fired hot water boilers, 45 percent for oil-fired steam boilers, 45 percent for electric hot water boilers, and 38 percent for electric steam boilers, while the share of consumers experiencing a net LCC cost is 6 percent for gas-fired hot water boilers, 4 percent for gas-fired
At TSL 3, the projected change in INPV ranges from a decrease of $1.08 million to an increase of $0.22 million, depending on the manufacturer markup scenario. If the larger decrease is realized, TSL 3 could result in a net loss of 0.28 percent in INPV to manufacturers of covered residential boilers.
Accordingly, the Secretary tentatively concludes that at TSL 3 for residential boiler standby mode and off mode power, the benefits of energy savings, positive NPV of consumer benefits at both 7-percent and 3-percent discount rates, positive impacts on consumers (as indicated by positive average LCC savings, favorable PBPs, and a higher percentage of consumers who would experience LCC benefits as opposed to costs), emission reductions, and the estimated monetary value of the CO
The benefits and costs of today's proposed standards can also be expressed in terms of annualized values. The annualized monetary values are the sum of: (1) The annualized national economic value (expressed in 2013$) of the benefits from operating products that meet the proposed standards (consisting primarily of operating cost savings from using less energy, minus increases in product purchase costs, which is another way of representing consumer NPV), and (2) the annualized monetary value of the benefits of emission reductions, including CO
Although combining the values of operating savings and CO
Estimates of annualized benefits and costs of the proposed standards for residential boilers are shown in Table V.49. The results under the primary estimate are as follows. Using a 7-percent discount rate for benefits and costs other than CO
Using a 3-percent discount rate for all benefits and costs and the average SCC series, the estimated cost of the residential boiler standards proposed in today's rule is $32 million per year in increased equipment costs, while the estimated benefits are $108 million per year in reduced equipment operating costs, $22 million per year in CO
Estimates of annualized benefits and costs of the proposed standards for residential boiler standby mode and off mode power are shown in Table V.50. The results under the primary estimate are as follows. Using a 7-percent discount rate for benefits and costs other than CO
Using a 3-percent discount rate for all benefits and costs and the average SCC series, the estimated cost of the residential boiler standards proposed in today's rule is $9.35 million per year in increased equipment costs, while the estimated benefits are $35 million per year in reduced equipment operating costs, $3 million per year in CO
Estimates of the combined annualized benefits and costs of the proposed AFUE and standby mode and off mode standards are shown in Table V.51. The results under the primary estimate are as follows. Using a 7-percent discount rate for benefits and costs other than CO
Using a 3-percent discount rate for all benefits and costs and the average SCC series that uses a 3-percent discount rate ($40.5/t in 2015), the estimated cost of the residential boilers AFUE and standby mode and off mode standards proposed in this rule is $41.0 million per year in increased equipment costs, while the estimated benefits are $143 million per year in reduced equipment operating costs, $25.3 million per year in CO
Section 1(b)(1) of Executive Order 12866, “Regulatory Planning and Review,” 58 FR 51735 (Oct. 4, 1993), requires each agency to identify the problem that it intends to address, including, where applicable, the failures of private markets or public institutions that warrant new agency action, as well as to assess the significance of that problem. The problems these proposed standards address are as follows:
(1) There is a lack of consumer information and/or information processing capability about energy efficiency opportunities in the home appliance market.
(2) There is asymmetric information (one party to a transaction has more and better information than the other) and/or high transactions costs (costs of gathering information and effecting exchanges of goods and services).
(3) There are external benefits resulting from improved energy efficiency of residential boilers that are not captured by the users of such equipment. These benefits include externalities related to environmental protection and energy security that are not reflected in energy prices, such as reduced emissions of greenhouse gases.
In addition, this regulatory action is an “economically significant regulatory action” under section 3(f)(1) of Executive Order 12866. Accordingly, section 6(a)(3) of the Executive Order requires that DOE prepare a regulatory impact analysis (RIA) on this rule and that the Office of Information and Regulatory Affairs (OIRA) in the Office of Management and Budget (OMB) review this rule. DOE presented to OIRA for review the draft rule and other documents prepared for this rulemaking, including the RIA, and has included these documents in the rulemaking record. The assessments prepared pursuant to Executive Order 12866 can be found in the technical support document for this rulemaking.
DOE has also reviewed this regulation pursuant to Executive Order 13563, issued on January 18, 2011 (76 FR 3281 (Jan. 21, 2011)). Executive Order 13563 is supplemental to and explicitly reaffirms the principles, structures, and definitions governing regulatory review established in Executive Order 12866. To the extent permitted by law, agencies are required by Executive Order 13563 to: (1) Propose or adopt a regulation only upon a reasoned determination that its benefits justify its costs (recognizing that some benefits and costs are difficult to quantify); (2) tailor regulations to impose the least burden on society, consistent with obtaining regulatory objectives, taking into account, among other things, and to the extent practicable, the costs of
DOE emphasizes as well that Executive Order 13563 requires agencies to use the best available techniques to quantify anticipated present and future benefits and costs as accurately as possible. In its guidance, the Office of Information and Regulatory Affairs has emphasized that such techniques may include identifying changing future compliance costs that might result from technological innovation or anticipated behavioral changes. For the reasons stated in the preamble, DOE believes that this NOPR is consistent with these principles, including the requirement that, to the extent permitted by law, benefits justify costs and that net benefits are maximized.
The Regulatory Flexibility Act (5 U.S.C. 601
For manufacturers of residential boilers, the Small Business Administration (SBA) has set a size threshold, which defines those entities classified as “small businesses” for the purposes of the statute. DOE used the SBA's small business size standards to determine whether any small entities would be subject to the requirements of the rule. 65 FR 30836, 30848 (May 15, 2000), as amended at 65 FR 53533, 53544 (Sept. 5, 2000) and codified at 13 CFR part 121. The size standards are listed by North American Industry Classification System (NAICS) code and industry description and are available at
To estimate the number of companies that could be small business manufacturers of products covered by this rulemaking, DOE conducted a market survey using publically-available information to identify potential small manufacturers. DOE's research involved industry trade association membership directories (including AHRI), public databases (
DOE initially identified 36 potential manufacturers of residential boilers sold in the U.S. DOE then determined that 23 are large manufacturers, manufacturers that are foreign owned and operated, or manufacturers that do not produce products covered by this rulemaking. DOE was able to determine that 13 manufacturers meet the SBA's definition of a “small business.” Of these 13 small businesses, nine manufacture boilers covered by this rulemaking, while the other four rebrand imported products or products manufactured by other small companies.
Before issuing this NOPR, DOE attempted to contact all the small business manufacturers of residential boilers it had identified. Two of the small businesses agreed to take part in an MIA interview. DOE also obtained information about small business impacts while interviewing large manufacturers.
DOE estimates that small manufacturers control approximately 17 percent of the residential boiler market. Based on DOE's research, three small businesses manufacture all four product classes of boilers domestically; four small businesses primarily produce condensing boiler products (most of which source heat exchangers from Europe or Asia); and two manufacturers primarily produce oil-fired hot water boiler products. The remaining four small businesses wholesale or rebrand products that are imported from Europe or Asia, or design products and source manufacturing to a domestic firm.
The proposed standards for residential boilers could cause small manufacturers to be at a disadvantage relative to large manufacturers. For example, small manufacturers may be disproportionately affected by product conversion costs. Product redesign, testing, and certification costs tend to be fixed and do not scale with sales volume. When confronted with new or amended energy conservation standards, small businesses must make investments in research and development to redesign their products, but because they have lower sales volumes, they must spread these costs across fewer units. Moreover, smaller manufacturers may experience higher testing costs relative to larger manufacturers, as they may not possess their own test facilities and, therefore, must outsource all testing at a higher per-unit cost. In general, the three small manufacturers that offer all four product classes have product lines that are similar to those of larger competitors with similar market share. However, because these small manufacturers have fewer engineers and product development resources, they may have greater difficulty bringing their portfolio of products into compliance with
Smaller manufacturers also may lack the purchasing power of larger manufacturers. For example, suppliers of bulk purchase parts and components (such as gas valves) give boiler manufacturers discounts based on the quantities purchased. Therefore, larger manufacturers may have a pricing advantage because they have higher volume purchases. This purchasing power differential between high-volume and low-volume orders applies to other residential boiler components as well, such as ignition systems and inducer fan assemblies.
In order to meet the proposed standard, manufacturers may have to seek outside capital to cover expenses related to testing and product design equipment. Smaller firms typically have a higher cost of borrowing due to higher perceived risk on the part of investors, largely attributed to lower cash flows and lower per-unit profitability. In these cases, small manufacturers may observe higher costs of debt than larger manufacturers.
While DOE does not expect high capital conversion costs at TSL 3, DOE does expect smaller businesses would have to make significant product conversion investments relative to larger manufacturers. As previously noted, some of these smaller manufacturers are heavily weighted toward baseline products and other products below the efficiency levels proposed in today's notice. As Table VI.1 illustrates, smaller manufacturers would have to increase their R&D spending to bring products into compliance and to develop new products at TSL 3, the proposed level.
At TSL 3, the level proposed in this notice, DOE estimates capital conversion costs of $0.02 million and product conversion costs of $0.09 million for an average small manufacturer. DOE estimates that an average large manufacturer will incur capital conversion costs of $0.03 million and product conversion costs of $0.09 million. Based on the results in Table VI.1, DOE recognizes that small manufacturers will generally face a relatively higher conversion cost burden than larger competitors.
Manufacturers that have the majority of their products and sales at efficiency levels above today's standard may have lower conversion costs than those listed in Table VI.1. In particular, the four small manufacturers that primarily sell condensing products are unlikely to be affected by the efficiency levels at TSL 3, as all of their products are already above the efficiency levels proposed.
Furthermore, DOE recognizes that small manufacturers that primarily sell low-efficiency products today will face a greater burden relative to the small manufacturers that primarily sell high-efficiency products. At TSL 3, the level proposed in this notice, DOE believes that the three manufacturers that manufacture across all four product classes would have higher conversion costs because the majority of their products do not meet the standard proposed in today's notice and would require redesign. DOE estimates that 63 percent of these companies' product offerings do not meet the standard levels at TSL 3. Consequently, these manufacturers would have to expend funds to redesign their commodity products, or develop a new, higher-efficiency baseline product.
The two companies that primarily produce oil-fired hot water boilers could also be impacted, as they are generally much smaller than the small businesses that produce all product classes, have fewer shipments and smaller revenues, and are likely to have limited R&D resources. Both of these companies, however, do have oil-fired hot water boiler product listings that meet the proposed efficiency standards in this notice.
DOE estimates that one of the four companies that rebrands imported or sourced products does its own design work, while the other three import high-efficiency products from Europe or Asia. It is possible that the company that designs its own products could be affected by product conversion costs at TSL 3, while it is unlikely that the other three would be greatly impacted.
Based on this analysis, DOE notes that on average, small businesses will experience total conversion costs on the order of $0.11 million. However, some companies will fall below the average. In particular, DOE has identified 6 small manufacturers that could experience greater conversion costs burdens than indicated by the average.
DOE seeks further information and data regarding the sales volume and annual revenues for small businesses so the agency can be better informed concerning the potential impacts to small business manufacturers of the proposed energy conservation standards, and would consider any such additional information when formulating and selecting standard levels for the final rule.
DOE is not aware of any rules or regulations that duplicate, overlap, or conflict with the rule being proposed today.
The discussion above analyzes impacts on small businesses that would result from DOE's proposed rule. In addition to the other TSLs being considered, the proposed rulemaking TSD includes a regulatory impact analysis (RIA) in chapter 17. For residential boilers, the RIA discusses the following policy alternatives: (1) No change in standard; (2) consumer rebates; (3) consumer tax credits; (4) manufacturer tax credits; (5) voluntary energy efficiency targets; and (6) bulk government purchases. While these alternatives may mitigate to some varying extent the economic impacts on small entities compared to the proposed standards, DOE does not intend to consider these alternatives further
Additional compliance flexibilities may be available through other means. For example, individual manufacturers may petition for a waiver of the applicable test procedure. (See 10 CFR 431.401.) Further, EPCA provides that a manufacturer whose annual gross revenue from all of its operations does not exceed $8,000,000 may apply for an exemption from all or part of an energy conservation standard for a period not longer than 24 months after the effective date of a final rule establishing the standard. Additionally, Section 504 of the Department of Energy Organization Act, 42 U.S.C. 7194, provides authority for the Secretary to adjust a rule issued under EPCA in order to prevent “special hardship, inequity, or unfair distribution of burdens” that may be imposed on that manufacturer as a result of such rule. Manufacturers should refer to 10 CFR part 430, subpart E, and part 1003 for additional details.
Manufacturers of residential boilers must certify to DOE that their products comply with any applicable energy conservation standards. In certifying compliance, manufacturers must test their products according to the DOE test procedures for residential boilers, including any amendments adopted for those test procedures. DOE has established regulations for the certification and recordkeeping requirements for all covered consumer products and commercial equipment, including residential boilers. 76 FR 12422 (March 7, 2011). The collection-of-information requirement for the certification and recordkeeping is subject to review and approval by OMB under the Paperwork Reduction Act (PRA). This requirement has been approved by OMB under OMB control number 1910-1400. Public reporting burden for the certification is estimated to average 20 hours per response, including the time for reviewing instructions, searching existing data sources, gathering and maintaining the data needed, and completing and reviewing the collection of information.
Notwithstanding any other provision of the law, no person is required to respond to, nor shall any 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.
Pursuant to the National Environmental Policy Act (NEPA) of 1969, DOE has determined that the proposed rule fits within the category of actions included in Categorical Exclusion (CX) B5.1 and otherwise meets the requirements for application of a CX. See 10 CFR part 1021, App. B, B5.1(b); 1021.410(b) and Appendix B, B(1)-(5). The proposed rule fits within the category of actions because it is a rulemaking that establishes energy conservation standards for consumer products or industrial equipment, and for which none of the exceptions identified in CX B5.1(b) apply. Therefore, DOE has made a CX determination for this rulemaking, and DOE does not need to prepare an Environmental Assessment or Environmental Impact Statement for this proposed rule. DOE's CX determination for this proposed rule is available at
Executive Order 13132, “Federalism,” 64 FR 43255 (Aug. 10, 1999), imposes certain requirements on Federal agencies formulating and implementing policies or regulations that preempt State law or that have Federalism implications. The Executive Order requires agencies to examine the constitutional and statutory authority supporting any action that would limit the policymaking discretion of the States and to carefully assess the necessity for such actions. The Executive Order also requires agencies to have an accountable process to ensure meaningful and timely input by State and local officials in the development of regulatory policies that have Federalism implications. On March 14, 2000, DOE published a statement of policy describing the intergovernmental consultation process it will follow in the development of such regulations. 65 FR 13735. DOE has examined this proposed rule and has tentatively determined that it would not have a substantial direct effect on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government. EPCA governs and prescribes Federal preemption of State regulations as to energy conservation for the products that are the subject of this proposed rule. States can petition DOE for exemption from such preemption to the extent, and based on criteria, set forth in EPCA. (42 U.S.C. 6297) Therefore, no further action is required by Executive Order 13132.
With respect to the review of existing regulations and the promulgation of new regulations, section 3(a) of Executive Order 12988, “Civil Justice Reform,” imposes on Federal agencies the general duty to adhere to the following requirements: (1) Eliminate drafting errors and ambiguity; (2) write regulations to minimize litigation; (3) provide a clear legal standard for affected conduct rather than a general standard; and (4) promote simplification and burden reduction. 61 FR 4729 (Feb. 7, 1996). Regarding the review required by section 3(a), section 3(b) of Executive Order 12988 specifically requires that Executive agencies make every reasonable effort to ensure that the regulation: (1) Clearly specifies the preemptive effect, if any; (2) clearly specifies any effect on existing Federal law or regulation; (3) provides a clear legal standard for affected conduct while promoting simplification and burden reduction; (4) specifies the retroactive effect, if any; (5) adequately defines key terms; and (6) addresses other important issues affecting clarity and general draftsmanship under any guidelines issued by the Attorney General. Section 3(c) of Executive Order 12988 requires Executive agencies to review regulations in light of applicable standards in section 3(a) and section 3(b) to determine whether they are met or it is unreasonable to meet one or more of them. DOE has completed the required review and determined that, to the extent permitted by law, this proposed rule meets the relevant standards of Executive Order 12988.
Title II of the Unfunded Mandates Reform Act of 1995 (UMRA) requires each Federal agency to assess the effects of Federal regulatory actions on State, local, and Tribal governments and the private sector. Public Law 104-4, sec. 201 (codified at 2 U.S.C. 1531). For a proposed regulatory action likely to result in a rule that may cause the
This proposed rule, which proposes amended energy conservation standards for residential boilers, does not contain a Federal intergovernmental mandate, and it does not require expenditures of $100 million or more by the private sector. Specifically, the proposed rule would likely result in a final rule that could require expenditures estimated to range from $$26 to $39 million per year (See Table I.7). Including: (1) Investment in research and development and in capital expenditures by residential boilers manufacturers in the years between the final rule and the compliance date for the new standards, and (2) incremental additional expenditures by consumers to purchase higher-efficiency residential boilers, starting at the compliance date for the applicable standard.
Section 202 of UMRA authorizes a Federal agency to respond to the content requirements of UMRA in any other statement or analysis that accompanies the proposed rule. (2 U.S.C. 1532(c)) The content requirements of section 202(b) of UMRA relevant to a private sector mandate substantially overlap the economic analysis requirements that apply under section 325(o) of EPCA and Executive Order 12866. The
Under section 205 of UMRA, the Department is obligated to identify and consider a reasonable number of regulatory alternatives before promulgating a rule for which a written statement under section 202 is required. (2 U.S.C. 1535(a)) DOE is required to select from those alternatives the most cost-effective and least burdensome alternative that achieves the objectives of the proposed rule unless DOE publishes an explanation for doing otherwise, or the selection of such an alternative is inconsistent with law. As required by 42 U.S.C. 6295(f) and (o), this proposed rule would establish amended energy conservation standards for residential boilers that are designed to achieve the maximum improvement in energy efficiency that DOE has determined to be both technologically feasible and economically justified. A full discussion of the alternatives considered by DOE is presented in the “Regulatory Impact Analysis” section of the TSD for this proposed rule.
Section 654 of the Treasury and General Government Appropriations Act, 1999 (Pub. L. 105-277) requires Federal agencies to issue a Family Policymaking Assessment for any rule that may affect family well-being. This rule would not have any impact on the autonomy or integrity of the family as an institution. Accordingly, DOE has concluded that it is not necessary to prepare a Family Policymaking Assessment.
Pursuant to Executive Order 12630, “Governmental Actions and Interference with Constitutionally Protected Property Rights,” 53 FR 8859 (March 15, 1988), DOE has determined that this proposed rule would not result in any takings that might require compensation under the Fifth Amendment to the U.S. Constitution.
Section 515 of the Treasury and General Government Appropriations Act, 2001 (44 U.S.C. 3516 note) provides for Federal agencies to review most disseminations of information to the public under information quality guidelines established by each agency pursuant to general guidelines issued by OMB. OMB's guidelines were published at 67 FR 8452 (Feb. 22, 2002), and DOE's guidelines were published at 67 FR 62446 (Oct. 7, 2002). DOE has reviewed this NOPR under the OMB and DOE guidelines and has concluded that it is consistent with applicable policies in those guidelines.
Executive Order 13211, “Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use,” 66 FR 28355 (May 22, 2001), requires Federal agencies to prepare and submit to OIRA at OMB, a Statement of Energy Effects for any proposed significant energy action. A “significant energy action” is defined as any action by an agency that promulgates or is expected to lead to promulgation of a final rule, and that: (1) Is a significant regulatory action under Executive Order 12866, or any successor order; and (2) is likely to have a significant adverse effect on the supply, distribution, or use of energy, or (3) is designated by the Administrator of OIRA as a significant energy action. For any proposed significant energy action, the agency must give a detailed statement of any adverse effects on energy supply, distribution, or use should the proposal be implemented, and of reasonable alternatives to the action and their expected benefits on energy supply, distribution, and use.
DOE has tentatively concluded that this regulatory action, which sets forth amended energy conservation standards for residential boilers, is not a significant energy action because the proposed standards are not likely to have a significant adverse effect on the supply, distribution, or use of energy, nor has it been designated as such by the Administrator at OIRA. Accordingly, DOE has not prepared a Statement of Energy Effects on this proposed rule.
On December 16, 2004, OMB, in consultation with the Office of Science and Technology Policy (OSTP), issued its Final Information Quality Bulletin for Peer Review (the Bulletin). 70 FR 2664 (Jan. 14, 2005). The Bulletin establishes that certain scientific information shall be peer reviewed by qualified specialists before it is disseminated by the Federal Government, including influential scientific information related to agency regulatory actions. The purpose of the bulletin is to enhance the quality and credibility of the Government's scientific information. Under the Bulletin, the energy conservation standards rulemaking analyses are “influential scientific information,” which the Bulletin defines as “scientific information the agency reasonably can determine will have or does have a clear and substantial impact on important public policies or private sector decisions.”
In response to OMB's Bulletin, DOE conducted formal in-progress peer reviews of the energy conservation standards development process and analyses and has prepared a Peer Review Report pertaining to the energy conservation standards rulemaking analyses. Generation of this report involved a rigorous, formal, and documented evaluation using objective criteria and qualified and independent reviewers to make a judgment as to the technical/scientific/business merit, the actual or anticipated results, and the productivity and management effectiveness of programs and/or projects. The “Energy Conservation Standards Rulemaking Peer Review Report,” dated February 2007, has been disseminated and is available at the following Web site:
The time, date, and location of the public meeting are listed in the
In addition, you can attend the public meeting via webinar. Webinar registration information, participant instructions, and information about the capabilities available to webinar participants will be published on DOE's Web site at:
Any person who has an interest in the topics addressed in this notice, or who is representative of a group or class of persons that has an interest in these issues, may request an opportunity to make an oral presentation at the public meeting. Such persons may hand-deliver requests to speak to the address shown in the
DOE requests persons scheduled to make an oral presentation to submit an advance copy of their statements at least one week before the public meeting. DOE may permit persons who cannot supply an advance copy of their statement to participate, if those persons have made advance alternative arrangements with the Building Technologies Program. As necessary, requests to give an oral presentation should ask for such alternative arrangements.
DOE will designate a DOE official to preside at the public meeting and may also use a professional facilitator to aid discussion. The meeting will not be a judicial or evidentiary-type public hearing, but DOE will conduct it in accordance with section 336 of EPCA (42 U.S.C. 6306). A court reporter will be present to record the proceedings and prepare a transcript. DOE reserves the right to schedule the order of presentations and to establish the procedures governing the conduct of the public meeting. There shall not be discussion of proprietary information, costs or prices, market share, or other commercial matters regulated by U.S. anti-trust laws. After the public meeting, interested parties may submit further comments on the proceedings, as well as on any aspect of the rulemaking, until the end of the comment period.
The public meeting will be conducted in an informal, conference style. DOE will present summaries of comments received before the public meeting, allow time for prepared general statements by participants, and encourage all interested parties to share their views on issues affecting this rulemaking. Each participant will be allowed to make a general statement (within time limits determined by DOE), before the discussion of specific topics. DOE will allow, as time permits, other participants to comment briefly on any general statements.
At the end of all prepared statements on a topic, DOE will permit participants to clarify their statements briefly and comment on statements made by others. Participants should be prepared to answer questions by DOE and by other participants concerning these issues. DOE representatives may also ask questions of participants concerning other matters relevant to this rulemaking. The official conducting the public meeting will accept additional comments or questions from those attending, as time permits. The presiding official will announce any further procedural rules or modification of the above procedures that may be needed for the proper conduct of the public meeting.
A transcript of the public meeting will be included in the docket, which can be viewed as described in the
DOE will accept comments, data, and information regarding this proposed rule before or after the public meeting, but no later than the date provided in the
However, your contact information will be publicly viewable if you include it in the comment itself or in any documents attached to your comment. Any information that you do not want to be publicly viewable should not be included in your comment, nor in any document attached to your comment.
Do not submit to
DOE processes submissions made through
Include contact information each time you submit comments, data, documents, and other information to DOE. If you submit via mail or hand delivery/courier, please provide all items on a CD, if feasible, in which case, it is not necessary to submit printed copies. No facsimiles (faxes) will be accepted.
Comments, data, and other information submitted to DOE electronically should be provided in PDF (preferred), Microsoft Word or Excel, WordPerfect, or text (ASCII) file format. Provide documents that are not secured, that are written in English, and that are free of any defects or viruses. Documents should not contain special characters or any form of encryption and, if possible, they should carry the electronic signature of the author.
Factors of interest to DOE when evaluating requests to treat submitted information as confidential include: (1) A description of the items; (2) whether and why such items are customarily treated as confidential within the industry; (3) whether the information is generally known by or available from other sources; (4) whether the information has previously been made available to others without obligation concerning its confidentiality; (5) an explanation of the competitive injury to the submitting person which would result from public disclosure; (6) when such information might lose its confidential character due to the passage of time; and (7) why disclosure of the information would be contrary to the public interest.
It is DOE's policy that all comments may be included in the public docket, without change and as received, including any personal information provided in the comments (except information deemed to be exempt from public disclosure).
Although DOE welcomes comments on any aspect of this proposal, DOE is particularly interested in receiving comments and views of interested parties concerning the following issues:
1. DOE requests further comment from interested parties regarding whether there are any technologies which have passed the screening analysis that should be screened out based on the four screening criteria. (
2. DOE seeks comment from interested parties regarding the typical technological change associated with each efficiency level. (See section IV.C.1.b and chapter 5 in the NOPR TSD.)
3. DOE does not expect manufacturers will need to use condensing technology in order to meet the proposed standard. However, DOE requests further comment from interested parties regarding AFUE levels above 82 percent whether non-condensing boilers can exceed that level and to what extent and for which applications. DOE requests information on any additional costs (
4. DOE requests comment on the efficiency levels analyzed for standby mode and off mode, and on the assumption that standby mode and off mode energy consumption (as defined by DOE) would be equal. (See section IV.C.1.b.)
5. DOE requests comments regarding how the mix of residential boilers with and without inducers would change under amended energy conservation standards, and how to best estimate and account for such changes in this analysis. (See section IV.C.1.b.)
6. DOE's approach seeks to account for the energy performance of residential boilers installed in the field by considering automatic means, jacket losses, and return water temperatures. DOE requests comments on the reasonableness of its assumptions regarding these factors. (See section IV.E.1.)
7. DOE makes the assumption that most consumers are unlikely to set their boilers to the off mode during the non-heating season. Specifically, DOE requests comments on its estimate that 25 percent of consumers shut the boiler off during the non-heating season, as well as any information that might support a different estimate. (See section IV.E.2 and chapter 7 in the NOPR TSD.)
8. DOE requests comment on residential boiler lifetimes, particularly the lifetime of condensing boilers, whether the lifetimes assumed in the analysis are reflective of residential boiler equipment covered by this rule. In addition, the agency is seeking comment on whether the energy efficiency standards would be expected to affect the lifetime of the products covered by the proposed standards and any information supporting this affect. (See section IV.F.2.d and appendix 8-F of the NOPR TSD.)
9. DOE requests comment on the fraction of residential boilers:
a. That are used for domestic water heating (see section IV.E);
b. that are used in commercial applications (see section IV.E);
c. that are used in low-temperature vs. high-temperature applications (see section IV.E);
d. at each standby efficiency level (see section IV.E);
e. that use polypropylene, PVC, or chlorinated polyvinyl chloride (CPVC) venting (see section IV.F.1);
f. that require stainless steel venting (by efficiency level) (see section IV.F.1); and
g. that require a draft inducer (by efficiency level) (see section IV.F.1).
10. DOE requests comment on installation costs for condensing boilers. (See section IV.F.1 and chapter 8 of the NOPR TSD.)
11. DOE requests comment on the fraction of oil-fired hot water boiler shipments that would be expected to switch to gas-fired hot water boiler shipments due to the proposed standards. (See section IV.G and chapter 9 of the NOPR TSD.)
12. DOE requests comment on its projections of the market share of high-efficiency (condensing) boilers in 2020 in the absence of amended energy conservation standards, as well as the long-term market penetration of higher-efficiency residential boilers. (See section IV.H and appendix 8-H of the NOPR TSD.)
13. DOE requests comment on the reasonableness of its assumption to not apply a trend to the manufacturer selling price (in real dollars) of residential boilers, as well as any information that would support the use of alternative assumptions. (See section IV.H and appendix 10-C of the NOPR TSD.)
14. DOE requests data that would allow for use of different price trend projections for condensing and non-condensing boilers. (See section IV.F.1.)
15. DOE requests comment on DOE's methodology and data sources used for projecting the future shipments of residential boilers in the absence of amended energy conservation standards. (See section IV.G.)
16. To estimate the impact on shipments of the price increase for the considered efficiency levels, DOE used a relative price elasticity approach. DOE welcomes stakeholder input on the effect of amended standards on future residential boiler shipments. (See section IV.G.)
17. DOE requests comment on the potential impacts on product shipments related to fuel and equipment switching. (See section IV.G.)
18. DOE requests comment on the reasonableness of the revised values that DOE used to characterize the rebound effect with higher-efficiency residential boilers. Specifically, the agency lowered the assumed rebound affect in this proposed rule to 15 percent compared to the NODA in which the agency assumed a 20 percent rebound effect. (See section IV.F.2.a.)
19. DOE requests comment on the approach for conducting the emissions analysis for residential boilers. (See section IV.K.)
20. DOE requests comment on DOE's approach for estimating monetary benefits associated with emissions reductions. (See section IV.L.)
21. DOE requests comment on the technical feasibility of the proposed standards and whether any proprietary technology that would be a unique pathway to achieving any of these efficiency levels would be required. (See section IV.B.)
22. DOE seeks comment regarding any potential impacts on small business manufacturers from the proposed standards. In particular, DOE seeks further information and data regarding the sales volume and annual revenues for small businesses so the agency can be better informed concerning the potential impacts to small business manufacturers of the proposed energy conservation standards, and would consider any such additional information when formulating and selecting AFUE and standby/off-mode electrical energy conservation standards for the final rule and whether any feasible compliance flexibilities that the agency may consider. (See section IV.J.)
23. DOE seeks further information in order to balance the benefits and burdens of adopting TSL4 rather than TSL3 in the final rule. (See section V.C.1.)
24. DOE requests comment on whether manufacturers make their engineering design decisions for the two standards (
The Secretary of Energy has approved publication of today's notice of proposed rulemaking.
Administrative practice and procedure, Confidential business information, Energy conservation, Household appliances, Imports, Intergovernmental relations, Small businesses.
For the reasons set forth in the preamble, DOE proposes to amend part 430 of chapter II, subchapter D, of title 10 of the Code of Federal Regulations, as set forth below:
42 U.S.C. 6291-6309; 28 U.S.C. 2461 note.
(e) * * *
(2) * * *
(iii)(A) Except as provided in paragraph (e)(2)(v) of this section, the AFUE of residential boilers, manufactured on and after (
(B) Except as provided in paragraph (e)(2)(v) of this section, the standby mode power consumption (P
| Category | Regulatory Information | |
| Collection | Federal Register | |
| sudoc Class | AE 2.7: GS 4.107: AE 2.106: | |
| Publisher | Office of the Federal Register, National Archives and Records Administration |