| Page Range | 74917-75314 | |
| FR Document |
| Page and Subject | |
|---|---|
| 81 FR 75166 - Sunshine Act Meeting Notice | |
| 81 FR 75050 - Sunshine Act Meetings | |
| 81 FR 75164 - Sunshine Act Meeting | |
| 81 FR 75055 - Clearing Target of 108 Megahertz Set for Stage 3 of the Broadcast Television Spectrum Incentive Auction; Stage 3 Bidding in the Reverse Auction Will Start on November 1, 2016 | |
| 81 FR 75050 - Sunshine Act Meetings Notice | |
| 81 FR 75169 - Temporary Emergency Committee of the Board of Governors; Sunshine Act Meeting | |
| 81 FR 75090 - Medicare Program; Approval of Request for an Exception to the Prohibition on Expansion of Facility Capacity Under the Hospital Ownership and Rural Provider Exceptions to the Physician Self-Referral Prohibition for Rockwall Regional Hospital, Limited Liability Company Doing Business as (d/b/a) Texas Health Presbyterian Hospital Rockwall | |
| 81 FR 75171 - Plan for Ocean Research in the Coming Decade | |
| 81 FR 75088 - Medicare Program; Approval of Request for an Exception to the Prohibition on Expansion of Facility Capacity Under the Hospital Ownership and Rural Provider Exceptions to the Physician Self-Referral Prohibition | |
| 81 FR 75138 - Privacy Act of 1974; System of Records Notice | |
| 81 FR 75164 - Notice of Proposed Information Collection Requests | |
| 81 FR 75045 - Circular Welded Carbon-Quality Steel Pipe From Pakistan: Final Affirmative Countervailing Duty Determination | |
| 81 FR 75028 - Circular Welded Carbon-Quality Steel Pipe From Pakistan: Final Affirmative Determination of Sales at Less Than Fair Value | |
| 81 FR 75042 - Circular Welded Carbon-Quality Steel Pipe From the Socialist Republic of Vietnam: Final Determination of Sales at Less Than Fair Value | |
| 81 FR 75051 - Defense Science Board; Notice of Federal Advisory Committee Meetings | |
| 81 FR 75053 - Radio Broadcasting Services; AM or FM Proposals To Change the Community of License | |
| 81 FR 75053 - Environmental Impact Statements; Notice of Availability | |
| 81 FR 75026 - Circular Welded Carbon-Quality Steel Pipe From the Sultanate of Oman: Final Determination of Sales at Less Than Fair Value | |
| 81 FR 75030 - Circular Welded Carbon-Quality Steel Pipe From the United Arab Emirates: Final Determination of Sales at Less Than Fair Value | |
| 81 FR 75039 - Certain Iron Mechanical Transfer Drive Components From Canada: Final Affirmative Determination of Sales at Less Than Fair Value | |
| 81 FR 75037 - Countervailing Duty Investigation of Certain Iron Mechanical Transfer Drive Components From the People's Republic of China: Final Affirmative Determination | |
| 81 FR 75032 - Certain Iron Mechanical Transfer Drive Components From the People's Republic of China: Final Affirmative Determination of Sales at Less Than Fair Value | |
| 81 FR 75181 - AAAHI Acquisition Corporation-Acquisition of Control-All Aboard America! Holdings, Inc., Ace Express Coaches, LLC, All Aboard America! School Transportation, LLC, All Aboard Transit Services, LLC, Hotard Coaches, Inc., Industrial Bus Lines, Inc. d/b/a All Aboard America, and Sureride Charter Inc. d/b/a Sundiego Charter Co. | |
| 81 FR 75145 - Notice of Filing of Plats of Survey; Montana | |
| 81 FR 75142 - Fisheries and Habitat Conservation; Final Supplemental Environmental Impact Statement for the Ballville Dam Project on the Sandusky River, Sandusky County, Ohio | |
| 81 FR 75052 - Notice of Availability of Government-Owned Inventions; Available for Licensing | |
| 81 FR 75052 - Notice of Performance Review Board Membership | |
| 81 FR 75138 - National Vaccine Injury Compensation Program: Revised Amount of the Average Cost of a Health Insurance Policy | |
| 81 FR 75181 - Culturally Significant Objects Imported for Exhibition Determinations: “Picasso and Rivera: Conversations Across Time” Exhibition | |
| 81 FR 75181 - Culturally Significant Object Imported for Exhibition Determinations: “Archaic Bronze Globular Jug With Figured Handle” Exhibition | |
| 81 FR 74966 - Intercountry Adoptions | |
| 81 FR 74918 - Administrative Wage Garnishment Procedures | |
| 81 FR 75183 - List of Units of the National Park System Exempt From the Provisions of the National Parks Air Tour Management Act | |
| 81 FR 75163 - Division of Energy Employees Occupational Illness Compensation; Proposed Extension of Existing Collection; Comment Request | |
| 81 FR 75186 - Notice of Availability of the Record of Decision for the Proposed Airport, Angoon, Alaska | |
| 81 FR 75147 - Exemptions From Certain Prohibited Transaction Restrictions | |
| 81 FR 75185 - Public Notice for Waiver of Aeronautical Land-Use Assurance | |
| 81 FR 75160 - Division of Longshore and Harbor Workers' Compensation; Proposed Revision of Existing Collection; Comment Request | |
| 81 FR 75161 - Agency Information Collection Activities; Submission for OMB Review; Comment Request; Family and Medical Leave Act (FMLA) Wave 4 Surveys | |
| 81 FR 75168 - Advisory Committee on Reactor Safeguards; Notice of Meeting | |
| 81 FR 75191 - Submission for OMB Review; Comment Request | |
| 81 FR 75047 - Board of Overseers of the Malcolm Baldrige National Quality Award | |
| 81 FR 75049 - Procurement List; Deletions | |
| 81 FR 75050 - Procurement List; Proposed Deletions | |
| 81 FR 75026 - Submission for OMB Review; Comment Request | |
| 81 FR 74918 - New Mailing Address for the National Commodity Specialist Division, Regulations and Rulings, Office of Trade; Technical Correction | |
| 81 FR 75049 - Marine Protected Areas Federal Advisory Committee; Public Meeting | |
| 81 FR 75188 - Petition for Exemption From the Federal Motor Vehicle Theft Prevention Standard; Fiat Chrysler Automobiles US LLC | |
| 81 FR 75058 - Federal Reserve Bank Services | |
| 81 FR 75167 - Information Collections: DOE/NRC Form 740M, “Concise Note;” DOE/NRC Form 741, “Nuclear Material Transaction Report;” DOE/NRC Form 742, “Material Balance Report;” and DOE/NRC Form 742C, “Physical Inventory Listing” | |
| 81 FR 75092 - Authorizations of Emergency Use of In Vitro Diagnostic Devices for Detection and/or Diagnosis of Zika Virus; Availability | |
| 81 FR 75136 - Listing of Ingredients in Tobacco Products; Revised Draft Guidance for Industry; Availability | |
| 81 FR 75130 - Agency Information Collection Activities; Submission for Office of Management and Budget Review; Comment Request; General Licensing Provisions: Biologics License Application, Changes to an Approved Application, Labeling, Revocation and Suspension, and Postmarketing Studies Status Reports | |
| 81 FR 75165 - Notice of Availability and Notice of Public Meetings for the Draft Environmental Impact Statement (DEIS) for the Arecibo Observatory, Arecibo, Puerto Rico | |
| 81 FR 75024 - Media Bureau Seeks Comment on Updates to Catalog of Reimbursement Expenses | |
| 81 FR 75139 - Agency Information Collection Activities; Proposed Collection; Public Comment Request | |
| 81 FR 75051 - Proposed Collection; Comment Request | |
| 81 FR 75145 - National Register of Historic Places; Notification of Pending Nominations and Related Actions | |
| 81 FR 75178 - ALAIA Market Linked Trust and Beech Hill Securities, Inc.; Notice of Application | |
| 81 FR 75171 - Self-Regulatory Organizations; Miami International Securities Exchange LLC; Notice of Filing and Immediate Effectiveness of a Proposed Rule Change to Amend the MIAX Options Fee Schedule | |
| 81 FR 75174 - Self-Regulatory Organizations; NASDAQ PHLX LLC; Notice of Filing and Immediate Effectiveness of Proposed Rule Change To Adopt Phlx Rule 765 (Prohibition Against Trading Ahead of Customer Orders) | |
| 81 FR 75054 - Information Collection Being Reviewed by the Federal Communications Commission | |
| 81 FR 75048 - Proposed Information Collection; Comment Request; West Coast Swordfish Fishery Survey | |
| 81 FR 75140 - National Institute of General Medical Sciences; Amended Notice of Meeting | |
| 81 FR 75140 - Center for Scientific Review; Notice of Closed Meetings | |
| 81 FR 75053 - Notice of Federal Accounting Standards Advisory Board Member Appointment | |
| 81 FR 75159 - Workforce Information Advisory Council (WIAC) | |
| 81 FR 75157 - Proposed Extension of Information Collection Requests Submitted for Public Comment | |
| 81 FR 75190 - Request for Comment on Cybersecurity Best Practices for Modern Vehicles | |
| 81 FR 75134 - Agency Information Collection Activities; Proposed Collection; Comment Request; Testing Communications on Medical Devices and Radiation-Emitting Products | |
| 81 FR 74962 - New Animal Drugs; Updating Tolerances for Residues of New Animal Drugs in Food | |
| 81 FR 75164 - Membership of the National Endowment for the Arts Senior Executive Service Performance Review Board | |
| 81 FR 75188 - Requested Administrative Waiver of the Coastwise Trade Laws: Vessel QUIET CHAOS; Invitation for Public Comments | |
| 81 FR 75187 - Requested Administrative Waiver of the Coastwise Trade Laws: Vessel KINSHIP; Invitation for Public Comments | |
| 81 FR 75187 - Requested Administrative Waiver of the Coastwise Trade Laws: Vessel VALKYRIE; Invitation for Public Comments | |
| 81 FR 74997 - Revival of Abandoned Applications, Reinstatement of Abandoned Applications and Cancelled or Expired Registrations, and Petitions to the Director | |
| 81 FR 74925 - Clean Air Act Title V Operating Permit Program Revision; New Jersey | |
| 81 FR 74987 - Informal Discussion on Hazard Communication Rulemaking | |
| 81 FR 74923 - Approval and Promulgation of Implementation Plans; Louisiana; Prevention of Significant Deterioration Significant Monitoring Concentration for Fine Particulates | |
| 81 FR 75005 - Approval and Promulgation of Implementation Plans; Louisiana; Prevention of Significant Deterioration Significant Monitoring Concentration for Fine Particulates | |
| 81 FR 74921 - Approval and Promulgation of Implementation Plans; Oklahoma; Disapproval of Prevention of Significant Deterioration for Particulate Matter Less Than 2.5 Micrometers-Significant Impact Levels and Significant Monitoring Concentration | |
| 81 FR 75143 - Notice of Availability of the Final Environmental Impact Statement for the 3 Bars Ecosystem and Landscape Restoration Project in Eureka County, NV | |
| 81 FR 74979 - Proposed Establishment of the Petaluma Gap Viticultural Area and Modification of the North Coast Viticultural Area | |
| 81 FR 74987 - Revision of the Duty To Disclose Information in Patent Applications and Reexamination Proceedings | |
| 81 FR 74927 - State of Kentucky Underground Injection Control (UIC) Class II Program; Primacy Approval | |
| 81 FR 75006 - Commonwealth of Kentucky Underground Injection Control (UIC) Class II Program; Primacy Approval | |
| 81 FR 75170 - Agency Forms Submitted for OMB Review, Request for Comments | |
| 81 FR 75146 - North Cumberland Wildlife Management Area, Tennessee Lands Unsuitable for Mining Final Petition Evaluation Document and Environmental Impact Statement OSM-EIS-37 | |
| 81 FR 75006 - Definitions; Cost Standards and Procedures; Purchasing and Property Management | |
| 81 FR 74917 - Energy Labeling Rule | |
| 81 FR 74930 - Freedom of Information Regulations | |
| 81 FR 74967 - Floodplain Management and Protection of Wetlands; Minimum Property Standards for Flood Hazard Exposure; Building to the Federal Flood Risk Management Standard | |
| 81 FR 75266 - Magnuson-Stevens Act Provisions; Fisheries Off West Coast States; Pacific Coast Groundfish Fishery; 2017-2018 Biennial Specifications and Management Measures; Amendment 27 | |
| 81 FR 75194 - Energy Conservation Program: Energy Conservation Standards for Miscellaneous Refrigeration Products | |
| 81 FR 74950 - Energy Conservation Program: Energy Conservation Standards for Miscellaneous Refrigeration Products |
International Trade Administration
National Institute of Standards and Technology
National Oceanic and Atmospheric Administration
Patent and Trademark Office
Navy Department
Centers for Medicare & Medicaid Services
Food and Drug Administration
Health Resources and Services Administration
National Institutes of Health
U.S. Customs and Border Protection
Fish and Wildlife Service
Land Management Bureau
National Park Service
Surface Mining Reclamation and Enforcement Office
Employee Benefits Security Administration
Employment and Training Administration
Occupational Safety and Health Administration
Workers Compensation Programs Office
National Endowment for the Arts
Federal Aviation Administration
Maritime Administration
National Highway Traffic Safety Administration
Alcohol and Tobacco Tax and Trade Bureau
Consult the Reader Aids section at the end of this issue for phone numbers, online resources, finding aids, and notice of recently enacted public laws.
To subscribe to the Federal Register Table of Contents electronic mailing list, go to https://public.govdelivery.com/accounts/USGPOOFR/subscriber/new, enter your e-mail address, then follow the instructions to join, leave, or manage your subscription.
Federal Trade Commission.
Final rule; correction.
The Federal Trade Commission is correcting a final rule published in the
Effective September 17, 2018.
Hampton Newsome, Attorney, Division of Enforcement, Bureau of Consumer Protection, Federal Trade Commission, Washington, DC 20580; (202) 326-2889.
This document makes corrections to the September 15, 2016 final rule document (81 FR 63634) amending the Energy Labeling Rule (“Rule”), 16 CFR part 305. Specifically, it corrects instruction 7 on page 63649 to indicate that the labeling requirements in section 305.13 of the Rule (Labeling for ceiling fans) apply to ceiling fans less than or equal to 84 inches in diameter, consistent with Department of Energy testing requirements (see 81 FR 48620 (July 25, 2016)). It also replaces “Sample Label 17—Ceiling Fan” in Appendix L on page 63661 to correct range and performance numbers in that sample label.
In FR Doc. 2016-21854, appearing on page 63634 in the
By direction of the Commission.
U.S. Customs and Border Protection, Department of Homeland Security.
Final rule.
This document amends the U.S. Customs and Border Protection (CBP) regulations to reflect that the mail room servicing the Director, National Commodity Specialist Division, Regulations and Rulings, in the Office of Trade, has relocated within New York, and a new location has been established to receive non-electronic correspondence. E-rulings procedures will remain the same and are not affected by the change in office location.
Final rule effective October 28, 2016.
Steven Mack, Director, National Commodity Specialist Division, Regulations and Rulings, Office of Trade, (646) 733-3001.
On January 14, 2016, Customs and Border Protection (CBP) published a notice in the
Because the technical correction set forth in this document merely updates a mailing address, CBP finds that good cause exists for dispensing with notice and public procedure as unnecessary under 5 U.S.C. 553(b)(A). For this same reason, pursuant to 5 U.S.C. 553(d)(3), CBP finds that good cause exists for dispensing with the requirement for a delayed effective date.
The amendment does not meet the criteria for a “significant regulatory action” as specified in Executive Order 12866.
Because this document is not subject to the notice and public procedure requirements of 5 U.S.C. 553, it is not subject to the provisions of the Regulatory Flexibility Act (5 U.S.C. 601
This document is limited to a technical correction of the CBP regulations. Accordingly, it is being signed under the authority of 19 CFR 0.1(b)(1).
Administrative practice and procedure, Customs duties and inspection, Government procurement, Reporting and recordkeeping requirements.
For the reasons set forth above, part 177 of the CBP Regulations (19 CFR part 177) is amended as set forth below.
5 U.S.C. 301; 19 U.S.C. 66, 1202 (General Note 3(i), Harmonized Tariff Schedule of the United States), 1502, 1624, 1625.
Office of the Secretary, Labor.
Final rule.
This rule will allow the U.S. Department of Labor (Department) to garnish the disposable wages of non-federal workers who are indebted to the Department without first obtaining a court order. It implements the administrative wage garnishment provisions contained in the Debt Collection Improvement Act of 1996 (DCIA) in accordance with the regulations issued by the Secretary of the Treasury.
This final rule is effective on October 28, 2016.
Shelia Alexander, Office of the Chief Financial Officer, (202) 693-4472; or Rachel Rikleen, Office of the Solicitor, (202) 693-5702.
Section 31001(o) of the Debt Collection Improvement Act of 1996 (DCIA), which is codified at 31 U.S.C. 3720D, authorizes federal agencies to use administrative procedure to garnish the disposable pay of an individual to collect delinquent non-tax debt owed to the United States in accordance with regulations promulgated by the Secretary of the Treasury. Wage garnishment is a process whereby an employer withholds amounts from an employee's wages and pays those amounts to the employee's creditor pursuant to a withholding order. Under the DCIA, agencies may garnish up to 15% of a delinquent non-tax debtor's disposable wages. Prior to the enactment of the DCIA, agencies were generally required to obtain a court
The DCIA requires the Secretary of the Treasury to issue regulations implementing the administrative wage garnishment requirements. These implementing regulations, which are at 31 CFR 285.11, provide for due process for nontax debtors and require agencies to publish regulations for administrative wage garnishment hearings. Pursuant to 31 CFR 285.11(f), federal agencies must either prescribe regulations for the conduct of an administrative wage garnishment hearing consistent with the procedures set forth in section 285.11 or adopt section 285.11 without change by reference. Through this rule, the Department has decided to issue its own regulations consistent with the procedural requirements of section 285.11.
This final rule governs only administrative wage garnishment. Nothing in this regulation precludes the use of collection remedies not contained in the regulation. The Department and other federal agencies may simultaneously use multiple collection remedies to collect a debt, except as prohibited by law.
The Department may, but is not required to, promulgate additional policies, procedures, and understandings consistent with this regulation and other applicable Federal laws, policies, and procedures, subject to the approval of the Department's Chief Financial Officer or their delegate. The Department does not intend for its components, agencies, and entities to be able to adopt different policies, procedures, or understandings.
In response to its Interim Final Rule (IFR) concerning Administrative Wage Garnishment (80 FR 60797 October 8, 2015), the Department received five comments from private citizens and an industry association. The comments focused primarily on three subject areas: The justification for the regulation, due process concerns, and the burden of proof requirements.
Two commenters asked why the regulation is necessary, arguing that the Department must explain why the current debt collection tool are insufficient. The Department has determined that it is legally obligated to prescribe regulations for the conduct of administrative wage garnishment. On May 6, 1998 (63 FR 25136), the Department of the Treasury published a final rule implementing the statutory administrative wage garnishment requirements at 31 CFR 285.11. Paragraph (f) of 31 CFR 285.11 provides that “[a]gencies shall prescribe regulations for the conduct of administrative wage garnishment hearings consistent with this section or shall adopt this section without change by reference.” This regulatory obligation is what necessitates this final rule. No changes were made to the final rule in response to the comments received regarding the regulation's justification.
The Department received four comments raising concerns related to due process. In general, these comments argued that garnishing wages through an administrative process, instead of through the courts, would remove protections for debtors and may cause unnecessary hardships to impoverished individuals. The Department has determined the regulation protects due process rights that must be afforded to a debtor when an agency seeks to collect a debt, including the ability to verify, challenge, and compromise claims, and provide access to administrative appeals procedures. Under section 20.205, debtors must be notified of the potential of a wage garnishment. Under section 20.206, a hearing must be held prior to the issuance of a withholding order if the debtor submits a timely request. The Department will provide the debtor with an opportunity to inspect and copy records related to the debt, and to establish a repayment agreement under section 20.205. All of these requirements protect the due process rights of the debtors, and, as a result, no changes have been made to the final rule in response to comments received.
As for concerns about imposing untenable burdens on debtors, the proposed rule included multiple provisions to protect against this outcome. For example, under section 20.210, the Department may not garnish the wages of a debtor who has been involuntarily separated from employment until that individual has been re-employed continuously for at least 12 months. Additionally, section 20.209 sets out clear limits on the amounts the Department may seek to garnish, and section 20.211 allows the debtor to request adjustments to the garnishment based on new financial hardships. The Department has determined that these protections are sufficient to ensure that no undue burden is put on impoverished debtors.
One commenter indicated the rule should be modified to require “an oral, in-person, face-to-face meeting.” Currently, under section 20.20.206, a hearing may be conducted in writing, by telephone or other communications technology, or in person. The commenter was concerned that anything other than a face to face meeting would fail to demonstrate the individuals' situation and would harm the process. Under 31 CFR 285.11(f)(3)(ii), “[a]ll travel expenses incurred by the debtor in connection with an in-person hearing will be borne by the debtor.” The Department has determined requiring debtors to appear in-person would constitute an unconscionable financial burden on debtors and serve as an unreasonable obstacle to appropriate disputes. The Department notes that in-person hearings are not required to ensure that due process is served. As a result, no changes have been made to the final rule in response to comments received.
Finally, one commenter raised a concern about the burden of proof requirements found in section 20.206(f). The commenter contends that the section does not describe requirements for what documentation the Department must produce to “establish the existence of the debt and the amount of the debt” and that more information would be necessary for a court-ordered garnishment. Under section 20.206(f), the Department will have the initial burden of proving, by a preponderance of the evidence, the existence or amount of the debt by submitting a certified copy of the adjudication or other document. By requiring this documentation, the Department has set a standard for the kind of document that will be acceptable to meet its burden of proof. This documentation requirement is equivalent to the proof that would be needed in some courts for a garnishment order. Additionally, this rule parallels existing regulations of other agencies, including the Department of the Treasury, those promulgated by other Federal agencies, and the Federal Claims Collection Standards (FCCS), as required by the Debt Collection Improvement Act of 1996.
This rule allows the Department to initiate proceedings administratively to garnish the wages of a delinquent debtor. It applies to debts owed to the Department or in connection with any program administered by the Department. The administrative wage garnishment process will be applied consistently throughout the Department.
The Department can enter into agreements, such as memoranda of understanding, with other Federal agencies permitting that agency to administer part or all of the Department's administrative wage garnishment process. Nothing in this regulation requires the Department to duplicate notices or administrative
Section 20.205 lists the notice requirements, which includes an explanation of the debtor's rights. The debtor is allowed to inspect Department records related to the debt, enter into a written repayment agreement, and have a hearing.
Under section 20.206, a debtor can request one of two types of available hearings—a paper hearing or an oral hearing. The format of oral hearings is not limited to in-person and telephone hearings, it may include new forms of technology. The hearing official has the authority to determine the kind of hearing and the amount of time allotted each hearing.
If a hearing is held, the Department can meet its initial burden by offering documentation, including a copy of the debt adjudication, which demonstrates the existence of the debt and its amount as is required under section 20.206(f). Once the Department has established its prima facie case, the debtor can dispute the existence or amount of the debt. For example, debtors can meet their burden by demonstrating that they are not the person who owes a debt to the Department, that they have not received payments from the Department or have not been fined by the Department, or that they have already paid the debt.
Additionally, the Federal Employees Compensation Act (FECA), 5 U.S.C. 8101-8193, contains a provision that precludes administrative and judicial review of agency determinations, which normally includes a repayment schedule. As a result, for hearings related to FECA debts, once the Department has made its prima facie case, the debtor has only two limited grounds on which he or she can demonstrate that an administrative wage garnishment is not appropriate. The debtor may not challenge the underlying merits of the determination that created the debt.
Section 20.207 outlines the timing and elements of the withholding order to the debtor's employer. Pursuant to section 20.208, employers must complete and return a certification noting, in addition to other information, that they have received the withholding order and verifying the debtor's employment.
Section 20.209 describes how much the Department can withhold through administrative wage garnishment, which is up to 15% of the debtor's disposable pay, and the employer's administrative wage garnishment duties. A withholding order for family support would always have priority over an administrative wage garnishment order. If there are multiple federal garnishment orders, priority depends on which garnishment order was first obtained. When a debtor's disposable pay is already subject to one or more withholding orders with higher or equal priority with the Department's administrative wage garnishment order, the amount that the employer must withhold and remit to the Department would not be more than an amount calculated by subtracting the amount(s) withheld under the other withholding order(s) from 25% of the debtor's disposable pay. For example, if the employer is withholding 20% of a debtor's disposable pay for a family support or prior withholding order, the amount withheld for the subsequent withholding order issued under this section is limited to 5% of the debtor's disposable pay. When the family support or prior withholding order terminates, the amount withheld for the subsequent withholding order issued under this section may be increased to 15%.
Finally, sections 20.210 and 20.211 provide protections to employees that are facing financial hardships. Section 20.210 prohibits the Department from garnishing the wages of a debtor who was involuntarily separated from employment. The debtor has the obligation under this section to inform the Department of the involuntary separation. Section 20.211 outlines how a debtor can request a review of their garnishment due to materially changed circumstances that have created a financial hardship.
This rule parallels the existing operational regulations of other agencies to effectuate the collection of non-tariff and nontax debts to implement 31 U.S.C. 3711. Because this rule parallels existing, long-standing rules that have already been subject to APA notice and comment procedures, we believe that publishing this rule with the usual notice and comment procedures is unnecessary. Accordingly, the Department has determined that prior notice and public comment procedures would be unnecessary pursuant to 5 U.S.C. 553(b)(B).
Administrative wage garnishment, Debt collection, Labor.
Environmental Protection Agency (EPA).
Final rule.
The Environmental Protection Agency (EPA) is disapproving the severable portions of the February 6, 2012, Oklahoma State Implementation Plan (SIP) submittal which establish certain
This rule is effective on November 28, 2016.
The EPA has established a docket for this action under Docket ID No. EPA-R06-OAR-2012-0263. All documents in the docket are listed on the
Adina Wiley, (214) 665-2115,
Throughout this document wherever “we,” “us,” or “our” is used, we mean the EPA.
The background for this action is discussed in detail in our August 11, 2016, proposed disapproval at 81 FR 53098. In that document, we proposed to disapprove the severable portions of the February 6, 2012, Oklahoma SIP submittal which establish the voluntary PM
We are disapproving the following severable portions of the February 6, 2012, Oklahoma SIP submittal establishing the voluntary PM
• Substantive revisions to the Oklahoma SIP at OAC 252:100-8-33(c)(1)(C) establishing the PM
• Substantive revisions to the Oklahoma PSD program in OAC 252:100-8-35(a)(2) establishing the PM
The EPA is disapproving the revisions listed because the submitted provisions are inconsistent with the federal statutory and regulatory permitting requirements for PM
This action is not a significant regulatory action and was therefore not submitted to the Office of Management and Budget (OMB) for review.
This action does not impose an information collection burden under the PRA. There is no burden imposed under the PRA because this action disapproves submitted revisions that are no longer consistent with federal laws and regulations for the regulation and permitting of PM
I certify that this action will not have a significant economic impact on a substantial number of small entities under the RFA. This action will not impose any requirements on small entities. This action disapproves submitted revisions that are no longer consistent with federal laws and regulations for the regulation and permitting of PM
This action does not contain any unfunded mandate as described in UMRA, 2 U.S.C. 1531-1538, and does not significantly or uniquely affect small governments. The action imposes no enforceable duty on any state, local or tribal governments or the private sector. This action disapproves submitted revisions that are no longer consistent with federal laws and regulations for the regulation and permitting of PM
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. This action disapproves provisions of state law that are no longer consistent with federal law for the regulation and permitting of PM
The EPA interprets Executive Order 13045 as applying only to those regulatory actions that concern environmental health or safety risks that the 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 disapproves state permitting provisions that are inconsistent with federal laws and regulations for the regulation and permitting of PM
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.
The 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. This action is not subject to Executive Order 12898 because it disapproves state permitting provisions that are inconsistent with federal laws and regulations for the regulation and permitting of PM
This action is subject to the CRA, and the EPA will submit a rule report to each House of the Congress and to the Comptroller General of the United States. This action is not a “major rule” as defined by 5 U.S.C. 804(2).
Under section 307(b)(1) of the Clean Air Act, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by December 27, 2016. Filing a petition for reconsideration by the Administrator of this final rule does not affect the finality of this action for the purposes of judicial review nor does it extend the time within which a petition for judicial review may be filed, and shall not postpone the effectiveness of such rule or action. This action may not be challenged later in proceedings to enforce its requirements. (See CAA section 307(b)(2).)
Environmental protection, Air pollution control, Incorporation by reference, Intergovernmental relations, Particulate matter, Reporting and recordkeeping requirements.
42 U.S.C. 7401
40 CFR part 52 is amended as follows:
42 U.S.C. 7401
(a) With the exceptions set forth in this subpart, the Administrator approves Oklahoma's State Implementation Plan under section 110 of the Clean Air Act for the attainment and maintenance of the national standards.
(b) The EPA is disapproving the following severable portions of the February 6, 2012, Oklahoma SIP submittal:
(1) Revisions establishing Minor New Source Review Greenhouse Gas (GHG) permitting requirements at OAC 252:100-7-2.1 as submitted on February 6, 2012.
(2) Revisions to the Oklahoma Prevention of Significant Deterioration (PSD) program in OAC 252:100-8-31 establishing PSD permitting requirements for sources that are classified as major and thus required to obtain a PSD permit based solely on their potential GHG emissions (“Step 2 sources”) at paragraph (E) of the definition of “subject to regulation” as submitted on February 6, 2012.
(3) Revisions to the Oklahoma PSD Program at OAC 252:100-8-33(c)(1)(C) establishing the PM
(4) Revisions to the Oklahoma PSD Program in OAC 252:100-8-35(a)(2) establishing the PM
(c) The EPA is disapproving the revisions to the Oklahoma State Implementation Plan definitions of “carbon dioxide equivalent emissions” at OAC 252:100-1-3 and “subject to regulation” at OAC 252:100-8-31 to implement the Greenhouse Gas Biomass Deferral as submitted on January 18, 2013.
Environmental Protection Agency (EPA).
Direct final rule.
The Environmental Protection Agency (EPA) is approving two revisions to the Louisiana State Implementation Plan (SIP) that revise the Louisiana Prevention of Significant Deterioration (PSD) permitting program to establish the significant monitoring concentration (SMC) for fine particles (PM
This rule is effective on December 27, 2016 without further notice, unless the EPA receives relevant adverse comment by November 28, 2016. If the EPA receives such comment, the EPA will publish a timely withdrawal in the
Submit your comments, identified by Docket No. EPA-R06-OAR-2016-0450, at
Adina Wiley, 214-665-2115,
Throughout this document “we,” “us,” and “our” means the EPA.
Section 110 of the CAA requires states to develop and submit to the EPA a SIP to ensure that state air quality meets National Ambient Air Quality Standards. These ambient standards currently address six criteria pollutants: Carbon monoxide, nitrogen dioxide, ozone, lead, particulate matter, and sulfur dioxide. Each federally-approved SIP protects air quality primarily by addressing air pollution at its point of origin through air pollution regulations and control strategies. The EPA approved SIP regulations and control strategies are federally enforceable.
Under Section 165(a) of the CAA, a major source may not commence construction unless the source has been issued a permit and has satisfied certain requirements. Among those requirements, the permit applicant must demonstrate that emissions from construction or operation of the facility will not cause, or contribute to, air pollution in excess of any increment, NAAQS, or any other applicable emission standard of standard of performance. This statutory requirement has been incorporated into federal regulations at 40 CFR 51.166(k)(1). Moreover, to support this analysis, PSD permit applications must be supported by air quality monitoring data representing air quality in the area affected by the proposed source for the 1-year period preceding receipt of the application. This statutory requirement has been incorporated into federal regulations at 40 CFR 51.166(m)(ii)-(iv).
In 2010, the EPA promulgated regulations for SIPs concerning PSD permitting for PM
Sierra Club filed a petition for review of the PSD regulations containing the PM
In response to the Court's decision, the EPA amended its regulations to remove the affected PM
On February 27, 2013, Louisiana submitted revisions to its PSD SIP at LAC 33:III.509 that adopted provisions substantively identical to the EPA PSD SIP's requirement for PM
Our analysis, available in our Technical Support Document (TSD) in the rulemaking docket, finds that the State of Louisiana adopted and submitted on February 27, 2013, revisions to the Louisiana SIP that were substantively consistent with the voluntary exemptions from PSD monitoring at 40 CFR 51.166(i)(5)(i) promulgated on October 20, 2010. Subsequent to the submittal of these provisions, the Court vacated and remanded these provisions to the EPA. On December 9, 2013, we promulgated revisions to the PSD SIP rules that replaced the existing PM
To address the EPA's December 9, 2013, rulemaking, the State of Louisiana submitted further revisions to the Louisiana PSD program on July 22, 2016, setting the PM
Our evaluation of the Louisiana PSD program finds that the adoption and revision of the PSD PM
We are approving revisions to the Louisiana PSD program into the Louisiana SIP that establish the PSD PM
• New provisions at LAC 33:III.509(I)(5)(a) adopted on December 20, 2012 and submitted on February 27, 2013, establishing the PM
• Revisions to LAC 33:III.509(I)(5)(a), adopted on March 20, 2016 and submitted on July 22, 2016 setting the PM
The EPA is publishing this rule without prior proposal because we view this as a non-controversial amendment and anticipate no adverse comments. However, in the proposed rule s section of this
In this rule, we are finalizing regulatory text that includes incorporation by reference. In accordance with the requirements of 1 CFR 51.5, we are finalizing the incorporation by reference of the revisions to the Louisiana regulations as described in the Final Action section above. We have made, and will continue to make, these documents generally available electronically through
Under the CAA, the Administrator is required to approve a SIP submission that complies with the provisions of the Act and applicable Federal regulations. 42 U.S.C. 7410(k); 40 CFR 52.02(a). Thus, in reviewing SIP submissions, the EPA's role is to approve state choices, provided that they meet the criteria of the CAA. Accordingly, this action merely approves state law as meeting Federal requirements and does not impose additional requirements beyond those imposed by state law. For that reason, this action:
• Is not a “significant regulatory action” subject to review by the Office of Management and Budget under Executive Orders 12866 (58 FR 51735, October 4, 1993) and 13563 (76 FR 3821, January 21, 2011);
• Does not impose an information collection burden under the provisions of the Paperwork Reduction Act (44 U.S.C. 3501
• Is certified as not having a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601
• Does not contain any unfunded mandate or significantly or uniquely affect small governments, as described in the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4);
• Does not have Federalism implications as specified in Executive Order 13132 (64 FR 43255, August 10, 1999);
• Is not an economically significant regulatory action based on health or safety risks subject to Executive Order 13045 (62 FR 19885, April 23, 1997);
• Is not a significant regulatory action subject to Executive Order 13211 (66 FR 28355, May 22, 2001);
• Is not subject to requirements of section 12(d) of the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) because application of those requirements would be inconsistent with the CAA; and
• Does not provide EPA with the discretionary authority to address, as appropriate, disproportionate human health or environmental effects, using practicable and legally permissible methods, under Executive Order 12898 (59 FR 7629, February 16, 1994).
In addition, the SIP is not approved to apply on any Indian reservation land or in any other area where EPA or an Indian tribe has demonstrated that a
The Congressional Review Act, 5 U.S.C. 801
Under section 307(b)(1) of the CAA, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by December 27, 2016. Filing a petition for reconsideration by the Administrator of this final rule does not affect the finality of this rule for the purposes of judicial review nor does it extend the time within which a petition for judicial review may be filed, and shall not postpone the effectiveness of such rule or action. This action may not be challenged later in proceedings to enforce its requirements. (See section 307(b)(2).)
Environmental protection, Air pollution control, Incorporation by reference, Nitrogen dioxide, Particulate matter, Reporting and recordkeeping requirements, Sulfur oxides.
40 CFR part 52 is amended as follows:
42 U.S.C. 7401
(c) * * *
Environmental Protection Agency (EPA).
Final rule.
The Environmental Protection Agency is approving a revision to the New Jersey Operating Permit Program related to the permitting of stationary sources subject to title V of the Clean Air Act (CAA) in the state of New Jersey. The revision consists of amendments to Subchapter 22 of Chapter 27 of Title 7 of the New Jersey Administrative Code, “Operating Permits.” The revision was submitted to change the fee schedule for certain permitting activities for major facilities. The changes provide additional needed fee revenues for New Jersey's Operating Permit Program. This approval action will help ensure New Jersey properly implements the requirements of title V of the CAA.
This rule will be effective November 28, 2016.
The EPA has established a docket for this action under Docket ID No. EPA-R02-OAR-2015-0837. All documents in the docket are listed on the
Suilin Chan, Air Programs Branch, Environmental Protection Agency, 290 Broadway, 25th Floor, New York, New York 10007-1866, (212) 637-4019.
On May 15, 2015, the New Jersey Department of Environmental Protection (NJDEP) requested that the EPA approve revisions to the New Jersey title V Operating Permit Program; the EPA proposed to approve those revisions on June 24, 2016 (81 FR 41283). The revisions consisted of amendments to sections 22.1 and 22.31 of New Jersey's Operating Permits Rule, codified at Title 7 of the New Jersey Administrative Code, Chapter 27, Subchapter 22, that updated the fees paid for certain permitting activities for major facilities, including application fees for significant modifications and fees to authorize general operating permit registration and operation of used oil space heaters. As discussed further in the June 24, 2016 proposed rule, the revisions help NJ raise additional fees to cover its permit program costs, as required by CAA title V. These revisions were adopted by the State on December 29, 2014, and became effective on February 27, 2015. For a detailed discussion on the content of the relevant revisions to New Jersey's Operating Permits Rule, the reader is referred to the EPA's June 24, 2016 proposed rule and the public docket.
In response to the EPA's June 24, 2016, proposed rulemaking action, the EPA received no comments.
The EPA has evaluated New Jersey's submittal for consistency with the Act, EPA regulations, and EPA policy. The EPA has determined that the revisions to Subchapter 22, New Jersey's Operating Permits Rule meet the requirements of title V of the CAA and its implementing regulations codified at title 40 of the Code of Federal Regulations, part 70. Therefore, the EPA is approving the subject revisions.
This action merely approves state law as meeting federal requirements and imposes no additional requirements beyond those imposed by state law. For that reason, this action:
• Is not a “significant regulatory action” subject to review by the Office of Management and Budget under Executive Order 12866 (58 FR 51735, October 4, 1993);
• Does not impose an information collection burden under the provisions of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501
• Is certified as not having a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601
• Does not contain any unfunded mandate or significantly or uniquely affect small governments, as described in the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4);
• Does not have Federalism implications as specified in Executive Order 13132 (64 FR 43255, August 10, 1999);
• Is not an economically significant regulatory action based on health or safety risks subject to Executive Order 13045 (62 FR 19885, April 23, 1997);
• Is not a significant regulatory action subject to Executive Order 13211 (66 FR 28355, May 22, 2001);
• Is not subject to requirements of Section 12(d) of the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272
• Does not provide the EPA with the discretionary authority to address, as appropriate, disproportionate human health or environmental effects, using practicable and legally permissible methods, under Executive Order 12898 (59 FR 7629, February 16, 1994).
The Congressional Review Act, 5 U.S.C. 801
Under section 307(b)(1) of the CAA, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by December 27, 2016. Filing a petition for reconsideration by the Administrator of this final rule does not affect the finality of this action for the purposes of judicial review nor does it extend the time within which a petition for judicial review may be filed, and shall not postpone the effectiveness of such rule or action. This action which approves the May 15, 2015 program revision submittal by the State of New Jersey as a revision to the New Jersey Operating Permits Program may not be challenged later in proceedings to enforce its requirements.
Environmental protection, Administrative practice and procedure, Air pollution control, Incorporation by reference, Intergovernmental relations, Operating permits, Reporting and recordkeeping requirements.
42 U.S.C. 7401
Part 70, chapter I, title 40 of the Code of Federal Regulations is amended as follows:
42 U.S.C. 7401,
(e) The New Jersey Department of Environmental Protection submitted program revisions on May 15, 2015; the revisions related to fees imposed in connection with the permitting of major sources are approved effective November 28, 2016.
Environmental Protection Agency (EPA).
Direct final rule.
The U.S. Environmental Protection Agency (EPA) is taking direct final action to approve the Commonwealth of Kentucky's Underground Injection Control Class II (UIC) Program for primacy. The EPA determined that the state's program is consistent with the provisions of the Safe Drinking Water Act (SDWA) at Section 1425 to prevent underground injection activities that endanger underground sources of drinking water. The agency's approval allows the state to implement and enforce state regulations for UIC Class II injection wells located within the state. The Commonwealth's authority excludes the regulation of injection well Classes I, III, IV, V and VI and all wells on Indian lands, as required by rule under the SDWA.
This rule is effective on January 26, 2017 without further notice, unless EPA receives adverse comment by November 28, 2016. If EPA receives adverse comment, we will publish a timely withdrawal in the
Submit your comments, identified by Docket ID No. EPA-HQ-OW-2015-0372, to the
Holly S. Green, Drinking Water Protection Division, Office of Ground Water and Drinking Water (4606M), U.S. Environmental Protection Agency, 1200 Pennsylvania Ave. NW., Washington, DC 20460; telephone number: (202) 566-0651; fax number: (202) 564-3754; email address:
EPA published this rule without a prior proposed rule because the agency views this action as noncontroversial and anticipates no adverse comment. However, in the “Proposed Rules” section of today's
If EPA receives adverse comment, the agency will publish a timely withdrawal in the
This table is intended to be a guide for readers regarding entities likely to be regulated by this action. This table lists the types of entities that EPA is now aware could potentially be regulated by this action. If you have questions regarding the applicability of this action to a particular entity, consult the persons listed in the preceding
EPA approves the Commonwealth of Kentucky's UIC Program primacy application for Class II injection wells located within the state, as required by rule under the SDWA, to prevent underground injection activities that endanger underground sources of drinking water. Accordingly, the agency codifies the state's program in the
The agency's approval is based on a legal and technical review of the state's primacy application as directed at 40 CFR part 145 and the requirements for state permitting and compliance evaluation programs, enforcement authority and information sharing to determine that the state's program is effective. EPA oversees the state's administration of the UIC program; part of the agency's oversight responsibility requires quarterly reports of non-compliance and annual UIC performance reports pursuant to 40 CFR 144.8. The Memorandum of Agreement between EPA and the Commonwealth of Kentucky, signed by the Regional Administrator on October 20, 2015,
As part of the primacy application requirements, the state held a public hearing on the state's intent to apply for primacy. The hearing was held on September 23, 2014, in the city of Frankfort, Kentucky. Both oral and written comments received for the hearing were generally supportive of the state pursuing primacy for the UIC Class II injection well program.
On November 10, 2015, the agency published a notice of the state's application in the
This direct final rule amends 40 CFR part 147 and incorporates by reference EPA-approved state statutes and regulations. The provisions of the Commonwealth of Kentucky Code that contain standards, requirements and procedures applicable to owners or operators of UIC Class II wells are incorporated by reference into 40 CFR part 147. Any provisions incorporated by reference, as well as all permit conditions or permit denials issued pursuant to such provisions, will be enforceable by EPA pursuant to the SDWA, section 1423 and 40 CFR 147.1(e).
In order to better serve the public, the agency is reformatting the codification of the EPA-approved state statutes and regulations. Instead of codifying the Commonwealth of Kentucky's Statutes and Regulations as separate paragraphs, the agency is now codifying a binder that contains the “EPA-Approved Commonwealth of Kentucky Safe Drinking Water Act § 1425 Underground Injection Control (UIC) Program Statutes and Regulations for Class II wells.” This binder will be incorporated by reference into 40 CFR part 147 and available at
This action is exempt from review by the Office of Management and Budget (OMB) because OMB has determined that the approval of state UIC primacy for Class II rules are not significant regulatory actions.
This action does not impose any new information collection burden. EPA determined that there is no need for an Information Collection Request under the Paperwork Reduction Act because this direct final rule does not impose any new federal reporting or recordkeeping requirements. Reporting or recordkeeping requirements are based on the Commonwealth of Kentucky's UIC Regulations, and the state is not subject to the Paperwork Reduction Act. However, OMB has previously approved the information collection requirements contained in the existing UIC regulations at 40 CFR parts 144-148 for SDWA section 1422 states and also for section 1425 states under the provisions of the Paperwork Reduction Act, 44 U.S.C. 3501
I certify that this action will not have a significant economic impact on a substantial number of small entities under the RFA. In making this determination, the impact of concern is any significant adverse economic impact on small entities. An agency may certify that a rule will not have a significant economic impact on a substantial number of small entities if the rule relieves regulatory burden, has no net burden or otherwise has a positive economic effect on the small entities subject to the rule. This action does not impose any new requirements on any regulated entities. It simply codifies the Commonwealth of Kentucky's UIC Program regulations, which meets the effectiveness standard under SDWA section 1425 for regulating a Class II well program. I have therefore concluded that this action will have no net regulatory burden for any directly regulated small entities.
This action does not contain an unfunded mandate as described in UMRA, 2 U.S.C. 1521-1538. The action imposes no enforceable duty on any state, local or tribal governments or the private sector.
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 as explained in section V.C. Thus, Executive Order 13175 does not apply to this action.
EPA interprets Executive Order 13045 as applying only to those regulatory actions that concern environmental 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 approves a state action as explained in section V.C.
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 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 because the rule does not change the level of protection provided to human health or the environment.
This action is subject to the CRA, and EPA will submit a rule report to each House of the Congress and to the Comptroller General of the United States. This action is not a “major rule” as defined by 5 U.S.C. 804(2).
Environmental protection, Appeals, Incorporation by reference, Penalties, Requirements for plugging and abandonment, Underground Injection Control, Protection for USDWs.
For the reasons set out in the preamble, title 40 of the Code of Federal Regulations is amended as follows:
42 U.S.C. 300h-4.
The UIC program for Class II injection wells in the Commonwealth of Kentucky, except for those on Indian lands, is the program administered by the Kentucky Department of Natural Resources, Division of Oil and Gas approved by the EPA pursuant to section 1425 of the SDWA. Notification of this approval was published in the
(a)
(b)
(c)
(d)
(a)
(a) This section identifies any aquifers or their portions exempted in accordance with §§ 144.7(b) and 146.4 of this chapter. These aquifers are not being proposed for exemption under the Commonwealth of Kentucky's primacy approval. Rather, the exempted aquifers listed below were previously approved while EPA had primary enforcement authority for the Class II UIC program in the Commonwealth of Kentucky and are included here for reference. Additional information pertinent to these exempted aquifers or their portions resides in EPA Region 4.
(1) The following eight aquifers (underground sources of drinking water) in the Commonwealth of Kentucky have been exempted in accordance with the provisions of §§ 144.7(b) and 146.4 of this chapter for Class II injection activities only: A portion of the Tar Springs sandstone formation that has a quarter mile radius areal extent (125.6 acres) that is located at latitude 37.7261 and longitude −86.6914. The formation has a true vertical depth from surface of 280 feet.
(2) A portion of the Tar Springs sandstone formation that has a quarter mile radius areal extent (125.6 acres) that is located at latitude 37.7294 and longitude −867212. The formation has a true vertical depth from surface of 249 feet.
(3) A portion of the Tar Springs sandstone formation that has a quarter mile radius areal extent (125.6 acres) that is located at latitude 37.7055 and longitude −86.7177. The formation has a true vertical depth from surface of 210 feet.
(4) A portion of the Pennsylvanian Age sandstone formation that has a quarter mile radius areal extent (125.6 acres) that is located at latitude 37.5402 and longitude −87.2551. The formation has a true vertical depth from surface of 1,050 feet.
(5) A portion of the Tar Springs sandstone formation that has a quarter mile radius areal extent (125.6 acres) that is located at latitude 37.7301 and longitude −87.6922. The formation has a true vertical depth from surface of 240 feet.
(6) A portion of the Caseyville sandstone formation that has a quarter mile radius areal extent (125.6 acres) that is located at latitude 37.5776 and longitude −87.1321. The formation had a true vertical depth from surface of 350 feet.
(7) A portion of the Caseyville sandstone formation that has a quarter mile radius areal extent (125.6 acres) that is located at latitude 37.5778 and longitude −87.1379. The formation has a true vertical depth from surface of 1,080 feet.
(8) A portion of the Caseyville sandstone formation that has a quarter mile radius areal extent (125.6 acres) that is located at latitude 37.5652 and longitude −87.1222. The formation has a true vertical depth from surface of 1,060 feet.
(b) [Reserved]
Office of the Secretary, Department of Health and Human Services (HHS).
Final rule.
This rule amends the Department of Health and Human Services (HHS's) Freedom of Information Act (FOIA) regulations. The regulations have been revised in order to incorporate changes made to the FOIA by the Electronic FOIA Act of 1996 (E-FOIA Act), the Openness
This rule is effective on November 28, 2016.
Michael Marquis, Michael Bell, Deborah Peters, and/or Brandon Lancey by email to:
HHS published a proposed rule to amend its FOIA regulations for public comment in the
One commenter recommended removing a provision that we originally proposed in § 5.1(b)(1) concerning records that are subject to a statutorily-based fee schedule program. The commenter interpreted this provision to suggest that we would withhold records in response to a FOIA request simply because a separate statute provided for charging fees for those records. In order to help clarify the meaning of that provision, the commenter's recommendation has been accepted and the proposed provision has been removed. An additional provision relating to records that are subject to other statutes specifically providing for fees has been added at § 5.52(f). In addition to the language in § 5.1(b)(1) concerning records that are subject to a statutorily-based fee schedule program, we have also removed the language concerning §§ 5.1(b)(2), (3) and (5), as we consider the provisions of § 5.2 to adequately address proactive disclosures and the provisions of § 5.5 and § 5.22 to adequately address the interrelationship between the FOIA and the Privacy Act and how to make a first-party request.
Three commenters suggested revising the language of this section to more closely conform to the provisions of the FOIA Improvement Act, which codified the presumption of openness into the statute. This recommended change has been made and the rule reflects the statutory language at 5 U.S.C. 552(a)(8).
Two commenters suggested that we add language concerning proactive disclosures to this section. One of these commenters provided suggested language, which included a reference to two types of records that government agencies are required to make available to the public in an electronic format pursuant to the FOIA Improvement Act and 5 U.S.C. 552(a)(2)(D). Another commenter suggested that we consider the Department of Justice's FOIA regulation and government-wide guidance when drafting language on the subject. After considering these comments, we have added additional language to this section describing the responsibility of HHS Operating and Staff Divisions to proactively make certain records available to the public under the FOIA. This includes describing the responsibility for HHS Operating and Staff Divisions to identify additional records of interest to the public that are appropriate for public disclosure and referencing frequently requested records, which the rule defines in § 5.3 to include records, regardless of form or format, that have been released to any person and have been requested three or more times. This conforms with the proactive disclosure provisions of the FOIA, as amended by the FOIA Improvement Act.
One commenter suggested that requesters who make requests for records that ultimately become frequently requested records should have the option to receive credit for their FOIA requests, or, in the event that that seems like too much work, the Department should simply always give credit. We decline to accept the commenter's suggestion. There is no provision in the FOIA requiring agencies to give “credit” to requests for records that ultimately become frequently requested records. There also does not appear to be any policy rationale behind this suggestion. The purpose of the FOIA is not to provide “credit” to individuals or entities that make requests. Rather, it is to ensure an informed citizenry and inform the public about the operations and activities of the government.
One commenter, in connection with the requirements that we make certain records available proactively for public inspection in an electronic format and make available in an electronic format frequently requested records, suggested that we properly track and make available Public Use Files (PUFs) and ensure that they are adequately maintained. In addition, the commenter suggested we proactively track and publish score cards for PUF release reliability alongside data about FOIA performance. This comment is outside the scope of the rule. The purpose of this rule is to provide guidelines for the processing of agency records under the FOIA. The rule does not specify how we will treat specific category of records unless those categories are specifically delineated in the FOIA statute.
One commenter suggested that the Department should use the systems it has to proactively release information pursuant to 5 U.S.C. 552(a)(2) to highlight types of records that HHS is obligated to have but could not locate in response to a FOIA request. After reviewing this comment, we have decided not to accept the suggestion. The purpose of 5 U.S.C. 552(a)(2) is to make certain categories of records available to the public automatically and without waiting for a FOIA request. Our main goal in implementing this provision of the FOIA is to determine which records we must make publicly available (including frequently requested records), to identify additional records of interest to the public that are appropriate for public disclosure, and to post and index such records.
One commenter stated that HHS should track Structured Query Languages (SQLs) used to respond to data FOIA requests. The commenter believes these should be tracked to make sure that PUF files released as a frequently requested record are consistent over time even after contractors or personnel change. The commenter also wanted the SQL and schema definitions to be provided with the response to the FOIA request/data result and if software was used, that should be provided with the data too. This comment is outside the scope of the rule. The rule does not specify how we will treat specific category of records unless those categories are specifically delineated in the FOIA statute.
One commenter suggested revising the definition of “educational institution” to include a student who
In order to comport with a recent development in the case law, two commenters suggested removing the following line from the definition of “representative of the news media”: “We decide whether to grant a requester media status on a case-by-case basis, based on the requester's intended use of the requested records.” We have accepted this suggestion. Another commenter also had a concern with this language, but that comment is now moot since the language has been removed.
One commenter recommended including a comprehensive list of entities that would qualify as a “representative of the news media” instead of citing examples such as television, radio stations, and periodicals. The commenter noted that modern journalism has moved online. We have decided to reject the commenter's suggestion to include a comprehensive list of entities that would qualify as “representatives of the news media.” Such a list would be difficult to devise and could become quickly outdated, given the ever-changing media landscape. We do note, however, that the rule acknowledges the presence of online media and makes reference to “online publications that disseminate news”.
One commenter thought that the following wording used to describe the term “representative of the news media” was unclear: “We do not consider requests for records that support the news-dissemination function of the requester to be a commercial use.” In response to this comment, we do not believe that this wording requires additional clarification. This wording was derived from the Uniform Freedom of Information Fee Schedule and Guidelines published by the Office of Management and Budget (OMB). The OMB has policy-making responsibility for issuing fee guidance, and we defer to the OMB for any further interpretation of this wording.
One commenter suggested that the rule include performance metrics to evaluate the Chief FOIA Officer and the Deputy Chief FOIA Officer and that these metrics be based on objective measures of external collaboration (
One commenter suggested making a grammatical change to the first sentence of the definition of the term “FOIA request” and suggested removing the second sentence of the definition because it does not enhance the reader's understanding of the meaning of the term. The commenter also thought that the second sentence of the definition might restrict the Department's ability to communicate with requesters. After considering this comment, we have made the suggested grammatical change to the first sentence of the definition and removed the second sentence.
Two commenters noted that we included a link in the definition of “Freedom of Information (FOIA)” that is no longer active and suggested that we either remove the link or update it. In response to these comments, we have updated the link. The updated link includes the current text of the FOIA.
One commenter suggested that the term “Freedom of Information Officer” be replaced with the term “Freedom of Information Act Officer” for the sake of consistency. The commenter noted that the word “act” is used in the titles of the Chief Freedom of Information Act Officer and the Deputy Chief Freedom of Information Act Officer and that the term “Freedom of Information Officer” has been shortened to “FOIA Officer” in §§ 5.27(b) and 5.28(a). After considering this comment, we have decided to accept the suggestion and have replaced the term “Freedom of Information Officer” with the term “Freedom of Information Act Officer”.
One commenter suggested that the term “frequently requested records” be modified to include records that have been released to any person under the FOIA and that have been requested 3 or more times. The FOIA Improvement Act requires federal agencies to make this category of records available to the public in an electronic format. In accordance with the FOIA Improvement Act, we have amended the term “frequently requested records” as suggested.
One commenter recommended changes to the definition of the term “submitter”. The commenter suggested clarifying that a person or entity that provides financial information qualifies as a submitter under the definition. The commenter also recommended adding language to the definition stating that a federal agency cannot be considered a submitter for the purposes of this rule. After considering this comment, the definition of the term submitter has been amended to include persons or entities that provide financial information to the agency. We have also included language in the definition stating that Federal government entities do not qualify as submitters.
One commenter noted that two of the three sentences in the section state that federal agencies may not submit FOIA requests; the commenter thought that one statement to that effect would suffice. At the recommendation of the commenter, the second sentence in this section has been removed. The revised section only has one sentence stating a federal agency may not submit FOIA requests.
One commenter noted that in § 5.25(b)(1)(iii) we referred to a “requestor” but throughout the rest of the rule, we referred to a “requester”. In order to be consistent, we will use “requester” for all references to the term.
Two commenters expressed concern with the criteria set forth in § 5.25(b)(1) for considering a request perfected and the amount of time provided in § 5.25(b)(2) for a requester to respond to a request to perfect their request. With regard to § 5.25(b)(1), both commenters noted that the FOIA statute states that the twenty-working-day statutory response period begins to run when the request is received by the responsible FOIA office, but not later than ten days after it is received by an HHS
As it relates to § 5.25(b)(2), the two commenters expressed concern with the amount of time requesters were provided with to respond to a request to perfect their requests. One commenter claimed that there was no authorization in the FOIA for an agency to unilaterally “administratively close” a FOIA request; that an agency can only grant a request in full or in part or deny it; and that § 5.25(b)(2) should be removed in its entirety. In the alternative, the commenter suggested affording the requester no less than 30 days to respond to a request to perfect their request in order to ensure that they have sufficient time to respond. The second commenter thought that requesters should be given at least 20 working days to respond to communications from the agency, and if the agency takes more than twenty working days from the date of the request to initiate communication with the requester, the requester should receive the same amount of time to respond to the agency. The second commenter also thought the agency should be required to make at least three good-faith efforts to contact a requester by various forms of communication (mail, email, telephone), if a communication goes unanswered because it is returned as undeliverable. In response to these comments, we have increased the amount of time requesters are provided with to respond to a request to perfect their request from “at least 10 working days” to “at least 20 working days”. We believe that this provides requesters with a reasonable amount of time to review the request to perfect, conduct any necessary research, and respond to the agency. In instances where a communication goes unanswered because it is returned as undeliverable, we will attempt to reach the requester using any alternative contact information provided before administratively closing the request. However, we do not think it is necessary to state the number of times we will attempt to contact a requester before administratively closing the request. Finally, we disagree with the comment suggesting that agencies do not have a right to administratively close a request. The FOIA specified two requirements for an access request: It must reasonably describe the records being sought and it must be made in accordance with published rules stating the time, place, fees (if any), and procedures to be followed. If a requester fails to satisfy these conditions, the rule requires HHS to attempt to contact the requester to seek clarification and provides the requester with a reasonable amount of time to respond. If a requester does not respond to communication within the specified timeframe, it is reasonable to deny the request and administratively close it because of a failure to reasonably describe the records sought or make the request in accordance with the published rules. Such a provision is found in a number of agency FOIA regulations throughout the government including the regulations of four other cabinet-level departments. Therefore, we decline to accept the comment.
The same two commenters expressed concern with the amount of time requesters were provided with in § 5.25(c) to respond to a request to respond to requests for additional information or clarification regarding the specifics of a request or fee assessment. In response to these comments and in order to provide requesters with a reasonable amount of time to respond, we have increased the amount of time to respond to a request for additional information or clarification regarding the specifics of a request or fee assessment from “at least 10 working days” to “at least 20 working days”. The commenters also expressed concern with the language in § 5.25(c) stating “[s]hould you not answer any correspondence, or should the correspondence be returned undeliverable, we reserve the right to administratively close the FOIA request.” The concerns expressed about this provision were the same as those stated for § 5.25(b)(2), namely that the agency should be required to make at least three good-faith efforts to contact a requester by various forms of communication (mail, email, telephone), if a communication goes unanswered because it is returned as undeliverable, and that there is no authorization in the FOIA for an agency to unilaterally administratively close a FOIA request. For the same reasons stated with regard to § 5.25(b)(2), we decline to accept the comment concerning undeliverable communications. With respect to whether the agency has the authority to administratively close requests when a communication goes unanswered, we again disagree with the comment. If a requester does not respond to communication within a reasonable amount of time, we have legitimate reason to believe that the requester is no longer interested in pursuing their request. Moreover, a provision allowing for the administrative closure of requests where a request for additional information or clarification goes unanswered is commonly included in a number of agency FOIA regulations throughout the government including the regulations of four other cabinet-level departments.
Multiple commenters provided input on §§ 5.25(e), (f), and (h), which describe the Department's procedures for multitrack processing and handling requests that involve unusual circumstances. One commenter expressed a concern that § 5.25(h) could be read to provide the agency with the authority to provide itself with unlimited time to respond to complex FOIA requests. Another commenter requested that §§ 5.25(e) and (f) be modified to include a commitment to provide requesters with an estimated completion date if their request is
One commenter recommended giving priority to records and data requests that give detailed and accurate information about where to find the records in question. The commenter believes that requesters who make such requests should be rewarded with cheaper fees and faster processing time. Requesters who give detailed and accurate information receive a number of benefits under the FOIA and this regulation already. First, if a request provides detailed and accurate information about where to find the records, there is a strong likelihood that the request will be considered perfected and quickly routed for search. Second, there is a strong likelihood that it will be unnecessary to toll the processing time to clarify the scope of the request if the requested records are well-described and we are given accurate information about where to find the records in question. Third, if the request provides accurate information about where to find the records in question, the search can be conducted more quickly which could reduce search fees, if those are associated with the request, and it could speed up the processing time. Finally, we have adopted multitrack processing and place requests on the simple or complex track based on the estimated amount of work or time needed to process the request. Providing information that helps us locate documents responsive to a request makes it more likely that the request will be placed on the simple track and processed more quickly. Given these advantages, we do not believe it is necessary to provide any additional benefits to requesters who provide detailed and accurate information about where to find the records in question.
One commenter suggested that the rule be modified to inform requesters that they are entitled to judicial review if the agency does not meet statutorily imposed deadlines. The commenter further stated that HHS should reference 5 U.S.C. 552(a)(6)(C) in the rule and clarify how a requester may exhaust his or her administrative remedies. After carefully considering this comment, we decline to adopt the commenter's suggested change. The FOIA statute itself already makes clear that a failure to comply with the time limits for either an initial request or an administrative appeal may be treated as a “constructive exhaustion” of administrative remedies. Once there has been a “constructive exhaustion”, a requester may immediately thereafter seek judicial review if he or she wishes to do so. It is unnecessary for this rule to simply restate information that is already in the FOIA statute concerning the exhaustion of administrative remedies.
One commenter suggested defining the term “voluminous” in § 5.25(f). In revising the rule, we have removed the term “voluminous” from the referenced section. The term “voluminous” was contained in a recitation of the statutory definition of unusual circumstances. Since the FOIA statute already contains this information, it was unnecessary to include in the rule. However, even if the term “voluminous” remained in the rule, we do not believe it is appropriate to define it here. The term “voluminous” can be understood by the plain meaning in the statute, legislative intent, and any case law interpreting that term.
One commenter suggested we consider adding subsections that fully explain referrals, consultations, and coordination with other federal agencies or entities. We have accepted the commenter's suggestion. Section 5.25 provides a full explanation of the Department's procedures for rerouting of misdirected requests, referrals, consultations, and coordination.
One commenter expressed a concern about § 5.26(a). In the view of the commenter, the language of this provision suggested that estimated completion dates are only provided when a requester asks for them. The commenter recommended that we provide estimated completion dates whenever a request is first placed in the complex processing queue, whenever we determine that an estimated completion date must change for a request, or when a requester asks for an update on expected completion date, and that the language in this section be updated to reflect that. In response to this comment, we have amended the language in this section to clarify that we will provide estimated completion dates when we notify requesters of any unusual circumstances involved with their request and when a requester has asked for an estimated completion date. However, we decline to accept the commenter's recommendation of providing an estimated completion date for any request placed in the complex processing queue or whenever an estimated completion date must change for a request. As previously stated, while we estimate the completion date based on our reasonable judgment as to how long it will likely take to complete the request, given the uncertainty inherent in establishing any estimate, the estimated completion date would be subject to change at any time.
Multiple commenters submitted comments concerning the criteria for granting expedited processing of FOIA request described in § 5.27(c). One commenter expressed concern that we did not include the need to meet a litigation deadline in an administrative appeal or in a court action as a case deemed appropriate for granting expedited processing. In the opinion of the commenter, a failure to include this policy into the rule would contradict the statute and constitute an invalid departure from established agency precedent. The commenter expressed
We reject this comment and will discuss each point in the order it was raised by the commenter. First, the commenter is incorrect when stating that the rule is in conflict with the FOIA statute because the rule does not provide for the expedited processing of requests “in other cases determined by the agency.” 5 U.S.C. Sec. 552(a)(6)(E)(i)(II). The plain language of the FOIA statute makes clear that the decision to provide for expedited processing “in other cases” is left to the discretion of the agency and the agency is free not to deem any other case appropriate. Second, we acknowledge that CMS had a policy of ordinarily granting expedited processing on a variety of circumstances, both administrative in nature and in response to specific needs stated by a requester, and that this policy was published in the
A second commenter recommended that HHS provide for expedited processing of state survey documents such as investigator notes, witness statements, witness lists, and documents reviewed during the course of the investigation. The commenter believes that HHS should commit to responding to these types of requests so that nursing home residents can receive these documents before their claims are time barred by a statute of limitations. We must, unfortunately, decline to accept this recommendation. While specific requesters may have a strong personal need to receive responsive records as quickly as possible, the agency must consider the interests of all requesters waiting patiently in line and make sure that everyone is treated equally. As a result, we only grant expedited processing in truly exceptional circumstances. Moreover, the FOIA is fundamentally meant to inform the public about agency action and not to benefit private litigants.
One commenter recommended that a requester's history of making requests for expedited processing should be considered when determining whether to grant expedited processing. In the opinion of the commenter, organizations that always request expedited processing for all requests should receive greater scrutiny in their requests for expedited processing than organizations that do not request expedited processing when their requests are obviously not urgent. In response to this comment, we decline to accept the commenter's recommendation. Each request for expedited processing is evaluated on its own merits. We do not provide special treatment to some requesters over others based on their history of making requests.
When granting expedited processing, one commenter thought that we should consider the fact that a requester has a
One commenter recommended granting expedited processing in situations where the requested records implicate an ongoing public health issue. We grant expedited processing in two cases: (1) Where a failure to obtain requested records on an expedited basis could reasonably be expected to pose an imminent threat to the life or physical safety of an individual, and (2) where there is an urgent need to inform the public about an actual or alleged Federal Government activity. We only grant expedited processing in limited circumstances because we must consider the interests of all requesters waiting patiently in line and make sure that everyone is treated equally. For this reason, we must decline to adopt this comment.
Finally, one commenter suggested that records released in response to a request that receives expedited processing or a fee waiver should be made proactively available one year after it is released to the requester even if the information has not been requested three or more times. We have decided not to accept this comment. Even if a record has not been released and requested three or more times, we will make available additional records if we believe they are of interest to the public and are appropriate for public disclosure. However, not every record released in response to a request that receives expedited processing or a fee waiver may fall into that category.
Several commenters recommended modifying the rule to incorporate changes made to the FOIA as a result of the FOIA Improvement Act. As a result of the FOIA Improvement Act, we have modified the language of § 5.28(a) to indicate that we will provide requesters with a notification of their right to seek assistance from the appropriate FOIA Public Liaison in all disclosure determination letters, and we have modified § 5.28(b) to indicate that we will provide requesters with a notification of their right to seek dispute resolution services from the appropriate FOIA Public Liaison and the Office of Government Information Services in all disclosure determination letters that include an adverse determination.
One commenter wanted to know who at the various offices is available for helping to ensure that the FOIA is processed properly. The commenter can seek assistance from the FOIA Requester Service Center that is processing the request. Each FOIA Requester Service Center also has a FOIA Public Liaison who can assist in reducing delays, clarifying the scope of a request, increasing transparency, providing status updates, and assisting in dispute resolution. The contact information for each FOIA Requester Service Center and the name of each FOIA Public Liaison is available through the web link included in this section. In addition, requesters can seek assistance from the Office of Government Information Services (OGIS) including mediation services.
Several commenters suggested modifying the rule to incorporate the requirements of the FOIA resulting from the FOIA Improvement Act. Section 3 of the FOIA Improvement Act requires each agency to include procedures for engaging in dispute resolution with the FOIA Public Liaison and the Office of Government Information Services (OGIS). These procedures are included in this section of the rule. In addition, throughout the rule, we have included provisions that provide for the assistance of the appropriate FOIA Public Liaison and the Office of Government Information Services (OGIS) or give notification of their services.
One commenter stated that a section describing the exemptions to the FOIA was unnecessary, and at most should simply restate the exemptions set forth in 5 U.S.C. 552(b). The commenter further stated that the scope of the exemptions is determined by the courts and not agency regulations. After considering this comment and other comments concerning this section, we have removed language describing the scope of each exemption and simply restated the exemptions as set forth in the FOIA statute.
One commenter suggested revising the opening paragraph of § 5.31 to reflect the presumption of openness codified in the FOIA Improvement Act. Another commenter suggested adding similar language to the end of the section. We have made the recommended change and have included a reference to the foreseeable harm standard in this section. We have chosen to place this reference in the opening paragraph of the section.
One commenter noted that all FOIA exemptions are discretionary, not mandatory. Therefore, all language describing an Exemption should state that an Exemption “authorizes” the withholding of information instead of “requires”. We have accepted this comment and made the recommended change. We note, however, that the ability to make a discretionary release will vary according to the exemption involved and whether the information is required to be protected by some other legal authority. Some of the FOIA's exemptions, such as Exemption 2 and Exemption 5, protect a type of information that is not generally subject to a disclosure prohibition. By contrast, the exemptions covering national security, commercial and financial information, personal privacy, and matters within the scope of nondisclosure statutes protect records that are also encompassed within other legal authorities that restrict their disclosure to the public.
Several commenters expressed concern regarding the descriptions of the scope of Exemptions 4, 5, and 6. These comments have been rendered moot, however, since the language in this section now simply restates the Exemptions as they are set forth in the FOIA statute.
One commenter provided feedback on § 5.31(d)(4)(ii) concerning the amount of time we provide submitters to respond to a predisclosure notification. The provision states that submitters have ten working days to object to disclosure and that HHS FOIA Offices may extend this period as appropriate and necessary. The commenter thought that we should take into consideration the time limits within which agencies must respond to FOIA requests. Furthermore, the commenter recommended that the regulation state that the agency will expeditiously provide predisclosure notification and should make clear that the amount of time provided to a submitter to respond to a predisclosure notification should not exceed the remaining amount of time in which the
One commenter provided input regarding § 5.41(d)(4)(iii). More specifically, the commenter expressed concern with the rule's language regarding the requirements of a notice of intent to disclose. The language, as written, suggested that we would release information over the objection of a submitter within five days of the date of the notice of intent to disclose. The commenter suggested that this could potentially allow for a release of information less than five days after the notice of intent to release, which would be unreasonable. The commenter also noted that the timeframe for the release of records after a notice of intent to disclose was based on the date of the notice whereas with § 5.41(d)(4)(ii), the date to provide objections to a predisclosure notification was based on the date of receipt of the notification. Moreover, as written, FOIA Offices were given the authority to extend the timeframe for responding to a predisclosure notification letter but not for releasing records after providing a notice of intent to release. In accordance with Executive Order 12600 and in response to this comment, we have modified the requirements regarding the notice of intent to disclose to require that the notice include a specified disclosure date and that the date be at least five working days after the date of the notice. This will provide a reasonable number of days before a release and it gives flexibility to FOIA Offices to provide more than five working days when necessary. In order to be consistent, we also have revised the predisclosure notification procedures to base the amount of time to object on the date of the notice rather than the date of receipt. This is administratively easier to track and, as communication has become more electronic, the date of the notice and the date of receipt are often the same. Finally, all provisions regarding confidential commercial information are now located in their own subpart, Subpart D.
Multiple commenters suggested modifying the description of Exemption 5 to include the restriction on applying the deliberative process privilege to records that were created 25 years or more before the date on which the records were requested. This limitation to the deliberative process privilege was added by the FOIA Improvement Act and it is now reflected in this rule.
One commenter stated that they found it unusual and highly irregular for HHS to include a description of the law enforcement record exclusions. In response to this comment, we have removed the descriptions of the exclusions and have simply included a citation to the section of the FOIA statute that references exclusions.
One commenter recommended that requesters be given at least 20 working days to make an advance payment (§ 5.41(b)) or respond to an agency communication in the course of negotiating fees (§ 5.41(e)) and, if the agency takes more than twenty working days from the date of the request to initiate these actions with the requester, the requester should receive the same amount of time to respond to the agency. In response to this comment, we have increased the number of days to make an advance payment and respond to an agency communication from at least 10 working days to at least 20 working days. We believe that this provides requesters with a reasonable amount of time to respond to us before we assume that they are no longer interested in pursuing their request.
One commenter suggested editing the provision on minimum fees to state that “[w]e do not send an invoice to requesters if
Two commenters recommended removing language related to the fees we charge for the use of a computer to conduct a search in § 5.43(a)(2). One commenter thought that the language was archaic and should be removed. The second commenter considered the cost of a computer to be a sunk cost to the Department and stated that the computer would have been running anyway if it hadn't been used to conduct the search. We decline to accept the commenters' recommendations. When establishing the fee schedule, we follow the Uniform Freedom of Information Fee Schedule and Guidelines published by the Office of Management and Budget (OMB), which establishes uniform standards for fee matters. Conformity with the OMB Guidelines is required by the FOIA.
The commenter thought that some of the language in § 5.44(c) was potentially redundant and ambiguous. The commenter did not consider it necessary to state both that if you do not fall into the categories in paragraphs (a) and (b) of this section (a commercial requester or an educational or noncommercial scientific institution requester, or a member of the news media), you are an “other requester”. The commenter believed that this language suggested a conjunctive relationship when none was intended to exist. The commenter suggested using “
Multiple commenters recommended amending this section in order to reference new provisions to the FOIA created by the FOIA Improvement Act that place further limitations on assessing search fees (or, for a requester
One commenter expressed concern with the description of the factors described in § 5.45(b) used to determine whether a requester is eligible for a fee waiver or a reduction in fees. The commenter specifically pointed out an issue with § 5.45(b)(5) which stated that, to be eligible for a fee waiver, a requester must explain how the requester “intend[s] to disseminate the requested information to a broad spectrum of the public.” The commenter noted that in
As a result of an amendment to the FOIA by the FOIA Improvement Act, two commenters recommended increasing the number of days to appeal an adverse determination to no less than 90 days after the date of an adverse determination. We have accepted this comment and increased the number of days to appeal to 90 days after the date of an adverse determination. Note that the contents of this provision have moved to § 5.61 (When may I appeal HHS's FOIA determination?).
One commenter suggested that we use the postmark date rather than the date the appeal is received by the agency when determining whether an appeal has been submitted in a timely manner. The same commenter suggested that the appeal timeframe commence once the disclosure determination is received by the requester instead of the date of the adverse determination letter. After considering this comment, we have decided to partially accept it. The rule has been modified to indicate that we will base the timeliness of an appeal on the postmark date or, in the case of an electronic submission, the transmittal date. The rule has been further modified, however, to stipulate that if a postmark date is illegible, we will revert to using the date of receipt to determine the timeliness of the appeal submission. We also specify that an electronic submission transmitted after normal business hours will be considered transmitted on the next day for the purposes of determining the timeliness of an appeal submission. Finally, we reject the commenter's suggestion that the appeal timeframe commence once notice of the adverse determination is received by the requester. The FOIA statute itself bases the minimum timeframe that agencies must provide for a requester to appeal a request on a specific number of days “after the date of such adverse determination”, not on the date such determination is received by the requester. Moreover, we believe that a 90 day appeal timeframe, as currently structured, provides requesters with a reasonable amount of time to submit a timely request. Note that the provision discussed by this comment has moved to § 5.61 (When may I appeal HHS's FOIA determination?).
One commenter observed that § 5.52(b) stated that an appeal could be submitted electronically; however, in the opinion of the commenter, the rule failed to identify a means of submitting administrative appeals electronically. In response to this comment, we have clarified that instructions on how to submit a FOIA appeal electronically can be found by using the web links provided in the section.
One commenter expressed concern with the language in paragraph (a) of § 5.54, which states that a requester must submit an administrative appeal in order to seek judicial review. In expressing this concern, the commenter suggested that this language was dubious and referenced examples cited in the Department of Justice
One commenter suggested that we provide our understanding of what the term “due diligence” means. Based on the context of the comment, it appears that the commenter was referring to the use of the term in the FOIA statute at 5 U.S.C. 552(a)(6)(C)(i), which states that “[i]f the Government can show exceptional circumstances exist and that the agency is exercising due diligence in responding to the request, the court may retain jurisdiction and allow the agency additional time to complete its review of the records.” We believe that the concept of exceptional circumstances is adequately explained in the FOIA statute and it is unnecessary to include a provision about that subject in this rule. With regard to the term “due diligence”, we believe that the term can best be understood by the plain meaning in the statute, legislative intent, and any case law interpreting that term. We, therefore, decline to provide any further interpretation of this term.
One commenter noted that in certain cases we spelled out numbers and in other cases we used figures.
Finally, in response to public comments and feedback from within the Department, we have made the following changes: moved and clarified the provision on oral requests from § 5.2(a) to § 5.22(e); clarified the definition of non-commercial scientific
The rule has been drafted and reviewed in accordance with Executive Order 12866, 58 FR 51735 (Sept. 30, 1993), section 1(b), Principles of Regulation, and Executive Order 13563, 76 FR 3821 (January 18, 2011), Improving Regulation and Regulatory Review. The rule is not a “significant regulatory action” under section 3(f) of Executive Order 12866. Accordingly, the rulemaking has not been reviewed by the Office of Management and Budget.
The Department certifies under 5 U.S.C. 605(b) that the rule will not have a significant economic impact on a substantial number of small entities because the proposed revisions do not impose any burdens upon FOIA requesters, including those that might be small entities. Therefore, a regulatory flexibility analysis is not required by the Regulatory Flexibility Act.
The rule will not result in the expenditure by State, local, or tribal governments in the aggregate, or by the private sector, of $100 million or more in any one year, and it will not significantly or uniquely affect small governments. Therefore, no actions are deemed necessary under the provisions of the Unfunded Mandates Reform Act of 1995.
This rule has been reviewed under Executive Order 12612, Federalism, and it has been determined that it does not have sufficient implications for federalism to warrant preparation of a Federalism Assessment.
The rule contains no new information collection requirements subject to review by the Office of Management and Budget under the Paperwork Reduction Act (44 U.S.C. chapter 35).
Freedom of information.
5 U.S.C. 552, 18 U.S.C. 1905, 31 U.S.C. 9701, 42 U.S.C. 1306(c), E.O. 12600, E.O.13392
This part implements the provisions of the Freedom of Information Act (FOIA), 5 U.S.C. 552, as amended, for Department of Health and Human Services (HHS) records that are subject to the FOIA. This part should be read in conjunction with the text of the FOIA and the Uniform Freedom of Information Fee Schedule and Guidelines published by the Office of Management and Budget. This part contains the rules that we follow to process FOIA requests, such as the amount of time we have to make a determination regarding the release of records, who can decide to release
(a) The FOIA provides a right of access to agency records, except to the extent that any portions of the records are protected from public disclosure by an exemption or exclusion in the statute. The FOIA does not require us to perform research for you or to answer your questions. The FOIA does not require agencies to create new records or to perform analysis of existing records; for example, by extrapolating information from existing agency records, reformatting publicly available information, preparing new electronic programs or databases, or creating data through calculations of ratios, proportions, percentages, trends, frequency distributions, correlations, or comparisons. However, at our discretion and if it would conserve government resources, we may decide to supply requested information by consolidating information from various records.
(b) This part does not apply to data generated by an agency grant recipient under the provisions of 45 CFR part 75 to the extent the requirements of 45 CFR 75.322(e) do not apply to the data. We will not process your request under the FOIA or these regulations if that data is already available to the public through an archive or other source. In that situation, we will refer you to that other source. The procedures for requesting research data made available under the provisions of 45 CFR 75.322(e) are referenced in § 5.23(a).
(a) We will administer the FOIA with a presumption of openness. In accordance with 5 U.S.C. 552(a)(8) we will disclose records or information exempt from disclosure under the FOIA whenever disclosure would not foreseeably harm an interest protected by a FOIA exemption and disclosure is not prohibited by law. We also will consider whether partial disclosure of information is possible whenever we determine that a full disclosure of a requested record is not possible. This includes taking reasonable steps to segregate and release nonexempt information.
(b) Records that the FOIA requires agencies to make available for public inspection in an electronic format may be accessed through each OpDiv's and Staff Div's Web site. Each OpDiv and StaffDiv is responsible for determining which of its records must be made publicly available (including frequently requested records), for identifying additional records of interest to the public that are appropriate for public disclosure, and for posting and indexing such records. Each OpDiv and StaffDiv must ensure that its Web site of posted records and indices is reviewed and updated on an ongoing basis. Each OpDiv and StaffDiv has a FOIA Requester Service Center or FOIA Public Liaison who can assist individuals in locating records. A list of agency FOIA Public Liaisons is available at http://www.foia.gov/report-makerequest.html.
The following definitions apply to this part:
This official is also the approving review authority for FOIA administrative appeals.
(1) The
(2) [Reserved]
The requirements in this part apply to all OpDivs and StaffDivs of HHS. Some OpDivs and StaffDivs may establish or continue to maintain additional rules because of unique program requirements, but such rules must be consistent with this part and the FOIA. If additional rules are issued, they must be published in the
The FOIA allows any person (whether an individual or entity) to request access to records. The Privacy Act, at 5 U.S.C. 552a(d), provides an additional right of access, allowing individuals to request records about themselves, if the records are maintained in a system of records (defined in 5 U.S.C. 552a(a)(5)).
(a)
Any individual, partnership, corporation, association, or public or private organization other than a Federal agency, regardless of nationality, may submit a FOIA request to us. This includes state and local governments
In your FOIA request:
(a) Provide a written description of the records you seek in sufficient detail to enable our staff to locate them with a reasonable amount of effort. The more information you provide, the better possibility we have of finding the records you are seeking. Information that will help us find the records would include:
(1) The agencies, offices, or individuals involved;
(2) The approximate date(s) when the records were created;
(3) The subject, title, or description of the records sought; and
(4) Author, recipient, case number, file designation, or other reference number, if available.
(b) Include your name, full mailing address, and phone number and if available, your email address. This information allows us to reach you faster if we have any questions about your request. It is your responsibility to keep your current mailing address up to date with the office where you have filed the FOIA request.
(c) State your willingness to pay all fees, or the maximum amount of fees you are willing to pay, and/or include a request for a fee waiver/reduction.
(d) Mark both your letter and envelope, or the subject line of your email, with the words “FOIA Request.”
(e) If you are unable to submit a written request to us due to circumstances such as disability or literacy, you may make a request orally to a FOIA Officer. FOIA Officers will put in writing an oral request made directly to them.
(f) If you are making a first-party request, you must comply with the verification of identity procedures set forth in 45 CFR part 5b.
(g) Where your request for records pertains to another individual, you may receive greater access by submitting either a notarized authorization signed by that individual or a declaration made in compliance with the requirements set forth in 28 U.S.C. 1746 by that individual authorizing disclosure of the records to the requester, or by submitting proof that the individual is deceased (
(h) If you are requesting the medical records of an individual other than yourself from a government program that pays or provides for health care (
(i) Before filing your request, you may find it helpful to consult the HHS FOIA Requester Service Centers online at
We have several FOIA Requester Service Centers (FOIA offices) that process FOIA requests. You should send your FOIA request to the appropriate FOIA Requester Service Center that you believe would have the records you seek. An up-to-date listing is maintained online at
(a) If you are requesting research data made available under the provisions of 45 CFR 75.322(e), requests for such data should be addressed to the OpDiv that made the award under which the data were first produced. That OpDiv will process your request in accordance with established procedures consistent with the FOIA and 45 CFR 75.322(e).
(b) We officially receive your request when it reaches the FOIA Requester Service Center with responsibility for the OpDiv or StaffDiv where requested records are likely to be located, but no later than 10 working days after the request first arrives at any of our FOIA Requester Service Centers.
(c) If you have questions concerning the processing of your FOIA request, you may contact the FOIA Requester Service Center processing your request. If that initial contact does not resolve your concerns, you may wish to contact the designated FOIA Public Liaison for the OpDiv or StaffDiv processing your request. You can find a list of our FOIA Requester Service Centers and Public Liaisons at
(a)
(b)
(i) The request either has been received by the responsible FOIA office, or, in any event, not later than 10 working days after the request has been received by any HHS FOIA office;
(ii) The requested records are reasonably described; and
(iii) The request contains sufficient information to enable the FOIA office to contact you and transmit records to you.
(2) We provide at least 20 working days for you to respond to a request to perfect your request, after notification. Requests must reasonably describe the records sought and contain sufficient information to enable the FOIA office to contact you and transmit records to you. If we determine that a request does not meet these requirements, we will attempt to contact you if possible. Should you not answer any correspondence, or should the correspondence be returned as undeliverable, we reserve the right to administratively close the FOIA request.
(c)
(d)
(e)
(f)
(g)
(a)
(b)
(1)
(2)
(ii) Whenever an OpDiv or StaffDiv refers any part of the responsibility for responding to a request to another OpDiv, StaffDiv, or federal agency, it must document the referral, maintain a copy of the record that it refers, and notify the requester of the referral; informing the requester of the name(s) of the entity to which the record was referred, including that entity's FOIA contact information.
(3)
(c)
(d)
(e)
(a) When we provide an estimated completion date, in accordance with § 5.24(f) and upon request, for the processing of records that do not require consultation with another agency, we estimate the completion date on the basis of our reasonable judgment as to how long it will take to complete the request. Given the uncertainty inherent in establishing any estimate, the estimated completion date is subject to change at any time.
(b) When we provide an estimated completion date, in accordance with § 5.24(f) and upon request, for records that must be reviewed by another agency, our estimate may also be based on information from the other agency.
(a) To request expedited processing, you must submit a statement, certified to be true and correct, explaining the basis for your need for expedited processing. You must send the request to the appropriate FOIA Officer at the address listed at
(b) We process requests on an expedited basis whenever we determine
(1) That a failure to obtain requested records on an expedited basis could reasonably be expected to pose an imminent threat to the life or physical safety of an individual; or
(2) There is an urgent need to inform the public about an actual or alleged Federal Government activity (this criterion applies only to those requests made by a person primarily engaged in disseminating information to the public).
(c) We will respond to your request for expedited processing within 10 calendar days of our receipt of your request to expedite. If we grant your request, the OpDiv or StaffDiv responsible for the review of the requested records will process your request as a priority, and it will be processed as soon as practicable. We will inform you if we deny your request for expedited processing and provide you with appeal rights. If you decide to appeal that denial, we will expedite our review of your appeal.
(d) If we must refer records to another agency, we will inform you and suggest that you seek expedited review from that agency.
(a) The appropriate FOIA Officer will send you a response informing you of our release determination, including whether any responsive records were located, how much responsive material was located, whether the records are being released in full or withheld in full or in part, any fees you must pay for processing of the request, and your right to seek assistance from the appropriate FOIA Public Liaison.
(b) If we deny any part of your request, our response will explain the reasons for the denial, which FOIA exemptions apply to the withheld records, your right to appeal that determination, and your right to seek dispute resolution services from the appropriate FOIA Public Liaison or the Office of Government Information Services (OGIS). We will advise you of the number of pages withheld or the estimated volume of withheld records, unless providing such information would harm an interest protected by an applicable FOIA exemption.
(c) Records may be withheld in full or in part if any of the nine FOIA exemptions apply. If we determine to withhold part of a record pursuant to an exemption, we will provide access to reasonably segregable non-exempt information contained in the record. On the released portion of the record, we indicate where the information has been redacted and the exemption(s) we applied, unless including that indication would harm an interest the exemption protects. In Subpart C of this part, we list the exemptions to disclosure that may apply to agency records.
(d) We also may deny your request for other reasons, including that a request does not reasonably describe the records sought; the information requested is not a record subject to the FOIA; the requested records do not exist, cannot be located, or have been destroyed; or that the requested records are not readily reproducible in the form or format requested.
(e) If a request involves a voluminous amount of material or searches in multiple locations, we may provide you with interim responses if feasible and reasonably possible, releasing the records on a rolling basis.
(f) Copies of records in the format you request will be provided if the records already exist in that format or if they are reasonably and readily reproducible in the format you request.
(a) If you have questions concerning the processing of your FOIA request, you should first contact the FOIA Requester Service Center processing your request. Additionally, for assistance at any point in the FOIA process, you may contact the FOIA Public Liaison at the FOIA Requester Service Center processing your request. The FOIA Public Liaison is responsible for assisting you to reduce delays, increasing transparency and understanding of the status of requests, and assisting to resolve any FOIA disputes. Some FOIA Requester Service Centers allow you to check the status of your request online. You can find a list of our FOIA Requester Service Centers and Public Liaisons at
(b) The Office of Government Information Services (OGIS), which is part of the National Archives and Records Administration, serves as the Federal FOIA ombudsman and assists requesters and agencies to prevent and resolve FOIA disputes through mediation. Mediation is a voluntary process. If we participate in the dispute resolution services provided by OGIS, we will actively engage as a partner to the process in an attempt to resolve the dispute and will follow the principles of confidentiality in accordance with the Administrative Dispute Resolution Act, 5 U.S.C. 571-8. You may contact OGIS at the following address: National Archives and Records Administration, Office of Government Information Services, 8601 Adelphi Road—OGIS, College Park, MD 20740-6001, or by email at
While we are committed to providing public access to as many of our records as possible, there are instances in which information falls within one or more of the FOIA's nine exemptions and disclosure would either foreseeably harm an interest protected by a FOIA exemption or disclosure is prohibited by law. We review all records and weigh and assess all legal and policy requirements prior to making a final disclosure determination. A description of the nine FOIA exemptions is provided in paragraphs (a) through (i) of this section.
(a)
(b)
(c)
(d)
(e)
(f)
(g)
(1) Could reasonably be expected to interfere with enforcement proceedings;
(2) Would deprive a person of a right to a fair trial or an impartial adjudication;
(3) Could reasonably be expected to constitute an unwarranted invasion of personal privacy;
(4) Could reasonably be expected to disclose the identity of a confidential source, including a state, local, or foreign agency or authority, or any private institution which furnished information on a confidential basis, and, in the case of a record or information compiled by a criminal law enforcement authority in the course of a criminal investigation, or by an agency conducting lawful national security intelligence investigation, information furnished by a confidential source;
(5) Would disclose techniques and procedures for law enforcement investigations or prosecutions, or would disclose guidelines for law enforcement investigations or prosecutions, if such disclosure could reasonably be expected to risk circumvention of the law; or
(6) Could reasonably be expected to endanger the life or physical safety of any individual.
(h)
(i)
Under the FOIA, there is special protection for narrow categories of law enforcement and national security records. The provisions protecting those records are known as “exclusions” and are described in 5 U.S.C. 552(c). These exclusions expressly authorize Federal law enforcement agencies, under these exceptional circumstances, to treat the records as not subject to the requirements of the FOIA.
(a) Should an HHS OpDiv or StaffDiv maintain records which are subject to a FOIA exclusion, and consider employing an exclusion or have a question as to the implementation of an exclusion, the OpDiv or StaffDiv will consult with the Office of Information Policy, U.S. Department of Justice.
(b) Because records falling within an exclusion are not subject to the requirements of the FOIA, should any HHS OpDiv or StaffDiv maintain such excluded records, the OpDiv or StaffDiv will limit its response to those records that are subject to the FOIA.
A person who submits records to the government may designate part or all of the information in such records that they may consider to be exempt from disclosure under Exemption 4 of the FOIA. The person may make this designation either at the time the records are submitted to the government or within a reasonable time thereafter. The designation must be in writing. Any such designation will expire 10 years after the records were submitted to the government.
(1) When we receive a request for such records, and we determine that we may be required to disclose them, we will make reasonable efforts to notify the submitter about these facts. The notice will include a copy of the request, and it will inform the submitter about the procedures and time limits for submission and consideration of objections to disclosure. If we must notify a large number of submitters, we may do this by posting or publishing a notice in a place where the submitters are reasonably likely to become aware of it.
(2) The submitter has 10 working days from the date of the notice to object to disclosure of any part of the records and to state all bases for its objections. FOIA Offices in HHS and its organizational components may extend this period as appropriate and necessary.
(3) We review and consider all objections to release that we receive within the time limit. If a submitter fails to respond within the time period specified in the notice, we will consider the submitter to have no objection to disclosure of the information. If we decide to release the records, we inform the submitter in writing, along with our reasons for the decision to release. We include with the notice a description of the information to be disclosed or copies of the records as we intend to release them. We also provide the submitter with a specific date that we intend to disclose the records, which must be at least 5 working days after the date of the notice. We do not consider any information we receive after the date of a disclosure decision.
(4) If the requester files a lawsuit under the FOIA for access to records submitted to HHS, we promptly notify the submitter.
(5) We will notify the requester in these circumstances:
(i) When we notify a submitter that we may be required to disclose information under the FOIA, we will also notify the requester that notice and opportunity to comment are being provided to the submitter;
(ii) When the agency notifies a submitter of a final disclosure decision under the FOIA,
and;
(iii) When a submitter files a lawsuit to prevent the disclosure of the information.
(b)
(a) of this section do not apply in the following situations:
(1) We determine that we should withhold the information under a FOIA exemption;
(2) The information has been lawfully published or made available to the public
(3) We are required by a statute (other than the FOIA), or by a regulation issued in accordance with the requirements of Executive Order 12600, to disclose the information; or
(4) The designation made by the submitter appears obviously frivolous. However, in such a case, the agency must provide the submitter with written notice of any final disclosure determination and intent to release, at least 5 working days prior to the
(a) We generally assume that when you request records you are willing to pay the fees we charge for services associated with your request. You may specify a limit on the amount you are willing to spend. We will notify you if it appears that the fees will exceed $25.00 or your specified limit and ask whether you nevertheless want us to proceed with the search.
(b) If you have failed to pay FOIA fees in the past, we will require you to pay your past due bill and we may also require you to pay the anticipated fee before we begin processing your current request. If we estimate that your fees may be greater than $250.00, we also may require advance payment or a deposit before we begin processing your request. If you fail to make an advance payment within 20 working days after the date of our fee letter, we will close the request.
(c) We may charge interest on unpaid bills beginning on the 31st calendar day following the day the FOIA fee invoice was sent. We may assess interest, administrative costs, and penalties for overdue FOIA fee costs.
(d) If we determine that you (either acting alone or with a group of requesters) are breaking down a single request into a series of requests in order to avoid or reduce fees, we may aggregate all of these requests when calculating the fees. In aggregating requests, we may consider the subject matter of the requests and whether the requests were filed close in time to one another.
(e) If, in the course of negotiating fees, you do not respond to the agency within 20 working days of our last communication, your request will be closed.
(f) We may stop the processing of your request, if necessary, to clarify fee issues with you, and to confirm your willingness to pay applicable fees. Fee related issues may arise sequentially over the course of processing a request, and the FOIA allows agencies to stop the processing time as many times as necessary in order to clarify issues regarding fee assessment and willingness to pay fees.
(g) We may charge search fees even if the records are exempt from disclosure, or if we do not find any responsive records during our search.
(h) We do not send an invoice to requesters if assessable processing fees are less than $25.00.
In responding to FOIA requests for records, we charge the following fees, where applicable, unless we have given you a reduction or waiver of fees. The fees we charge for search and review are three-tiered, and the hourly charge is determined by the classification and grade level of the employee performing the search or review. When the search or review is performed by employees at grade GS-1 through GS-8 (or equivalent), an hourly rate will be charged based on the salary of a GS-5, step 7, employee; when done by a GS-9 through GS-14 (or equivalent), an hourly rate will be charged based on the salary of a GS-12, step 4,employee; and when done by a GS-15 or above (or equivalent), an hourly rate will be charged based on the salary of a GS-15, step 7, employee. In each case, the hourly rate will be computed by taking the current hourly rate listed for the specified grade and step in the General Schedule Locality Pay Table for the Locality of Washington-Baltimore-Northern Virginia, DC-MD-VA-WV-PA, adding 16% of that rate to cover benefits, and rounding to the nearest whole dollar.
(a)
(2)
(b)
(2) We do not charge review fees for time we spend resolving general legal or policy issues regarding the application of exemptions. However, we do charge review fees for time we spend obtaining and considering any formal objection to disclosure made by a confidential commercial information submitter.
(c)
(2)
(3)
(e)
(f)
(a) If you are a commercial use requester, we charge you fees for searching, reviewing, and duplicating responsive records.
(b) If you are an educational or noncommercial scientific institution requester, or a member of the news media, you are entitled to search time, review time, and up to 100 pages of duplication (or the cost equivalent for other media) without charge. We charge
(c) If you do not fall into either of the categories in paragraphs (a) and (b) of this section (
(d)(1) If we fail to comply with the FOIA's time limits in which to respond to a request, we may not charge search fees, or, in the instances of the requester categories referenced in paragraph (b) of this section, may not charge duplication fees, except as described in (d)(2)-(4).
(2) If we have determined that unusual circumstances as defined by the FOIA apply and we provided timely written notice to the requester in accordance with the FOIA, a failure to comply with the time limit shall be excused for an additional 10 days.
(3) If we have determined that unusual circumstances, as defined by the FOIA, apply and more than 5,000 pages are necessary to respond to the request, we may charge search fees, or, in the instances of requests from requesters described in paragraph (b) of this section, may charge duplication fees if the following steps are taken: we must have provided timely written notice to the requester in accordance with the FOIA and must have discussed with the requester via written mail, email, or telephone (or made not less than three good-faith attempts to do so) how the requester could effectively limit the scope of the request in accordance with 5. U.S.C. 552(a)(6)(B)(ii). If this exception is satisfied, we may charge all applicable fees incurred in the processing of the request.
(4) If a court has determined that exceptional circumstances exist, as defined by the FOIA, a failure to comply with the time limits shall be excused for the length of time provided by the court order.
(a) Requesters may seek a waiver of fees by submitting a written application demonstrating how disclosure of the requested information is in the public interest because it is likely to contribute significantly to public understanding of the operations or activities of the government and is not primarily in the commercial interest of the requester.
(b) We must furnish records responsive to a request without charge or at a reduced rate when we determine, based on all available information, that the following three factors are satisfied:
(1) Disclosure of the requested information would shed light on the operations or activities of the government. The subject of the request must concern identifiable operations or activities of the Federal Government with a connection that is direct and clear, not remote or attenuated.
(2) Disclosure of the requested information would be likely to contribute significantly to public understanding of those operations or activities. This factor is satisfied when the following criteria are met:
(i) Disclosure of the requested records must be meaningfully informative about government operations or activities. The disclosure of information that already is in the public domain, in either the same or a substantially identical form, would not be meaningfully informative if nothing new would be added to the public's understanding.
(ii) The disclosure must contribute to the understanding of a reasonably broad audience of persons interested in the subject, as opposed to the individual understanding of the requester. A requester's expertise in the subject area as well as the requester's ability and intention to effectively convey information to the public must be considered. We will presume that a representative of the news media will satisfy this consideration.
(3) The disclosure must not be primarily in the commercial interest of the requester. To determine whether disclosure of the requested information is primarily in the commercial interest of the requester, we will consider the following criteria:
(i) We will identify whether the requester has any commercial interest that would be furthered by the requested disclosure. A commercial interest includes any commercial, trade, or profit interest. Requesters will be given an opportunity to provide explanatory information regarding this consideration.
(ii) If there is an identified commercial interest, we will determine whether that is the primary interest furthered by the request. A waiver or reduction of fees is justified when the requirements of paragraphs (b)(1) and (2) of this section are satisfied and any commercial interest is not the primary interest furthered by the request. We ordinarily will presume that when a news media requester has satisfied factors (b)(1) and (2) of this section, the request is not primarily in the commercial interest of the requester. Disclosure to data brokers or others who merely compile and market government information for direct economic return will not be presumed to primarily serve the public interest.
(c) You should ask for waiver or reduction of fees when you first submit your request to HHS, and should address the criteria referenced in this section.
In order to fully exhaust all of your administrative remedies, you must file an appeal of an adverse agency determination in writing, and to be considered timely it must be postmarked, or in the case of electronic submissions, transmitted within 90 calendar days from the date of such determination. Any electronic transmission made after normal business hours will be considered to have been transmitted on the next calendar day. If a postmark is not legible, the timeliness of a submission will be based on the date that we receive the appeal. Adverse determinations include:
(a) Refusal to release a record, either in whole or in part;
(b) Determination that a record does not exist or cannot be found;
(c) Determination that a request does not reasonably describe the records sought;
(d) Determination that the record you sought was not subject to the FOIA;
(e) Denial of a request for expedited processing;
(f) Denial of a fee waiver request; or
(g) Fee category determination.
(a) You have the right to appeal an adverse agency determination of your FOIA request.
(b) You may submit your appeal via mail or electronically.
(1) Please send your appeal to the review official at the address provided in your denial letter. If you are unsure who is the appropriate review official, please contact the FOIA Requester Service Center that processed your request to obtain that information.
(2) The addresses to mail FOIA appeals for CMS and OS are, respectively: Centers for Medicare & Medicaid Services, Attn: Principal Deputy Administrator, Room C5-16- 03, 7500 Security Boulevard, Baltimore, MD 21244; and U.S. Department of Health and Human Services, Deputy Agency Chief FOIA Officer, Office of the Assistant Secretary for Public Affairs, Room 729H, 200 Independence Avenue SW., Washington, DC 20201.
(3) When submitting an appeal, you should mark both your letter and envelope with the words “FOIA Appeal” or include the words “FOIA Appeal” in the subject line of your email. You should also include your FOIA request tracking number, a copy of your initial request, and a copy of our final determination letter.
(c) Your appeal should clearly identify the agency determination that is being appealed. It would be helpful if you provide specific reasons explaining why you believe the agency's adverse determination should be reconsidered.
(a) We respond to your appeal within 20 working days after the appeal official designated in your appeal letter receives it. If, however, your appeal is based on a denial of a request for expedited processing, we will act on your appeal of that decision expeditiously. Before making a decision on an appeal of an adverse determination, the designated review official will consult with the Office of the General Counsel. Also, the concurrence of the Office of the Assistant Secretary for Public Affairs is required in all appeal decisions, including those on fees. When the review official responds to an appeal, that constitutes the Department's final action on the request.
(b) If we reverse or modify the initial decision, we will inform you in writing and, if applicable, reprocess your request. If we do not change our initial decision, we will respond in writing to you, explain the reasons for the decision, set out any FOIA exemptions that apply, and inform you of the provisions for judicial review. If a requester files a FOIA lawsuit in reference to an appeal, we will cease processing the appeal.
(a) In our response letter, we notify you of your right to seek judicial review of an adverse determination as set forth in the FOIA at 5 U.S.C. 552(a)(4)(B). Before seeking review by a court of an adverse determination, you generally must first submit a timely administrative appeal.
(b) We also inform you that the Office of Government Information Services (OGIS) offers mediation services to resolve disputes between FOIA requesters and Federal agencies as a non-exclusive alternative to litigation. As referenced in § 5.29(b) you may contact OGIS via mail, email, or telephone for assistance.
We will preserve records created in administering the Department's Freedom of Information program until disposition is authorized under an applicable General Records Schedule or other records schedule duly approved by the Archivist of the United States.
This document was received for publication by the Office of the Federal Register on October 19, 2016.
Office of Energy Efficiency and Renewable Energy, Department of Energy.
Notice of proposed rulemaking.
The Energy Policy and Conservation Act of 1975 (“EPCA”), as amended, established the Energy Conservation Program for Consumer Products Other Than Automobiles. Based on provisions in EPCA that enable the Secretary of Energy to classify additional types of consumer products as covered products, the U.S. Department of Energy (“DOE”) classified miscellaneous refrigeration products (“MREFs”) as covered consumer products under EPCA. In determining whether to set standards for products, DOE must evaluate whether new standards would be technologically feasible and economically justified, and would save a significant amount of energy. In this proposed rule, DOE proposes new energy conservation standards for MREFs identical to those set forth in a direct final rule published elsewhere in this
DOE will accept comments, data, and information regarding the proposed standards no later than February 15, 2017.
Comments regarding the likely competitive impact of the proposed standard should be sent to the Department of Justice contact listed in the
See section III, “Public Participation,” for details. If DOE withdraws the direct final rule published elsewhere in this
Any comments submitted must identify the proposed rule for Energy Conservation Standards for Miscellaneous Refrigeration Products, and provide docket number EERE-2011-BT-STD-0043 and/or regulatory information number (RIN) number 1904-AC51. Comments may be submitted using any of the following methods:
1.
2.
3.
4.
No telefacsimilies (faxes) will be accepted. For detailed instructions on submitting comments and additional information on the rulemaking process, see section III of this document (“Public Participation”).
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
EPCA requires the Attorney General to provide DOE a written determination of whether the proposed standard is likely to lessen competition. The U.S. Department of Justice Antitrust Division invites input from market participants and other interested persons with views on the likely competitive impact of the proposed standard. Interested persons may contact the Division at
A link to the docket Web page can be found at:
Joseph Hagerman, 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) 586-6590. Email:
For further information on how to submit a comment, review other public comments and the docket, or participate in the public meeting, contact the Appliance and Equipment Standards Program staff at (202) 586-6636 or by email:
The Energy Policy and Conservation Act of 1975, as amended (“EPCA”) (Public Law 94-163 (December 22, 1975)) includes provisions covering the products addressed by this notice. EPCA addresses, among other things, the energy efficiency of certain types of consumer products. Relevant provisions of the Act specifically include definitions (42 U.S.C. 6291), energy conservation standards (42 U.S.C. 6295), test procedures (42 U.S.C. 6293), labeling provisions (42 U.S.C. 6294), and the authority to require information and reports from manufacturers (42 U.S.C. 6296).
Under 42 U.S.C. 6292(a)(20), DOE may extend coverage over a particular type of consumer product provided that DOE determines that classifying products of such type as covered products is necessary or appropriate to carry out the purposes of EPCA and that the average annual per-household energy use by products of such type is likely to exceed 100 kilowatt-hours (“kWh”) or its British thermal unit (“Btu”) equivalent per year. See 42 U.S.C. 6292(b)(1). EPCA sets out the following additional requirements to establish energy conservation standards for a newly covered product: (1) The average per household domestic energy use by such products exceeded 150 kWh or its Btu equivalent for any 12-month period ending before such determination; (2) the aggregate domestic household energy use by such products exceeded 4.2 million kWh or its Btu equivalent for any such 12-month period; (3) substantial energy efficiency of the products is technologically feasible; and (4) applying a labeling rule is unlikely to be sufficient to induce manufacturers to produce, and consumers and other persons to purchase, products of such type that achieve the maximum level of energy efficiency. See 42 U.S.C. 6295(l)(1).
Pursuant to EPCA, DOE's energy conservation program for covered products consists essentially of four parts: (1) Testing; (2) labeling; (3) the establishment of 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 develop test procedures to measure the energy efficiency, energy use, or estimated annual operating cost of each covered product. (42 U.S.C. 6295(o)(3)(A) and (r)) Manufacturers of covered products must use the prescribed DOE test procedure as the basis for certifying to DOE that their products comply with the applicable energy conservation standards adopted under EPCA and when making representations to the public regarding the energy use or efficiency of those products. (42 U.S.C. 6293(c) and 6295(s)) Similarly, DOE must use these test procedures to determine whether the products comply with standards adopted pursuant to EPCA. (42 U.S.C. 6295(s)) The DOE test procedure for MREFs currently appears at title 10 of the Code of Federal Regulations (“CFR”) part 430, subpart B, appendix A (appendix A).
DOE follows specific criteria when prescribing new or amended standards for covered products. As indicated above, any new or 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 MREFs, if no test procedure has been established for the product, or (2) if DOE determines by rule that the new or amended standard is not technologically feasible or economically justified. (42 U.S.C. 6295(o)(3)(A)-(B)) In deciding whether a new or amended standard is economically justified, 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 after receiving comments on the proposed standard and considering, to the greatest extent practicable, the following seven 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 imposition of the standard;
3. The total projected amount of energy, or as applicable, water, savings likely to result directly from the imposition of the standard;
4. Any lessening of the utility or the performance of the covered products likely to result from the imposition of 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 imposition of the standard;
6. The need for national energy and water conservation; and
7. Other factors the Secretary of Energy (Secretary) considers relevant.
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))
EPCA 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 the evidence that the standard is likely to result in the unavailability in the United States in 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))
Additionally, DOE may set energy conservation standards for a covered product that has two or more subcategories. In those instances, DOE must specify a different standard level for a type or class of products that has the same function or intended use if DOE determines that products within such group: (A) Consume a different
Federal energy conservation requirements generally supersede State laws or regulations concerning energy conservation testing, labeling, and standards. (42 U.S.C. 6297(a) through (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).
DOE is also 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 the 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) and (B)) DOE's test procedures for MREFs address standby mode and off mode energy use, as do the new standards adopted in this notice of proposed rulemaking.
With particular regard to direct final rules, the Energy Independence and Security Act of 2007 (“EISA 2007”), Public Law 110-140 (December 19, 2007), amended EPCA, in relevant part, to grant DOE authority to issue a type of final rule (
DOE also notes that it typically finalizes its test procedures for a given regulated product or equipment prior to proposing new or amended energy conservation standards for that product or equipment, see 10 CFR part 430, subpart C, Appendix A, sec. 7(c) (“Procedures, Interpretations and Policies for Consideration of New or Revised Energy Conservation Standards for Consumer Products” or “Process Rule”). In this instance, although DOE has finalized its test procedure for MREFs, rather than issue a notice of proposed rulemaking to set standards for these products, DOE is moving forward with a direct final rule. As part of the negotiated rulemaking that led to the Term Sheet setting out the standards that DOE is proposing, Working Group members recommended (with ASRAC's approval) that DOE implement the test procedure that DOE recently finalized. See 81 FR 46768 (July 18, 2016). The approach laid out in that final rule is consistent with the approach agreed upon by the various Working Group members who participated in the negotiated rulemaking. Accordingly, in accordance with section 14 of the Process Rule, DOE tentatively concludes that deviation from the Process Rule is appropriate here.
DOE has not previously established energy conservation standards for MREFs. Consistent with its statutory obligations, DOE sought to establish regulatory coverage over these products prior to establishing energy conservation standards to regulate MREF efficiency. On November 8, 2011, DOE published a notice of proposed determination of coverage (“NOPD”) to address the potential coverage of those refrigeration products that do not use a compressor-based refrigeration system. 76 FR 69147. Rather than employing a compressor/condenser-based system typically installed in the refrigerators, refrigerator-freezers, and freezers found in most U.S. homes, these “non-compressor-based” refrigeration products use a variety of other means to introduce chilled air into the interior of the storage cabinet of the product. Two systems that DOE specifically examined were thermoelectric- and absorption-based systems.
On February 13, 2012, DOE published a notice announcing the availability of the framework document, “Energy Conservation Standards Rulemaking Framework Document for Wine Chillers and Miscellaneous Refrigeration Products,” and a public meeting to discuss the proposed analytical framework for the energy conservation standards rulemaking. 77 FR 7547. In the framework document, DOE described the procedural and analytical approaches it anticipated using to evaluate potential energy conservation standards for four types of consumer refrigeration products: Wine chillers, non-compressor refrigerators, hybrid refrigerators (
DOE held a public meeting on February 22, 2012, to present the framework document, describe the analyses DOE planned to conduct during the rulemaking, seek comments from interested parties on these subjects, and inform the public about, and facilitate public participation in, the
On October 31, 2013, DOE published in the
DOE published a notice announcing a public meeting and the availability of the preliminary technical support document (“TSD”) for the MREF energy conservation standards rulemaking on December 3, 2014. 79 FR 71705. The preliminary analysis considered potential standards for the products proposed for coverage in the October 2013 SNOPD. The preliminary TSD included the results of the following DOE preliminary analyses: (1) Market and technology assessment; (2) screening analysis; (3) engineering analysis; (4) markups analysis; (5) energy use analysis; (6) LCC and PBP analyses; (7) shipments analysis; (8) national impact analysis (“NIA”); and (9) preliminary manufacturer impact analysis (“MIA”).
DOE held a public meeting on January 9, 2015, during which it presented preliminary results for the engineering and downstream economic analyses and sought comments from interested parties on these subjects. At the public meeting and during the comment period, DOE received comments that addressed issues raised in the preliminary analysis and identified additional issues relevant to this rulemaking. After reviewing the comments received in response to both the preliminary analysis and a test procedure NOPR published on December 16, 2014 (the “December 2014 Test Procedure NOPR,” 79 FR 74894), DOE ultimately determined that the development of test procedures and potential energy conservation standards for MREFs would benefit from a negotiated rulemaking process.
On April 1, 2015, DOE published a notice of intent to establish an Appliance Standards and Rulemaking Federal Advisory Committee (“ASRAC”) negotiated rulemaking working group for MREFs (the “MREF Working Group” or in context, the “Working Group”) to discuss and, if possible, reach consensus on a recommended scope of coverage, definitions, test procedures, and energy conservation standards. 80 FR 17355. The MREF Working Group consisted of 15 members, including two members from ASRAC and one DOE representative. The MREF Working Group met in person during six sets of meetings in 2015: May 4-5, June 11-12, July 15-16, August 11-12, September 16-17, and October 20.
On August 11, 2015, the MREF Working Group reached consensus on a term sheet to recommend a scope of coverage, set of definitions, and test procedures for MREFs (“Term Sheet #1”).
In addition to these steps, DOE sought to ensure that it had obtained complete information and input regarding certain aspects related to manufacturers of thermoelectric refrigeration products. To this end, on December 15, 2015, DOE published a notice of data availability (the “December 2015 NODA”) in which it requested additional public feedback on the methods and information used in the development of the MREF Working Group Term Sheets. 80 FR 77589. DOE noted in particular its interest in information related to manufacturers of thermoelectric refrigeration products. Id. at 77590.
After considering the MREF Working Group recommendations and comments received in response to the December 2015 NODA, DOE published an SNOPD and notice of proposed rulemaking (the “March 2016 SNOPD”) on March 4, 2016. 81 FR 11454. The March 2016 SNOPD proposed establishing coverage, definitions, and terminology consistent with Term Sheet #1. It also proposed to determine that coolers and combination cooler refrigeration products—as defined under the proposal—would meet the requirements under EPCA to be considered covered products. Id. at 11456-11459.
On July 18, 2016, DOE published a final coverage determination and final rule (the “July 2016 Final Coverage Determination”) to establish coolers and combination cooler refrigeration products as covered products under EPCA. Because DOE did not receive any comments in response to the March 2016 SNOPD that would substantively alter its proposals, the findings of the final determination were unchanged from those presented in the March 2016 SNOPD. Moreover, DOE determined in the July 2016 Final Coverage Determination that MREFs, on average, consume more than 150 kWh/yr, and that the aggregate annual national energy use of these products exceeds 4.2 TWh. Accordingly, these data indicate that MREFs satisfy at least two of the four criteria required under EPCA in order for the Secretary to set standards for a product whose coverage is added pursuant to 42 U.S.C. 6292(b). See 42 U.S.C. 6295(l)(1)(A)-(D). 81 FR 46768. With respect to the remaining two criteria, as indicated in substantial detail in its accompanying direct final rule, DOE's analysis indicates that these two criteria are satisfied as well.
In addition to establishing coverage, the July 2016 Final Coverage Determination established definitions for “miscellaneous refrigeration products,” “coolers,” and “combination cooler refrigeration products” in title 10 of the Code of Federal Regulations (“CFR”) § 430.2. The July 2016 Final Coverage Determination also amended the existing definitions for “refrigerator,” “refrigerator-freezer,” and “freezer” for consistency with the newly established MREF definitions. These definitions were generally consistent with the March 2016 SNOPD.
DOE has considered the recommended energy conservation standards from the MREF Working Group and believes that they meet the EPCA requirements for issuance of a direct final rule. As a result, DOE has published a direct final rule establishing energy conservation standards for MREFs elsewhere in this
For further background information on these proposed standards and the
When considering proposed standards, the new or amended energy conservation standard that DOE adopts for any type (or class) of covered product shall be designed to achieve the maximum improvement in energy efficiency that DOE determines is technologically feasible and economically justified. (42 U.S.C. 6295(o)(2)(A)) In determining whether a standard is economically justified, DOE must determine whether the benefits of the standard exceed its burdens, considering to the greatest extent practicable the seven statutory factors set forth in EPCA. (42 U.S.C. 6295(o)(2)(B)(i)) The new or amended standard must also result in a significant conservation of energy. (42 U.S.C. 6295(o)(3)(B))
DOE considered the impacts of standards at each trial standard level (“TSL”) considered, beginning with maximum technologically feasible (max-tech) level, to determine whether that level was economically justified. Where the max-tech level was not economically 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 as DOE discusses the benefits and burdens of each TSL, DOE has included tables that present a summary of the results of DOE's quantitative analysis for each TSL. 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 consumers, such as low-income households and seniors, who may be disproportionately affected by a national standard. Section V.B.1.b of the direct final rule published elsewhere in this
Table II.1 and Table II.2 summarize the quantitative impacts estimated for each TSL for coolers. The national impacts are measured over the lifetime of coolers purchased in the 30-year period that begins in the anticipated year of compliance with new standards (2019-2048 for TSL 2, and 2021-2050 for the other TSLs). The energy savings, emissions reductions, and value of emissions reductions refer to full-fuel-cycle (“FFC”) results. The efficiency levels contained in each TSL are described in section V.A of the direct final rule published elsewhere in this
DOE first considered TSL 4, which represents the max-tech efficiency levels. TSL 4 would save 2.02 quads of energy, an amount DOE considers significant. Under TSL 4, the net present value (“NPV”) of consumer benefit would be $1.81 billion using a discount rate of 7 percent, and $6.83 billion using a discount rate of 3 percent.
The cumulative emissions reductions at TSL 4 are 121.3 million metric tons (“Mt”) of CO
At TSL 4, the average LCC savings range from −$254 to $123. The simple payback period ranges from 3.5 years to 17.7 years. The fraction of consumers experiencing a net LCC cost ranges from 51 percent to 93 percent.
At TSL 4, the projected change in industry net present value (“INPV”) ranges from a decrease of $152.8 million to an increase of $20.5 million, which correspond to a decrease of 58.0 percent to an increase of 7.8 percent, respectively. Manufacturer feedback during confidential interviews indicated that all cooler segments are highly price-sensitive, and therefore the lower bound of INPV impacts is more likely to occur. Additionally, at TSL 4, disproportionate impacts on low-volume manufacturers (“LVMs”) of MREFs may be severe. This could have a direct impact on domestic manufacturing capacity and production employment in the cooler industry.
The Secretary concludes that at TSL 4 for coolers, the benefits of energy savings, positive NPV of consumer benefits, emission reductions, and the estimated monetary value of the emissions reductions would be outweighed by the economic burden on some consumers, and the impacts on manufacturers, including the conversion costs and profit margin impacts that could result in a large reduction in INPV. Consequently, the Secretary has concluded that TSL 4 is not economically justified.
DOE then considered TSL 3, which would save an estimated 1.84 quads of energy, an amount DOE considers significant. Under TSL 3, the NPV of consumer benefit would be $4.81 billion using a discount rate of 7 percent, and $12.19 billion using a discount rate of 3 percent.
The cumulative emissions reductions at TSL 3 are 110.6 Mt of CO
At TSL 3, the average LCC savings range from $60 to $288. The simple payback period ranges from 1.6 years to 4.7 years. The fraction of consumers experiencing a net LCC cost ranges from 7 percent to 27 percent.
At TSL 3, the projected change in INPV ranges from a decrease of $94.8 million to a decrease of $36.8 million, which correspond to decreases of 36.0 percent and 14.0 percent, respectively. Manufacturer feedback from confidential interviews indicated that all cooler segments are highly price sensitive, and therefore the lower bound of INPV impacts is more likely to occur. Again, at TSL 3, disproportionate impacts on the LVMs may be severe. This could have a direct impact on domestic manufacturing capacity and production employment in the cooler industry.
The Secretary concludes that at TSL 3 for coolers, the benefits of energy savings, positive NPV of consumer benefits, emission reductions, and the estimated monetary value of the emissions reductions would be outweighed by the impacts on manufacturers, including the conversion costs and profit margin impacts that could result in a large reduction in INPV. Consequently, the Secretary has concluded that TSL 3 is not economically justified.
DOE then considered TSL 2, which reflects the standard levels recommended by the MREF Working Group. TSL 2 would save an estimated 1.51 quads of energy, an amount DOE considers significant. Under TSL 2, the NPV of consumer benefit would be $4.78 billion using a discount rate of 7 percent, and $11.02 billion using a discount rate of 3 percent.
The cumulative emissions reductions at TSL 2 are 91.8 Mt of CO
At TSL 2, the average LCC savings range from $28 to $265. The simple payback period ranges from 1.4 years to 6.1 years. The fraction of consumers experiencing a net LCC cost ranges from 9 percent to 29 percent.
At TSL 2, the projected change in INPV ranges from a decrease of $54.8 million to a decrease of $10.0 million, which represent decreases of 20.8 percent and 3.8 percent, respectively. Feedback from the LVMs indicated that TSL 2 would not impede their ability to maintain their current MREF product offerings.
After considering the analysis and weighing the benefits and burdens, DOE has determined that the recommended standards for coolers are in accordance with 42 U.S.C. 6295(o). Specifically, the Secretary has determined the benefits of energy savings, positive NPV of consumer benefits, emission reductions, the estimated monetary value of the emissions reductions, and positive average LCC savings would outweigh the negative impacts on some consumers and on manufacturers, including the conversion costs that could result in a reduction in INPV for manufacturers. Accordingly, the Secretary has concluded that TSL 2 would offer the maximum improvement in efficiency that is technologically feasible and economically justified, and would result in the significant conservation of energy.
Therefore, DOE proposes to adopt TSL 2 as the energy conservation standard for coolers. The proposed new energy conservation standards which are expressed as maximum annual energy use, in kWh/yr, as a function of adjusted volume (“AV”), in cubic feet (“ft
Table II.4 and Table II.5 summarize the quantitative impacts estimated for each TSL for combination cooler refrigeration products. The national impacts are measured over the lifetime of products purchased in the 30-year period that begins in the anticipated year of compliance with new standards (2019-2048 for TSL 1, and 2021-2050 for the other TSLs). The energy savings, emissions reductions, and value of emissions reductions refer to FFC results. The efficiency levels contained in each TSL are described in section V.A of the direct final rule published elsewhere in this
DOE first considered TSL 4, which represents the max-tech efficiency levels. TSL 4 would save 0.016 quads of energy, an amount DOE considers significant. Under TSL 4, the NPV of consumer benefit would be −$0.09 billion using a discount rate of 7 percent, and −$0.14 billion using a discount rate of 3 percent.
The cumulative emissions reductions at TSL 4 are 0.96 Mt of CO
At TSL 4, the average LCC savings range from −$237 to −$182. The simple payback period ranges from 16.0 years to 25.4 years. The fraction of consumers experiencing a net LCC cost ranges from 90 percent to 98 percent.
Also at TSL 4, the projected change in INPV ranges from a decrease of $8.1 million to an increase of $20.3 million, which correspond to a decrease of 7.5 percent to an increase of 18.8 percent, respectively. Similar to coolers, detailed feedback from manufacturer interviews indicated that combination cooler refrigeration products are highly price sensitive, and therefore the lower bound of INPV impacts is more likely to occur. Additionally, in the context of new standards for coolers and other cumulative regulatory burdens, at TSL 4, disproportionate impacts on domestic LVMs of combination cooler refrigeration products may be severe. This could have a direct impact on the availability of certain niche combination cooler refrigeration products, as well as on competition, domestic manufacturing capacity, and production employment related to the combination cooler refrigeration product industry.
The Secretary concludes that at TSL 4 for combination cooler refrigeration products, the benefits of energy savings, emission reductions, and the estimated monetary value of the emissions reductions would be outweighed by the
DOE then considered TSL 3, which would save an estimated 0.012 quads of energy, an amount DOE considers significant. Under TSL 3, the NPV of consumer benefit would be −$0.04 billion using a discount rate of 7 percent, and −$0.06 billion using a discount rate of 3 percent.
The cumulative emissions reductions at TSL 3 are 0.73 Mt of CO
At TSL 3, the average LCC savings range from −$151 to $59. The simple payback period ranges from 6.8 years to 21.6 years. The fraction of consumers experiencing a net LCC cost ranges from 26 percent to 97 percent.
At TSL 3, the projected change in INPV ranges from a decrease of $6.5 million to an increase of $9.6 million, which represent a decrease of 6.0 percent and an increase of 8.9 percent, respectively. Again, manufacturers indicated that combination cooler refrigeration products are highly price sensitive, and therefore the lower bound of INPV impacts is more likely to occur. In the context of new standards for coolers and other cumulative regulatory burdens, at TSL 3, disproportionate impacts on domestic LVMs of combination cooler refrigeration products may be severe. This could have a direct impact on the availability of certain niche combination cooler refrigeration products, as well as on competition, domestic manufacturing capacity and production employment related to the combination cooler refrigeration product industry.
The Secretary concludes that at TSL 3 for combination cooler refrigeration products, the benefits of energy savings, emission reductions, and the estimated monetary value of the emissions reductions would be outweighed by the negative NPV of consumer benefits and disproportionate impacts on the LVMs, which could directly impact the availability of certain niche combination cooler products. Consequently, the Secretary has concluded that TSL 3 is not economically justified.
DOE then considered TSL 2, which reflects the efficiency levels with maximum consumer NPV at seven percent discount rate. TSL 2 would save an estimated 0.007 quads of energy, an amount DOE considers significant. Under TSL 2, the NPV of consumer benefit would be $0.011 billion using a discount rate of 7 percent, and $0.035 billion using a discount rate of 3 percent.
The cumulative emissions reductions at TSL 2 are 0.44 Mt of CO
At TSL 2, the average LCC savings range from $8 to $102. The simple payback period ranges from 2.6 years to 6.5 years. The fraction of consumers experiencing a net LCC cost ranges from zero percent to 49 percent.
At TSL 2, the projected change in INPV ranges from a decrease of $4.4 million to a decrease of $0.6 million, which represent decreases of 4.1 percent and 0.6 percent, respectively. Again, in the context of new standards for coolers and other cumulative regulatory burdens, at TSL 2, disproportionate impacts on domestic LVMs may be severe. This could have a direct impact on the availability of certain niche combination cooler refrigeration products, as well as on competition, domestic manufacturing capacity and production employment related to the combination cooler refrigeration product industry.
The Secretary concludes that at TSL 2 for combination cooler refrigeration products, the benefits of energy savings, positive NPV of consumer benefits, emission reductions, and the estimated monetary value of the emissions reductions would again be outweighed by the disproportionate impacts on the domestic LVMs, which could directly impact the availability of certain niche combination cooler products. Consequently, the Secretary has concluded that TSL 2 is not economically justified.
DOE then considered TSL 1, which reflects the standard levels recommended by the MREF Working Group. TSL 1 would save an estimated 0.00084 quads of energy, an amount DOE considers significant. Under TSL 1, the NPV of consumer benefit would be $0.0017 billion using a discount rate of 7 percent, and $0.0045 billion using a discount rate of 3 percent.
The cumulative emissions reductions at TSL 1 are 0.05 Mt of CO
At TSL 1, the combination cooler refrigeration products currently available on the market already meet or exceed the corresponding efficiency levels in all product classes except for C-13A. As a result, for five of the product classes, no consumers experience a net cost, and the LCC savings and simple payback period are not applicable. For product class C-13A, the average LCC savings is $32, the simple payback period is 4.3 years, and the fraction of consumers experiencing a net LCC cost is 6 percent.
At TSL 1, the projected change in INPV ranges from a decrease of $0.8 million to a decrease of $0.5 million, which represent decreases of 0.7 percent and 0.5 percent, respectively. DOE estimated that all combination cooler refrigeration products manufactured domestically by LVMs currently meet the standard levels corresponding to TSL 1. Therefore, at TSL 1, DOE believes that domestic manufacturers will continue to offer the same combination cooler refrigeration products as those they currently offer.
After considering the analysis and weighing the benefits and burdens, DOE has determined that the recommended standards for combination cooler refrigeration products are in accordance with 42 U.S.C. 6295(o). Specifically, the Secretary has determined the benefits of energy savings, positive NPV of consumer benefits, emission reductions, the estimated monetary value of the emissions reductions, and positive average LCC savings would outweigh the negative impacts on some consumers and on manufacturers, including the conversion costs that could result in a reduction in INPV for manufacturers. Accordingly, the Secretary has concluded that TSL 1 would offer the maximum improvement in efficiency that is technologically feasible and economically justified, and would result in the significant conservation of energy.
Therefore, DOE proposes to adopt TSL 1 as the energy conservation standard for combination cooler refrigeration products. The proposed new energy conservation standards, which are expressed as maximum annual energy use, in kWh/yr, as a function of AV, in ft
The benefits and costs of the adopted standards can also be expressed in terms of annualized values. The annualized net benefit is the sum of: (1) the annualized national economic value (expressed in 2015$) of the benefits from operating products that meet the adopted standards (consisting primarily of operating cost savings from using less energy, minus increases in product purchase costs, and (2) the annualized monetary value of the benefits of CO
Table II.7 shows the annualized values for MREFs under TSL 2 for coolers and TSL 1 for combination cooler refrigeration products, expressed in 2015$. 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 SCC series has a value of $40.6/t in 2015, the estimated cost of the standards is $157 million per year in increased equipment costs, while the estimated annual benefits are $754 million in reduced operating costs, $165 million in CO
DOE will accept comments, data, and information regarding this proposed rule until the date provided in the
Although DOE welcomes comments on any aspect of the proposal in this notice and the analysis as described in the direct final rule published elsewhere in this
1. Whether the standards proposed in this notice would result in any lessening of utility for MREFs, including whether certain features would be eliminated from these products. See sections III.H.1.d and IV.2 of the direct final rule published elsewhere in this
2. The incremental manufacturer production costs DOE estimated at each efficiency level. See section IV.C of the direct final rule published elsewhere in this
3. DOE's method to estimate MREF shipments under the no-new-standards case and under potential energy conservation standards levels. See section IV.G of the direct final rule published elsewhere in this
4. The assumption that installation, maintenance, and repair costs do not vary for MREFs at higher efficiency levels. See section IV.F of the direct final rule published elsewhere in this
5. The manufacturer conversion costs (both product and capital) used in DOE's analysis. See section V.B.2.d of the direct final rule published elsewhere in this
6. The cumulative regulatory burden to MREF manufacturers associated with the proposed standards and on the approach DOE used in evaluating cumulative regulatory burden, including the timeframes and regulatory dates evaluated. See section V.B.2.e of the direct final rule published elsewhere in this
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The Secretary of Energy has approved publication of this proposed rule.
Administrative practice and procedure, Confidential business information, Energy conservation, Household appliances, Imports, Intergovernmental relations, Reporting and recordkeeping requirements, and 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.
(aa)
(1) Coolers manufactured starting on [
(2) Combination cooler refrigeration products manufactured starting on [
Food and Drug Administration, HHS.
Proposed rule; supplemental notice of proposed rulemaking.
The Food and Drug Administration (FDA or we) is proposing to amend our 2012 document entitled “New Animal Drugs; Updating Tolerances for Residues of New Animal Drugs in Food.” The document proposed to revise the animal drug regulations regarding tolerances for residues of approved and conditionally approved new animal drugs in food by standardizing, simplifying, and clarifying the determination standards and codification style. We also proposed to add definitions for key terms. We are taking this action to more clearly explain our current thinking about certain provisions of the 2012 document based on comments from stakeholders, and to more accurately reflect the rationale FDA relied on in the past to approve certain new animal drugs without a tolerance. We are reopening the comment period only with respect to the specific issues identified in this supplemental proposed rule.
Submit either electronic or written comments on this proposed rule by December 27, 2016.
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Dong Yan, Center for Veterinary Medicine (HFV-151), Food and Drug Administration, 7500 Standish Pl., Rockville, MD 20855, 240-402-0825,
We previously proposed to revise the animal drug regulations regarding tolerances for residues of approved and conditionally approved new animal drugs in food. In addition to proposing to standardize, simplify, and clarify the standards of determination and codification style for tolerances, we proposed a new definition section. In this document, we are proposing to revise or remove some of the previously proposed definitions, taking into account comments we received that have led us to clarify our current thinking, and to more accurately reflect the rationale FDA relied on in the past to approve certain new animal drugs without a tolerance.
The previously proposed rule (2012 proposed rule) did not adequately explain our current view that methods other than the “regulatory method” derived from the method submitted by a sponsor as part of the new animal drug application can be used to determine the quantity of residue in edible tissues for surveillance and enforcement purposes. Therefore, we are removing the proposed definition for “regulatory method” and are reserving the term for use with carcinogenic compounds. We are also removing the use of this term from proposed § 556.5(d) (21 CFR 556.5(d)). We are proposing to revise portions of the 2012 proposed rule to better align the proposed rule with our current thinking and practice that an analytical method other than the practicable method(s) submitted by the sponsor as part of the new animal drug application can be used for surveillance and enforcement purposes for non-carcinogenic compounds, as long as the performance criteria of that method are comparable to those of the practicable method. However, as described in section II.C, we are not proposing similar changes to the regulations concerning carcinogenic compounds because our current interpretation of the relevant provisions in the Federal Food, Drug, and Cosmetic Act (the FD&C Act) is that, unlike for non-carcinogenic compounds, the regulatory method prescribed in the approval of the new animal drug must be used for surveillance and enforcement purposes for carcinogenic compounds.
We are also revising the proposed definitions for “marker residue”, “tolerance”, “not required”, and “zero”. We are removing the definition for “acceptable single-dose intake” and adding a definition for “acute reference dose”.
In the
We received several stakeholder comments to the proposed rule including a comment that requests clarification on the proposed definition for “regulatory method” and on the use of the term in proposed § 556.5(d), which stated that FDA requires that a drug sponsor develop a regulatory method to measure drug residues in edible tissues of approved target species. This comment notes that a regulatory method has historically been used to refer to the “required determinative and confirmatory procedures for regulatory surveillance of residue concentrations in meat products entering the food supply for comparison to the tolerance post-commercialization of the product.” The comment also states the context of the proposal appears to be the method(s) used to collect data to support the setting of the tolerances preapproval. The comment also asks if the proposal implies that tolerances may be established using
We realize that the term “regulatory method” proposed in § 556.3 and used in proposed § 556.5(d) has caused some confusion. As a result of the comments, we are taking this opportunity to better explain our current thinking about analytical methods used to determine residue levels in tissues for new animal drugs intended for use in food-producing animals.
An analytical method other than the practicable method can be used for surveillance and enforcement purposes for non-carcinogenic compounds, as long as the performance criteria (
FDA establishes tolerances using the practicable method submitted by a sponsor as part of the new animal drug application as required by section 512(b)(1)(G) of the FD&C Act (21 U.S.C. 360b(b)(1)(G)). The practicable method has to meet certain performance criteria, including evaluation of accuracy, precision, and sensitivity. We use the practicable method submitted by the sponsor as part of the new animal drug application to determine the quantity of the drug residues that can safely remain in edible tissues (
In the 2012 proposed rule, we included a section of definitions (proposed § 556.3). We propose to revise four of the definitions, remove two definitions, and add a new definition in proposed § 556.3.
In the definition of “marker residue”, we propose to delete “selected for assay by the regulatory method” because we are reserving the term “regulatory method” for use with carcinogenic compounds (see part 500, subpart E). Also, we propose to delete the explanatory text that follows the first sentence of the definition because an explanation of how the tolerance is used is not needed in this definition. In addition, we are removing the term “target tissue” in the definition and replacing it with “an edible tissue”.
In the definition of “not required”, we propose to more accurately reflect the rationale FDA relied on in the past to approve certain new animal drugs without a tolerance. Currently, our general practice is to establish a tolerance for all new animal drugs we approve.
In the definition of “tolerance”, we propose to delete the explanatory text that follows the first sentence of the definition because an explanation of how the tolerance is used is not needed in this definition.
In the definition of “zero”, we propose to delete “when using a method of detection prescribed or approved by FDA” because, as discussed previously, an analytical method other than the practicable method can be used for surveillance and enforcement purposes for non-carcinogenic compounds. The additional proposed revisions to this definition are intended to clarify the meaning of the term “zero” as used in part 556 so that “zero” means any residues detected in the tissue renders it unsafe.
We propose to remove the definition of “acceptable single-dose intake (ASDI)”. See discussion for “acute reference dose (ARfD)” further in this section for the explanation.
We propose to remove the definition of “regulatory method” because we are reserving the term “regulatory method” for use with carcinogenic compounds, consistent with our current interpretation of the FD&C Act (see part 500, subpart E).
We propose to add the definition of “acute reference dose (ARfD)” to mean “an estimate of the amount of residues expressed on a body weight basis that can be ingested in a period of 24 hours or less without adverse effects or harm to the health of the human consumer.” ARfD would be used in place of ASDI wherever this term is currently used in the tolerances listed in subpart B of part 556.
In the 2012 proposed rule, we explained that sometimes the concept of an ASDI was used to calculate tolerances. We proposed to define the ASDI as “the amount of total residue that may safely be consumed in a single meal. The ASDI may be used to derive the tolerance for residue of a drug at the injection site where the drug is administered according to the label.” The definition of the ASDI was based on the U.S. Environmental Protection Agency definition of ARfD and chosen, in part, to provide additional clarity for the veterinary drug health based guidance value. Since that time, the use of the term ARfD has been more broadly applied by scientific and regulatory authorities, as further discussed in this section.
The United States is an active member of the Codex Alimentarius and the Codex Committee for Residues of Veterinary Drugs in Food, which rely on the World Health Organization/Food and Agriculture Organization of the United Nations Joint Expert Committee on Food Additives (JECFA) for scientific advice. The JECFA uses the guidance Environmental Health Criteria (EHC) 240, Principles and Methods for the Risk Assessment of Chemicals in Food in its evaluations (Ref. 1). This guidance defines and discusses the term ARfD. More importantly for FDA, the
We consider it appropriate to propose using the VICH definition of ARfD to replace the 2012 proposed definition of ASDI. The ARfD may be used in the same manner as the ASDI, which is to derive the tolerance for residues of a drug at an injection site where the drug is administered according to the label, or to derive the tolerance for residues of a drug in other edible tissues as a result of concern for the acute toxicity of the residues of the veterinary drug.
We propose to revise proposed § 556.5(d) to align with our current thinking. In addition, we propose to remove the term “regulatory method” from this provision because we are reserving this term for use with carcinogenic compounds (part 500, subpart E).
Although the proposed revisions would clarify that an analytical method other than the practicable method may be used for surveillance and enforcement purposes for residue levels of non-carcinogenic animal drugs, with regard to approved carcinogenic compounds, our current interpretation of the relevant provisions of the FD&C Act is that it requires that a regulatory method be prescribed for such a compound and used for surveillance and enforcement purposes. Under the Delaney Clause, section 512(d)(1)(I) of the FD&C Act, FDA cannot approve an application for a new animal drug if it is found to induce cancer when ingested by humans or animals. An exception to this provision, referred to as the DES (diethylstilbestrol) Proviso, allows for the approval of a carcinogenic compound if FDA finds that, under the approved conditions of use, the drug will not adversely affect treated animals and no residue of the drug will be found (
We are proposing a conforming change to the language in the introductory text of § 514.1(b)(7) by removing the term “regulatory” in the last sentence to reflect the fact that we are reserving this term for use with carcinogenic compounds. (See discussion in section II.C.)
Our authority for issuing this proposed rule is provided by sections 512(b)(1)(G) and (H), 512(d)(1)(F), 512(d)(2), 512(i), 571(a)(2)(A), and 571(b)(1) of the FD&C Act (21 U.S.C. 360b(b)(1)(G) and (H), 360b(d)(1)(F), 360(d)(2), 360b(i), 360ccc(a)(2)(A), and 360ccc(b)(1)). These provisions relate to the information new animal drug and conditional approval applicants provide with respect to proposed tolerances, withdrawal periods, and practicable methods, and the process by which FDA establishes and publishes regulations setting tolerances for residues of approved and conditionally approved new animal drugs. In addition, section 701(a) of the FD&C Act (21 U.S.C. 371(a)) gives FDA general rulemaking authority to issue regulations for the efficient enforcement of the FD&C Act.
We have examined the impacts of the proposed rule under Executive Order 12866, Executive Order 13563, the Regulatory Flexibility Act (5 U.S.C. 601-612), and the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4). Executive Orders 12866 and 13563 direct us to assess all costs and benefits of available regulatory alternatives and, when regulation is necessary, to select regulatory approaches that maximize net benefits (including potential economic, environmental, public health and safety, and other advantages; distributive impacts; and equity). We believe that this proposed rule is not a significant regulatory action as defined by Executive Order 12866.
The Regulatory Flexibility Act requires us to analyze regulatory options that would minimize any significant impact of a rule on small entities. Because this proposed rule would not impose compliance costs on the current or future sponsors of any approved and conditionally approved new animal drugs, we proposed to certify that the proposed rule would not have a significant economic impact on a substantial number of small entities.
The Unfunded Mandates Reform Act of 1995 (section 202(a)) requires us to prepare a written statement, which includes an assessment of anticipated costs and benefits, before proposing “any rule that includes any Federal mandate that may result in the expenditure by State, local, and tribal governments, in the aggregate, or by the private sector, of $100,000,000 or more (adjusted annually for inflation) in any one year.” The current threshold after adjustment for inflation is $146 million, using the most current (2015) Implicit Price Deflator for the Gross Domestic Product. This proposed rule would not result in an expenditure in any year that meets or exceeds this amount.
We tentatively conclude that this proposed rule contains no collection of information. Therefore, clearance by the Office of Management and Budget under the Paperwork Reduction Act of 1995 is not required.
The Agency has determined under 21 CFR 25.30(i) that this action is of a type that does not individually or cumulatively have a significant effect on the human environment. Therefore, neither an environmental assessment nor an environmental impact statement is required.
We have analyzed this proposed rule in accordance with the principles set forth in Executive Order 13132. We have determined that the proposed rule does not contain policies that have substantial direct effects on the States, on the relationship between the National Government and the States, or on the distribution of power and responsibilities among the various levels of government. Accordingly, we conclude that the proposed rule does not contain policies that have federalism implications as defined in the Executive order and, consequently, a federalism summary impact statement is not required.
The following references are on display in the Division of Dockets
Administrative practice and procedure, Animal drugs, Confidential business information, Reporting and recordkeeping requirements.
Animal drugs, Foods.
Therefore, under the Federal Food, Drug, and Cosmetic Act and under authority delegated to the Commissioner of Food and Drugs, it is proposed that 21 CFR chapter I, subchapter E, be amended as follows:
21 U.S.C. 321, 331, 351, 352, 354, 356a, 360b, 360ccc, 371, 379e, 381.
21 U.S.C. 342, 360b, 360ccc, 371.
The revisions and additions read as follows:
(1) No withdrawal period was necessary for residues of the drug to deplete to or below the concentrations considered to be safe, or an adequate withdrawal period was inherent in the proposed drug use, and there was a rapid depletion of residues, so there was no concern about residues resulting from misuse or overdosing; or
(2) No withdrawal period was necessary because the drug was poorly absorbed or metabolized rapidly so as to make selection of an analyte impractical or impossible.
(d) FDA requires that a drug sponsor submit a practicable method as part of their new animal drug application. FDA uses the practicable method to determine the quantity of the drug residues that can safely remain in edible tissues (
Department of State.
Proposed rule; extension of comment period.
The Department of State (the Department) is extending the period of time by 15 days for the public to submit comments on the Proposed Intercountry Adoption rule, in order to give the public more time to respond.
The new comment closing date for the September 8, 2016, NPRM (FR Doc No. 2016-20968, 81 FR 62322), is November 22, 2016.
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• All comments should include the commenter's name and the organization the commenter represents (if applicable). If the Department is unable to read your comment for any reason, the Department might not be able to consider your comment. Please be advised that all comments will be considered public comments and might be viewed by other commenters; therefore, do not include any information you would not wish to be made public. After the conclusion of the comment period, the Secretary will publish a Final rule as expeditiously as possible in which it will address relevant public comments.
On September 8, 2016, the Department published a notice of Proposed rulemaking (NPRM), to amend requirements for accreditation of agencies and approval of persons to provide adoption services in intercountry adoption cases. (See 81 FR 62322.) The NPRM provided a comment period of 60 days, which expires on November 7, 2016.
In response to a request for extension, the Department extends the comment period until November 22, 2016. This will provide 75 days for the public to submit comments on this rule. Further information, including the text of the Proposed rule, can be found in the NPRM.
Office of the Assistant Secretary for Community Planning and Development, HUD.
Proposed rule.
This proposed rule would revise HUD's regulations governing floodplain management to require, as part of the decision making process established to ensure compliance with Executive orders on Floodplain Management and Federal Flood Risk Management, that a HUD assisted or financed (including mortgage insurance) project involving new construction or substantial improvement that is situated in an area subject to floods be elevated or floodproofed between 2 and 3 feet above the base flood elevation as determined by best available information.
The proposed rule would also revise HUD's Minimum Property Standards for one-to-four unit housing under HUD mortgage insurance and low-rent public housing programs. Building to the proposed standards will, consistent with the Executive orders, increase resiliency to flooding, reduce the risk of flood loss, minimize the impact of floods on human safety, health, and welfare, and promote sound, sustainable, long-term planning informed by a more accurate evaluation of flood risk that takes into account possible sea level rise and increased development associated with population growth.
This document also proposes to revise a categorical exclusion available when HUD performs the environmental review under the National Environmental Policy Act (NEPA) and related Federal laws by making it consistent with changes to a similar categorical exclusion that is available to HUD grantees or other responsible entities when they perform these environmental reviews. This change will make the review standard identical regardless of whether HUD or a grantee is performing the review.
Interested persons are invited to submit comments regarding this proposed rule to the Regulations Division, Office of General Counsel, Department of Housing and Urban Development, 451 7th Street SW., Room 10276, Washington, DC 20410-0500. Communications must refer to the above docket number and title. There are two methods for submitting public comments. All submissions must refer to the above docket number and title.
Danielle Schopp, Director, Office of Environment and Energy, Office of Community Planning and Development, Department of Housing and Urban Development, 451 7th Street SW., Room 7250, Washington, DC 20410-8000, telephone number 202-402-4442. For inquiry by phone or email, contact Elizabeth Zepeda, Environmental Review Division, Office of Environment and Energy, Office of Community Planning and Development, at 202-402-3988 (this is not a toll-free number), or email to:
In the United States, floods caused 4,586 deaths from 1959 to 2005.
In response to the threats that increasing flood risks pose to life and taxpayer funded property, on January 30, 2015, the President signed Executive Order 13690, Establishing a Federal Flood Risk Management Standard and a Process for Further Soliciting and Considering Stakeholder Input. Significantly, Executive Order 13690 amended Executive Order 11988, Floodplain Management, issued in 1977
On October 8, 2015, the Water Resources Council issued updated “Guidelines for Implementing Executive Order 11988, Floodplain Management, and Executive Order 13690, Establishing a Federal Flood Risk Management Standard and a Process for Further Soliciting and Considering Stakeholder Input” (Guidelines). The Guidelines state that although the Guidelines describe various approaches for determining the higher vertical flood elevation and corresponding horizontal floodplain for federally funded projects, they are not meant to be an elevation standard, but are a resilience standard. Accordingly, roads, parking lots, and other horizontal infrastructure do not require elevation nor do acquisitions of structures that do not require substantial improvements. However, the new Guidelines require that all future actions where federal funds are used for new construction, substantial improvement or to address substantial damage meet the level of resilience established by the Guidelines. In implementing the Guidelines and establishing the Federal Flood Risk Management Standard (FFRMS), Federal agencies were to select among the following three approaches for establishing the flood elevation and hazard area in siting, design, and construction:
• Climate-Informed Science Approach (CISA): Utilizing best-available, actionable data and methods that integrate current and future changes in flooding based on science,
• Freeboard
• 500 Year Flood (0.2 Percent Flood) Approach: 500-year, or 0.2 percent-annual-chance, flood elevation.
The FVA and 0.2 Percent Flood approaches result in higher elevations with correspondingly larger horizontal floodplain areas. CISA will generally have a similar result, except that agencies using CISA may find the resulting elevation to be equal to or lower than the current elevation in some areas due to the nature of the specific climate change processes and physical factors affecting flood risk at the project site. However, as a matter of policy established in the Executive Order 11988 and 13690 Implementing Guidelines, CISA can only be used if the resulting flood elevation is equal to or higher than current base flood elevation. The higher elevations result in a larger horizontal floodplain as illustrated below:
Executive Order 11988, issued May 24, 1977 (published in the
Prior to Executive Order 13690, a floodplain for Executive Order 11988 purposes referred to the lowland and relatively flat areas adjoining inland and coastal waters including flood-prone areas of offshore islands, including at a minimum, that area subject to a one percent or greater chance of flooding in any given year (often referred to as the “100-year” flood or “base flood”). Executive Order 13690 amended Executive Order 11988, to require agencies to update the FFRMS and the original Executive Order 11988 floodplain using one (or a combination) of the three approaches listed above, which are incorporated in the FFRMS.
Consistent with Executive Order 11988, when no practicable alternative exists to development in flood-prone areas, HUD requires the design or modification of the proposed action to minimize potential adverse impact to and from flooding. HUD has implemented Executive Order 11988 and its 8-step review process through regulations at 24 CFR part 55. HUD requires the 8-step review process for activities occurring in the floodplain such as new construction of infrastructure or substantial improvement of buildings and hospitals. HUD requires that all HUD assisted or financed construction and improvements (including mortgage insurance actions) undergo the 8-step review process unless they are subject to an exception or categorical exclusion under 24 CFR 50.19, 24 CFR 55.12, 24 CFR 58.34, or 24 CFR 58.35(b). For example, the 8-step review process in § 55.20 does not apply to non-critical
The proposed revision to HUD's floodplain regulations uses the framework of Executive Order 11988 which HUD has implemented for almost 40 years and does not change which actions require elevation and floodproofing of structures. This proposed rule would require that non-critical actions be elevated 2 feet above the base flood elevation. In addition, the rule would require that critical actions be elevated above the greater of the 500-year floodplain or 3 feet above the base flood elevation. For structures subject to HUD's floodplain regulation, this proposed rule also would enlarge the horizontal area of interest commensurate with the vertical increase, but the rule does not change the scope of actions to which the floodplain review process or elevation requirements in the floodplains regulations apply. The proposed rule would also revise HUD's Minimum Property Standards for one-to-four-unit housing under HUD mortgage insurance and low-rent public housing programs to require that the lowest floor in both newly constructed and substantially improved structures located within the 100-year floodplain be built at least 2 feet above the base flood elevation as determined by best available information, but does not enlarge the horizontal area of interest.
As communities continue to recover from the devastating effects of Hurricane Sandy and other flood disasters, HUD has determined that their lessons cannot be ignored and point to the need for mitigation and resilience standards that ensure that structures located in flood-prone areas are built or rebuilt stronger, safer, and less vulnerable to future flooding events. As a result, consistent with the FVA described above for HUD assisted or financed actions, this proposed rule would require that structures involving new construction and substantial improvements and subject to 24 CFR part 55 be built to FFRMS and elevated at least 2 feet above the base flood elevation using best available information.
This proposed rule would also apply a similar new elevation standard to one-to-four family residential structures, located in the 1 percent-annual-chance floodplain, that involve new construction or substantial improvement with mortgages insured by the Federal Housing Administration. This proposed rule would require elevation of these structures at least 2 feet above base flood elevation using the best available information. In order to meet the goal of improving the resilience of such properties while also aligning to the manner in which such programs already operate, the proposed rule excludes the horizontal extent of the FVA described above for such properties, as explained further in later in this preamble.
Elevation standards for manufactured housing receiving mortgage insurance are not covered in this rule change, but HUD expects to address this issue in future rulemaking. However, 24 CFR part 55, subject to exceptions and exclusions, will continue to apply to manufactured housing that receives assistance that is not in the form of mortgage insurance. This rule does not change the scope of activities that require compliance with the 8-step process, but rather it changes the vertical and horizontal extent of the floodplain for the purposes of 24 CFR part 55.
There are two primary purposes for this rulemaking. First, HUD's experience in the wake of Hurricane Sandy and other flood disasters is that unless structures in flood-prone areas are properly designed, constructed, and elevated, they may not withstand future severe flooding events. As recognized by MitFLG and required by the FFRMS and Executive Order 13690, requiring structures to be elevated an additional elevation above the base flood elevation will increase resiliency and reduce property damage, economic loss, and loss of life, and can also benefit homeowners by reducing flood insurance rates. These higher elevations provide an extra buffer of 2 to 3 feet above the base flood elevation based on the best available information to improve the long term resilience of communities. Second, the higher elevation standards help account for increased flood risk associated with projected sea level rise, which is not considered in current FEMA maps and flood insurance costs. As stated in “Global Sea Level Rise Scenarios for the United States National Climate Assessment” U.S. Department of Commerce, National Oceanic and Atmospheric Administration, December 2012,
This proposed rule uses the framework of Executive Order 11988 which HUD has implemented for nearly forty years. The proposed rule in 24 CFR part 55 does not change the requirements and guidance specifying when elevation and floodproofing of structures is required. For instance, HUD currently requires that a single family property involving new construction or substantial improvement financed with a HUD grant and located in the 1 percent-annual-chance floodplain in the effective Flood Insurance Rate Map (FIRM) be elevated to the effective FIRM base flood elevation. This proposed rule would add two feet of additional elevation to the base flood elevation as a resilience standard. Similarly, the proposed rule would not change the requirements or guidance governing rowhomes or structures with basements except to add two feet of additional elevation. As in the past, projects involving substantial improvement to rowhomes would have several options: (1) Elevate the effected home or homes, either by raising the floor within the home or elevating the full block; (2) if the homes are possibly historic, take formal steps to have the home(s) listed on the National Register of Historical Places or on a State Inventory of Historic Places, as structures with historic status are not required to elevate; or (3) alter the design plans so that substantial improvement is not being performed, such that elevation is not required. Likewise, some structures with basements would continue to be affected under the proposed rule. In some cases, raising the floor or filling in basements altogether may be necessary. In non-residential structures, floodproofing could be an option to preserve basements. HUD does not anticipate significant impacts on basements from the proposed rule; since HUD began collecting data on single-family properties basements in 2014, no single-family property has been affected by HUD's current flood elevation requirements.
HUD chose the FVA over the CISA and the 0.2 Percent Flood approaches for a variety of reasons. First, the FVA can be applied consistently to any area participating in the NFIP. The FVA can be calculated using existing flood maps. This is not true for the CISA standard unless HUD were to establish criteria for every community regarding the application of particular climate and greenhouse gas scenarios and associated impacts (
Requiring a higher elevation standard will also address increased risk that occurs when flood maps do not reflect the current development footprint. Additional development and impervious surface decrease floodplain capacity and increase flood risk to structures. As more of the floodplain is paved, the floodplain absorbs less water and the area subject to flooding is increased. For this reason and generalized uncertainty in flood modeling processes, two prominent building codes, the International Building Code and International Residential Code
The building official shall review all permit applications to determine whether proposed development sites will be reasonably safe from flooding. If a proposed development site is in a flood hazard area, all site development activities (including grading, filling, utility installation and drainage modification), all new construction and substantial improvements (including the placement of prefabricated buildings and manufactured homes) and certain building work exempt from permit under Section 105.2 shall be designed and constructed with methods, practices and materials that minimize flood damage and that are in accordance with this code and ASCE 24.
ASCE 24 then states a few freeboard requirements. See:
A recent FEMA study also estimated that the size of floodplains and demand for flood insurance coverage will continue to increase.
Requiring additional elevation above the base flood elevation also produces net savings in housing costs over time. HUD's mission is to create strong, sustainable, inclusive communities and quality affordable homes for all. Flood insurance and rebuilding costs can have drastic adverse effects on the affordability of homes. By elevating additional feet above the base flood elevation, homeowners may benefit from flood insurance premium reductions that will increase long-term affordability. As stated in FEMA's “Home Builder's Guide To Coastal Construction, Designing for Flood Levels Above the BFE” Technical Bulletin No. 1.6,
HUD proposes to implement FFRMS by revising § 55.20, which is HUD's current 8-step process for evaluating HUD-assisted projects for flood risk and identifying steps to mitigate that risk. The 8-step process is currently triggered whenever a proposed non-critical action falls within the 100-year floodplain, as defined in § 55.2(b)(9), and whenever a critical action falls within the 500-year floodplain, as defined in § 55.2(b)(4). This proposed rule would expand the scope of § 55.20 by applying it to all projects situated at an elevation at or below the FFRMS floodplain.
HUD proposes to define FFRMS floodplain in § 55.2(b)(12) for non-critical actions as land that is less than two feet above the 100-year floodplain. For critical actions, the FFRMS floodplain would be defined to include land that is either within the 500-year floodplain or less than three feet above the 100-year floodplain. Section 55.20(e) of the proposed rule would provide that, in addition to the current mitigation and risk reduction requirements, all actions in the FFRMS floodplain must be elevated or, in certain cases, floodproofed above the FFRMS floodplain. If higher elevations, setbacks, or other floodplain management measures are required by state, tribal, or locally adopted code or standards, HUD would provide that those higher standards would apply.
For non-critical actions that are non-residential structures or multifamily residential structures that have no residential dwelling units below the FFRMS floodplain, HUD is proposing that projects may, as an alternative to being designed and built above the FFRMS floodplain, be designed and constructed such that, below the FFRMS floodplain, the structure is floodproofed. HUD would, except for changing “base flood level” to “FFRMS floodplain,” as defined in § 55.2(b)(12), adopt FEMA's requirements for floodproofing as provided in FEMA's regulations at 44 CFR 60.3(c)(3)(ii), which describes “floodproofing” as requiring that structures, “together with attendant utility and sanitary facilities, be designed so that below the base flood level the structure is watertight with walls substantially impermeable to the passage of water and with structural components having the capability of resisting hydrostatic and hydrodynamic loads and effects of buoyancy.” If higher standards are required by the NFIP or state, tribal, or locally adopted codes or standards, or if FEMA revises its NFIP regulation, those higher standards or
In the case of multifamily buildings, HUD would provide that the term “lowest floor” must be applied consistent with FEMA's Elevation Certificate guidance or FEMA's current guidance that establishes lowest floor. Specifically, HUD would define “lowest floor” to mean the lowest floor of the lowest enclosed area (including basement), except that an unfinished or flood resistant enclosure, usable solely for parking of vehicles, building access or storage in an area other than a basement area is not considered a building's lowest floor, provided, that such enclosure is not built so as to render the structure in violation of the non-elevation design requirements of 44 CFR 60.3.
The definition of “substantial improvement,” codified at § 55.2(b)(10), would not change but continue to include any repair, reconstruction, modernization or improvement of a structure, the cost of which equals or exceeds 50 percent of the market value of the structure either: (1) Before the improvement or repair is started; or (2) if the structure has been damaged and is being restored, before the damage occurred. The definition of substantial improvement also includes repairs, reconstruction, modernization, or improvements that increase the average peak number of customers or employees likely to be on-site at any one time or the number of dwelling units in residential projects more than 20 percent. “Substantial improvement” does not include alterations to structures listed on the National Register of Historic Places or on a State Inventory of Historic Places or improvement of a structure to comply with existing state or local code specifications that is solely necessary to assure safe living conditions.
The provisions relating to Letters of Map Amendment (LOMAs) and Letters of Map Revision (LOMRs) at § 55.12(c)(8) as well as the provision at § 55.26 covering the adoption of other agency floodplain and wetland reviews would also be updated to reflect the FFRMS.
Under this proposed rule, the required data source and best available information under Executive Order 11988 remains the latest FEMA issued data or guidance, which includes advisory data (such as Advisory Base Flood Elevations (ABFE)) or preliminary and final Flood Insurance Rate Maps (FIRM). Executive Order 11988 on floodplain management requires that federal agencies use the best available information to determine the flood risk for locations of projects and activities. Section 55.2(b)(1) provides that when FEMA provides interim flood hazard data, such as ABFE or preliminary maps and studies, HUD or the responsible entity shall use the latest of these sources to establish the floodplain. If FEMA information is unavailable or insufficiently detailed, other federal, state, tribal, or local data may be used as “best available information” in accordance with Executive Order 11988. However, a base flood elevation from an interim or preliminary or non-FEMA source cannot be used if it is lower than the current FIRM and Flood Insurance Study. This proposed rule clarifies, however, that in addition to FIRMs or ABFEs, the use of sources, such as U.S. Global Change Research Program, National Oceanic and Atmospheric Administration, United States Army Corps of Engineers, U.S. Geological Survey, and other FEMA sources, regarding climate impacts and sea level rise may be considered and must be considered for Environmental Impact Statements (EIS). These agencies often offer analyses that are forward-looking and may be more robust than the data offered under NFIP, which does not currently analyze sea level rise in FIRMs. These sources cover subject areas such as estimated sea level rise or catastrophic failure of flood control projects that may lead the reviewer to determine that an elevation greater than the FFRMS floodplain is appropriate. These sources may supplement the FIRM or ABFE but cannot be used as a basis for a lower elevation than otherwise required under this part.
In addition to increasing the elevation requirement, the rule proposes several other changes to enhance efficiency and consistency. First, the rule would amend the public notice requirements in §§ 55.20(b)(1) and 58.43(a) to allow parties to provide the public with notice of potential actions using government Web sites in lieu of a “local printed news medium” or “newspaper of general circulation in the affected community” as required under the current regulations. Second, the proposed rule also adds the word “method” to § 55.20(c)(1) to make the sentence consistent with language that immediately follows in § 55.20(c)(1)(ii) stating that alternative flood protection method considerations are, in addition to alternative site considerations, required under this subpart. Third, the proposed rule updates the definition of Coastal High Hazard Area (V Zone) to match FEMA's more thorough definition at 44 CFR 59.1, which is used by the NFIP. The change will have no impact on the function of 24 CFR part 55, because FEMA FIRMs will remain the principal source of V Zone data. Finally, the proposed rule makes a technical correction to a citation located in table 1 in § 55.11(c).
This rulemaking also proposes to apply a new elevation standard to one-to-four-family residential structures with mortgages insured by the FHA. Generally, in HUD's single-family mortgage insurance programs, Direct Endorsement mortgagees submit applications for mortgage insurance to HUD, and Lender Insurance mortgagees endorse loans for insurance, after the structure has been built. Thus, there is no HUD review or approval before the completion of construction. In these instances, HUD is not undertaking, financing or assisting construction or improvements. Thus, the FHA single family mortgage insurance program is not subject to Executive Order 11988, NEPA (42 U.S.C. 4321
In alignment with the proposals in this rulemaking that address FFRMS under Executive Order 11988, HUD is also proposing to amend its Minimum Property Standards on site design, and specifically the standards addressing drainage and flood hazard exposure at § 200.926d(c)(4). The purpose of the amendment of the property standard is to decrease potential damage from floods, increase the safety and soundness of the property for residents, and provide for more resilient communities in flood hazard areas. HUD would revise the section by requiring the lowest floor of newly constructed and substantially improved structures, within the 100-year floodplain, with and without basements to be at least 2 feet above the base flood elevation as determined by best available information. For one- to four-unit housing under HUD mortgage insurance and low-rent public housing programs, HUD's Minimum Property Standards in 24 CFR part 200 currently require that a one- to four-unit property involving new construction, located in the 1 percent-annual-chance floodplain in the effective Flood Insurance Rate Map (FIRM), be elevated to the effective FIRM base flood elevation. This proposed rule would add two feet of additional elevation to the base flood elevation as a resilience standard and would apply this standard to substantial improvement as well as new construction of such properties. This rule would not require consideration of the horizontally expanded FFRMS floodplain for single-family mortgage insurance projects governed by the requirements in the Minimum Property Standards.
HUD also proposes to amend § 50.20(a)(2)(i) to revise the categorical exclusion from environmental review under NEPA for minor rehabilitation of one- to four-unit residential properties. Specifically, HUD would remove the qualification that the footprint of the structure may not be increased in a floodplain or wetland when HUD performs the review. HUD recently removed the footprint trigger from the categorical exclusion at § 58.35(a)(3)(i) to allow rehabilitations reviewed by HUD responsible entities this ability to utilize this exclusion. This change will make the review standard the same regardless of whether HUD or a responsible entity is performing the review. Currently, when HUD performs a review under 24 CFR part 50, four units can be constructed in a floodplain or wetland as an individual action without an environmental assessment under the categorical exclusion in § 50.20(a)(3), but rehabilitated structures in a floodplain or wetland with an increased footprint would require a full environmental assessment. It is logically inconsistent to require a greater review for minor rehabilitations than new construction and to apply a higher level of review for HUD as opposed to grantees.
In addition to seeking comments on implementing FFRMS, HUD specifically seeks public comments on the impact of the proposed elevation requirement on the accessibility of covered multifamily dwellings under the Fair Housing Act, the Americans with Disabilities Act (ADA), the Architectural Barriers Act (ABA), and section 504 of the Rehabilitation Act of 1973. Elevating buildings as a flood damage mitigation strategy may have a negative impact on affected communities' disabled and elderly populations, unless those buildings are made accessible. As a result, HUD invites comments on strategies it could employ to increase the accessibility of properties so affected in the event the proposed increase in elevation is adopted. Additionally, HUD invites comment on the cost and benefits of such strategies, including data that supports the costs and benefits.
HUD is not including as part of this proposed rule, guidance to determine the horizontal extent of the FFRMS floodplain. In this regard, HUD believes that it is imperative to preserve the option to use new methodologies to determine horizontal extent as they become available. Nevertheless, HUD is seeking public comments on potential limits to the area and horizontal extent of the floodplain beyond the 100-year floodplain when using the FFRMS. Specifically, HUD is considering whether to use HUD's current areawide compliance process described at 24 CFR 55.25 to allow HUD to enter into allow voluntary agreements with communities to limit horizontal extent beyond the 100-year floodplain where: (1) Best-available and actionable climate data shows the area and horizontal extent of the two foot freeboard (or three foot for a Critical Action) FFRMS exceeds local, relative sea-level rise rates or other climate-related projections and the 500-year floodplain including wave heights; and
(2) There are limited or no safely or sustainably developable sites in a community outside of the two foot FVA (or three foot for a Critical Action).
HUD also invites comment on other approaches to limit the horizontal extent of the floodplain beyond the 100-year floodplain. Information regarding the cost and benefits of adopting any proposed limit is also requested.
Further information about best-available and actionable climate data and the Climate-Informed Science Approach of the FFRMS is available in Appendix H of the October 8, 2015 Guidelines for Executive Order 11988, Floodplain Management, and Executive Order 13690, Establishing a Federal Flood Risk Management Standard and a Process for Further Soliciting and Considering Stakeholder Input (Guidelines).
Finally, HUD invites comments on alternative approaches to define the FFRMS floodplain for critical actions. For structures that meet the definition of critical actions as described in § 55.2(b)(3)(i) (
Under Executive Order 12866 (Regulatory Planning and Review), a determination must be made whether a regulatory action is significant and, therefore, subject to review by the Office of Management and Budget (OMB) in accordance with the requirements of the order. Executive Order 13563 (Improving Regulations and Regulatory Review) directs executive agencies to analyze regulations that are “outmoded, ineffective, insufficient, or excessively burdensome, and to modify, streamline, expand, or repeal them in accordance with what has been learned.” Executive Order 13563 also directs that, where relevant, feasible, and consistent with regulatory objectives, and to the extent permitted by law, agencies are to identify and consider regulatory approaches that reduce burdens and maintain flexibility and freedom of choice for the public. This rule was determined to be a “significant regulatory action” as defined in section 3(f) of Executive Order 12866 (although not an economically significant regulatory action, as provided under section 3(f)(1) of the Executive Order).
As discussed in this preamble, the proposed regulatory amendments
Increasing the required minimum elevation of HUD-assisted structures located in and around the floodplain will prevent damage caused by flooding and avoid relocation costs to tenants associated with temporary moves when HUD-assisted structures sustain flood damage and are temporarily uninhabitable. These benefits, which are realized throughout the life of HUD-assisted structures, are offset by the one-time increase in construction costs, borne only at the time of construction. Introducing a standard that requires additional freeboard above the base flood elevation takes into consideration FEMA's history of recommending freeboard as a tool for mitigation which extends several decades and provides, in HUD's view, the best assessment of risk to protect federal investments in flood zones.
In addition, the likelihood that floods in coastal areas will become more frequent and damaging due to rising sea levels in future decades necessitates a stricter standard than the one currently in place. As stated in “Global Sea Level Rise Scenarios for the United States National Climate Assessment” U.S. Department of Commerce, National Oceanic and Atmospheric Administration, December 2012,
As discussed in the regulatory impact analysis that accompanies this rule, HUD estimates that requiring developers to construct or floodproof HUD-funded or insured properties to two feet above base flood elevation will increase construction costs by $12.803 million to $47.525 million. These are one-time costs which occur at the time of construction. Benefits of the increased standard include avoided damage to buildings, as measured by decreased insurance premiums, and avoided costs associated with tenants being displaced. These benefits occur annually over the life of the structures. Over a 30-year period, the present value of aggregate benefits total $12.336 million to $50.657 million assuming a 3 percent discount rate and $8.192 million to $33.317 million assuming a 7 percent discount rate.
These estimates are based on the annual production of HUD-assisted and insured structures in the floodplain and accounts for the 20 states (in addition to the District of Columbia and Puerto Rico)
The Regulatory Flexibility Act (RFA) (5 U.S.C. 601
With respect to all entities, including small entities, it is unlikely that the economic impact would be significant. As the Regulatory Impact Analysis (RIA) explains, the benefits of reduced damage offset the construction costs before taking further sea level rise into consideration. Further, small entities may benefit more since they are less likely to endure financial hardships caused by severe flooding.
Based on an engineering study conducted for FEMA,
These costs are likely higher than would actually be caused by the increased standard because most HUD-assisted or insured substantial improvement projects already involve elevation to comply with the current standard, elevation to the base flood elevation (base flood elevation+0). Thus, elevating a structure an additional two feet would be marginal compared to the initial cost of elevation to the floodplain level.
For this reason, the undersigned certifies that there is no significant economic impact on small entities. Notwithstanding HUD's determination that this rule will not have a significant economic impact on a substantial number of small entities, HUD specifically invites comments regarding any less burdensome alternatives to this rule that would meet HUD's program responsibilities.
A Finding of No Significant Impact (FONSI) with respect to environment has been made in accordance with HUD regulations at 24 CFR part 50, which implement section 102(2)(C) of NEPA (42 U.S.C. 4332(2)(C)). The Finding of No Significant Impact is available for public inspection on
Executive Order 13132 (entitled “Federalism”) prohibits an agency from publishing any rule that has federalism implications if the rule either imposes substantial direct compliance costs on state and local governments and is not required by statute, or preempts state law, unless the agency meets the consultation and funding requirements of section 6 of the Executive order. This rulemaking does not have federalism implications and would not impose substantial direct compliance costs on state and local governments nor preempts state law within the meaning of the Executive order.
Title II of the Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1531-1538) (UMRA) establishes requirements for federal agencies to assess the effects of their regulatory actions on state, local, and tribal governments, and on the private sector. This proposed rule would not impose any federal mandates on any state, local, or tribal governments, or on the private sector, within the meaning of UMRA.
The information collection requirements contained in this rule were reviewed by OMB under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520) and assigned OMB Control Number 2506-0151. An agency may not conduct or sponsor, and a person is not required to respond to, a collection of information, unless the collection displays a valid control number.
Environmental impact statements.
Environmental impact statements, Floodplains, Wetlands.
Community development block grants, Environmental impact statements, Grant programs—housing and community development, Reporting and recordkeeping requirements.
Administrative practice and procedure, Claims, Equal employment opportunity, Fair housing, Housing standards, Lead poisoning, Loan programs—housing and community development, Mortgage insurance, Organization and functions (Government agencies), Penalties, Reporting and recordkeeping requirements, Social security, Unemployment compensation, Wages.
Accordingly, for the reasons stated in the preamble above, HUD proposes to amend 24 CFR parts 50, 55, 58, and 200 as follows:
42 U.S.C. 3535(d) and 4332; and Executive Order 11991, 3 CFR, 1977 Comp., p.123.
(a) * * *
(2) * * *
(i) In the case of a building for residential use (with one to four units), the density is not increased beyond four units, and the land use is not changed;
42 U.S.C. 3535(d), 4001-4128 and 5154a; E.O. 13690, 80 FR 6425, E.O. 11988, 42 FR 26951, 3 CFR, 1977 Comp., p. 117; E.O. 11990, 42 FR 26961, 3 CFR, 1977 Comp., p 121.
The revisions and additions read as follows:
(b) * * *
(1)
(i) When FEMA provides interim flood hazard data, such as Advisory Base Flood Elevations (ABFE) or preliminary maps and studies, HUD or the responsible entity shall use the latest of these sources.
(ii) If FEMA information is unavailable or insufficiently detailed, other Federal, state, or local data may be used as “best available information” in accordance with Executive Order 11988. A base flood elevation from an interim or preliminary or non-FEMA source may not be used if it is lower than the current FIRM and FIS.
(iii) In addition to FIRMs or ABFEs, the use of data from sources such as the U.S. Global Change Research Program, National Oceanic and Atmospheric Administration, United States Army Corps of Engineers, U.S. Geological Survey, and other FEMA sources may be considered. When performing an Environmental Impact Statement (EIS), an analysis of the best available, actionable climate science, as determined by HUD or the responsible entity, must be performed using data from these sources. These sources may supplement the FIRM or ABFE in order to better minimize impacts to projects or to elevate or floodproof structures above the risk adjusted floodplain. These sources may not be used as a basis for a lower elevation than otherwise required under this part.
(4)
(9)
(12)
(i) If a non-critical action, is located on a site less than two feet above the 100-year floodplain; or
(ii) If a critical action, is on a site that is either within the 500-year floodplain or less than three feet above the 100-year floodplain. The larger floodplain and higher elevation must be applied where the 500-year floodplain is mapped.
(13)
(c) * * *
(8) HUD's or the responsible entity's approval of financial assistance for a project on any nonwetland site in the FFRMS floodplain for which FEMA has issued:
(i) A final Letter of Map Amendment (LOMA), final Letter of Map Revision (LOMR), or final Letter of Map Revision Based on Fill (LOMR-F) that presents information that can be used to demonstrate that the property (including ingress and egress on the property) is not located in the FFRMS floodplain; or
(ii) A conditional LOMA, conditional LOMR, or conditional LOMR-F that presents information that can be used to demonstrate that the property (including ingress and egress on the property) will not be located in the FFRMS floodplain if HUD or the responsible entity's approval is subject to the requirements and conditions of the conditional LOMA or conditional LOMR;
(a)
(2) The following process shall be followed by HUD (or the responsible entity) in making wetland determinations:
(i) Refer to § 55.28(a) where an applicant has submitted with its application to HUD (or to the recipient under programs subject to 24 CFR part 58) an individual Section 404 permit (including approval conditions and related environmental review).
(ii) Refer to § 55.2(b)(11) for making wetland determinations under this part.
(iii) For proposed actions occurring in both a wetland and the FFRMS floodplain, completion of the decision making process under this section is required regardless of the issuance of a Section 404 permit. In such a case, the wetland will be considered among the primary natural and beneficial functions and values of the FFRMS floodplain.
(b)
(1) The public notices required by paragraphs (b) and (g) of this section may be combined with other project notices wherever appropriate. Notices required under this part must be bilingual if the affected public is largely non-English speaking. In addition, all notices must be published in an appropriate local news medium or appropriate government Web site, and must be sent to Federal, state, and local public agencies, organizations, and, where not otherwise covered, individuals known to be interested in the proposed action.
(3) A notice under this paragraph shall state: The name, proposed location and description of the activity; the total number of acres of FFRMS floodplain or wetland involved; the related natural and beneficial functions and values of the FFRMS floodplain or wetland that may be adversely affected by the proposed activity; the HUD approving official (or the certifying officer of the responsible entity authorized by 24 CFR part 58); and the phone number to call for information. The notice shall indicate the hours of HUD or the responsible entity's office, and any Web site at which a full description of the proposed action may be reviewed.
(c)
(1) Except as provided in paragraph (c)(3) of this section, HUD's or the responsible entity's consideration of practicable alternatives to the proposed site or method should include the following:
(i) Locations outside the FFRMS floodplain or wetland;
(d)
(1)
(e)
(1) If a structure designed principally for residential use undergoing new construction or substantial improvement is located in a floodplain, the lowest floor or FEMA-approved equivalent must be designed using the FFRMS floodplain as the baseline standard for elevation, except where higher elevations are required by state, tribal, or locally adopted code or standards, in which case those higher elevations apply. Where non-elevation standards such as setbacks or other flood risk reduction standards that have been issued to identify, communicate, or reduce the risks and costs of floods are required by state, tribal, or locally adopted code or standards, those standards shall apply in addition to the FFRMS baseline elevation standard.
(2) New construction and substantial improvement of non-residential structures, or residential structures that have no dwelling units and no residents below the FFRMS floodplain and that are not critical actions as defined at § 55.2(b)(3), shall be designed either:
(i) With the lowest floor, including basement, elevated to or above the FFRMS floodplain; or
(ii) With the structure floodproofed at least up to and below the FFRMS floodplain. Floodproofing standards are as stated in FEMA's regulations at 44 CFR 60.3(c)(3)(ii), or such other regulatory standard as FEMA may issue, and applicable guidance, except that where the standard refers to base flood level, elevation is required above the FFRMS floodplain, as defined in this part.
(3) The term “lowest floor” means the lowest floor of the lowest enclosed area (including basement), except that an unfinished or flood resistant enclosure, usable solely for parking of vehicles, building access or storage in an area other than a basement area is not considered a building's lowest floor; provided, that such enclosure is not built so as to render the structure in violation of the applicable non-elevation design requirements of 44 CFR 60.3. “Lowest floor” must be applied consistent with FEMA's Elevation Certificate guidance or other applicable current FEMA guidance.
(4) Minimization techniques for floodplain and wetlands purposes include, but are not limited to: The use of permeable surfaces; natural landscape enhancements that maintain or restore natural hydrology through infiltration, native plant species, bioswales, rain gardens, or evapotranspiration; stormwater capture and reuse; green or vegetative roofs with drainage provisions; Natural Resource Conservation Service or other conservation easements; WaterSense products; rain barrels and grey water diversion systems; and other low impact development and green infrastructure strategies, technologies, and techniques. For floodplain purposes, minimization also includes floodproofing and elevating structures above the required
(5) Appropriate and practicable compensatory mitigation is recommended for unavoidable adverse impacts to more than one acre of wetlands. Compensatory mitigation includes, but is not limited to: Permitee-responsible mitigation, mitigation banking, in-lieu fee mitigation, the use of preservation easements or protective covenants, and any form of mitigation promoted by state or federal agencies. The use of compensatory mitigation may not substitute for the requirement to avoid and minimize impacts to the maximum extent practicable.
(6) All critical actions in the FFRMS floodplain must be modified to include:
(i) Preparation of and participation in an early warning system;
(ii) An emergency evacuation and relocation plan;
(iii) Identification of evacuation route(s) out of the FFRMS and 500-year floodplain; and
(iv) Identification marks of past or estimated flood levels on all structures.
(f)
(1) Whether the action is still practicable in light of exposure to flood hazards in the FFRMS floodplain or wetland, possible adverse impacts on the FFRMS floodplain or wetland, the extent to which it will aggravate the current and future hazards to other floodplains or wetlands, and the potential to disrupt the natural and beneficial functions and values of floodplains or wetlands; and
(2) Whether alternatives preliminarily rejected at Step 3 (paragraph (c) of this section) are practicable in light of information gained in Steps 4 and 5 (paragraphs (d) and (e) of this section).
(i) The reevaluation of alternatives, or initial evaluation of a no action or non-floodplain alternative for actions under § 55.12(a), shall include the potential impacts avoided or caused inside and outside the FFRMS floodplain or wetlands area. The impacts should include the protection of human life, real property, and the natural and beneficial functions and values served by the floodplain or wetland.
(ii) A reevaluation of alternatives, or initial evaluation of a no action or non-floodplain alternative for actions under § 55.12(a), under this step should include a discussion of economic costs. For floodplain areas, the cost estimates should include savings or the costs of flood insurance (where applicable); floodproofing; replacement of services or functions of critical actions that might be lost; and elevation to at least the elevation of the FFRMS floodplain, as appropriate on the applicable source under § 55.2(b)(1). For wetlands, the cost estimates should include the cost of new construction activities, including fill, impacting the wetlands, and mitigation.
(g) * * * (1) If the reevaluation results in a determination that there is no practicable alternative to locating the proposal in the FFRMS floodplain or wetland, publish a final notice that includes:
(i) The reasons why the proposal must be located in the FFRMS floodplain or wetland;
The addition reads as follows:
(d) All actions must at least be elevated or floodproofed two feet above the 100-year floodplain (or to the higher of the 500-year flood elevation or 3 feet above the 100-year floodplain for Critical Actions) unless an agreement is in place to allow for the other Federal agency's FFRMS elevation standard pursuant to 42 U.S.C. 5189g.
(a) * * *
(2) Under § 55.20(e), measures to minimize the potential adverse impacts of the proposed action on the affected floodplain or wetland as identified in § 55.20(d) have been applied to the design for the proposed action. Prior to construction of a project in a floodplain, the documentation must include an elevation certificate or floodproofing certificate (or such other similar certification as HUD may from time to time direct) indicating the FFRMS floodplain elevation was used if required under § 55.20(e).
12 U.S.C. 1707 note, 1715z- 13a(k); 25 U.S.C. 4115 and 4226; 42 U.S.C. 1437x, 3535(d), 3547, 4321-4335, 4852, 5304(g), 12838, and 12905(h); title II of Pub. L. 105-276; E.O. 11514 as amended by E.O. 11991, 3 CFR, 1977 Comp., p. 123.
(b) * * *
(1) Executive Order 11988, Floodplain Management, as amended by Executive Order 13690, February 4, 2015 (80 FR 6425), 3 CFR, 2015 Comp., p. 6425, as interpreted in HUD regulations at 24 CFR part 55.
(a) If the responsible entity makes a finding of no significant impact, it must prepare a FONSI notice, using the current HUD-recommended format or an equivalent format. As a minimum, the responsible entity must send the FONSI notice to individuals and groups known to be interested in the activities, to the local news media, to the appropriate tribal, local, State and Federal agencies; to the Regional Offices of the Environmental Protection Agency having jurisdiction and to the HUD Field Office (or the State where applicable). The responsible entity may also publish the FONSI notice in a newspaper of general circulation in the affected community or on an appropriate government Web site. If the notice is not published, it must also be prominently displayed in public buildings, such as the local Post Office and within the project area or in accordance with procedures established as part of the citizen participation process.
12 U.S.C. 1702-1715z-21; 42 U.S.C. 3535(d).
(a) * * *
(3)
The revisions read as follows:
(c) * * *
(4) * * *
(i)
(ii)
(B) Where FEMA has determined the base flood level without establishing stillwater elevations, the bottom of the lowest structural member of the lowest floor (excluding pilings and columns) and its horizontal supports shall be at least two feet above the base flood elevation.
(iii)
(1) A final Letter of Map Amendment (LOMA);
(2) A final Letter of Map Revision (LOMR); or
(3) A signed Elevation Certificate documenting that the lowest floor (including basement) of the property improvements is at least two feet above the base flood elevation as determined by FEMA's best available information.
(B) Under the DE program, these mortgages are not eligible for insurance unless the DE mortgagee submits the LOMA, LOMR, or Elevation Certificate to HUD with the mortgagee's request for endorsement.
Alcohol and Tobacco Tax and Trade Bureau, Treasury.
Notice of proposed rulemaking.
The Alcohol and Tobacco Tax and Trade Bureau (TTB) proposes to establish the 202,476-acre “Petaluma Gap” viticultural area in portions of Sonoma and Marin Counties in California. TTB also proposes to expand the boundary of the existing 3 million-acre North Coast viticultural area by 28,077 acres in order to include the entire proposed Petaluma Gap viticultural area within it. The proposed Petaluma Gap viticultural area would also partially extend outside of the established Sonoma Coast viticultural area, but TTB is not proposing to modify the boundary of the Sonoma Coast viticultural area. TTB designates viticultural areas to allow vintners to better describe the origin of their wines and to allow consumers to better identify wines they may purchase. TTB invites comments on these proposals.
TTB must receive your comments on or before December 27, 2016.
Please send your comments on this proposal to one of the following addresses:
•
•
•
See the Public Participation section of this document for specific instructions and requirements for submitting comments, and for information on how to request a public hearing.
You may view copies of this document, selected supporting materials, and any comments TTB receives about this proposal at
Karen A. Thornton, Regulations and Rulings Division, Alcohol and Tobacco Tax and Trade Bureau, 1310 G Street NW., Box 12, Washington, DC 20005; phone 202-453-1039, ext. 175.
Section 105(e) of the Federal Alcohol Administration Act (FAA Act), 27 U.S.C. 205(e), authorizes the Secretary of the Treasury to prescribe regulations for the labeling of wine, distilled spirits, and malt beverages. The FAA Act provides that these regulations should, among other things, prohibit consumer deception and the use of misleading statements on labels, and ensure that labels provide the consumer with adequate information as to the identity and quality of the product. The Alcohol and Tobacco Tax and Trade Bureau (TTB) administers the FAA Act
Part 4 of the TTB regulations (27 CFR part 4) authorizes TTB to establish definitive viticultural areas and regulate the use of their names as appellations of origin on wine labels and in wine advertisements. Part 9 of the TTB regulations (27 CFR part 9) sets forth standards for the preparation and submission of petitions for the establishment or modification of American viticultural areas (AVAs) and lists the approved AVAs.
Section 4.25(e)(1)(i) of the TTB regulations (27 CFR 4.25(e)(1)(i)) defines a viticultural area for American wine as a delimited grape-growing region having distinguishing features, as described in part 9 of the regulations, and a name and a delineated boundary, as established in part 9 of the regulations. These designations allow vintners and consumers to attribute a given quality, reputation, or other characteristic of a wine made from grapes grown in an area to its geographic origin. The establishment of AVAs allows vintners to describe more accurately the origin of their wines to consumers and helps consumers to identify wines they may purchase. Establishment of an AVA is neither an approval nor an endorsement by TTB of the wine produced in that area.
Section 4.25(e)(2) of the TTB regulations (27 CFR 4.25(e)(2)) outlines the procedure for proposing an AVA and provides that any interested party may petition TTB to establish a grape-growing region as an AVA. Section 9.12 of the TTB regulations (27 CFR 9.12) prescribes standards for petitions for the establishment or modification of AVAs. Petitions to establish an AVA must include the following:
• Evidence that the area within the proposed AVA boundary is nationally or locally known by the AVA name specified in the petition;
• An explanation of the basis for defining the boundary of the proposed AVA;
• A narrative description of the features of the proposed AVA that affect viticulture, such as climate, geology, soils, physical features, and elevation, that make the proposed AVA distinctive and distinguish it from adjacent areas outside the proposed AVA boundary;
• The appropriate United States Geological Survey (USGS) map(s) showing the location of the proposed AVA, with the boundary of the proposed AVA clearly drawn thereon; and
• A detailed narrative description of the proposed AVA boundary based on USGS map markings.
TTB received a petition from the Petaluma Gap Winegrowers Alliance, proposing to establish the “Petaluma Gap” AVA and to modify the boundary of the existing multi-county North Coast AVA (27 CFR 9.30). The proposed AVA covers portions of Sonoma and Marin Counties, in California. There are 9 bonded wineries and 80 commercial vineyards, covering a total of approximately 4,000 acres, distributed throughout the 202,476-acre proposed AVA.
While the proposed Petaluma Gap AVA is largely located within the existing North Coast AVA, a small portion of the proposed Petaluma Gap AVA would, if established, extend outside the current southern boundary of the established North Coast AVA. To address the potential partial overlap of the two AVAs and account for viticultural similarities between the proposed Petaluma Gap AVA and the larger North Coast AVA, the petition also proposes to expand the boundary of the North Coast AVA so that the entire proposed Petaluma Gap AVA would be included within the North Coast AVA. The proposed expansion would increase the size of the 3 million-acre North Coast AVA boundary by 28,077 acres.
The proposed Petaluma Gap AVA, if established, would also partially overlap the southwestern boundary of the established Sonoma Coast AVA (27 CFR 9.116), but the Marin County portion of the proposed AVA, consisting of approximately 68,130 acres, would extend outside of the Sonoma Coast AVA. However, the petition does not propose to modify the boundary of the Sonoma Coast AVA for reasons which will be discussed later in this document, including the lack of use of the name “Sonoma Coast” outside of Sonoma County.
The distinguishing features of the proposed Petaluma Gap AVA are its topography and wind speeds. Unless otherwise noted, all information and data contained in the following sections are from the petition to establish the proposed AVA and its supporting exhibits.
The proposed Petaluma Gap AVA derives its name from the city of Petaluma and from the geographical feature known as the “Petaluma Gap,” both of which are located within the proposed AVA. The “Petaluma Gap” geographical feature is an area of low-lying hills which allows cool winds to flow inland from the Pacific Ocean. The Bay Area Air Quality Management District (BAAQMD) Web site states, “The region from the Estero Lowlands to the San Pablo Bay is known as the Petaluma Gap. * * * Wind patterns in the Petaluma and Cotati Valleys are strongly influenced by the Petaluma Gap.”
The name “Petaluma Gap” is also associated with the wine industry within the proposed AVA. The petitioner provided summaries of several wine-related articles that refer to the region of the proposed AVA as “Petaluma Gap.” In his blog “Fermentation: The Daily Wine Blog,” Tom Wark writes, “The `Petaluma Gap' might be a term you've heard of lately, particularly if you are an aficionado of Sonoma County wines.”
The proposed Petaluma Gap AVA is located in southern Sonoma County and northern Marin County. The proposed AVA has a northwest-southeast orientation and extends from the Pacific Ocean to San Pablo Bay. The proposed western boundary follows the Pacific coastline from the point where Walker Creek enters Tomales Bay northward to the point where Salmon Creek enters the ocean, just north of Bodega Bay. The proposed northern boundary follows Salmon Creek, the 400-foot elevation contour, and a series of roads and lines drawn between marked elevation points in order to separate the lower elevations and rolling hills of the proposed AVA from the steeper, higher elevations to the north. The proposed eastern boundary follows a series of lines drawn between points on the USGS map, separating the proposed AVA from the higher elevations of Sonoma Mountain and the flatter terrain along Sonoma Creek and San Pablo Bay. The proposed southern boundary follows a series of lines drawn between marked elevation points in order to separate the proposed AVA from the higher elevations to the south.
According to the petition, the distinguishing features of the proposed Petaluma Gap AVA are its topography and wind speed.
Coastal highlands and mountain ranges are characteristic of the California coast. However, within the proposed Petaluma Gap AVA, the highlands are not as pronounced as they are north and south of the proposed AVA. Within the proposed AVA, the topography is characterized by low, rolling hills. Flat land is found along the Petaluma River, especially east of the City of Petaluma and near the mouth of San Pablo Bay. Small valleys and fluvial terraces are also present. Elevations within the proposed AVA do not exceed 600 feet, except in a few places within the ridgelines that form the proposed northern, eastern, and southern boundaries.
According to the petition, the low elevations and gently rolling terrain of the proposed Petaluma Gap create a corridor that allows marine winds to flow relatively unhindered from the Pacific Ocean to San Pablo Bay, particularly during the mid-to-late afternoon. As a result, cool air and marine fog enter the vineyards during the time of day when temperatures would normally be at their highest, bringing heat relief to the vines. The low elevations and rolling hills of the proposed AVA also allow the marine air to enter the proposed AVA at higher speeds than found in the surrounding areas, where higher, steeper mountains disrupt the flow of air. The effects of the high wind speeds on grapes are discussed in detail later in this document.
To the north of the proposed Petaluma Gap AVA, the elevations are much higher, with elevations over 1,000 feet not uncommon in northern Sonoma County. The broad Santa Rosa Plain is also located north of the proposed AVA and has a much flatter topography than the proposed AVA. East of the proposed AVA, the higher elevations of Sonoma Mountain prevent much of the marine airflow that enters the Petaluma Gap from travelling farther east. East of Sonoma Mountain is the Sonoma Valley, which has lower elevations and flatter terrain than the proposed AVA. To the south of the proposed AVA, the elevations can exceed 1,000 feet.
According to the petition, marine air enters the proposed Petaluma Gap AVA at the Pacific coastline, between Bodega Bay and Tomales Bay. The air then flows southeasterly through the proposed AVA and exits at San Pablo Bay. Although marine breezes are present within the proposed AVA during most of the day, the wind speeds increase significantly in the afternoon hours. The petition states that in the mid-to-late afternoon, inland temperatures increase, causing the hot air to rise and pull the cooler, heavier marine air in from the coast and create steady winds. The following table, which was created by TTB from information included in the petition, shows the hourly average wind speed between noon and 6:00 p.m. for locations within the proposed AVA and the surrounding areas during the April-October growing season. Map 5a, included in Addendum 2 to the petition, shows the locations of the weather stations. Because the Pacific Ocean forms the western boundary of the proposed AVA, comparison data is only included from the regions to the north, east, and south of the proposed AVA. The data in the table shows that average hourly afternoon wind speeds within the proposed AVA are consistently higher than those in the surrounding regions.
The petition
The table shows that afternoon wind speeds for locations within the proposed AVA reach or exceed 8 miles per hour with greater frequency than for locations outside the proposed AVA. The petition states that when wind speeds reach 8 miles per hour, the stomata (or small pores) on the underside of the grape leaves close. When the stomata are closed, the rate of photosynthesis slows. The petition states that occasional periods of wind speeds of 8 miles per hour or higher typically have little effect on grape development. However, persistently high wind speeds, such as those found within the proposed Petaluma Gap AVA, reduce photosynthesis to the extent that the grapes have to remain on the vine longer in order to reach a given sugar level (a longer “hang time”), compared to the same grape varietal grown in a less windy location. Grapes grown in windy locations are also typically smaller and have thicker skins than the same varietal grown elsewhere. According to the petition, the smaller grape size, thicker skins, and longer hang time concentrate the flavor compounds in the fruit, allowing grapes that are harvested at lower sugar levels to still have the typical flavor characteristics of the grape varietal.
The North Coast AVA was established by T.D. ATF-145, which was published in the
The proposed Petaluma Gap AVA shares the basic viticultural feature of the North Coast AVA—the marine influence that moderates growing season temperatures in the area. However, the proposed AVA is much more uniform in its topography and its climate, as defined by wind speeds, than the diverse, multicounty North Coast AVA. In this regard, TTB notes that in the “Overlapping Viticultural Areas” section, T.D. ATF-145 specifically states that “approval of this viticultural area does not preclude approval of additional areas, either wholly contained within the North Coast, or partially overlapping the North Coast,” and that “smaller viticultural areas tend to be more uniform in their geographical and climatic characteristics, while very large areas such as the North Coast tend to exhibit generally similar characteristics, in this case the influence of maritime air off of the Pacific Ocean and San Pablo Bay.” Thus, the proposal to establish the Petaluma Gap AVA is consistent with what was envisaged when the North Coast AVA was established.
As previously noted, the petition to establish the proposed Petaluma Gap AVA also requests an expansion of the established North Coast AVA. The proposed Petaluma Gap AVA is located in the southwestern portion of the North Coast AVA, along the Sonoma-Marin County line. Most of the proposed Petaluma Gap AVA would, if established, be located within the current boundary of the North Coast AVA. However, unless the boundary of the North Coast AVA is modified, the southwestern portion of the proposed Petaluma Gap AVA in northwestern Marin County would be outside the North Coast AVA. This portion of the proposed Petaluma Gap AVA is roughly defined by the Pacific coastline on the western edge, the Sonoma-Marin County line on the northern edge, State Highway 1 on the eastern edge, and the mouth of Walker Creek on the southern edge. The proposed North Coast AVA boundary modification would increase the size of the established AVA by 28,077 acres and would result in the entire proposed Petaluma Gap AVA being within the North Coast AVA.
According to T.D. ATF-145, the North Coast AVA is characterized by a cool climate with growing degree day (GDD) totals that range from Region I to Region III on the Winkler scale.
Although the original determination to exclude western Marin County from the North Coast AVA was based on data from a Point Reyes weather station, which is southwest of the proposed Petaluma Gap AVA, TTB believes that GDD totals from that location are not an accurate basis for determining whether to include the southwestern corner of the proposed Petaluma Gap AVA within the North Coast AVA. The proposed Petaluma Gap AVA petition includes 2013 GDD data from a weather station located in Valley Ford, which is in the southwestern portion of the proposed AVA but outside of the current North Coast AVA boundary, as well as from weather stations within the proposed AVA, including one located two miles north of the town of Bodega Bay, that are within the current boundaries of the North Coast AVA.
The 2013 GDD total for the Valley Ford station was 1,102, which falls into the Region I category on the Winkler scale. For comparison, the 2013 GDD total for the Bodega Bay station was 1,194, which also falls into the Region I category on the Winkler scale. TTB believes, therefore, that this data shows that the climate of the southwestern portion of the proposed Petaluma Gap AVA is within the range of Winkler scale regions that characterizes the current North Coast AVA.
Additionally, in response to a question from TTB, the petitioners confirmed that there is at least one active vineyard growing Pinot Noir grapes in the southwest portion of the proposed Petaluma Gap AVA near Valley Ford, indicating that the GDD total for that region of the proposed AVA is not too low for commercial viticulture. Therefore, because the GDD total of the southwest portion of the proposed Petaluma Gap AVA is within the range of GDD totals that characterize the North Coast AVA and is high enough to support viticulture, TTB believes the petitioner's proposal to expand the North Coast AVA to include the southwest portion of the proposed Petaluma Gap AVA merits consideration and public comment.
The Sonoma Coast AVA was established by T.D. ATF-253, which was published in the
The proposed Petaluma Gap AVA is located in the southern portion of the Sonoma Coast AVA and shares the marine-influenced climate and coastal fog of the established AVA. Additionally, according to the climate data provided in the petition, the average maximum July temperature for the city of Petaluma, at the center of the proposed AVA, is 82 degrees Fahrenheit
As previously noted, if established, the proposed Petaluma Gap AVA would partially overlap the Sonoma Coast AVA, but also would leave the 68,130-acre Marin County portion of the proposed AVA outside of the established Sonoma Coast AVA. However, the petition requests that TTB allow the partial overlap to remain, primarily because the name “Sonoma Coast” is associated only with the coastal region of Sonoma County and does not extend into Marin County.
Although TTB generally discourages partial overlaps of AVAs because of the potential for consumer confusion, TTB agrees with the petitioners that the Sonoma Coast AVA should not be expanded to include the Marin County portion of the proposed Petaluma Gap AVA. TTB believes that extending the Sonoma Coast AVA would likely cause consumer confusion because the name “Sonoma Coast” is associated with Sonoma County and use of the name does not extend into Marin County. TTB
TTB concludes that the petition to establish the 202,476-acre “Petaluma Gap” AVA and to concurrently modify the boundary of the existing North Coast AVA merits consideration and public comment, as invited in this document.
TTB is proposing the establishment of the new AVA and the modification of the existing AVA as one action. Accordingly, if TTB establishes the proposed Petaluma Gap AVA, then the proposed boundary modification of the North Coast would be approved concurrently. If TTB does not establish the proposed Petaluma Gap AVA, then the present North Coast AVA boundary would not be modified as proposed in this document.
See the narrative boundary descriptions of the petitioned-for AVA and the boundary modification of the established AVA in the proposed regulatory text published at the end of this document.
The petitioner provided the required maps, and they are listed below in the proposed regulatory text.
Part 4 of the TTB regulations prohibits any label reference on a wine that indicates or implies an origin other than the wine's true place of origin. For a wine to be labeled with an AVA name or with a brand name that includes an AVA name, at least 85 percent of the wine must be derived from grapes grown within the area represented by that name, and the wine must meet the other conditions listed in 27 CFR 4.25(e)(3). If the wine is not eligible for labeling with an AVA name and that name appears in the brand name, then the label is not in compliance and the bottler must change the brand name and obtain approval of a new label. Similarly, if the AVA name appears in another reference on the label in a misleading manner, the bottler would have to obtain approval of a new label. Different rules apply if a wine has a brand name containing an AVA name that was used as a brand name on a label approved before July 7, 1986. See 27 CFR 4.39(i)(2) for details.
If this proposed regulatory text is adopted as a final rule, wine bottlers using “Petaluma Gap” in a brand name, including a trademark, or in another label reference as to the origin of the wine, would have to ensure that the product is eligible to use the viticultural area's full name “Petaluma Gap” as an appellation of origin.
If approved, the establishment of the proposed Petaluma Gap AVA and the proposed modification of the North Coast AVA boundary would allow vintners to use “Petaluma Gap” or “North Coast” as appellations of origin for wines made from grapes grown within the Petaluma Gap AVA, if the wines meet the eligibility requirements for the appellation. Additionally, vintners would be able to use “Sonoma Coast” as an appellation of origin on wines made primarily from grapes grown within the Sonoma County portion of the Petaluma Gap AVA, if the wines meet the eligibility requirements for the appellation.
TTB invites comments from interested members of the public on whether TTB should establish the proposed Petaluma Gap AVA and concurrently modify the boundary of the established North Coast AVA. TTB is interested in receiving comments on the sufficiency and accuracy of the name, boundary, climate, topography, and other required information submitted in support of the Petaluma Gap AVA petition. In addition, given the proposed Petaluma Gap AVA's location within the existing North Coast AVA and Sonoma Coast AVA, TTB is interested in comments on whether the evidence submitted in the petition regarding the distinguishing features of the proposed AVA sufficiently differentiates it from the existing AVAs. TTB is also interested in comments on whether the geographic features of the proposed AVA are so distinguishable from either the North Coast AVA or the Sonoma Coast AVA that the proposed Petaluma Gap AVA should not be part of one or either established AVA. Please provide any available specific information in support of your comments.
TTB also invites comments on the proposed expansion of the existing North Coast AVA. TTB is especially interested in comments on whether the evidence provided in the petition sufficiently demonstrates that the proposed expansion area is similar enough to the North Coast AVA to be included in the established AVA. Additionally, TTB is interested in comments on whether or not TTB should allow the Marin County portion of the proposed Petaluma Gap AVA to remain outside of the Sonoma Coast AVA. Comments should address the boundaries, climate, topography, soils, and any other pertinent information that supports or opposes the proposed North Coast AVA boundary expansion and/or the partial overlap of the proposed Petaluma Gap AVA with the Sonoma Coast AVA.
Because of the potential impact of the establishment of the proposed Petaluma Gap AVA on wine labels that include the term “Petaluma Gap” as discussed above under Impact on Current Wine Labels, TTB is particularly interested in comments regarding whether there will be a conflict between the proposed area name and currently used brand names. If a commenter believes that a conflict will arise, the comment should describe the nature of that conflict, including any anticipated negative economic impact that approval of the proposed AVA will have on an existing viticultural enterprise. TTB is also interested in receiving suggestions for ways to avoid conflicts, for example, by adopting a modified or different name for the proposed AVA.
You may submit comments on this proposal by using one of the following three methods:
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Please submit your comments by the closing date shown above in this document. Your comments must reference Notice No. 163 and include your name and mailing address. Your comments also must be made in English, be legible, and be written in language acceptable for public disclosure. We do not acknowledge receipt of comments, and we consider all comments as originals.
Your comment must clearly state if you are commenting on your own behalf or on behalf of an organization, business, or other entity. If you are commenting on behalf of an organization, business, or other entity, your comment must include the entity's name as well as your name and position title. If you comment via
You may also write to the Administrator before the comment closing date to ask for a public hearing. The Administrator reserves the right to determine whether to hold a public hearing.
All submitted comments and attachments are part of the public record and subject to disclosure. Do not enclose any material in your comments that you consider to be confidential or inappropriate for public disclosure.
TTB will post, and you may view, copies of this document, selected supporting materials, and any online or mailed comments received about this proposal within Docket No. TTB-2016-0009 on the Federal e-rulemaking portal,
All posted comments will display the commenter's name, organization (if any), city, and State, and, in the case of mailed comments, all address information, including email addresses. TTB may omit voluminous attachments or material that it considers unsuitable for posting.
You also may view copies of this document, all related petitions, maps and other supporting materials, and any electronic or mailed comments we receive about this proposal by appointment at the TTB Information Resource Center, 1310 G Street NW., Washington, DC 20005. You may also obtain copies at 20 cents per 8.5- x 11-inch page. Contact our information specialist at the above address or by telephone at 202-453-2265 to schedule an appointment or to request copies of comments or other materials.
TTB certifies that this proposed regulation, if adopted, would not have a significant economic impact on a substantial number of small entities. The proposed regulation imposes no new reporting, recordkeeping, or other administrative requirement. Any benefit derived from the use of a viticultural area name would be the result of a proprietor's efforts and consumer acceptance of wines from that area. Therefore, no regulatory flexibility analysis is required.
This proposed rule is not a significant regulatory action as defined by Executive Order 12866. Therefore, it requires no regulatory assessment.
Karen A. Thornton of the Regulations and Rulings Division drafted this document.
Wine.
For the reasons discussed in the preamble, we propose to amend title 27, chapter I, part 9, Code of Federal Regulations, as follows:
27 U.S.C. 205.
The revisions and additions read as follows:
(b)
* * *
(4) “Tomales, CA,” scale 1:24,000, edition of 1995; and
(5) “Point Reyes NE., CA,” scale 1:24,000, edition of 1995.
(c) * * *
(1) Then follow the Pacific coastline in a generally southeasterly direction for 9.4 miles, crossing onto the Tomales map, to Preston Point on Tomales Bay;
(2) Then northeast along the shoreline of Tomales Bay approximately 1 mile to the mouth of Walker Creek opposite benchmark (BM) 10 on State Highway 1;
(3) Then southeast in a straight line for 1.3 miles to the marked 714-foot peak;
(4) Then southeast in a straight line for 3.1 miles, crossing onto the Point Reyes NE map, to the marked 804-foot peak;
(5) Then southeast in a straight line 1.8 miles to the marked 935-foot peak;
(6) Then southeast in a straight line 12.7 miles, crossing back onto the Santa Rosa map, to the marked 1,466-foot peak on Barnabe Mountain;
(a)
(b)
(1) Cotati, Calif., 1954; photorevised 1980;
(2) Glen Elle, Calif., 1954; photorevised 1980;
(3) Petaluma River, Calif., 1954; photorevised 1980;
(4) Sears Point, Calif., 1951; photorevised 1968;
(5) Petaluma Point, Calif., 1959; photorevised 1980;
(6) Novato, Calif., 1954; photorevised 1980;
(7) Petaluma, Calif., 1953; photorevised 1981;
(8) Point Reyes NE., CA, 1995;
(9) Tomales, CA, 1995;
(10) Bodega Head, Calif., 1972;
(11) Valley Ford, Calif., 1954; photorevised 1971; and
(12) Two Rock, Calif., 1954; photorevised 1971.
(c)
(1) The beginning point is on the Cotati map at the intersection of Grange Road, Crane Canyon Road, and the northern boundary of section 16, T6N/R7W. From the beginning point, proceed southeast in a straight line for 1 mile, crossing over Pressley Road, to the intersection of the 900-foot elevation contour and the eastern boundary of section 16, T6N/R7W; then
(2) Proceed east-southeasterly in a straight line for 0.5 mile, crossing onto the Glen Ellen map, to the terminus of an unnamed, unimproved road known locally as Summit View Ranch Road, just north of the southern boundary of section 15, T6N/R7N; then
(3) Proceed southeast in a straight line for 0.6 mile to the intersection of Crane Creek and the 1,200-foot elevation contour, section 22, T6N/R7W; then
(4) Proceed southeast in a straight line for 2.9 miles to the marked 2,271-foot peak on Sonoma Mountain, T6N/R6W; then
(5) Proceed southeast in a straight line for 10.5 miles, crossing over the northeastern corner of the Petaluma River map and onto the Sears Point map, to the marked 682-foot summit of Wildcat Mountain; then
(6) Proceed south-southeasterly in a straight line for 3.3 miles to the intersection of State Highway 121 (also known locally as Arnold Drive) and State Highway 37 (also known locally as Sears Point Road); then
(7) Proceed east-northeasterly along State Highway 37/Sears Point Road for approximately 0.1 mile to Tolay Creek; then
(8) Proceed generally south along the meandering Tolay Creek for 3.9 miles, crossing onto the Petaluma Point map, to the mouth of the creek at San Pablo Bay; then
(9) Proceed southwesterly along the shore of San Pablo Bay for 2.7 miles, crossing the mouth of the Petaluma River, and continuing southeasterly along the bay's shoreline to Petaluma Point; then
(10) Proceed northwesterly in a straight line for 6.3 miles, crossing over the northeastern corner of the Novato map and onto the Petaluma River map, to the marked 1,558-foot peak of Burdell Mountain; then
(11) Proceed northwest in a straight line for 1.3 miles to the marked 1,193-foot peak; then
(12) Proceed west-southwesterly in a straight line for 2.2 miles, crossing onto the Petaluma map, to the marked 1,209-foot peak; then
(13) Proceed west-southwest in a straight line for 0.8 mile to the marked 1,296-foot peak; then
(14) Proceed west in a straight line for 1 mile to the marked 1,257-foot peak on Red Hill in section 31, T4N/R7W; then
(15) Proceed southwest in a straight line for 2.9 miles to the marked 1,532-foot peak on Hicks Mountain; then
(16) Proceed north-northwesterly in a straight line for 2.7 miles, crossing onto the Point Reyes NE map, to the marked 1,087-foot peak; then
(17) Proceed north-northwesterly in a straight line for 1.5 miles to the marked 1,379-foot peak; then
(18) Proceed west-northwesterly in a straight line for 2.9 miles to the marked 935-foot peak; then
(19) Proceed northwest in a straight line for 1.8 miles to the marked 804-foot peak; then
(20) Proceed west-northwesterly in a straight line for 3.1 miles, crossing onto the Tomales map, to the marked 741-foot peak; then
(21) Proceed northwesterly in a straight line for 1.3 miles to benchmark (BM) 10 on State Highway 1, at the mouth of Walker Creek in Tomales Bay; then
(22) Proceed southwesterly, then northwesterly along the shoreline of Tomales Bay to Sand Point, on Bodega Bay, and continuing northerly along the shoreline of Bodega Bay, crossing over the Valley Ford map and onto the Bodega Head map, circling the shoreline of Bodega Harbor to the Pacific Ocean and continuing northerly along the shoreline of the Pacific Ocean to the mouth of Salmon Creek, for a total of 19.5 miles; then
(23) Proceed easterly along Salmon Creek for 9.6 miles, crossing onto the Valley Ford map and passing Nolan Creek, to the second intermittent stream in the Estero Americano land grant, T6N/R10W; then
(24) Proceed east in a straight line for 1 mile to vertical angle benchmark (VABM) 724 in the Estero Americano land grant, T6N/R10W; then
(25) Proceed south-southeasterly in a straight line for 0.8 mile to BM 61 on an unmarked light duty road known locally as Freestone Valley Ford Road in the Cañada de Pogolimi land grant, T6N/R10W; then
(26) Proceed southeast in a straight line for 0.6 mile to the marked 448-foot peak in the Cañada de Pogolimi land grant, T6N/R10W; then
(27) Proceed southeast in a straight line for 0.1 mile to the northern terminus of an unnamed, unimproved road in the Cañada de Pogolimi land grant, T6N/R10W; then
(28) Proceed northeasterly, then southeasterly for 0.9 mile along the unnamed, unimproved road to the 400-foot elevation contour in the Cañada de Pogolimi land grant, T6N/R10W; then
(29) Proceed easterly along the meandering 400-foot elevation contour for 6.7 miles, crossing onto the Two Rocks map, to Burnside Road in the Cañada de Pogolimi land grant, T6N/R10W; then
(30) Proceed south on Burnside Road for 0.1 mile to an unnamed medium duty road known locally as Bloomfield Road in the Cañada de Pogolimi land grant,T6N/R9W; then
(31) Proceed southeast in a straight line for 0.6 mile to the marked 610-foot peak in the Blucher land grant, T6N/R9W; then
(32) Proceed east-southeasterly in a straight line for 0.8 mile to the marked 641-foot peak in the Blucher land grant, T6N/R9W; then
(33) Proceed northeast in a straight line for 1.2 miles, crossing through the intersection of an intermittent stream with Canfield Road, to the common Range 8/9 boundary; then
(34) Proceed southeast in a straight line for 0.5 mile to the marked 542-foot peak; then
(35) Proceed southeast in a straight line for 0.8 mile to the intersection of an unnamed, unimproved road (leading to four barn-like structures) known locally as Carniglia Lane and an unnamed medium duty road known locally as Roblar Road, T6N/R8W; then
(36) Proceed south in a straight line for 0.5 mile to the marked 678-foot peak, T6N/R8W; then
(37) Proceed east-southeast in a straight line for 0.8 mile to the marked 599-foot peak, T5N/R8W; then
(38) Proceed east-southeast in a straight line for 0.7 mile to the marked 604-foot peak, T5N/R8W; then
(39) Proceed east-southeast in a straight line for 0.9 mile, crossing onto the Cotati map, to the intersection of Meacham Road and an unnamed light duty road leading to a series of barn-like structures, T5N/R8W; then
(40) Proceed north-northeast along Meacham Road for 0.8 mile to Stony Point Road, T5N/R8W; then
(41) Proceed southeast along Stony Point Road for 1.1 miles to the 200-foot elevation contour, T5N/R8W; then
(42) Proceed north-northeast in a straight line for 0.5 mile to the intersection of an intermittent creek with U.S. Highway 101, T5N/R8W; then
(43) Proceed north along U.S. Highway 101 for 1.5 miles to State Highway 116 (also known locally as Graverstein Highway), T6N/R8W; then
(44) Proceed northeast in a straight line for 3.4 miles to the intersection of Crane Creek and Petaluma Hill Road, T6N/R7W; then
(45) Proceed easterly along Crane Creek for 0.8 mile to the intersection of Crane Creek and the 200-foot elevation line, T6N/R7W; then
(46) Proceed northwesterly along the 200-foot elevation contour for 1 mile to the intersection of the contour line and an intermittent stream just south of Crane Canyon Road, T6N/R7W; then
(47) Proceed east then northeasterly along the northern branch of the intermittent stream for 0.3 mile to the intersection of the stream with Crane Canyon Road, T6N/R7W; then
(48) Proceed northeasterly along Crane Canyon Road for 1.2 miles, returning to the beginning point.
Occupational Safety and Health Administration (OSHA), Department of Labor.
Notice of public meeting.
This notice is to advise interested persons that on Wednesday, November 16, 2016, OSHA will conduct a public meeting to informally discuss potential updates to the Hazard Communication Standard. The purpose of this meeting is to invite stakeholders to identify topics or issues they would like OSHA to consider in the rulemaking.
Wednesday November 16, 2016.
OSHA's informal discussion on Hazard Communication rulemaking will be held Wednesday, November 16, 2016 from 9:00 a.m.-12:30 p.m.at the Mine Safety and Health Administration (MSHA) Headquarters, Suite 700, 201 12th Street South, Arlington, VA 22202.
Ms. Maureen Ruskin, OSHA Directorate of Standards and Guidance, Department of Labor, Washington, DC 20210, telephone: (202) 693-1950, email:
United States Patent and Trademark Office, Commerce.
Notice of proposed rulemaking.
The United States Patent and Trademark Office (Office or PTO) is proposing revisions to the materiality standard for the duty to disclose information in patent applications and reexamination proceedings (duty of disclosure) in light of a 2011 decision by the U.S. Court of Appeals for the Federal Circuit (Federal Circuit). The Office previously issued a notice of proposed rulemaking on July 21, 2011, and due to the passage of time since the comment period closed in 2011, the Office considers it appropriate to seek additional comments from our stakeholders before issuing a final rulemaking. In the current notice of proposed rulemaking, the Office is seeking public comments on the rules of practice, as revised in response to the comments received from our stakeholders.
Comments concerning this notice should be sent by electronic mail message over the Internet (email) addressed to
Although comments may be submitted by postal mail, the Office prefers to receive comments via email to facilitate posting on the Office's Internet Web site. Plain text is preferred, but comments may also be submitted in ADOBE® portable document format or MICROSOFT WORD® format. Comments not submitted electronically should be submitted on paper in a format that facilitates convenient scanning into ADOBE® portable document format.
The comments will be available for public inspection, upon request, at the Office of the Commissioner for Patents, located in Madison East, Tenth Floor, 600 Dulany Street, Alexandria, Virginia. Comments also will be available for viewing via the Office's Internet Web site (
Matthew J. Sked, Legal Advisor ((571) 272-7627) or Nicole Dretar Haines, Senior Legal Advisor ((571) 272-7717), Office of Patent Legal Administration, Office of the Deputy Commissioner for Patent Examination Policy.
On May 25, 2011, the Federal Circuit issued the
In addition, the Federal Circuit recognized that the materiality prong of inequitable conduct may also be satisfied in cases of affirmative egregious misconduct.
A notice of proposed rulemaking was previously published in the
Like the previously proposed rule, the currently proposed rule would harmonize the materiality standard for the duty of disclosure before the Office with the but-for materiality standard set forth in
In the previous notice of proposed rulemaking, the Office proposed only to
In the previous notice of proposed rulemaking, the Office also proposed to amend 37 CFR 1.56(b) and 37 CFR 1.555(b) to explicitly reference the
As discussed previously,
Historically, the Federal Circuit connected the materiality standard for inequitable conduct with the Office's materiality standard for the duty of disclosure. That is, the Federal Circuit has invoked the materiality standard for the duty of disclosure to measure materiality in cases raising claims of inequitable conduct. In doing so, the Federal Circuit has utilized both the “reasonable examiner” standard set forth in the 1977 version of 37 CFR 1.56(b) and the
A unitary materiality standard is simpler for the patent system as a whole. Under the single but-for standard of materiality, patent applicants will not be put in the position of having to meet one standard of materiality as set forth in
Similarly, the Office expects that adopting the but-for materiality standard would reduce the incentive to submit marginally relevant information in information disclosure statements (IDSs). As such, this currently proposed rule would further the Office's goal of enhancing patent quality. The adoption of the but-for standard for materiality should lead to more focused prior art submissions by applicants, which in turn will assist examiners in more readily recognizing the most relevant prior art.
At the same time, the Office also expects this currently proposed rule would continue to encourage applicants to comply with their duty of candor and good faith. The Office recognizes that it previously considered, and rejected, a but-for standard for the duty of disclosure in 1992 when it promulgated the
The following is a description of the amendments PTO is proposing:
Section 1.56(b) as proposed to be amended would replace the
Previously proposed § 1.56(b) included two discrete sentences. The first sentence stated information is material to patentability if it is material under the standard set forth in
As set forth above, an explicit reference to the
Additionally, the Office has modified the previously proposed rule language to state that a claim is given its broadest reasonable construction “consistent with the specification.” The Office did not intend the previously proposed omission of this language that is present in existing §§ 1.56(b) and 1.555(b) as an indication that claims would no longer be given their broadest reasonable construction consistent the specification. While the Federal Circuit in
Section 1.555(b) as proposed to be amended would provide that information is but-for material to patentability if, for any matter proper for consideration in reexamination, the Office would not find a claim patentable if the Office were aware of the information, applying the preponderance of the evidence standard and giving the claim its broadest reasonable construction consistent with the specification. The explicit reference to the
Additionally, § 1.555(b) as proposed would provide that the but-for materiality standard covers the disclosure of information as to any matter that is proper for consideration in a reexamination proceeding. Previously proposed § 1.555(b) was silent as to the types of information that are appropriate for consideration in a reexamination proceeding, and existing § 1.555(b) limits the types of information that could be considered in reexamination to patents and printed publications. In view of public comments received, this currently proposed rule would amend § 1.555(b) to again recite the types of information that are appropriate for consideration in a reexamination proceeding but, unlike the existing rule, this currently proposed rule encompasses disclosure of information as to any matter that is appropriate for consideration in a reexamination proceeding (
It is noted that § 1.933 is also directed to the duty of disclosure in
The Office published a notice on July 21, 2011, proposing to change the rules of practice to revise the standard for materiality of the duty to disclose information in patent applications and
The reference to the but-for standard should benefit the public by providing a consistent materiality standard for the duty to disclose information without the need for continuous revisions to the rules as the but-for standard in
Finally, the Office is not conveying its rulemaking authority to the judicial branch. Instead, the Office is exercising its rulemaking authority to adopt a standard used by the Federal Circuit. By using its rulemaking authority to adopt a common standard, the Office is providing the public with a uniform materiality standard for the duty to disclose information. If the Office should determine the uniform standard no longer provides a benefit to the public, the Office retains the ability to invoke its rulemaking authority and change the rules at any time.
This currently proposed rule would harmonize the rules of practice concerning the materiality standard for the duty of disclosure with the but-for materiality standard for inequitable conduct set forth in
Accordingly, prior notice and opportunity for public comment are not required pursuant to 5 U.S.C. 553(b) or (c) (or any other law).
For the reasons set forth herein, the Deputy General Counsel for General Law of the United States Patent and Trademark Office has certified to the Chief Counsel for Advocacy of the Small Business Administration that changes proposed in this notice will not have a significant economic impact on a substantial number of small entities.
This notice proposes to harmonize the standard for materiality under §§ 1.56 and 1.555 for the duty of disclosure with the but-for materiality standard for inequitable conduct set forth in
This rulemaking has been determined to be not significant for purposes of Executive Order 12866 (Sept. 30, 1993).
The Office has complied with Executive Order 13563. Specifically, the Office has, to the extent feasible: (1) Used the best available techniques to quantify costs and benefits and considered values such as equity, fairness, and distributive impacts; (2) involved the public in an open exchange of information and perspectives among experts in relevant disciplines, affected stakeholders in the private sector, and the public as a whole, and provided on-line access to the rulemaking docket; (3) attempted to promote coordination, simplification, and harmonization across government agencies and identified goals designed to promote innovation; (4) considered approaches that reduce burdens and maintain flexibility and freedom of choice for the public; and (5) ensured the objectivity of scientific and technological information and processes.
This rulemaking does not contain policies with federalism implications sufficient to warrant preparation of a Federalism Assessment under Executive Order 13132 (Aug. 4, 1999).
This rulemaking will not: (1) Have substantial direct effects on one or more Indian tribes; (2) impose substantial direct compliance costs on Indian tribal governments; or (3) preempt tribal law. Therefore, a tribal summary impact statement is not required under Executive Order 13175 (Nov. 6, 2000).
This rulemaking is not a significant energy action under Executive Order 13211 because this rulemaking is not likely to have a significant adverse effect on the supply, distribution, or use of energy. Therefore, a Statement of Energy Effects is not required under Executive Order 13211 (May 18, 2001).
This rulemaking meets applicable standards to minimize litigation, eliminate ambiguity, and reduce burden as set forth in sections 3(a) and 3(b)(2) of Executive Order 12988 (Feb. 5, 1996).
This rulemaking does not concern an environmental risk to health or safety that may disproportionately affect children under Executive Order 13045 (Apr. 21, 1997).
This rulemaking will not effect a taking of private property or otherwise have taking implications under Executive Order 12630 (Mar. 15, 1988).
Under the Congressional Review Act provisions of the Small Business Regulatory Enforcement Fairness Act of 1996 (5 U.S.C. 801
The changes in this notice do not involve a Federal intergovernmental mandate that will result in the expenditure by State, local, and tribal governments, in the aggregate, of 100 million dollars (as adjusted) or more in any one year or a Federal private sector mandate that will result in the expenditure by the private sector of 100 million dollars (as adjusted) or more in any one year and will not significantly or uniquely affect small governments. Therefore, no actions are necessary under the provisions of the Unfunded Mandates Reform Act of 1995.
This rulemaking will not have any effect on the quality of environment and is thus categorically excluded from review under the National Environmental Policy Act of 1969.
The requirements of section 12(d) of the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) are not applicable because this rulemaking does not contain provisions which involve the use of technical standards.
The changes in this rulemaking involve information collection requirements which are subject to review by the Office of Management and Budget (OMB) under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501
Notwithstanding any other provision of law, no person is required to respond to, nor shall a person be subject to a penalty for failure to comply with, a collection of information subject to the requirements of the Paperwork Reduction Act unless that collection of information displays a currently valid OMB control number.
Administrative practice and procedure, Biologics, Courts, Freedom of information, Inventions and patents, Reporting and record keeping requirements, Small businesses.
For the reasons set forth in the preamble, 37 CFR part 1 is proposed to be amended as follows:
35 U.S.C. 2(b)(2), unless otherwise noted.
(a) A patent by its very nature is affected with a public interest. The public interest is best served, and the most effective patent examination occurs when, at the time an application is being examined, the Office is aware of and evaluates the teachings of all information material to patentability. Each individual associated with the filing and prosecution of a patent application has a duty of candor and good faith in dealing with the Office, which includes a duty to disclose to the Office all information known to that individual to be material to patentability under the but-for materiality standard as defined in paragraph (b) of this section. The duty to disclose information exists with respect to each pending claim until the claim is cancelled or withdrawn from consideration or the application becomes abandoned. Information material to the patentability of a claim that is cancelled or withdrawn from consideration need not be submitted if the information is not material to the patentability of any claim remaining under consideration in the application. There is no duty to submit information which is not material to the patentability of any existing claim. The duty to disclose all information known to be material to patentability is deemed to be satisfied if all information known to be material to patentability of any claim issued in a patent was cited by the Office or submitted to the Office in the manner prescribed by §§ 1.97(b) through (d) and 1.98. However, no patent will be granted on an application in connection with which affirmative egregious misconduct was engaged in, fraud on the Office was practiced or attempted, or the duty of disclosure was violated through bad faith or intentional misconduct. The Office encourages applicants to carefully examine:
(1) Prior art cited in search reports of a foreign patent office in a counterpart application, and
(2) The closest information over which individuals associated with the filing or prosecution of a patent application believe any pending claim patentably defines, to make sure that any material information contained therein is disclosed to the Office.
(b) Information is but-for material to patentability if the Office would not allow a claim if the Office were aware of the information, applying the preponderance of the evidence standard and giving the claim its broadest reasonable construction consistent with the specification.
(a) A patent by its very nature is affected with a public interest. The public interest is best served, and the most effective reexamination occurs when, at the time a reexamination proceeding is being conducted, the Office is aware of and evaluates the teachings of all information material to patentability in a reexamination proceeding. Each individual associated with the patent owner in a reexamination proceeding has a duty of candor and good faith in dealing with the Office, which includes a duty to disclose to the Office all information known to that individual to be material to patentability in a reexamination proceeding under the but-for materiality standard as defined in paragraph (b) of this section. The individuals who have
(b) Information is but-for material to patentability if, for any matter proper for consideration in reexamination, the Office would not find a claim patentable if the Office were aware of the information, applying the preponderance of the evidence standard and giving the claim its broadest reasonable construction consistent with the specification.
United States Patent and Trademark Office, Commerce.
Notice of proposed rulemaking.
The United States Patent and Trademark Office (Office or USPTO) proposes to amend its rules regarding petitions to revive an abandoned application and petitions to the Director of the USPTO (Director) regarding other matters, and to codify USPTO practice regarding requests for reinstatement of abandoned applications and cancelled or expired registrations. The proposed changes will permit the USPTO to provide more detailed procedures regarding the deadlines and requirements for requesting revival, reinstatement, or other action by the Director. These rules will thereby ensure that the public has notice of the deadlines and requirements for making such requests, facilitate the efficient and consistent processing of such requests, and promote the integrity of application/registration information in the trademark electronic records system as an accurate reflection of the status of applications and registrations.
Comments must be received by December 27, 2016 to ensure consideration.
The USPTO prefers that comments be submitted via electronic mail message to
The comments will be available for public inspection on the USPTO's Web site at
Jennifer Chicoski, Office of the Deputy Commissioner for Trademark Examination Policy, by email at
The public relies on the trademark electronic records system to determine whether a chosen mark is available for use or registration. Applicants are encouraged to utilize the trademark electronic search system, which provides access to text and images of marks, to determine whether a mark in any pending application or current registration is similar to their mark and used on the same or related products or for the same or related services. The search system also indicates the status of an application or registration, that is,
When a party's search discloses a potentially confusingly similar mark, that party may incur a variety of resulting costs and burdens, such as those associated with investigating the actual use of the disclosed mark to assess any conflict, proceedings to cancel the registration or oppose the application of the disclosed mark, civil litigation to resolve a dispute over the mark, or changing plans to avoid use of the party's chosen mark. In order to determine whether to undertake one or more of these actions, the party would refer to the status of the conflicting application/registration and would need to consult the relevant rule to determine whether the application or registration is within the time period in which the applicant or registrant may request revival, reinstatement, or other action by the Director. Thus, the effective notice provided by the USPTO's records plays a critical role in a party's decision-making to clearly distinguish between the “dead” marks that are no longer candidates for, or protected by, a federal registration and those that are still able to be restored to active status.
The USPTO estimates that it receives annually approximately 20,000 petitions to revive an application under § 2.66 abandoned for failure to respond to an Office action or a notice of allowance, 1,200 petitions to the Director under § 2.146, and 300 requests for reinstatement of applications and registrations. If the trademark electronic records system indicates that an application or registration is dead because it is abandoned, cancelled, or expired, and there is any doubt as to whether the application or registration might be eligible for revival, reinstatement, or other action by the Director, the costs and burdens discussed above may be incurred unnecessarily. By providing more detailed procedures as to the deadlines and requirements for requesting revival, reinstatement, or other action by the Director, the proposed rules will help the public avoid such needless costs and burdens and promote the efficient and consistent processing of such requests by the Office.
The statutory period for filing a statement of use, or a request for an extension of time to file a statement of use, in response to a notice of allowance issued under section 1063(b)(2) of the Trademark Act (Act), is also six months. 15 U.S.C. 1051(d)(1), (2); 37 CFR 2.88(a), 2.89(a). Thus, an application is abandoned if the applicant fails to file a statement of use or request for an extension of time to file a statement of use within the statutory period or within a previously granted extension period. 37 CFR 2.88(k); TMEP § 718.04.
An application is considered to be abandoned as of the day after the date on which a response to an Office action or notice of allowance is due. However, to accommodate timely mailed paper submissions and to ensure that the required response was not received and placed in the record of another application (
Similarly, under current practice, a registrant may file a request to reinstate a cancelled or expired registration if the registrant has proof that a required document was timely filed and that USPTO error caused the registration to be cancelled or expired. TMEP § 1712.02. The following is a non-exhaustive list of examples of situations in which the USPTO may reinstate a cancelled or expired registration: (1) The registrant presents proof that a required document was timely filed through TEAS; (2) the registrant presents proof of actual receipt of the required document in the USPTO in the form of a return postcard showing a timely USPTO date stamp or label, on which the registrant specifically refers to the document; or (3) the USPTO sent an Office action to the wrong address due to a USPTO error,
The USPTO generally processes applications, responses, and other documents in the order in which they are received, and it is reasonable to expect some notice or acknowledgement from the USPTO regarding action on a pending matter within six months of the filing or receipt of a document. A party who has not received a notice or acknowledgement from the USPTO within that time frame has the burden of inquiring as to the status of action on its filing, and requesting in writing that corrective action be taken when necessary, to protect third parties who may be harmed by reliance on inaccurate information regarding the status of an application or registration in the trademark electronic records system.
The due-diligence requirement means that any petition filed more than two months after the notice of abandonment or cancellation was issued, or no later than two months after Office records are updated, is likely to be dismissed as untimely because the applicant or registrant will be unable to establish that it was duly diligent. For example, if an applicant files an application in July 1, 2016 and an Office action is issued on October 15, 2016, a response must be filed on or before April 15, 2017. If the applicant does not respond, the trademark electronic records system will be updated to show the application as abandoned and a notice of abandonment will be sent to the applicant on or about May 15, 2017. If the applicant does not receive the notice of abandonment, and only checks the trademark electronic records system in August 2017 (
Moreover, in some situations when an applicant or owner of a registration asserts that it did not receive a notice of abandonment or cancellation, it is often difficult for the USPTO to determine when the party had actual notice of the abandonment/cancellation and whether the party was duly diligent in prosecuting the application or maintaining the registration. By effectively mandating that applicants and registrants conduct the requisite
Under this proposed rule, the USPTO adds §§ 2.64(a)(1)(i) and (b)(1)(i) and amends §§ 2.66(a)(1) and 2.146(d)(1) to clarify that applicants and registrants would be on notice that if they receive an official document from the USPTO, such as a notice of abandonment or cancellation, a post-registration Office action, or a denial of certification of an international registration, they must file a petition to revive, request for reinstatement, or petition to the Director to take another action, by not later than two months after the issue date of the notice. The proposed addition of §§ 2.64(a)(1)(i) and (b)(1)(i) codifies this deadline for parties seeking reinstatement of an application or registration abandoned or cancelled due to Office error and makes it consistent with the deadline in § 2.66(a)(1). The proposed amendment to § 2.66(a) clarifies that the deadline applies to abandonments in full or in part. Finally, the proposed change to § 2.146(d)(1) deletes the requirement that a petition be filed no later than two months from the date when Office records are updated to show that a registration is cancelled or expired. As noted below, this deadline is extended to not later than six months after the date the trademark electronic records system indicates that the registration is cancelled/expired to harmonize the deadlines across the relevant sections.
To establish certainty and ensure consistency, the proposed rule also adds §§ 2.64(a)(1)(ii) and (b)(1)(ii) to codify the deadline for all applicants and registrants who assert that they did not receive an abandonment notice from the Office and thereafter seek reinstatement. This deadline is identical to the deadlines proposed in §§ 2.66(a)(2) and 2.146(d)(2) for applicants and registrants who assert that they did not receive a notice from the Office and thereafter seek relief. Under proposed §§ 2.64(a)(1)(ii) and (b)(1)(ii), if the applicant or registrant did not receive the notice, or no notice was issued, a petition must be filed by not later than two months of actual knowledge that a notice was issued or that an action was taken by the Office, and not later than six months after the date the trademark electronic records system is updated to indicate the action taken by the Office. Thus, this proposed rule makes clear that applicants and registrants must check the status of their applications and registrations every six months and thereby remove any uncertainty in the Office's assessment of whether an applicant or registrant was duly diligent.
As noted above, the USPTO has generally not invoked the requirement for due diligence when there is proof that a registration was cancelled or expired solely due to Office error. Although the USPTO has a duty to correct its errors, the USPTO has a concurrent duty toward third parties to ensure that the trademark electronic records system accurately reflects the status of applications and registrations, especially given that the USPTO encourages such third parties to search the trademark electronic records system prior to adopting or seeking to register a mark. Therefore, the USPTO must balance its duty to third parties who rely on the accuracy of the trademark electronic records system and to registrants whose registration may have been cancelled as a result of Office error. The USPTO believes that, in order to fulfill its duty to all parties, the requirement for due diligence should apply equally to registrants who did not receive a notice of cancellation/expiration and who request reinstatement of their registrations, as it does to all other applicants and registrants who do not receive notice of any other action taken by the Office. As noted above, it is reasonable to expect some notice or acknowledgement from the USPTO regarding action on a pending matter within six months of the filing of a document. A registrant who has not received a notice or acknowledgement from the USPTO regarding a post-registration maintenance, renewal, or amendment document within that time frame has the burden of inquiring as to the status of the USPTO's action on the filing, and requesting in writing that corrective action be taken when necessary, to protect third parties who may be harmed by reliance on inaccurate information regarding the status of its registration in the trademark electronic records system.
An application is considered to be abandoned as of the day after the date on which a response to the Office action or notice of allowance is due. However, to accommodate timely mailed paper submissions and to ensure that the required response was not received and placed in the record of another application (
In some situations, an application will become abandoned multiple times for failure to respond to an Office action or notice of allowance and the applicant will assert that it did not receive the same Office action or the notice of allowance each time that it petitions to revive the application. Under the
In either situation, the USPTO sends the new Office action or notice of allowance to the correspondence address of record. In general, under the current regulations at 37 CFR 2.18, the owner of an application has a duty to maintain a current and accurate correspondence address with the USPTO, which may be either a physical or email address. If the correspondence address changes, the USPTO must be promptly notified in writing of the new address. If the correspondence address has not changed in the USPTO records since the filing of the application, the applicant is on notice that documents regarding its application are being sent to that address by virtue of its awareness of the abandonment of the application and its subsequent filing of the petition to revive.
Allowing an applicant who is on notice that the Office has taken action in an application to continually assert non-receipt of the same Office action or notice of allowance significantly delays prosecution of the application. It also results in uncertainty for the public, which relies on the trademark electronic records system to determine whether a chosen mark is available for use or registration. Therefore, because the applicant is on notice that documents regarding its application are being sent to the address of record, this proposed rule would limit an applicant to asserting only once that the unintentional delay is based on non-receipt of the same Office action or notice of allowance. If the correspondence address has changed since the filing of the application, the applicant is responsible for updating the address, as noted above, so that any further Office actions or notices will be sent to the correct address.
The rationale for the proposed changes to the deadline for requesting reinstatement of a registration when the registrant did not receive a notice of cancellation is discussed above. The TMEP currently sets out the deadlines for requesting reinstatement of an application or registration that was abandoned, cancelled, or expired due to Office error. TMEP §§ 1712.01, 1712.02(a). Other requirements, such as the nature of proof required to establish Office error, are also set out in the TMEP. However, although the TMEP sets out the deadlines and guidelines for submitting and handling requests for reinstatement, it does not have the force of law. Codifying the deadlines for filing a request for reinstatement in a separate rule that also lists the types of proof necessary to warrant such remedial action would provide clear and definite standards regarding an applicant's or registrant's burden. It would also furnish the legal underpinnings of the Office's authority to grant or deny a request for reinstatement as well as provide applicants and owners of registrations with the benefit of an entitlement to relief when the standards of the rules are met.
If an applicant or registrant is found not to be entitled to reinstatement, the proposed rule also provides a possible avenue of relief in that the request may be construed as a petition to the Director under § 2.146 or a petition to revive under § 2.66, if appropriate. In addition, if the applicant or registrant is unable to meet the timeliness requirement for filing the request, the proposed rule provides that the applicant or registrant may submit a petition to the Director under § 2.146(a)(5) to request a waiver of that requirement.
The USPTO proposes to add § 2.64 and to amend §§ 2.66 and 2.146 to clarify the requirements for submitting petitions to revive an abandoned application and petitions to the Director regarding other matters, as described in the section-by-section analysis below.
The USPTO proposes to add § 2.64 to codify the requirements for requests to reinstate an application that was abandoned, or a registration that was cancelled or expired, due to Office error.
The USPTO proposes to amend the title of § 2.66 to “Revival of applications abandoned in full or in part due to unintentional delay.”
The USPTO proposes to amend § 2.66(a) by adding the title “Deadline” and the wording “in full or in part” and “by not later than;” to amend § 2.66(a)(1) by indicating that the deadline is not later than two months after the issue date of the notice of abandonment in full or in part; and to amend § 2.66(a)(2) by revising the deadline if the applicant did not receive the notice of abandonment.
The USPTO proposes to amend § 2.66(b) by adding the title “Petition to Revive Application Abandoned in Full or in Part for Failure to Respond to an Office Action” and rewording the paragraph for clarity and to add “in full or in part”; revising § 2.66(b)(3) to clarify that a response to the outstanding Office action is required or, if the applicant asserts it did not receive the Office action, that the applicant may not assert more than once that the unintentional delay is based on non-receipt of the same Office action; and
The USPTO proposes to amend § 2.66(c) by adding the title “Petition to Revive Application Abandoned for Failure to Respond to a Notice of Allowance;” adding § 2.66(c)(2)(i)-(iv) to incorporate and further clarify requirements in current §§ 2.66(c)(4) and (5); deleting current § 2.66(c)(3)-(4); and redesignating current § 2.66(c)(5) as § 2.66(c)(3) and deleting the wording prior to “the applicant must file.”
The USPTO proposes to amend § 2.66(d) by adding the title “Statement of Use or Petition to Substitute a Basis May Not Be Filed More Than 36 Months After Issuance of the Notice of Allowance” and rewording the paragraph for clarity.
The USPTO proposes to delete current § 2.66(e).
The USPTO proposes to redesignate current § 2.66(f) as § 2.66(e), add the title “Request for Reconsideration,” reword the paragraph for clarity, and revise paragraphs (1) and (2) to clarify the requirements for requesting reconsideration of a petition to revive that has been denied.
The USPTO proposes to amend § 2.146(b) by deleting the wording “considered to be.”
The USPTO proposes to amend § 2.146(d) by deleting the current paragraph and adding a sentence introducing new § 2.146(d)(1)-(2)(iii), which sets out the deadlines for filing a petition.
The USPTO proposes to amend § 2.146(e)(1) by changing the wording “within fifteen days from the date of issuance” and “within fifteen days from the date of service” to “by not later than fifteen days after the issue date” and ” by not later than fifteen days after the date of service.” The USPTO proposes to amend § 2.146(e)(2) by changing the wording “within thirty days after the date of issuance” and “within fifteen days from the date of service” to “by not later than thirty days after the issue date” and “by not later than fifteen days after the date of service.”
The USPTO proposes to delete current § 2.146(i).
The USPTO proposes to redesignate current § 2.146(j) as new § 2.146(i), to delete the wording “the petitioner,” and to revise paragraphs (1) and (2) to clarify the requirements for requesting reconsideration of a petition to revive that has been denied.
Accordingly, prior notice and opportunity for public comment for the changes in this proposed rulemaking are not required pursuant to 5 U.S.C. 553(b) or (c), or any other law.
For the reasons set forth herein, the Deputy General Counsel for General Law of the United States Patent and Trademark Office has certified to the Chief Counsel for Advocacy of the Small Business Administration that this rule will not have a significant economic impact on a substantial number of small entities.
This proposed rule would amend the regulations to provide detailed deadlines and requirements for petitions to revive an abandoned application and petitions to the Director regarding other matters, and to codify USPTO practice regarding requests for reinstatement of abandoned applications and cancelled or expired registrations. The proposed rule will apply to all persons seeking a revival or reinstatement of an abandoned trademark application or registration, or other equitable action by the Director. Applicants for a trademark are not industry specific and may consist of individuals, small businesses, non-profit organizations, and large corporations. The USPTO does not collect or maintain statistics on small- versus large-entity applicants, and this information would be required in order to determine the number of small entities that would be affected by the proposed rule.
The burdens to all entities, including small entities, imposed by these rule changes will be minor procedural requirements on parties submitting petitions to revive an abandoned application and petitions to the Director regarding other matters, and those submitting requests for reinstatement of abandoned applications and cancelled or expired registrations. The proposed changes do not impose any additional economic burden in connection with the proposed changes as they merely clarify existing requirements or codify existing procedures.
You may send comments regarding the collections of information associated with this rule, including suggestions for reducing the burden, to (1) The Office of Information and Regulatory Affairs, Office of Management and Budget, New Executive Office Building, Room 10202, 725 17th Street NW., Washington, DC 20503, Attention: Nicholas A. Fraser, the Desk Officer for the United States Patent and Trademark Office; and (2) The Commissioner for Trademarks, by mail to P.O. Box 1451, Alexandria, VA 22313-1451, attention Catherine Cain; by hand delivery to the Trademark Assistance Center, Concourse Level, James Madison Building—East Wing, 600 Dulany Street, Alexandria, VA 22314, attention Catherine Cain; or by electronic mail message via the Federal eRulemaking Portal. All comments submitted directly to the USPTO or provided on the Federal eRulemaking Portal should include the docket number (PTO-T-2010-0016).
Notwithstanding any other provision of law, no person is required to respond to nor shall a person be subject to a penalty for failure to comply with a collection of information subject to the requirements of the Paperwork Reduction Act unless that collection of information displays a currently valid OMB control number.
Administrative practice and procedure, Trademarks.
For the reasons stated in the preamble and under the authority contained in 15 U.S.C. 1123 and 35 U.S.C. 2, as amended, the Office proposes to amend part 2 of title 37 as follows:
15 U.S.C. 1113, 15 U.S.C. 1123, 35 U.S.C. 2, Section 10(c) of Pub. L. 112-29, unless otherwise noted.
(a)
(1)
(i) Two months after the issue date of the notice of abandonment; or
(ii) Two months after the date of actual knowledge of the abandonment and not later than six months after the date the trademark electronic records system indicates that the application is abandoned, where the applicant declares under § 2.20 or 28 U.S.C. 1746 that it did not receive the notice of abandonment.
(2)
(i) Proof that a response to an Office action, a statement of use, or a request for extension of time to file a statement of use was timely filed and a copy of the relevant document;
(ii) Proof of actual receipt by the Office of a response to an Office action, a statement of use, or a request for extension of time to file a statement of use and a copy of the relevant document;
(iii) Proof that the Office processed a fee in connection with the filing at issue and a copy of the relevant document;
(iv) Proof that the Office sent the Office action or notice of allowance to an address different than that designated by the applicant as the correspondence address; or
(v) Other evidence, or factual information supported by a declaration under § 2.20 or 28 U.S.C. 1746, demonstrating Office error in abandoning the application.
(b)
(1)
(i) Two months after the issue date of the notice of cancellation/expiration; or
(ii) Two months after the date of actual knowledge of the cancellation/expiration and not later than six months after the date the trademark electronic records system indicates that the registration is cancelled/expired, where the registrant declares under § 2.20 or 28 U.S.C. 1746 that it did not receive the notice of cancellation/expiration or the Office did not issue a notice.
(2)
(i) Proof that an affidavit or declaration of use or excusable nonuse, a renewal application, or a response to an Office action was timely filed and a copy of the relevant document;
(ii) Proof of actual receipt by the Office of an affidavit or declaration of use or excusable nonuse, a renewal application, or a response to an Office action and a copy of the relevant document;
(iii) Proof that the Office processed a fee in connection with the filing at issue and a copy of the relevant document;
(iv) Proof that the Office sent the Office action to an address different than that designated by the registrant as the correspondence address; or
(v) Other evidence, or factual information supported by a declaration under § 2.20 or 28 U.S.C. 1746, demonstrating Office error in cancelling/expiring the registration.
(c)
(a)
(1) Two months after the issue date of the notice of abandonment in full or in part; or
(2) Two months after the date of actual knowledge of the abandonment and not later than six months after the date the trademark electronic records system indicates that the application is abandoned in full or in part, where the applicant declares under § 2.20 or 28 U.S.C. 1746 that it did not receive the notice of abandonment.
(b)
(1) The petition fee required by § 2.6;
(2) A statement, signed by someone with firsthand knowledge of the facts, that the delay in filing the response on or before the due date was unintentional; and
(3) A response to the Office action, signed pursuant to § 2.193(e)(2), or a statement that the applicant did not receive the Office action. The applicant may only assert once that the unintentional delay is based on non-receipt of the same Office action. When the abandonment is after a final Office action, the response is treated as a request for reconsideration under § 2.63(b)(3) and the applicant must also file:
(i) A notice of appeal to the Trademark Trial and Appeal Board under § 2.141 or a petition to the Director under § 2.146, if permitted by § 2.63(b)(2)(iii); or
(ii) A statement that no appeal or petition is being filed from the final refusal(s) or requirement(s).
(c)
(1) The petition fee required by § 2.6;
(2) A statement, signed by someone with firsthand knowledge of the facts, that the delay in filing the statement of use (or request for extension of time to file a statement of use) on or before the due date was unintentional; and one of the following:
(i) A statement of use under § 2.88, signed pursuant to § 2.193(e)(1), and the required fees for the number of requests for extensions of time to file a statement of use that the applicant should have filed under § 2.89 if the application had never been abandoned;
(ii) A request for an extension of time to file a statement of use under § 2.89, signed pursuant to § 2.193(e)(1), and the required fees for the number of requests for extensions of time to file a statement of use that the applicant should have filed under § 2.89 if the application had never been abandoned;
(iii) A statement that the applicant did not receive the notice of allowance and a request to cancel said notice and issue a new notice. The applicant may only assert once that the unintentional delay is based on non-receipt of the notice of allowance; or
(iv) In a multiple-basis application, an amendment, signed pursuant to § 2.193(e)(2), deleting the section 1(b) basis and seeking registration based on section 1(a) and/or section 44(e) of the Act.
(3) The applicant must file any further requests for extensions of time to file a statement of use under § 2.89 that become due while the petition is pending, or file a statement of use under § 2.88.
(d)
(e)
(1) The applicant files the request by not later than:
(i) Two months after the issue date of the decision denying the petition; or
(ii) Two months after the date of actual knowledge of the decision denying the petition and not later than six months after the issue date of the decision where the applicant declares under § 2.20 or 28 U.S.C. 1746 that it did not receive the decision; and
(2) The applicant pays a second petition fee under § 2.6.
(a) Petition may be taken to the Director:
(1) From any repeated or final formal requirement of the examiner in the ex parte prosecution of an application if permitted by § 2.63(a) and (b);
(2) In any case for which the Act of 1946, or Title 35 of the United States Code, or this Part of Title 37 of the Code of Federal Regulations specifies that the matter is to be determined directly or reviewed by the Director;
(3) To invoke the supervisory authority of the Director in appropriate circumstances;
(4) In any case not specifically defined and provided for by this Part of Title 37 of the Code of Federal Regulations; or
(5) In an extraordinary situation, when justice requires and no other party is injured thereby, to request a suspension or waiver of any requirement of the rules not being a requirement of the Act of 1946.
(b) Questions of substance arising during the ex parte prosecution of applications, including, but not limited to, questions arising under sections 2, 3, 4, 5, 6, and 23 of the Act of 1946, are not appropriate subject matter for petitions to the Director.
(c) Every petition to the Director shall include a statement of the facts relevant to the petition, the points to be reviewed, the action or relief requested, and the fee required by § 2.6. Any brief in support of the petition shall be embodied in or accompany the petition. The petition must be signed by the petitioner, someone with legal authority to bind the petitioner (
(d) Unless a different deadline is specified elsewhere in this chapter, a petition under this section must be filed by not later than:
(1) Two months after the issue date of the action, or date of receipt of the filing, from which relief is requested; or
(2) Where the applicant or registrant declares under § 2.20 or 28 U.S.C. 1746 that it did not receive the action or no action was issued, the petition must be filed by not later than:
(i) Two months of actual knowledge of the abandonment of an application and not later than six months after the date the trademark electronic records system indicates that the application is abandoned in full or in part;
(ii) Two months after the date of actual knowledge of the cancellation/expiration of a registration and not later than six months after the date the trademark electronic records system indicates that the registration is cancelled/expired; or
(iii) Two months after the date of actual knowledge of the denial of certification of an international application under § 7.13(b) and not later than six months after the trademark electronic records system indicates that certification is denied.
(e)(1) A petition from the grant or denial of a request for an extension of time to file a notice of opposition must be filed by not later than fifteen days after the issue date of the grant or denial of the request. A petition from the grant of a request must be served on the attorney or other authorized representative of the potential opposer, if any, or on the potential opposer. A petition from the denial of a request must be served on the attorney or other authorized representative of the applicant, if any, or on the applicant. Proof of service of the petition must be made as provided by § 2.119. The potential opposer or the applicant, as the case may be, may file a response by not later than fifteen days after the date of service of the petition and must serve a copy of the response on the petitioner, with proof of service as provided by § 2.119. No further document relating to the petition may be filed.
(2) A petition from an interlocutory order of the Trademark Trial and Appeal Board must be filed by not later than thirty days after the issue date of the order from which relief is requested. Any brief in response to the petition must be filed, with any supporting exhibits, by not later than fifteen days after the date of service of the petition. Petitions and responses to petitions, and any documents accompanying a petition or response under this subsection, must be served on every adverse party pursuant to § 2.119.
(f) An oral hearing will not be held on a petition except when considered necessary by the Director.
(g) The mere filing of a petition to the Director will not act as a stay in any appeal or inter partes proceeding that is pending before the Trademark Trial and Appeal Board, nor stay the period for replying to an Office action in an application, except when a stay is specifically requested and is granted or when §§ 2.63(a) and (b) and 2.65(a) are applicable to an ex parte application.
(h) Authority to act on petitions, or on any petition, may be delegated by the Director.
(i) If the Director denies a petition, the petitioner may request reconsideration, if:
(1) The petitioner files the request by not later than:
(i) Two months after the issue date of the decision denying the petition; or
(ii) Two months after the date of actual knowledge of the decision denying the petition and not later than six months after the issue date of the decision where the petitioner declares under § 2.20 or 28 U.S.C. 1746 that it did not receive the decision; and
(2) The petitioner pays a second petition fee under § 2.6.
Environmental Protection Agency (EPA).
Proposed rule.
The Environmental Protection Agency (EPA) is proposing to approve two revisions to the Louisiana State Implementation Plan (SIP) that revise the Louisiana Prevention of Significant Deterioration (PSD) permitting program to establish the significant monitoring concentration (SMC) for fine particles (PM
Written comments should be received on or before November 28, 2016.
Submit your comments, identified by EPA-R06-OAR-2016-0450, at
Adina Wiley, (214) 665-2115,
In the Rules and Regulations section of this issue of the
For additional information, see the direct final rule which is located in the Rules and Regulations section of this
Environmental Protection Agency (EPA).
Proposed rule.
The U.S. Environmental Protection Agency (EPA) proposes to approve the Commonwealth of Kentucky Underground Injection Control (UIC) Class II Program for primacy. The EPA determined that the state's program is consistent with the provisions of the Safe Drinking Water Act (SDWA) at section 1425 to prevent underground injection activities that endanger underground sources of drinking water. The agency's approval allows the state to implement and enforce state regulations for UIC Class II injection wells only located within the state. The Commonwealth's authority excludes the regulation of injection well Classes I, III, IV, V and VI and all wells on Indian lands, as required by rule under the SDWA. The agency requests public comment on this proposed rule and supporting documentation. In the “Rules and Regulations” section of this
Written comments must be received by November 28, 2016.
Submit your comments, identified by Docket ID No. EPA-HQ-OW-2015-0372, at
Holly S. Green, Drinking Water Protection Division, Office of Ground Water and Drinking Water (4606M), U.S. Environmental Protection Agency, 1200 Pennsylvania Ave. NW., Washington, DC 20460; telephone number: (202) 566-0651; fax number: (202) 564-3754; email address:
The EPA proposes to approve the Commonwealth of Kentucky's UIC Program primacy application for Class II injection wells located within the state (except all wells on Indian lands), as required by rule under the SDWA. The proposed rule grants Kentucky primary enforcement authority to prevent Class II (oil and gas-related) underground injection activities that endanger underground sources of drinking water. Accordingly, the agency proposes to codify the state's program in the
Legal Services Corporation.
Notice of proposed rulemaking.
The Legal Services Corporation (LSC or Corporation) is issuing this notice of proposed rulemaking to request comment on the Corporation's proposed revisions to its Definitions and Cost Standards and Procedures rules and the creation of a new part from LSC's Property Acquisition and Management Manual (PAMM).
Comments must be submitted by December 27, 2016.
You may submit comments by any of the following methods:
LSC prefers electronic submissions via email with attachments in Acrobat PDF format. LSC may not consider written comments sent via any other method or received after the end of the comment period.
Stefanie K. Davis, Assistant General Counsel, Legal Services Corporation, 3333 K Street NW., Washington, DC 20007, (202) 295-1563 (phone), (202) 337-6519 (fax),
The purpose of 45 CFR part 1630 is “to provide uniform standards for allowability of costs and to provide a
LSC published the PAMM in 2001 “to provide recipients with a single complete and consolidated set of policies and procedures related to property acquisition, use and disposal.” 66 FR 47688, Sept. 13, 2001. Prior to the PAMM's issuance, such policies and procedures were “incomplete, outdated and dispersed among several different LSC documents.”
Part 1630 and the PAMM have not been revised since 1997 and 2001, respectively. Since then, procurement practices and cost-allocation principles applicable to awards of federal funds have changed significantly. For instance, in 2013, OMB revised and consolidated several Circulars, including the Circulars LSC relied upon to develop part 1630, into a single Uniform Guidance. 78 FR 78589, Dec. 26, 2013; 2 CFR part 200. OMB consolidated and simplified its guidance to “reduce administrative burden for non-Federal entities receiving Federal awards while reducing the risk of waste, fraud and abuse.” 78 FR 78590, Dec. 26, 2013.
LSC has determined that it should undertake regulatory action at this time for three reasons. The first reason is to account, where appropriate for LSC, for changes in Federal grants policy. The second reason is to address the difficulties that LSC and its grantees experience in applying ambiguous provisions of Part 1630 and the PAMM. Finally, LSC believes rulemaking is appropriate at this time to address the limitations that certain provisions of both documents place on LSC's ability to ensure clarity, efficiency, and accountability in its grant-making and grants oversight practices.
In July 2014, the Operations and Regulations Committee (Committee) of LSC's Board of Directors (Board) approved Management's proposed 2014-2015 rulemaking agenda, which included revising Part 1630 and the PAMM as a priority item. On July 7, 2015, Management presented the Committee with a Justification Memorandum recommending publication of an Advance Notice of Proposed Rulemaking (ANPRM) to seek public comment on possible revisions to Part 1630 and the PAMM. Management stated that collecting input from the regulated community through an ANPRM would significantly aid LSC in determining the scope of this rulemaking and in developing a more accurate understanding of the potential costs and benefits that certain revisions may entail. On July 18, 2015, the LSC Board authorized rulemaking and approved the preparation of an ANPRM to revise Part 1630 and the PAMM.
Pursuant to LSC's Rulemaking Protocol, on October 4, 2015, the Committee voted to authorize publication of this ANPRM in the
LSC held workshops on April 20, May 18, and June 15, 2016, at its headquarters in Washington, DC. The three topics discussed were:
• Steve Pelletier, Northwest Justice Project.
• George Elliott, Legal Aid of Northwest Texas.
• Dilip Shah, Legal Aid of Northwest Texas.
• Steve Ogilvie, Inland Counties Legal Services.
• AnnaMarie Johnson, Nevada Legal Services.
• Shamim Huq, Legal Aid Society of Northeastern New York.
• Patrick McClintock, Iowa Legal Aid Foundation.
• Jonathan Asher, Colorado Legal Services.
• Michael Maher, Legal Action of Wisconsin, Inc.
• Frank Bittner, California Rural Legal Assistance, Inc.
• Jose Padilla, California Rural Legal Assistance, Inc.
• Diana White, Legal Aid Foundation of Metropolitan Chicago.
• Nikole Nelson, Alaska Legal Services Corporation.
• Tracey Janssen, Alaska Legal Services Corporation.
• Robin Murphy, National Legal Aid and Defender Association.
All materials related to the workshops, including agendas, audio recordings, and transcripts, are available at the rulemaking page for part 1630 on LSC's Web site,
LSC proposes to add or revise several definitions to Chapter XVI. First, LSC proposes to add a new definition for the terms
LSC believes that new definitions are necessary for three reasons. The first is to account for the widespread use of the terms
In recent years, LSC has begun receiving funds from private sources to make grants for specified purposes, not all of which are for the delivery of legal assistance to eligible clients. For example, LSC receives funding from the Arnold & Porter Foundation to make grants to LSC recipients to support leadership development training. Grants made through the G. Duane Vieth Leadership Development Program may be used to pay for individuals in leadership positions at LSC grantees to receive training, coaching, or other professional development in nonprofit leadership skills. Because the funding for this program is provided by a private foundation, it is not subject to LSC's regulations, which govern only those grants made with funds that Congress appropriated for the purpose of carrying out activities authorized by the LSC Act.
Since 1996, Congress has placed restrictions on how funds it appropriates to LSC may be used. In its annual directive, Congress does not distinguish between funds appropriated to make grants to provide legal assistance to eligible clients—Basic Field Grants—and funds that LSC may use to make other types of grants authorized by the LSC Act. At the current time, LSC uses the funds that Congress appropriates to carry out the purposes of the LSC Act to make awards in the following programs: (1) Basic Field Grants, (2) Technology Initiative Grants, and (3) the Pro Bono Innovation Fund. In addition to these grant programs, LSC uses recovered funds to award emergency relief grants to grantees in areas with government-declared emergencies on an as-needed basis. LSC historically has considered its regulations applicable to all three grant programs and grants made with recovered funds, as well as to any other funds that Congress occasionally appropriates to LSC for the purposes of carrying out the LSC Act. An example of the latter would be the 2013 supplemental appropriation to “carry out the purposes of the Legal Services Corporation Act by providing for necessary expenses related to the consequences of Hurricane Sandy[.]” Public Law 113-2, Div. A, Title X, Chap. 2, 127 Stat. 4, Jan. 29, 2013.
Against this background, LSC believes that it is necessary to define the terms
Second, LSC proposes to define the term
LSC proposes to revise definitions that are currently taken from the Inspector General Act, 5 U.S.C. Appx., as amended, to track the Uniform Guidance issued by the Office of Management and Budget (OMB), 2 CFR part 200. LSC believes that the OMB-defined terms are more appropriate in the context of LSC's cost standards and disallowance procedures, which are more similar to an agency's standards and procedures than to an inspector general's operations.
§ 1630.5 Standards governing allowability of costs under LSC grants or contracts. LSC proposes to redesignate existing § 1630.3 as § 1630.5 within Subpart B as part of the restructuring of part 1630. Except as described below, LSC proposes to make only technical edits to this section.
LSC proposes to delete paragraph (a)(8) from this section. The preamble to the 1986 final rule for part 1630 describes paragraph (a)(8) as “a standard federal provision to ensure that [matching funds for federal grants] must be raised from a source other than the federal treasury and taxpayer.” 51 FR 29076, 29077, Aug. 13, 1986. Under existing § 1630.3(a)(8), recipients may use LSC funds to satisfy the matching requirement of a federal grant program only if “the agency whose funds are being matched determines in writing that Corporation funds may be used for federal matching purposes[.]” LSC introduced this language in response to comments expressing concern that because LSC makes grants from appropriated funds, those grants could not be used to match, for example, grants awarded by the Administration on Aging within the U.S. Department of Health and Human Services.
The 1986 preamble was correct that federal funds cannot be used to satisfy the matching requirement of another federal grant unless specifically authorized by law.
Based on this language, LSC is reversing its prior policy with respect to the use of LSC funds to match grants awarded by federal agencies. LSC believes that recipients may use LSC grant funds to satisfy cost-sharing or matching requirements of federal awards as long as the funds are used consistent with LSC's governing statutes and regulations. LSC is considering other mechanisms for communicating its position on the use of LSC funds to satisfy cost-sharing or cost-matching requirements to federal agency funders.
LSC proposes to simplify paragraph (b) and relocate all provisions pertaining to prior approval for purchases and leases of personal property, contracts for services, purchases of real estate, contracts for capital improvements, and use of LSC funds to pay costs after the cessation of an LSC grant. LSC proposes to relocate the provisions governing prior approval of purchases and contracts to proposed part 1631. LSC also proposes to create a new Subpart D in part 1630 that will establish the procedures for closing out an LSC grant, including the use of LSC funds to complete the closeout process. Because LSC does not permit applicants for funding to charge costs incurred prior to the start date of the grant to LSC funds, LSC proposes to eliminate pre-award costs from the list of costs for which recipients must seek prior approval.
Consistent with the proposal to relocate the prior approval provisions, LSC also proposes to eliminate existing § 1630.6—Timetable and basis for granting prior approval.
Finally, LSC proposes to redesignate newly transferred §§ 1630.14 (Membership fees or dues), 1630.15 (Contributions), and 1630.16 (Tax-sheltered annuities, retirement accounts, and penalties) as §§ 1630.7-1630.9, respectively, with no changes.
For readability and ease of reference, LSC proposes to split existing § 1630.7 into two discrete sections. Proposed § 1630.10 will govern only LSC's initial decision to question costs, and proposed § 1630.11 will describe the process by which a recipient may appeal a disallowed cost of $2,500 or more to the LSC President. Finally, LSC proposes to redesignate existing §§ 1630.8-1630.12 as §§ 1630.12-1630.16 with only minor technical changes.
LSC is proposing to eliminate the five-year lookback period within which LSC may recover questioned costs. The LSC Act does not place any temporal limitation on LSC's ability to recover
Since LSC first promulgated part 1630 in 1986, it has chosen to limit the amount of time for which it may recover questioned costs from a recipient. LSC adopted a six-year period in the original version of § 1630.7(b), which it shortened to five years in 1997. 51 FR 29076, 29083, Aug. 13, 1986 (1986 final rule); 62 FR 68219, 68226, Dec. 31, 1997 (1997 final rule). The preamble to the 1997 final rule contains the most substantive discussion about LSC's intent regarding the limitation. Initially, the Board proposed a three-year limitation period on the recovery of questioned costs. 62 FR 68223. LSC Management and the Office of Inspector General recommended that the Board adopt a five-year period
Based on its oversight experience in the intervening years, LSC has come to the conclusion that limiting its ability to recover misspent costs is not consistent with its duty to responsibly administer appropriated funds. In LSC's experience, some misuses of funds are not discovered within the five-year period, even though LSC conscientiously reviews the reports and other documentation it requires recipients to provide. In some cases, recipients have failed to represent uses of LSC funds accurately, and those misrepresentations have come to LSC's attention only through complaints to LSC itself or via the Office of Inspector General. LSC also proposes to streamline the questioned costs review procedure. In the current version of § 1630.7, a recipient has 30 days from the date it receives a questioned cost notice from LSC to respond with evidence and an argument for why LSC should not disallow the cost. 45 CFR 1630.7(c). If the recipient does not respond within 30 days, LSC management must issue a second decision. LSC believes that this second step is redundant. It places an unnecessary administrative burden on LSC to confirm its own action in the absence of a challenge by the recipient. LSC proposes to replace this step with a new paragraph (d)(2), which states that if the recipient does not respond within 30 days, the notice of questioned costs automatically converts to LSC's final written decision.
LSC proposes to redesignate existing §§ 1630.10 (Applicability to subgrants.); 1630.11 (Applicability to non-LSC funds.); and 1630.12 (Applicability to derivative income.) to §§ 1630.13-16 without change.
LSC proposes to create Subpart D to formalize its procedures to close out grants whenever a recipient ceases to receive LSC funding. LSC's closeout procedures are currently located on its Web site at
LSC proposes to maintain the required elements of a closeout plan on its Web site and to provide recipients with a link to the relevant page in the grant award documents. Currently, LSC provides the link in the annual grant assurances that recipients must sign. LSC proposes to continue this practice, which is similar to the approach that
In the ANPRM, LSC asked for comments on whether the PAMM should remain a separate manual or be incorporated into Chapter XVI of the Code of Federal Regulations as an official rule. Only the National Legal Aid and Defender Association (NLADA) responded to this item, recommending against codifying the PAMM as a rule. NLADA stated that making the PAMM into a rule would “deprive LSC of flexibility and impose rigid rules on LSC and the programs in an ever-evolving delivery system where modifications will need to be made.” Instead, NLADA advocated that LSC publish a regulation that provides “a very general description of the overall guidelines with references to a resource that consolidates the LSC Accounting Guide, Property Management Guide and other LSC documents with fiscal, property and accounting policies.”
As indicated in the ANPRM, LSC believes that incorporating the PAMM into Chapter XVI of the Code of Federal Regulations will “promote and preserve the effectiveness and consistency of LSC's property acquisition, use, and disposal policies and procedures.” 80 FR 61142, 61142, Oct. 9, 2015. The LSC Act requires LSC to publish all rules, regulations, and guidelines for public comment, and to publish all rules, regulations, guidelines, and instructions in the
LSC thus proposes to introduce a new procurement and property management rule at 45 CFR part 1631. The new part 1631 will draw substantially from the existing PAMM, but will differ from the PAMM in three significant respects. First, LSC proposes to require that recipients adopt policies for making purchases with LSC funds. Second, LSC proposes to expand the rule to include contracts for services made with LSC funds. Lastly, LSC proposes to restructure the PAMM into five discrete subparts: Subpart A—General Provisions; Subpart B—Procurement Policies and Procedures; Subpart C—Personal Property Management; Subpart D—Real Estate Acquisition and Capital Improvements; and Subpart E—Real Estate Management. LSC proposes this restructuring to improve the coherence and usability of the rule.
LSC proposes to define
During the rulemaking workshops, several commenters identified an issue that LSC had not considered when drafting the NPRM. Those commenters noted that their largest contracts for services were contracts with their employee insurance providers or
LSC proposes to expand the prior approval process to include contracts for services and all purchases of personal property, whether the purchase is for a single item or multiple items, exceeding the $25,000 threshold. Throughout the initial stages of this rulemaking, commenters opposed the potential application of the prior approval requirement to contracts for services. In its response to the ANPRM, NLADA stated that its members “strongly oppose prior approval of service contracts.” NLADA observed that recipients need the flexibility to make rapid decisions about how to address, for example, a computer system crash. NLADA also asserted that whatever policy LSC adopted should allow recipients to enter into sole-source contracts for reasons other than exigent circumstances. As examples, NLADA discussed the situations where a recipient purchases hardware or software form a vendor that includes routine maintenance, or the service is a specialty service for which only one vendor is available in the recipient's area. NLADA concluded that “[s]ound fiscal policies and internal controls will promote clarity, efficiency, and accountability while not unduly burdening the recipient.”
Workshop panelists discussed the problems with expanding the prior approval requirement to both contracts for services and aggregate purchases of property. Like NLADA, panelists discussed the need to react quickly in emergency situations, which generally makes prior approval impractical as well as impossible.
Panelists opined as well on the issue of prior approval of aggregate purchases. Several panelists expressed concern that the concept of aggregate purchases was ambiguous, with respect to both timing—did LSC mean a purchase of multiple items occurring at one time, or several purchases of the same type of item over a certain period?—and nature—do all items in the purchase have to be the same, or would aggregate purchase include a copier and all of the accessories needed to operate it?—of the purchase.
LSC understands recipients' need to react quickly to prevent or mitigate damage caused by unexpected crises. To address that concern, LSC proposes to allow recipients to purchase personal property or contract for services without first seeking prior approval in limited emergency circumstances. Proposed § 1631.3(d)(1) permits a recipient to use more than $25,000 in LSC funds to obtain personal property or services when the purchase is necessary to avoid imminent harm to, remediate, or mitigate damage to the recipient's personnel, physical facilities, or systems. Under proposed § 1631.3(d)(2), the recipient would have to provide LSC with the information it normally would submit as a request for prior approval within a reasonable time after the situation requiring the emergency purchase or contract has ended.
Regarding contracts for labor counsel, mediators, or other services needed to address sensitive personnel issues, LSC observes that recipients do not need to disclose in the prior approval request the nature of the problems they are attempting to address. LSC proposes to require only that recipients describe how the services will further their legal service delivery. In these circumstances,
Finally, with respect to aggregate purchases of property, LSC believes that the proposals to require recipients to adopt procurement policies and to seek prior approval for purchases and contracts using $25,000 or more of LSC funds will eliminate the ambiguities and burdens identified by commenters. The proposed rule makes clear that recipients must seek prior approval for any single purchase whose cost exceeds $25,000 in LSC funds, regardless of whether that purchase is of a single item of personal property, several unrelated items of personal property, or a combination of personal property and services. Additionally, the proposed increase of the threshold to $25,000 will relieve recipients of the burden of seeking prior approval for relatively small purchases of personal property.
LSC specifically requests comment on the number of purchases recipients have made in the preceding five years for which they would have had to seek prior approval under the new threshold, including purchases of services. LSC believes that the proposed $25,000 threshold is appropriate as it corresponds to inflation over the 30-year period since LSC adopted the current $10,000 threshold. Recipients, however, are in the best position to provide information regarding the impact that LSC's proposals to both increase the prior approval threshold and require recipients to seek prior approval of all purchases exceeding the proposed threshold are likely to have.
LSC proposes to simplify the procedure described in current § 1630.7 by committing to make a decision or inform the requester of the date by which LSC expects to make a decision within a specific time frame. For purchases or leases of personal property, contracts for services, or capital improvements, LSC will make a decision or give notice of the date by which it expects to make a decision within 30 days of receiving the request. For purchases of real estate, the time frame for decision or notice is 60 days.
Finally, as LSC did in the revisions to part 1627, LSC is eliminating language that suggests recipients may incur costs without receiving prior approval if LSC has not made a decision within the regulatory time frame. LSC does not believe that responsible grants administration practices should permit the expenditure of large amounts of LSC funds without LSC's prior approval. At the same time, LSC commits itself to making a decision or communicating the anticipated decision date to the requester within the time frames specified in § 1631.3(b).
Like the characteristics of subgrants, the characteristics of procurement contracts originated in OMB's Uniform Guidance, 2 CFR 200.330. The characteristics describe awards that recipients make to obtain goods or services necessary to administer their programs, rather than those that recipients give to other legal aid providers or bar associations to help them achieve the goals of their grant awards. LSC proposes to make only minor revisions to the characteristics to reflect their use in the LSC grant context. As with the characteristics of a subgrant in part 1627, not all of the characteristics of a contract need be present for an award to be considered a contract, and recipients must use judgment in evaluating whether a particular award should be considered a
NLADA recommended that LSC refrain from adopting the contracting standards in the Uniform Guidance. They described the procurement standards in the Uniform Guidance as “one-size-fits-all” and stated that they “would be quite burdensome for grantees and unnecessary for recipients to be accountable for following reasonable and responsible procurement standards.” NLADA described the procurement requirements and guidelines currently in the PAMM and LSC's Accounting Guide for Recipients as “procedures [that] maintain accountability, while allowing programs necessary flexibility to meet their programs' needs effectively and efficiently.” NLADA continued to describe the unique needs faced by some of LSC's statewide and rural recipients:
In many circumstances, it is simply not feasible or practical for programs to obtain competitive bids, let alone use sealed bidding processes referenced in the Uniform Guidance. For example, programs that cover large rural and/or are located in remote areas, have difficulty locating one vendor, let alone three. In these situations, there is no one financial threshold or type of service that would address when a bidding process should be used versus sole source procurement. Sole source procurement is appropriate and necessary for a service where a program needs unique expertise and/or time is of the essence.
With respect to the proposal to regulate contracts for services, NLADA stated that their members recommended that LSC “not go beyond requiring that grantees have policies and procedures covering service contracts in place approved by their board.” They observed that recipients need the flexibility to make rapid decisions about how to address, for example, a computer system crash. They also asserted that whatever policy LSC adopted should allow recipients to enter into sole-source contracts for reasons other than exigent circumstances, such as when the vendor that a recipient purchased software or hardware from offers maintenance coverage or when the service is a specialty service for which only one vendor is available in the area. NLADA concluded that “[s]ound fiscal policies and internal controls will promote clarity, efficiency, and accountability while not unduly burdening the recipient.”
CLS provided similar comments in its response. Like NLADA, CLS opined that recipients must have the ability to enter into contracts for services quickly when they experience emergencies. CLS also observed that all contracts for services must be reasonable and necessary for carrying out the LSC grant if LSC funds are to be expended on the contracts.
In December, 2015, LSC's Office of Inspector General issued a compendium report of its audit findings regarding recipients' internal controls over a two-year period.
With respect to written policies and procedures, OIG found that several recipients' policies lacked terms that complied with LSC's Accounting Guide for Recipients. Specifically, OIG identified “procedures for securing various types of contracts, competition requirements, approval authorities, dollar thresholds for approvals, documentation requirement to support contracting decisions and contract oversight responsibilities [and documentation of] deviations from approved contracting processes” as missing from many procurement policies.
OIG grouped the findings of weaknesses in recipients' contracting practices into six categories: Inadequate supporting documentation; failure to ensure that a contract was valid and formalized; poor adherence to written policies; failure to maintain a centralized filing system for procurement-related documents; failure to periodically evaluate long-term contracts and put them out for bids when appropriate; and failure to cross-train employees on contracting procedures.
In response to the Compendium Report, LSC issued Program Letter 16-3, “Procurement Policy Drafting Guidance for LSC Recipients.” The letter was accompanied by a document explaining in detail the elements of an effective procurement policy and factors that recipients should consider when developing their own policies. In the guidance document, LSC identified four areas that it believes are critical to an effective procurement policy:
1. Competition—How to identify, evaluate, and select vendors;
2. Negotiating terms—Identification of rights and responsibilities of each party to the contract;
3. Documentation—How to verify best value in purchasing; and
4. Internal controls—How to increase opportunity for vendors and reduce opportunities for fraud, waste, and abuse of LSC funds.
Based on the feedback received in the comments to the ANPRM and the rulemaking workshops and on the findings in OIG's Compendium Report, LSC proposes a rule requiring recipients to develop policies and procedures governing purchases of personal property and contracts for services made with LSC funds. Rather than adopting the procurement rules in OMB's Uniform Guidance, LSC proposes to create a rule based substantially on the guidance provided in Program Letter 16-3 and the accompanying guidance
In § 1631.8, LSC proposes to require that recipients develop procurement policies that have the following elements:
• Identification of competition thresholds that establish the basis for the level of competition required at each threshold. LSC expects recipients to consider the types of purchases and contracts for services that they make using LSC funds and to develop procedures for making each type of purchase. For example, a recipient may determine that its purchasing patterns require different levels of competition based on the type of purchase, such as a lease of a copier or a contract for a management consultant, while another may decide that the level of competition depends on the amount that it intends to spend regardless of the type of purchase.
• Establish the grounds for sole-source purchases. During the workshops, several panelists discussed various justifiable reasons why LSC recipients may award contracts or make purchases on a non-competitive basis. One reason was that in remote or rural areas, there may be only one vendor for a particular service or type of property. Another reason was that recipients sometimes require experts or professionals with a particular skill type, such as handwriting analysis, and award contracts for such services based on recommendations from trusted colleagues rather than through competition. LSC generally believes that competition among vendors is the best way to ensure that recipients are getting best value in their purchases. LSC understands, however, that there are times outside of emergency situations when recipients may need to make contracts on a non-competitive basis. LSC does not propose to limit the situations in which recipients can make sole-source contracts to exigent circumstances, but LSC does expect recipients to develop procurement policies that establish standards for making sole-source purchases and procedures for justifying the purchase, selecting the vendor, and documenting the transaction.
• Establish the level of documentation necessary to justify procurements. Like the first element, this requirement anticipates that recipients may tie the level of documentation needed to justify a purchase to the nature of the purchase or to the competition thresholds. LSC does not propose to require recipients to maintain a particular form or type of documentation, but expects recipients to determine a level of documentation that is appropriate to the type of purchase and that will support a showing that the purchase was reasonable and necessary for the purposes of the LSC grant.
• Establish internal controls that, at a minimum, provide for segregation of duties in the procurement process; identify which employees, officers, or directors have authority to make purchases for the recipient; and identify procedures for approving purchases. In its most recent annual compliance guidance, LSC identified weaknesses in segregation of duties and approval of financial transactions by an “appropriate level of management” as two of the most common compliance issues identified through Office of Compliance and Enforcement oversight visits to grantees.
• Establish procedures to ensure quality and cost control in purchasing. LSC intends to address two issues through this requirement: Evaluating purchases in the first instance, and review and evaluation of existing contracts. In order to ensure best value for all purchases, recipients should develop fair and objective criteria for evaluating sources and procedures for selecting among sources. The rigor of the selection procedures at each competition threshold should be commensurate with the level of competition and documentation required. During the workshops, several panelists stated that they had longstanding, non-competitive contracts with service providers. LSC has also learned of this practice through its regular oversight activities. LSC believes that the efficient, responsible administration of appropriated funds requires recipients to evaluate their long-term and multi-year contracts regularly for continued quality of services or products and for best price. LSC does not propose to require recipients to evaluate their longstanding contracts or open them up for bids on a prescribed schedule. LSC expects recipients to establish policies for regularly evaluating the value and quality of each of their contracts and for establishing standards to determine when continuing versus recompeting each contract is appropriate.
• Establish procedures for identifying and preventing conflicts of interest in the purchasing process. For several years, LSC has required recipients of TIG and Pro Bono Innovation Fund grants to adhere to an LSC-created “Policy on Disclosure of Interests for Determination of Conflicts.” LSC did not require recipients of Basic Field Grants to develop or follow conflicts of interest policies until grant year 2016. Beginning in 2016, the grant assurances for the Basic Field Grant program required recipients to develop conflicts of interest policies, to distribute the policies to their staff, and to train all covered staff on the policies. LSC now proposes to formalize in a rule the requirement to develop conflicts of interest policies applicable to the purchasing process. As with all of the other elements proposed in this section, LSC does not propose to dictate the terms of recipients' conflicts of interest policies. LSC merely expects recipients to adopt, comply with, and document compliance with the policies they develop.
LSC strongly encourages recipients to look to Program Letter 16-3 and its accompanying documents, as well as the Accounting Guide, for guidance when drafting their procurement policies. In particular, LSC recommends that recipients consider establishing annual purchasing plans and contract management procedures if they have not done so already. In addition to thoughtful procurement policies, well-considered purchasing plans and effective contract management procedures can reduce the risk of fraud, waste, and abuse of LSC funds.
LSC proposes to adopt § 4(d) of the PAMM in significant part in paragraph (b). LSC proposes to revise two specific provisions to allow recipients additional flexibility when purchasing real property. In § 1631.15(b)(6), LSC proposes to allow a recipient to provide documentation that the recipient's governing body approves of the purchase, even if the governing body's approval is contingent upon LSC's approval. LSC understands that some recipient governing bodies may be reluctant to authorize a real estate purchase if they are not assured that one of the proposed funding sources consents to the purchase. As a funder, LSC similarly wants to know that a recipient's governing body has been informed about a proposed purchase and agrees that the purchase is in the recipient's interest. Consequently, LSC proposes to revise existing § 4(d)(4) of the PAMM to allow for contingent approvals.
Additionally, LSC proposes to revise existing § 4(d)(5) of the PAMM and promulgate it as § 1631.15(b)(8). Currently, § 4(d)(5) requires a recipient to include in its request for prior approval a “statement of handicapped accessibility sufficient to meet the requirements of 45 CFR 1624.5(c)[.]” On several occasions, LSC has received simultaneous requests to purchase real estate and to make capital improvements to the property for the purpose of making it accessible to persons with disabilities. For this reason, LSC proposes to revise this requirement to allow the recipient to provide a statement that the property will be accessible once the requested capital improvements have been completed. LSC expects the recipient to act expeditiously to make the requested improvements if LSC approves both the purchase and the capital expenditures. Consequently, LSC proposes to require that any capital improvements authorized under this section be completed within 60 days of the date the real estate purchase is completed.
LSC proposes to add three additional elements to the list of requested information currently contained in § 4(d) of the PAMM and proposed for inclusion in § 1631.15(b). First, LSC proposes to require that recipients provide the information described in paragraph (a) as part of the prior approval request. Second, LSC proposes to require recipients to provide a breakdown of the sources of funds it intends to use toward the purchase. In other words, recipients would provide an estimate of the amount of LSC funds and non-LSC funds, respectively, that it intends to put toward the acquisition costs of the building and subsequent mortgage payments for the life of the financing arrangement. Third, LSC proposes to require recipients to provide a comparison of available loan terms considered by the recipient. LSC proposes this requirement to encourage recipients to investigate various options for financing a building purchase to obtain the best value.
In § 1631.15(c), LSC proposes to adopt § 4(e) of the PAMM with only a minor conforming change. LSC does, however, propose to add subparagraph (c)(4), which will require a recipient to agree not to dispose of real estate purchased with LSC funds without prior approval.
LSC proposes to establish the prior approval process for disposition of real estate in § 1631.21(c). LSC proposes to require a recipient or former recipient to seek prior approval at least 60 days before the recipient proposes to dispose of the property. In its request, the recipient or former recipient should tell LSC how it proposes to dispose of the property and why; provide documentation of the fair market value of the property; if selling, describe its process for advertising the property and receiving offers; account for all LSC funds used in the acquisition and capital improvement of the property; and identify the proposed transferee. The requester should also provide a document describing the terms of transfer or sale. LSC also proposes to clarify that LSC's percentage interest in the proceeds of a real estate sale is equal to the percentage of the costs of the original acquisition and any capital improvements made to the real estate over the life of the property that were paid using LSC funds.
Legal services.
Accounting, Government contracts, Grant programs—law, Hearing and appeal procedures, Legal services, Questioned costs.
Legal services, Government contracts, Grant programs—law, Real property acquisition.
For the reasons stated in the preamble, the Legal Services Corporation proposes to amend 45 CFR Chapter XVI as follows:
42 U.S.C. 2996g(e).
42 U.S.C. 2996g(e).
This part is intended to provide uniform standards for allowability of costs and to provide a comprehensive, fair, timely, and flexible process for the resolution of questioned costs.
(a)
(1) Corrects identified deficiencies;
(2) Produces recommended improvements; or
(3) Demonstrates that audit or other findings are either invalid or do not warrant recipient action.
(b)
(c)
(d)
(1) The decision issued by the Vice President for Grants Management after reviewing all information provided by a recipient in response to a notice of questioned costs; or
(2) the notice of questioned costs if a recipient does not respond to the notice within 30 days of receipt.
(e)
(f)
(1) There may have been a violation of a provision of a law, regulation, contract, grant, or other agreement or document governing the use of LSC funds;
(2) The cost is not supported by adequate documentation; or
(3) The cost incurred appears unnecessary or unreasonable and does not reflect the actions a prudent person would take in the circumstances.
(a)
(b)
The recipient shall have the burden of proof under this part.
(a)
(1) Actually incurred in the performance of the grant or contract and the recipient was liable for payment;
(2) Reasonable and necessary for the performance of the grant or contract as approved by LSC;
(3) Allocable to the grant or contract;
(4) In compliance with the Act, applicable appropriations law, LSC rules, regulations, guidelines, and instructions, the Accounting Guide for LSC Recipients, the terms and conditions of the grant or contract, and other applicable law;
(5) Consistent with accounting policies and procedures that apply uniformly to both LSC-funded and non-LSC-funded activities;
(6) Accorded consistent treatment over time;
(7) Determined in accordance with generally accepted accounting principles; and
(8) Adequately and contemporaneously documented in business records accessible during normal business hours to LSC management, the Office of Inspector General, the General Accounting Office, and independent auditors or other audit organizations authorized to conduct audits of recipients.
(b)
(1) Whether the cost is of a type generally recognized as ordinary and necessary for the operation of the recipient or the performance of the grant or contract;
(2) The restraints or requirements imposed by such factors as generally accepted sound business practices, arms-length bargaining, Federal and State laws and regulations, and the terms and conditions of the grant or contract;
(3) Whether the recipient acted with prudence under the circumstances, considering its responsibilities to its clients and employees, the public at large, the Corporation, and the Federal government; and
(4) Significant deviations from the recipient's established practices, which may unjustifiably increase the grant or contract costs.
(c)
(2) A cost is allocable to an LSC grant or contract if it is treated consistently with other costs incurred for the same purpose in like circumstances and if it:
(i) Is incurred specifically for the grant or contract;
(ii) Benefits both the grant or contract and other work and can be distributed in reasonable proportion to the benefits received; or
(iii) Is necessary to the recipient's overall operation, although a direct relationship to any particular cost objective cannot be shown.
(3) Recipients must maintain accounting systems sufficient to demonstrate the proper allocation of costs to each of their funding sources.
(d)
(e)
(f)
(g)
(h)
(i)
(a)
(b)
(i) Purchases or leases of personal property;
(ii) Contracts for services;
(iii) Purchases of real estate; and
(iv) Capital improvements.
(2) The process and substantive requirements for requests for prior approval are located in 45 CFR part 1631—Purchasing and Property Management.
(c)
(a) LSC funds may not be used to pay membership fees or dues to any private or nonprofit organization, whether on behalf of the recipient or an individual.
(b) Paragraph (a) of this section does not apply to the payment of membership fees or dues mandated by a governmental organization to engage in a profession, or to the payment of membership fees or dues from non-LSC funds.
Any contributions or gifts of LSC funds to another organization or to an individual are prohibited.
No provision contained in this part shall be construed to affect any payment by a recipient on behalf of its employees for the purpose of contributing to or funding a tax-sheltered annuity, retirement account, or pension fund.
(a) LSC may identify questioned costs:
(1) When the Office of Inspector General, the General Accounting Office, or an independent auditor or other audit organization authorized to conduct an audit of a recipient has identified and referred a questioned cost to LSC;
(2) In the course of its oversight of recipients; or
(3) As a result of complaints filed with LSC.
(b) If LSC determines that there is a basis for disallowing a questioned cost, LSC must provide the recipient with written notice of its intent to disallow the cost. The notice of questioned costs must state the amount of the cost and the factual and legal basis for disallowing it.
(c) If a questioned cost is disallowed solely on the ground that it is excessive, only the amount that is larger than reasonable shall be disallowed.
(d)(1) Within 30 days of receiving the notice of questioned costs, the recipient may respond with written evidence and argument to show that the cost was allowable, or that LSC, for equitable, practical, or other reasons, should not recover all or part of the amount, or that the recovery should be made in installments.
(2) If the recipient does not respond to LSC's written notice within 30 days, the written notice shall become LSC's final written decision.
(e) Within 60 days of receiving the recipient's written response to the notice of questioned costs, LSC management must issue a final written decision stating whether or not the cost has been disallowed and the reasons for the decision.
(f) If LSC has determined that the questioned cost should be disallowed, the final written decision must:
(1) State that the recipient may appeal the decision as provided in § 1630.11 and describe the process for seeking an appeal;
(2) Describe how it expects the recipient to repay the cost, including the method and schedule for collection of the amount of the cost;
(3) State whether LSC is requiring the recipient to make financial adjustments or take other corrective action to prevent a recurrence of the circumstances giving rise to the disallowed cost.
(a)(1) If the amount of a disallowed cost exceeds $2,500, the recipient may appeal in writing to LSC's President within 30 days of receiving LSC's final written decision to disallow the cost. The recipient should state in detail the reasons why LSC should not disallow part or all of the questioned cost.
(2) If the recipient did not respond to LSC's notice of questioned costs and the notice became LSC's final written decision pursuant to § 1630.11(d)(2), the recipient may not appeal the final written decision.
(b) If the President has had prior involvement in the consideration of the disallowed cost, the President shall designate another senior LSC employee who has not had prior involvement to review the recipient's appeal. In circumstances where the President has not had prior involvement in the disallowed cost proceeding, the President has discretion to designate
(c) Within 30 days of receiving the recipient's written appeal, the President or designee will adopt, modify, or reverse LSC's final written decision.
(d) The decision of the President or designee shall be final and shall be based on the written record, consisting of LSC's notice of questioned costs, the recipient's response, LSC's final written decision, the recipient's written appeal, any additional response or analysis provided to the President or designee by LSC staff, and the relevant findings, if any, of the Office of Inspector General, General Accounting Office, or other authorized auditor or audit organization. Upon request, LSC shall provide the recipient with a copy of the written record.
(a) LSC will recover any disallowed costs from the recipient within the time limits and conditions set forth in either LSC's final written decision or the President's decision on an appeal. Recovery of the disallowed costs may be in the form of a reduction in the amount of future grant checks or in the form of direct payment from you to LSC.
(b) LSC shall ensure that a recipient who has incurred a disallowed cost takes any additional necessary corrective action within the time limits and conditions set forth in LSC's final written decision or the President's decision.
(a) In cases of serious financial mismanagement, fraud, or defalcation of funds, LSC shall refer the matter to the Office of Inspector General and may take appropriate action pursuant to parts 1606, 1623, and 1640 of this chapter.
(b) The recovery of a disallowed cost according to the procedures of this part does not constitute a permanent reduction in a recipient's annualized funding level, nor does it constitute a limited reduction of funding or termination of financial assistance under part 1606, or a suspension of funding under part 1623.
When disallowed costs arise from expenditures incurred under a subgrant of LSC funds, the recipient and the subrecipient will be jointly and severally responsible for the actions of the subrecipient, as provided by 45 CFR part 1627, and will be subject to all remedies available under this part. Both the recipient and the subrecipient shall have access to the review and appeal procedures of this part.
(a) No costs attributable to a purpose prohibited by the LSC Act, as defined by 45 CFR 1610.2(a), may be charged to private funds, except for tribal funds used for the specific purposes for which they were provided.
(b) No cost attributable to an activity prohibited by or inconsistent with Public Law 103-134, tit. V, § 504, as defined by § 1610.2(b), may be charged to non-LSC funds, except for tribal funds used for the specific purposes for which they were provided.
(c) LSC may recover from a recipient's LSC funds an amount not to exceed the amount improperly charged to non-LSC funds. A decision to recover under this paragraph is subject to the review and appeal procedures of §§ 1630.11 and 1630.12.
(a) Derivative income resulting from an activity supported in whole or in part with LSC funds shall be allocated to the fund in which the recipient's LSC grant is recorded in the same proportion that the amount of LSC funds expended bears to the total amount expended by the recipient to support the activity.
(b) Derivative income allocated to the LSC fund in accordance with paragraph (a) of this section is subject to the requirements of this part.
This subpart applies when a recipient of LSC funds:
(a) Merges or consolidates functions with another LSC recipient;
(b) Changes its current identity or status as a legal entity; or
(c) Otherwise ceases to receive funds directly from LSC. This may include voluntary termination by the recipient or involuntary termination by LSC of the recipient's LSC grant, and may occur at the end of a grant term or during the grant term.
(a) A recipient must provide LSC with a plan for the orderly conclusion of the recipient's role and responsibilities. LSC will maintain a list of the required elements for the closeout plan on its Web site. LSC will provide recipients with a link to the list in the grant award documents.
(b)(1) A recipient must notify LSC no less than 60 days prior to any of the above events, except for an involuntary termination of its LSC grant by LSC. The recipient must submit the closeout plan described in § 1630.19 at the same time.
(2) If LSC terminates a recipient's grant, the recipient must submit the closeout plan described in § 1630.19 within 15 days of being notified by LSC that it is terminating the recipient's grant.
(a) The recipient must submit to LSC a detailed budget and timeline for all closeout procedures described in the closeout plan. LSC must approve the budget, either as presented or after negotiations with the recipient, before the recipient may proceed with implementing the budget, timeline, and plan.
(b) LSC will withhold funds for all closeout expenditures, including costs for the closing audit, all staff and consultant services needed to perform closeout activities, and file storage and retention.
(c) LSC will release any funding installments that the recipient has not received as of the date it notified LSC of a merger, change in status, or voluntary termination or that LSC notified the recipient of an involuntary termination of funding only upon the recipient's satisfactory completion of all closeout obligations.
(a)
(b)
42 U.S.C. 2996g(e).
The purpose of this part is to set standards for purchasing, leasing, using, and disposing of LSC-funded personal property and real estate and using LSC funds to contract for services.
(a)
(b)
(c)
(d)
(e)
(f)
(g)
(h)
(1) To sell or lease property to the recipient through a purchase or lease agreement; or
(2) to provide services to the recipient through a contract.
(a) LSC shall grant prior approval of a cost listed in § 1630.6(b) if the recipient has provided sufficient written information to demonstrate that the cost would be consistent with the standards and policies of this part. LSC may request additional information if necessary to make a decision on the recipient's request.
(b)(1) For purchases or leases of personal property, contracts for services, and capital improvements, LSC will make a decision to approve or deny a request for prior approval within 30 days of receiving the request.
(2) For purchases of real estate, LSC will make a decision within 60 days of receiving the request.
(3) If LSC cannot make a decision whether to approve the request within the allotted time, it will provide the requester with a date by which it expects to make a decision.
(c) If LSC denies a request for prior approval, LSC shall provide the recipient with a written explanation of the grounds for denying the request.
(d)
(i) to avoid imminent harm to the recipient's personnel, physical facilities, or systems; or
(ii) to remediate or mitigate damage to the recipient's personnel, physical facilities or systems.
(2) The recipient must provide LSC with a description of the exigent circumstances and the information described in paragraph (b) within a reasonable time after the circumstances necessitating the purchase or contract have ended.
(a) All provisions of this part apply to purchases and leases of personal property, contracts for services, and purchases of real estate made 90 days after the effective date of this rule.
(b) Subparts A, C, and E become effective 90 days after the effective date for all personal property and real property leased or purchased by recipients using LSC funds prior to the effective date of this part.
When LSC receives funds from a disposition of property under this section, LSC will use those funds to make emergency and other special grants to recipients. LSC generally will make such grants to the same service area as the returned funds originally supported.
Each recipient shall adopt written policies and procedures to guide its staff in complying with this part and shall maintain records sufficient to document the recipient's compliance with this part.
(a) Characteristics indicative of a procurement relationship between a recipient and another entity are when the other entity:
(1) Provides the goods and services within its normal business operations;
(2) Provides similar goods or services to many different purchasers;
(3) Normally operates in a competitive environment;
(4) Provides goods or services that are ancillary to the operation of the LSC grant; and
(5) Is not subject to LSC's compliance requirements as a result of the agreement, though similar requirements may apply for other reasons.
(b) In determining whether an agreement between a recipient and another entity constitutes a contract under this part or a subgrant under part 1627, the substance of the relationship is more important than the form of the agreement. All of the characteristics above may not be present in all cases, and a recipient must use judgment in classifying each agreement as a subgrant or a contract.
Recipients must have written procurement policies and procedures. These policies must:
(a) Identify competition thresholds that establish the basis (for example, price, risk level, or type of purchase) for the level of competition required at each threshold (for example, certification that a purchase reflects the best value to the recipient; a price comparison for alternatives that the recipient considered; or requests for information, quotes, or proposals);
(b) Establish the grounds for non-competitive purchases;
(c) Establish the level of documentation necessary to justify procurements. The level of documentation needed may be proportional to the nature of the purchase or tied to competition thresholds;
(d) Establish internal controls that, at a minimum, provide for segregation of duties in the procurement process, identify which employees, officers, or directors who have authority to make purchases for the recipient, and identify procedures for approving purchases;
(e) Establish procedures to ensure quality and cost control in purchasing, including procedures for selecting sources, fair and objective criteria for selecting sources; and
(f) Establish procedures for identifying and preventing conflicts of interest in the purchasing process.
(a) As required by § 1630.6 of this chapter and § 1631.3, a recipient using more than $25,000 of LSC funds to purchase or lease personal property or contract for services must request and receive LSC's prior approval.
(b) A request for prior approval must include:
(1) A statement explaining how the personal property or services will further the delivery of legal services to eligible clients; and
(2) Documentation showing that the recipient followed its procurement policies and procedures in soliciting, reviewing, and approving the purchase, lease, or contract for services.
All purchases and leases of personal property and contracts for services made with LSC funds must comply with the provisions of 45 CFR part 1630 (Cost Standards and Procedures).
(a) A recipient may use personal property purchased or leased, in whole or in part, with LSC funds primarily to deliver legal services to eligible clients under the requirements of the LSC Act, applicable appropriations acts, and LSC regulations.
(b) A recipient may use personal property purchased or leased, in whole or in part, with LSC funds for the performance of an LSC grant or contract for other activities, if such other activities do not interfere with the performance of the LSC grant or contract.
(c) If a recipient uses personal property purchased or leased, in whole or in part, with LSC funds to provide services to an organization that engages in activity restricted by the LSC Act, LSC regulations, or other applicable law, the recipient must charge the organization a fee no less than that which private nonprofit organizations in the same area charge for the same services under similar conditions.
Recipients may copyright any work that is subject to copyright and was developed, or for which ownership was obtained, under an LSC grant or contract, provided that LSC reserves a royalty-free, nonexclusive, and irrevocable license to reproduce, publish, or otherwise use work copyrighted by recipients, when the work is obtained in whole or in part with LSC funds.
(a)
(1) Trading in the personal property when it acquires replacement property;
(2) Selling or otherwise disposing of the personal property with no further obligation to LSC when the fair market value of the personal property is negligible;
(3) Selling the property at a reasonable negotiated price, without advertising for quotes, where the current fair market value of the personal property is $15,000 or less;
(4) Selling the property after having advertised for and received quotes, where the current fair market value of the personal property exceeds $15,000;
(5) Transferring the property to another recipient of LSC funds; or
(6) With the approval of LSC, transferring the personal property to another nonprofit organization serving the poor in the same service area.
(b)
(1) Transferring the property to another recipient of LSC funds, in which case the former recipient will be entitled to compensation in the amount of the percentage of the property's current fair market value that is equal to the percentage of the property's purchase cost borne by non-LSC funds;
(2) Transferring the property to another nonprofit organization serving the poor in the same service area, in which case LSC will be entitled to compensation from the recipient for the percentage of the property's current fair market value that is equal to the percentage of the property's purchase cost borne by LSC funds;
(3) Selling the property and retaining the proceeds from the sale after compensating LSC for the percentage of the property's current fair market value that is equal to the percentage of the property's purchase cost borne by LSC funds; or
(4) Retaining the property, in which case LSC will be entitled to compensation from the recipient for the percentage of the property's current fair market value that is equal to that percentage of the property's purchase cost borne by LSC funds.
(c)
(d)
(a) During the term of an LSC grant or contract, a recipient may retain and use income from any sale of personal property purchased with LSC funds according to 45 CFR 1630.16 (Cost
(b) The recipient must account for income earned from the sale, rent, or lease of personal property purchased with LSC funds according to the requirements of 45 CFR 1630.16.
(a)
(2) When a recipient evaluates potential properties, it must consider:
(i) The average annual cost of the purchase, including the costs of a down payment, interest and principal payments on a mortgage financing the purchase; closing costs; renovation costs; and the costs of utilities, maintenance, and taxes, if any;
(ii) The estimated total costs of buying and using the property throughout the mortgage term compared to the estimated total costs of leasing and using a similar property over the same period of time;
(iii) The property's quality; and
(iv) Whether the property is conducive to delivering legal services (
(3) If a recipient cannot evaluate three potential properties, it must be able to explain why such evaluation was not possible.
(b)
(1) A statement of need explaining how the purchase will further the delivery of legal services to eligible clients, including:
(i) The information obtained and considered in paragraph (a);
(ii) Trends in funding and program staffing levels in relation to space needs;
(iii) Why the recipient needs to purchase real property; and
(iv) Why purchasing real estate is reasonable and necessary to performing the LSC grant.
(2) A brief analysis comparing:
(i) The estimated average annual cost of the purchase including the costs of a down payment, interest and principal payments on a mortgage financing the purchase; closing costs; renovation costs; and the costs of utilities, maintenance, and taxes, if any; and
(ii) The estimated average annual cost of leasing or purchasing similar property over the same period of time;
(3) Anticipated financing of the purchase, including:
(i) The estimated total acquisition costs, including capital improvements, taxes, recordation fees, maintenance costs, insurance costs, and closing costs;
(ii) The anticipated breakdown of LSC funds and non-LSC funds to be applied toward the total costs of the purchase;
(iii) The monthly amount of principal and interest payments on debt secured to finance the purchase, if any;
(4) A current, independent appraisal sufficient to secure a mortgage;
(5) A comparison of available loan terms considered by the recipient before selecting the chosen financing method;
(6) Board approval of the purchase in either a board resolution or board minutes, including Board approvals that are contingent on LSC's approval;
(7) Whether the property will replace or supplement existing program offices;
(8) A statement of handicapped accessibility for the disabled sufficient to meet the requirements of 45 CFR 1624.5 or a statement that the property will be accessible upon the completion of any necessary capital improvements. Such improvements must be completed within 60 days of the date of purchase; and
(9) A copy of a purchase agreement, contract, or other document containing a description of the property and the terms of the purchase.
(c)
(1) The recipient's agreement to use the property consistent with § 1631.16;
(2) The recipient's agreement to record, under appropriate state law, LSC's interest in the property;
(3) The recipient's agreement not to encumber the property without prior LSC approval; and
(4) The recipient's agreement not to dispose of the property without prior LSC approval.
(a) As required by § 1630.6 of this chapter and § 1631.3, a recipient must obtain LSC's prior written approval before using more than $25,000 LSC funds to make capital improvements to real estate.
(b) The written request must include:
(1) A statement of need explaining how the improvement will further the delivery of legal services to eligible clients;
(2) A brief description of the nature of the work to be done, the name of the sources performing the work, and the total expected cost of the improvement; and
(3) Documentation showing that the recipient followed its procurement policies and procedures in competing, selecting, and awarding contracts to perform the work.
(c) A recipient must maintain supporting documentation to accurately identify and account for any use of LSC funds to make capital improvements to real estate owned by the recipient.
(a) A recipient must use real estate purchased or leased, in whole or part, with LSC funds primarily to deliver legal services to eligible clients consistent with the requirements of the LSC Act, applicable appropriations acts, and LSC regulations.
(b) A recipient may use real estate purchased or leased, in whole or part, with LSC funds for the performance of an LSC grant or contract for other activities, if they do not interfere with the performance of the LSC grant or contract.
(c) If a recipient uses real estate purchased or leased, in whole or part, with LSC funds to provide space to an organization that engages in activity restricted by the LSC Act, applicable appropriations acts, LSC regulations, or other applicable law, the recipient must charge the organization rent no less than that which private nonprofit organizations in the same area charge for the same amount of space under similar conditions.
A recipient must maintain real estate acquired with LSC funds:
(a) In an efficient operating condition; and
(b) In compliance with state and local government property standards and building codes.
At the time of purchase, a recipient must obtain insurance coverage for real estate purchased with LSC funds which is not lower in value than coverage it has obtained for other real property it owns and which provides at least the following coverage:
(a) Title insurance that:
(1) Insures the fee interest in the property for an amount not less than the full appraised value as approved by LSC, or the amount of the purchase price, whichever is greater; and
(2) Contains an endorsement identifying LSC as a loss payee to be reimbursed if the title fails.
(3) If no endorsement naming LSC as loss payee is made, the recipient must pay LSC the title insurance proceeds it receives in the event of a failure.
(b) A physical destruction insurance policy, including flood insurance where appropriate, which insures the full replacement value of the facility from risk of partial and total physical destructions. The recipient must maintain this policy for the period of time that the recipient owns the real estate.
A recipient must maintain an accounting of the amount of LSC funds relating to the purchase or maintenance of real estate purchased with LSC funds. The accounting must include the amount of LSC funds used to pay for acquisition costs, financing, and capital improvements. The recipient must provide the accounting for each year to LSC no later than April 30 of the following year or in its annual audited financial statements submitted to LSC.
(a)
(1) Selling the property after having advertised for and received offers; or
(2) Transferring the property to another recipient of LSC funds, in which case the recipient may be compensated by the recipient receiving the property for the percentage of the property's current fair market value that is equal to the percentage of the costs of the original acquisition and costs of any capital improvements borne by non-LSC funds.
(b)
(1) Transfer the property title to another grantee of LSC funds, in which case the recipient may be compensated the percentage of the property's current fair market value that is equal to the percentage of the costs of the original acquisition and costs of any capital improvements by non-LSC funds;
(2) Buyout LSC's interest in the property (
(3) Sell the property to a third party and pay LSC a share of the sale proceeds proportional to its interest in the property, after deducting actual and reasonable closing costs, if any.
(4) When a recipient stops receiving LSC funds because it merged with or is succeeded by another recipient, it may transfer the property to the new recipient. The two entities must execute an LSC-approved successor in interest agreement that requires the transferee to use the property primarily to provide legal services to eligible clients under the requirements of the LSC Act, applicable appropriations acts, and LSC regulations.
(c)
(1) The proposed method of disposition and an explanation of why the proposed method is in the best interests of LSC and the recipient;
(2) Documentation showing the fair market value of the property at the time of transfer or sale, including, but not limited to, an independent appraisal of the property and competing bona fide offers to purchase the property;
(3) A description of the recipient's process for advertising the property for sale and receiving offers;
(4) An accounting of all LSC funds used in the acquisition and any capital improvements of the property. The accounting must include the amount of LSC funds used to pay for acquisition costs, financing, and capital improvements; and
(5) Information on the proposed transferee or buyer of the property and a document evidencing the terms of transfer or sale.
(a) During the term of an LSC grant or contract, a recipient may retain and use income from any sale of real property purchased with LSC funds according to §§ 1630.16 and 1628.3 of this chapter.
(b) The recipient must account for income earned from the sale, rent, or lease of real or personal property purchased with LSC funds according to the requirements of § 1630.16 of this chapter.
Federal Communications Commission.
Proposed rule; request for comment.
In this document the Media Bureau of the Federal Communications Commission (Commission) seeks comment on updates to the catalog of eligible reimbursement expenses (Catalog) which contains costs for equipment and services that broadcasters and multichannel-video-programming-distributors (MVPDs) may incur as a result of the post-incentive auction repack and channel reassignment. In order to disburse money from the $1.75 billion TV Broadcaster Relocation Fund in accordance with the Spectrum Act and the
Comments are due on November 14, 2016. Reply Comments are due on November 29, 2016.
All filings must be addressed to the Commission's Secretary, Office of the Secretary, Federal Communications Commission, 445 12th Street SW., Washington, DC 20554. Commercial overnight mail (other than U.S. Postal Service Express Mail and Priority Mail) must be sent to 9300 East Hampton Drive, Capitol Heights, MD 20743. U.S. Postal Service
Pamela Gallant, 202-418-0614, or Raphael Sznajder, 202-418-1648, of the Media Bureau, Video Division.
With the assistance of a third-party contractor, Widelity, Inc., and based on the record to date, the Media Bureau has developed and now updated the catalog of eligible reimbursement expenses (Catalog) for reimbursement-eligible entities to use as a guide. The Catalog is not intended to be a definitive list of all reimbursable expenses, but, rather, as a means of facilitating the process for reimbursement-eligible entities to claim reimbursement during the post-incentive auction repacking. This Public Notice (available at:
The Department of Agriculture has submitted the following information collection requirement(s) to OMB for review and clearance under the Paperwork Reduction Act of 1995, Public Law 104-13. Comments are requested regarding (1) whether the 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 burden 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 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.
Comments regarding this information collection received by November 28, 2016 will be considered. Written comments should be addressed to: Desk Officer for Agriculture, Office of Information and Regulatory Affairs, Office of Management and Budget (OMB), New Executive Office Building, 725 17th Street NW., Washington, DC 20502. Commenters are encouraged to submit their comments to OMB via email to:
An agency may not conduct or sponsor a collection of information unless the collection of information displays a currently valid OMB control number and the agency informs potential persons who are to respond to the collection of information that such persons are not required to respond to the collection of information unless it displays a currently valid OMB control number.
Enforcement and Compliance, International Trade Administration, Department of Commerce.
The Department of Commerce (the Department) determines that circular welded carbon-quality steel pipe (CWP) from the Sultanate of Oman (Oman) is being, or is likely to be, sold in the United States at less than fair value (LTFV). The period of investigation (POI) is October 1, 2014, through September 30, 2015. The final weighted-average dumping margins of sales at LTFV are listed below in the “Final Determination” section of this notice.
Effective October 28, 2016.
Katherine Johnson or Aqmar Rahman, AD/CVD Operations, Office VIII, Enforcement and Compliance, International Trade Administration, U.S. Department of Commerce, 14th Street and Constitution Avenue NW., Washington, DC 20230; telephone: (202) 482-4929 and (202) 482-0768, respectively.
On June 8, 2016, the Department published the
The scope of the investigation covers CWP from Oman. For a complete description of the scope of the investigation,
In the
All issues raised in the case and rebuttal briefs by parties in this investigation are addressed in the Issues and Decision Memorandum. A list of the issues raised is attached to this notice as Appendix II. The Issues and Decision Memorandum is a public document and is on file electronically via Enforcement and Compliance's Antidumping and Countervailing Duty Centralized Electronic Service System (ACCESS). ACCESS is available to registered users at
As provided in section 782(i) of the the Tariff Act of 1930, as amended (the Act), in July and August 2016, we conducted verification of the sales and cost information submitted by Al Jazeera Steel Products Co. SAOG (Al Jazeera) for use in our final determination. We used standard verification procedures, including an examination of relevant accounting and production records, and original source documents provided by Al Jazeera.
Based on our analysis of the comments received and our findings at verification, we made certain changes to the margin calculations for Al Jazeera since the
The final weighted-average dumping margins are as follows:
Consistent with section 735(c)(5) of the Act, the Department also calculated an estimated all-others rate. Section 735(c)(5)(A) of the Act provides that the estimated all-others rate shall be an amount equal to the weighted average of the estimated weighted-average dumping margins established for exporters and producers individually investigated, excluding any zero and
We will disclose the calculations performed to interested parties in this proceeding within five days of the public announcement of this final determination in accordance with 19 CFR 351.224(b).
In accordance with section 735(c)(1)(B) of the Act, the Department will instruct U.S. Customs and Border Protection (CBP) to continue to suspend liquidation of all appropriate entries of CWP from Oman, as described in Appendix I of this notice, which were entered, or withdrawn from warehouse, for consumption on or after June 8, 2016, the date of publication of the
In accordance with section 735(d) of the Act, we will notify the ITC of the final affirmative determination of sales at LTFV. Because the final determination in this proceeding is affirmative, in accordance with section 735(b)(2) of the Act, the ITC will make its final determination as to whether the domestic industry in the United States is materially injured, or threatened with material injury, by reason of imports of CWP from Oman no later than 45 days after our final determination. If the ITC determines that material injury or threat of material injury does not exist, the proceeding will be terminated and all cash deposits will be refunded. If the ITC determines that such injury does exist, the Department will issue an antidumping duty order directing CBP to assess, upon further instruction by the Department, antidumping duties on all imports of the subject merchandise entered, or withdrawn from warehouse, for consumption on or after the effective date of the suspension of liquidation.
This notice serves as a reminder to parties subject to APO of their responsibility concerning the disposition of proprietary information disclosed under APO in accordance with 19 CFR 351.305(a)(3). Timely notification of the return or destruction of APO materials, or conversion to judicial protective order, is hereby requested. Failure to comply with the regulations and the terms of an APO is a sanctionable violation.
This determination and this notice are issued and published pursuant to sections 735(d) and 777(i)(1) of the Act.
This investigation covers welded carbon-quality steel pipes and tube, of circular cross-section, with an outside diameter (O.D.) not more than nominal 16 inches (406.4 mm), regardless of wall thickness, surface finish (
(a) Iron predominates, by weight, over each of the other contained elements;
(b) the carbon content is 2 percent or less, by weight; and
(c) none of the elements listed below exceeds the quantity, by weight, as indicated:
(i) 1.80 percent of manganese;
(ii) 2.25 percent of silicon;
(iii) 1.00 percent of copper;
(iv) 0.50 percent of aluminum;
(v) 1.25 percent of chromium;
(vi) 0.30 percent of cobalt;
(vii) 0.40 percent of lead;
(viii) 1.25 percent of nickel;
(ix) 0.30 percent of tungsten;
(x) 0.15 percent of molybdenum;
(xi) 0.10 percent of niobium;
(xii) 0.41 percent of titanium;
(xiii) 0.15 percent of vanadium; or
(xiv) 0.15 percent of zirconium.
Covered products are generally made to standard O.D. and wall thickness combinations. Pipe multi-stenciled to a standard and/or structural specification and to other specifications, such as American Petroleum Institute (API) API-5L specification, may also be covered by the scope of these investigations. In particular, such multi-stenciled merchandise is covered when it meets the physical description set forth above, and also has one or more of the following characteristics: Is 32 feet in length or less; is less than 2.0 inches (50 mm) in outside diameter; has a galvanized and/or painted (
Standard pipe is ordinarily made to ASTM specifications A53, A135, and A795, but can also be made to other specifications. Structural pipe is made primarily to ASTM specifications A252 and A500. Standard and structural pipe may also be produced to proprietary specifications rather than to industry specifications.
Sprinkler pipe is designed for sprinkler fire suppression systems and may be made to industry specifications such as ASTM A53 or to proprietary specifications.
Fence tubing is included in the scope regardless of certification to a specification listed in the exclusions below, and can also be made to the ASTM A513 specification. Products that meet the physical description set forth above but are made to the following nominal outside diameter and wall thickness combinations, which are recognized by the industry as typical for fence tubing, are included despite being certified to ASTM mechanical tubing specifications:
The scope of this investigation does not include:
(a) Pipe suitable for use in boilers, superheaters, heat exchangers, refining furnaces and feedwater heaters, whether or not cold drawn, which are defined by standards such as ASTM A178 or ASTM A192;
(b) finished electrical conduit,
(c) finished scaffolding,
(d) tube and pipe hollows for redrawing;
(e) oil country tubular goods produced to API specifications;
(f) line pipe produced to only API specifications, such as API 5L, and not multi-stenciled; and
(g) mechanical tubing, whether or not cold-drawn, other than what is included in the above paragraphs.
The products subject to this investigation are currently classifiable in Harmonized Tariff Schedule of the United States (HTSUS) statistical reporting numbers 7306.19.1010, 7306.19.1050, 7306.19.5110, 7306.19.5150, 7306.30.1000, 7306.30.5015, 7306.30.5020, 7306.30.5025, 7306.30.5032, 7306.30.5040, 7306.30.5055, 7306.30.5085, 7306.30.5090, 7306.50.1000, 7306.50.5030, 7306.50.5050, and 7306.50.5070. The HTSUS subheadings above are provided for convenience and U.S. Customs purposes only. The written description of the scope of the investigation is dispositive.
Enforcement and Compliance, International Trade Administration, U.S. Department of Commerce.
The U.S. Department of Commerce (the Department) determines that circular welded carbon-quality steel pipe (circular welded pipe) from Pakistan is being, or is likely to be, sold in the United States at less than fair value (LTFV). The period of investigation (POI) is October 1, 2014, through September 30, 2015. The final dumping margins of sales at LTFV are listed below in the “Final Determination” section of this notice.
Effective October 28, 2016.
David Lindgren, AD/CVD Operations, Office VII, Enforcement and Compliance, International Trade Administration, U.S. Department of Commerce, 14th Street and Constitution Avenue NW., Washington, DC 20230; telephone: (202) 482-3870.
On June 8, 2016, the Department published the
The scope of the investigation covers circular welded pipe from Pakistan. For a complete description of the scope of this investigation,
As noted above, we received no comments since the publication of the
As stated in the
As discussed in the
The final weighted-average dumping margins are as follows:
The weighted-average dumping margin assigned to IIL in the
In accordance with section 735(c)(1)(B) of the Act, the Department will instruct U.S. Customs and Border Protection (CBP) to continue to suspend liquidation of all appropriate entries of circular welded pipe from Pakistan, as described in Appendix I of this notice, which were entered, or withdrawn from warehouse, for consumption on or after June 8, 2016, the date of publication of the
Further, CBP will instruct CBP to require a cash deposit equal to the estimated amount by which the normal value exceeds the U.S. price as shown above. Where the subject merchandise under investigation is also subject to a concurrent countervailing duty (CVD) investigation, we normally instruct CBP to require a cash deposit less the amount of any countervailing duties determined to be export subsidies.
In accordance with section 735(d) of the Act, we will notify the U.S. International Trade Commission (ITC) of the final affirmative determination of sales at LTFV. Because the final determination in this proceeding is affirmative, in accordance with section 735(b)(2) of the Act, the ITC will make its final determination as to whether the domestic industry in the United States is materially injured, or threatened with material injury by reason of imports of circular welded pipe from Pakistan no later than 45 days after this final determination. If the ITC determines that material injury or threat of material injury does not exist, the proceeding will be terminated and all cash deposits will be refunded. If the ITC determines that such injury does exist, the Department will issue an antidumping duty order directing CBP to assess, upon further instruction by the Department, antidumping duties on all imports of the subject merchandise entered, or withdrawn from warehouse, for consumption on or after the effective date of the suspension of liquidation.
This notice serves as a reminder to parties subject to an administrative protective order (APO) of their responsibility concerning the disposition of proprietary information disclosed under APO in accordance with 19 CFR 351.305(a)(3). Timely notification of the return of 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.
This determination is issued and published in accordance with sections 735(d) and 777(i)(1) of the Act.
This investigation covers welded carbon-quality steel pipes and tube, of circular cross-section, with an outside diameter (O.D.) not more than nominal 16 inches (406.4 mm), regardless of wall thickness, surface finish (
(a) Iron predominates, by weight, over each of the other contained elements;
(b) the carbon content is 2 percent or less, by weight; and
(c) none of the elements listed below exceeds the quantity, by weight, as indicated:
(i) 1.80 percent of manganese;
(ii) 2.25 percent of silicon;
(iii) 1.00 percent of copper;
(iv) 0.50 percent of aluminum;
(v) 1.25 percent of chromium;
(vi) 0.30 percent of cobalt;
(vii) 0.40 percent of lead;
(viii) 1.25 percent of nickel;
(ix) 0.30 percent of tungsten;
(x) 0.15 percent of molybdenum;
(xi) 0.10 percent of niobium;
(xii) 0.41 percent of titanium;
(xiii) 0.15 percent of vanadium; or
(xiv) 0.15 percent of zirconium.
Covered products are generally made to standard O.D. and wall thickness combinations. Pipe multi-stenciled to a standard and/or structural specification and to other specifications, such as American Petroleum Institute (API) API-5L specification, may also be covered by the scope of these investigations. In particular, such multi-stenciled merchandise is covered when it meets the physical description set forth above, and also has one or more of the
Standard pipe is ordinarily made to ASTM specifications A53, A135, and A795, but can also be made to other specifications. Structural pipe is made primarily to ASTM specifications A252 and A500. Standard and structural pipe may also be produced to proprietary specifications rather than to industry specifications.
Sprinkler pipe is designed for sprinkler fire suppression systems and may be made to industry specifications such as ASTM A53 or to proprietary specifications.
Fence tubing is included in the scope regardless of certification to a specification listed in the exclusions below, and can also be made to the ASTM A513 specification. Products that meet the physical description set forth above but are made to the following nominal outside diameter and wall thickness combinations, which are recognized by the industry as typical for fence tubing, are included despite being certified to ASTM mechanical tubing specifications:
The scope of this investigation does not include:
(a) Pipe suitable for use in boilers, superheaters, heat exchangers, refining furnaces and feedwater heaters, whether or not cold drawn, which are defined by standards such as ASTM A178 or ASTM A192;
(b) finished electrical conduit,
(c) finished scaffolding,
(d) tube and pipe hollows for redrawing;
(e) oil country tubular goods produced to API specifications;
(f) line pipe produced to only API specifications, such as API 5L, and not multi-stenciled; and
(g) mechanical tubing, whether or not cold-drawn, other than what is included in the above paragraphs.
The products subject to this investigation are currently classifiable in Harmonized Tariff Schedule of the United States (HTSUS) statistical reporting numbers 7306.19.1010, 7306.19.1050, 7306.19.5110, 7306.19.5150, 7306.30.1000, 7306.30.5015, 7306.30.5020, 7306.30.5025, 7306.30.5032, 7306.30.5040, 7306.30.5055, 7306.30.5085, 7306.30.5090, 7306.50.1000, 7306.50.5030, 7306.50.5050, and 7306.50.5070. The HTSUS subheadings above are provided for convenience and U.S. Customs purposes only. The written description of the scope of the investigation is dispositive.
Enforcement and Compliance, International Trade Administration, Department of Commerce
The Department of Commerce (the Department) determines that circular welded carbon-quality steel pipe (CWP) from the United Arab Emirates (UAE) is being, or is likely to be, sold in the United States at less than fair value (LTFV). The period of investigation (POI) is October 1, 2014, through September 30, 2015. The final dumping margins of sales at LTFV are listed below in the “Final Determination” section of this notice.
Effective October 28, 2016.
Blaine Wiltse or Manuel Rey, AD/CVD Operations, Office II, Enforcement and Compliance, International Trade Administration, U.S. Department of Commerce, 1401 Constitution Avenue NW., Washington, DC 20230; telephone: (202) 482-6345 and (202) 482-5518, respectively.
On June 8, 2016, the Department published the
The scope of the investigation covers CWP from the UAE. For a complete description of the scope of the investigation,
In the
All issues raised in the case and rebuttal briefs by parties in this investigation are addressed in the Issues and Decision Memorandum. A list of the issues raised is attached to this notice as Appendix II. The Issues and Decision Memorandum is a public document and is on file electronically via Enforcement and Compliance's Antidumping and Countervailing Duty Centralized Electronic Service System (ACCESS). ACCESS is available to registered users at
As provided in section 782(i) of the Tariff Act of 1930, as amended (the Act), in June, July, and August 2016, we conducted verification of the sales and cost information submitted by Ajmal Steel Tubes & Pipes Ind. L.L.C. (Ajmal Steel) and Universal Tube and Plastic Industries, LLC—Jebel Ali Branch, Universal Tube and Pipe Industries, and KHK Scaffolding and Framework LLC (collectively, Universal) for use in our final determination. We used standard verification procedures, including an examination of relevant accounting and production records, and original source documents provided by Ajmal Steel and Universal.
Based on our analysis of the comments received and our findings at verification, we made certain changes to the margin calculations for Ajmal Steel and Universal. For a discussion of these changes,
Section 735(c)(5)(A) of the Act provides that the estimated all-others rate shall be an amount equal to the weighted-average of the estimated weighted-average dumping margins established for exporters and producers individually investigated excluding any zero or
The final weighted-average dumping margins are as follows:
We will disclose the calculations performed within five days of the date of publication of this notice to parties in this proceeding in accordance with 19 CFR 351.224(b).
In accordance with section 735(c)(1)(B) of the Act, the Department will instruct U.S. Customs and Border Protection (CBP) to continue to suspend liquidation of all appropriate entries of CWP from UAE, as described in Appendix I of this notice, which were entered, or withdrawn from warehouse, for consumption on or after June 8, 2016, the date of publication of the preliminary determination of this investigation in the
Further, the Department will instruct CBP to require a cash deposit equal to the estimated amount by which the normal value exceeds the U.S. price as shown above.
In accordance with section 735(d) of the Act, we will notify the ITC of the final affirmative determination of sales at LTFV. Because the final determination in this proceeding is affirmative, in accordance with section 735(b)(2) of the Act, the ITC will make its final determination as to whether the domestic industry in the United States is materially injured, or threatened with material injury, by reason of imports of CWP from UAE no later than 45 days after our final determination. If the ITC determines that material injury or threat of material injury does not exist, the proceeding will be terminated and all cash deposits will be refunded. If the ITC determines that such injury does exist, the Department will issue an antidumping duty order directing CBP to assess, upon further instruction by the Department, antidumping duties on all imports of the subject merchandise entered, or withdrawn from warehouse, for consumption on or after the effective date of the suspension of liquidation.
This notice serves as a reminder to parties subject to APO of their responsibility concerning the disposition of proprietary information disclosed under APO in accordance with 19 CFR 351.305(a)(3). Timely notification of the return or destruction of APO materials, or conversion to judicial protective order, is hereby requested. Failure to comply with the regulations and the terms of an APO is a sanctionable violation.
This determination and this notice are issued and published pursuant to sections 735(d) and 777(i)(1) of the Act.
This investigation covers welded carbon-quality steel pipes and tube, of circular cross-
(a) iron predominates, by weight, over each of the other contained elements;
(b) the carbon content is 2 percent or less, by weight; and
(c) none of the elements listed below exceeds the quantity, by weight, as indicated:
(i) 1.80 percent of manganese;
(ii) 2.25 percent of silicon;
(iii) 1.00 percent of copper;
(iv) 0.50 percent of aluminum;
(v) 1.25 percent of chromium;
(vi) 0.30 percent of cobalt;
(vii) 0.40 percent of lead;
(viii) 1.25 percent of nickel;
(ix) 0.30 percent of tungsten;
(x) 0.15 percent of molybdenum;
(xi) 0.10 percent of niobium;
(xii) 0.41 percent of titanium;
(xiii) 0.15 percent of vanadium; or
(xiv) 0.15 percent of zirconium.
Covered products are generally made to standard O.D. and wall thickness combinations. Pipe multi-stenciled to a standard and/or structural specification and to other specifications, such as American Petroleum Institute (API) API-5L specification, may also be covered by the scope of these investigations. In particular, such multi-stenciled merchandise is covered when it meets the physical description set forth above, and also has one or more of the following characteristics: Is 32 feet in length or less; is less than 2.0 inches (50 mm) in outside diameter; has a galvanized and/or painted (
Standard pipe is ordinarily made to ASTM specifications A53, A135, and A795, but can also be made to other specifications. Structural pipe is made primarily to ASTM specifications A252 and A500. Standard and structural pipe may also be produced to proprietary specifications rather than to industry specifications.
Sprinkler pipe is designed for sprinkler fire suppression systems and may be made to industry specifications such as ASTM A53 or to proprietary specifications.
Fence tubing is included in the scope regardless of certification to a specification listed in the exclusions below, and can also be made to the ASTM A513 specification. Products that meet the physical description set forth above but are made to the following nominal outside diameter and wall thickness combinations, which are recognized by the industry as typical for fence tubing, are included despite being certified to ASTM mechanical tubing specifications:
The scope of this investigation does not include:
(a) pipe suitable for use in boilers, superheaters, heat exchangers, refining furnaces and feedwater heaters, whether or not cold drawn, which are defined by standards such as ASTM A178 or ASTM A192;
(b) finished electrical conduit,
(c) finished scaffolding,
(d) tube and pipe hollows for redrawing;
(e) oil country tubular goods produced to API specifications;
(f) line pipe produced to only API specifications, such as API 5L, and not multi-stenciled; and
(g) mechanical tubing, whether or not cold-drawn, other than what is included in the above paragraphs.
The products subject to this investigation are currently classifiable in Harmonized Tariff Schedule of the United States (HTSUS) statistical reporting numbers 7306.19.1010, 7306.19.1050, 7306.19.5110, 7306.19.5150, 7306.30.1000, 7306.30.5015, 7306.30.5020, 7306.30.5025, 7306.30.5032, 7306.30.5040, 7306.30.5055, 7306.30.5085, 7306.30.5090, 7306.50.1000, 7306.50.5030, 7306.50.5050, and 7306.50.5070. The HTSUS subheadings above are provided for convenience and U.S. Customs purposes only. The written description of the scope of the investigation is dispositive.
Enforcement and Compliance, International Trade Administration, Department of Commerce.
The Department of Commerce (the “Department”) determines that certain iron mechanical transfer drive components (“IMTDC”) from the People's Republic of China (“PRC”) are being, or are likely to be, sold in the United States at less than fair value (“LTFV”). The period of investigation (“POI”) is April 1, 2015 through September 30, 2015. The final weighted-average dumping margins of sales at LTFV are listed in the “Final Determination Dumping Margins” section of this notice.
Effective October 28, 2016.
Krisha Hill or Jonathan Hill, AD/CVD
On June 8, 2016, the Department published in the
A summary of the events that occurred since the Department published the
The period of investigation (“POI”) is April 1, 2015, through September 30, 2015.
The products covered by this investigation are iron mechanical transfer drive components. These products are properly classified under Harmonized Tariff Schedule of the United States (“HTSUS”) subheadings 8483.30.8090, 8483.50.6000, 8483.50.9040, 8483.50.9080, 8483.90.3000, 8483.90.8080. Covered merchandise may also enter under the following HTSUS subheadings: 7325.10.0080, 7325.99.1000, 7326.19.0010, 7326.19.0080, 8431.31.0040, 8431.31.0060, 8431.39.0010, 8431.39.0050, 8431.39.0070, 8431.39.0080, and 8483.50.4000. Although the HTSUS subheading is provided for convenience and customs purposes, the written description of the merchandise under investigation is dispositive. For a complete description of the scope of the investigation, see Appendix I to this notice.
Since the
All issues raised in the case and rebuttal briefs that were submitted by parties in this investigation are addressed in either the Final Determination Scope Decision Memorandum or the Issues and Decision Memorandum accompanying this notice, which is hereby adopted by this notice. A list of the issues addressed in the Issues and Decision Memorandum is attached to this notice at Appendix II.
As provided in section 782(i) of the Tariff Act of 1930, as amended (“the Act”), in June 2016, we verified the sales and factors of production information submitted by Powermach Import & Export Co., Ltd. (“Powermach”),
In the
Based on the Department's analysis of the comments received and findings at verification, we made certain changes to our dumping margin calculations. For a discussion of these changes, see the Issues and Decision Memorandum.
Under section 735(c)(5)(A) of the Act, the estimated rate for all companies that have not been individually examined is normally equal to the weighted average of the estimated weighted-average dumping margins established for exporters and producers individually examined, excluding any zero and
In our
In the
For this final determination, the Department determines that IMTDC are being or likely to be sold in the United States at LTFV, as provided in section 735 of the Act. The Department determines that the following weighted-average dumping margins exist during the period April 1, 2015, through September 30, 2015:
Pursuant to section 735(c)(1)(B) of the Act, the Department will instruct U.S. Customs and Border Protection (“CBP”) to continue to suspend liquidation of all entries of IMTDC from the PRC, which were entered, or withdrawn from warehouse, for consumption on or after June 8, 2016, the date of publication in the
In a LTFV investigation with a companion countervailing duty (“CVD”) investigation, we normally adjust antidumping duty cash deposit rates by the amount of export subsidies, where appropriate. In the companion CVD investigation, we found that Powermach did not receive export subsidies. The countervailing duty rate for all-others companies in the CVD case is based on Powermach's countervailing duty rate, and thus all-others companies were not assigned an export subsidy rate. Therefore, no offset to Powermach's or the separate rate entities' antidumping duty cash deposit rates for export subsidies is necessary. Additionally, we likewise are not adjusting the antidumping duty cash deposit rate applicable to the PRC-wide entity for export subsidies.
Pursuant to 777A(f) of the Act, we are not adjusting the antidumping duty cash deposit rates for estimated domestic subsidy pass-through. Based on the data on the record of this investigation, the Department continues to find that there was not a general decrease in the U.S. average import price during the relevant period. Thus, the Department continues to find that the requirement under section 777A(f)(1)(B) of the Act has not been met, and has not made an adjustment to the antidumping duty cash deposit rates under section 777A(f) of the Act.
We intend to disclose to parties in this proceeding the calculations performed for this final determination within five days of the date of public announcement of our final determination, in accordance with 19 CFR 351.224(b).
In accordance with section 735(d) of the Act, we will notify the ITC of our final affirmative determination of sales at LTFV. Because the final determination in this proceeding is affirmative, in accordance with section 735(b)(2) of the Act, the ITC will make its final determination as to whether the domestic industry in the United States is materially injured, or threatened with material injury, by reason of imports of IMTDC from the PRC no later than 45 days after our final determination. If the ITC determines that such injury does not exist, this proceeding will be terminated and all securities posted will be refunded or canceled. If the ITC determines that such injury does exist, the Department will issue an antidumping duty order directing CBP to assess, upon further instruction by the Department, antidumping duties on all imports of the subject merchandise entered, or withdrawn from warehouse, for consumption on or after the effective date of the suspension of liquidation.
This notice will serve as a reminder to the parties subject to administrative protective order (“APO”) of their responsibility concerning the disposition of proprietary information disclosed under APO in accordance with 19 CFR 351.305. Timely written notification of return or 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 determination in accordance with sections 735(d) and 777(i)(1) of the Act and 19 CFR 351.210(c).
The products covered by this investigation are iron mechanical transfer drive components, whether finished or unfinished (
Iron mechanical transfer drive components subject to this investigation are those not less than 4.00 inches (101 mm) in the maximum nominal outer diameter.
Unfinished iron mechanical transfer drive components (
Subject merchandise includes iron mechanical transfer drive components as defined above that have been finished or machined in a third country, including but not limited to finishing/machining processes such as cutting, punching, notching, boring, threading, mitering, or chamfering, or any other processing that would not otherwise remove the merchandise from the scope of the investigation if performed in the country of manufacture of the iron mechanical transfer drive components.
Subject iron mechanical transfer drive components are covered by the scope of the investigation regardless of width, design, or iron type (
For purposes of this investigation, a covered product is of “iron” where the article has a carbon content of 1.7 percent by weight or above, regardless of the presence and amount of additional alloying elements.
Excluded from the scope are finished torsional vibration dampers (TVDs). A
Also excluded from the scope are certain TVD inner rings. To constitute an excluded TVD inner ring, the product must have each of the following characteristics: (1) A single continuous curve forming a protrusion or indentation on outer surface, also known as a sine lock, with a height or depth not less than 1.5 millimeters and not exceeding 4.0 millimeters and with a width of at least 10 millimeters as measured across the sine lock from one edge of the curve to the other;
The scope also excludes light-duty, fixed-pitch, non-synchronous sheaves (“excludable LDFPN sheaves”) with each of the following characteristics: made from grey iron designated as ASTM (North American specification) Grade 30 or lower, GB/T (Chinese specification) Grade HT200 or lower, DIN (German specification) GG 20 or lower, or EN (European specification) EN-GJL 200 or lower; having no more than two grooves; having a maximum face width of no more than 1.75 inches, where the face width is the width of the part at its outside diameter; having a maximum outside diameter of not more than 18.75 inches; and having no teeth on the outside or datum diameter. Excludable LDFPN sheaves must also either have a maximum straight bore size of 1.6875 inches with a maximum hub diameter of 2.875 inches; or else have a tapered bore measuring 1.625 inches at the large end, a maximum hub diameter of 3.50 inches, a length through tapered bore of 1.0 inches, exactly two tapped holes that are 180 degrees apart, and a 2.0- inch bolt circle on the face of the hub. Excludable LDFPN sheaves more than 6.75 inches in outside diameter must also have an arm or spoke construction.
In addition to the above characteristics, excludable LDFPN sheaves must also have a maximum weight (pounds-per-piece) as follows: for excludable LDFPN sheaves with one groove and an outside diameter of greater than 4.0 inches but less than or equal to 8.0 inches, the maximum weight is 4.7 pounds; for excludable LDFPN sheaves with two grooves and an outside diameter of greater than 4.0 inches but less than or equal to 8.0 inches, the maximum weight is 8.5 pounds; for excludable LDFPN sheaves with one groove and an outside diameter of greater than 8.0 inches but less than or equal to 12.0 inches, the maximum weight is 8.5 pounds; for excludable LDFPN sheaves with two grooves and an outside diameter of greater than 8.0 inches but less than or equal to 12.0 inches, the maximum weight is 15.0 pounds; for excludable LDFPN sheaves with one groove and an outside diameter of greater than 12.0 inches but less than or equal to 15.0 inches, the maximum weight is 13.3 pounds; for excludable LDFPN sheaves with two grooves and an outside diameter of greater than 12.0 inches but less than or equal to 15.0 inches, the maximum weight is 17.5 pounds; for excludable LDFPN sheaves with one groove and an outside diameter of greater than 15.0 inches but less than or equal to 18.75 inches, the maximum weight is 16.5 pounds; and for excludable LDFPN sheaves with two grooves and an outside diameter of greater than 15.0 inches but less than or equal to 18.75 inches, the maximum weight is 26.5 pounds.
The scope also excludes light-duty, variable-pitch, non-synchronous sheaves with each of the following characteristics: made from grey iron designated as ASTM (North American specification) Grade 30 or lower, GB/T (Chinese specification) Grade HT200 or lower, DIN (German specification) GG 20 or lower, or EN (European specification) EN-GJL 200 or lower; having no more than 2 grooves; having a maximum overall width of less than 2.25 inches with a single groove, or of 3.25 inches or less with two grooves; having a maximum outside diameter of not more than 7.5 inches; having a maximum bore size of 1.625 inches; having either one or two identical, internally-threaded
The scope also excludes certain IMTDC bushings. An IMTDC bushing is excluded only if it has a tapered angle of greater than or equal to 10 degrees, where the angle is measured between one outside tapered surface and the directly opposing outside tapered surface.
The merchandise covered by this investigation is currently classifiable under Harmonized Tariff Schedule of the United States (“HTSUS”) subheadings 8483.30.8090, 8483.50.6000, 8483.50.9040, 8483.50.9080, 8483.90.3000, 8483.90.8080. Covered merchandise may also enter under the following HTSUS subheadings: 7325.10.0080, 7325.99.1000, 7326.19.0010, 7326.19.0080, 8431.31.0040, 8431.31.0060, 8431.39.0010, 8431.39.0050, 8431.39.0070, 8431.39.0080, and 8483.50.4000. These HTSUS subheadings are provided for convenience and customs purposes. The written description of the scope of the investigation is dispositive.
Enforcement and Compliance, International Trade Administration, Department of Commerce.
The Department of Commerce (the “Department”) determines that countervailable subsidies are being provided to producers and exporters of certain iron mechanical transfer drive components (“IMTDCs”) from the People's Republic of China (the “PRC”). For information on the estimated subsidy rates,
Effective October 28, 2016.
Robert Galantucci, AD/CVD Operations, Office IV, Enforcement and Compliance, International Trade Administration, U.S. Department of Commerce, 14th Street and Constitution Avenue NW., Washington, DC 20230; telephone (202) 482-2923.
The Department published the
The period of investigation for which we are measuring subsidies is January 1, 2014 through December 31, 2014.
The Department set aside a period of time for parties to address scope issues.
The products covered by this investigation are IMTDCs from the PRC. For a complete description of the scope of this investigation,
The subsidy programs under investigation, and the issues raised in the case and rebuttal briefs submitted by the parties, are discussed in the Issues and Decision Memorandum. A list of the issues that parties raised, and to which we responded in the Issues and Decision Memorandum, is attached to this notice at Appendix I.
In making its findings, the Department relied, in part, on facts available. For mandatory respondent NOK (Wuxi) Vibration Control China Co. Ltd. (“NOK Wuxi”), we are basing the countervailing duty (“CVD”) rate on facts otherwise available, pursuant to sections 776(a)(2)(C) and (D) of the Tariff Act of 1930, as amended (the “Act”). Further, because NOK Wuxi did not cooperate to the best of its ability in this investigation, we determine that an adverse inference is warranted, pursuant to section 776(b) of the Act. The Department has applied a total AFA rate to NOK Wuxi. Similarly, the Department has applied a total AFA rate to 30 companies that failed to respond to the Department's quantity and value questionnaire.
Additionally, in several instances the Department has applied partial AFA to calculate subsidy rates for the other mandatory respondent Powermach Import & Export Co., Ltd. (Sichuan) (“Powermach I&E”). For further information,
Based on our review and analysis of the comments received from parties,
In accordance with section 705(c)(1)(B)(i)(I) of the Act, we established rates for Powermach I&E (the only individually investigated exporter/producer of the subject merchandise that participated in this investigation), and for NOK Wuxi (which was assigned a rate based on AFA).
In accordance with sections 705(c)(1)(B)(i)(I) and 705(c)(5)(A)(i) of the Act, for companies not individually investigated, we apply an “all-others” rate. The all-others rate is normally calculated by weight averaging the subsidy rates of the individual companies selected for individual examination with those companies' export sales of the subject merchandise to the United States, excluding any zero and
Because the only individually calculated rate that is not zero,
As a result of our
In accordance with section 703(d) of the Act, we later issued instructions to CBP to discontinue the suspension of liquidation for CVD purposes for subject merchandise entered, or withdrawn from warehouse, on or after August 9, 2016, but to continue the suspension of liquidation of all entries between April 11, 2016 and August 8, 2016.
If the U.S. International Trade Commission (the “ITC”) issues a final affirmative injury determination, we will issue a CVD order and will reinstate the suspension of liquidation under section 706(a) of the Act and will require a cash deposit of estimated CVDs for such entries of subject
In accordance with section 705(d) of the Act, we will notify the ITC of our determination. In addition, we are making available to the ITC all non-privileged and non-proprietary information related to this investigation. We will allow the ITC access to all privileged and business proprietary information in our files, provided the ITC confirms that it will not disclose such information, either publicly or under an administrative protective order (“APO”), without the written consent of the Assistant Secretary for Enforcement and Compliance.
In the event the ITC issues a final negative injury determination, this notice serves as the only reminder to parties subject to an APO of their responsibility concerning the destruction of proprietary information disclosed under APO in accordance with 19 CFR 351.305(a)(3). Timely written notification of the return or destruction of APO materials, or conversion to judicial protective order, is hereby requested. Failure to comply with the regulations and terms of an APO is a violation subject to sanction.
This determination is issued and published pursuant to sections 705(d) and 777(i) of the Act.
Enforcement and Compliance, International Trade Administration, Department of Commerce.
The Department of Commerce (the “Department”) determines that certain iron mechanical transfer drive components (“IMTDCs”) from Canada are being, or likely to be, sold in the United States at less than fair value (“LTFV”). Baldor Electric Company Canada (“Baldor”) is the sole mandatory respondent in this investigation. The period of investigation (“POI”) is October 1, 2014, through September 30, 2015. The final estimated dumping margins of sales at LTFV are shown in the “Final Determination” section of this notice.
Effective October 28, 2016.
Stephen Bailey or Robert Bolling, AD/CVD Operations, Office IV, Enforcement and Compliance, International Trade Administration, U.S. Department of Commerce, 1401 Constitution Avenue NW., Washington, DC 20230; telephone: (202) 482-0193 or (202) 482-3434, respectively.
On June 8, 2016, the Department published its preliminary affirmative determination of sales at LTFV in the investigation of IMTDCs from Canada.
A full discussion of the issues raised by parties for this final determination may be found in the Issues and Decision Memorandum.
The merchandise covered by this investigation are iron mechanical transfer drive components. For a complete description of the scope of the investigation, see Appendix I to this notice.
Since the
All issues raised in the case brief that was submitted by Petitioner in this investigation are addressed in the Issues and Decision Memorandum accompanying this notice, and which is hereby adopted by this notice. A list of the issues addressed in the Issues and Decision Memorandum is attached to this notice at Appendix II.
As discussed in the Issues and Decision Memorandum, we made no changes to our preliminary affirmative LTFV determination. Therefore, for the final determination, we continue to determine that the following estimated dumping margins exist for the following producers or exporters for the period October 1, 2014, through September 30, 2015.
Section 735(c)(5)(A) of the Tariff Act of 1930, as amended (“the Act”), provides that the estimated “all-others” rate shall be an amount equal to the weighted average of the estimated weighted-average dumping margins established for exporters and producers individually investigated, excluding any zero or
In accordance with section 735(c)(1)(B) of the Act, we will instruct U.S. Customs and Border Protection (“CBP”) to continue the suspension of liquidation of all entries of IMTDCs from Canada, as described in the “Scope of the Investigation” section, which were entered, or withdrawn from warehouse, for consumption on or after June 8, 2016, the date of publication of the
We described the calculations used to determine the estimated dumping margins based on adverse facts available, in the
In accordance with section 735(d) of the Act, we will notify the International Trade Commission (“ITC”) of our final affirmative determination of sales at LTFV. Because the final determination in the proceeding is affirmative, in accordance with section 735(b)(2) of the Act, the ITC will make its final determination as to whether the domestic industry in the United States is materially injured, or threatened with material injury, by reason of imports of IMTDCs from Canada no later than 45 days after our final determination. If the ITC determines that such injury does not exist, this proceeding will be terminated and all securities posted will be refunded or canceled. If the ITC determines that such injury does exist, the Department will issue an antidumping duty order directing CBP to assess, upon further instruction by the Department, antidumping duties on appropriate imports of the subject merchandise entered, or withdrawn from warehouse, for consumption on or after the effective date of the suspension of liquidation.
This notice serves as a reminder to the parties subject to administrative protective order (“APO”) of their responsibility concerning the disposition of proprietary information disclosed under APOs in accordance with 19 CFR 351.305. Timely written notification of return or destruction of APO materials or conversion to judicial protective order is hereby requested. Failure to comply with the regulations and the terms of APOs is a sanctionable violation.
We are issuing and publishing this determination in accordance with sections 735(d) and 777(i)(1) of the Act and 19 CFR 351.210(c).
The products covered by this investigation are iron mechanical transfer drive components, whether finished or unfinished (
Iron mechanical transfer drive components subject to this investigation are those not less than 4.00 inches (101 mm) in the maximum nominal outer diameter.
Unfinished iron mechanical transfer drive components (
Subject merchandise includes iron mechanical transfer drive components as defined above that have been finished or machined in a third country, including but not limited to finishing/machining processes such as cutting, punching, notching, boring, threading, mitering, or chamfering, or any other processing that would not otherwise remove the merchandise from the scope of this investigation if performed in the country of manufacture of the iron mechanical transfer drive components.
Subject iron mechanical transfer drive components are covered by the scope of this investigation regardless of width, design, or iron type (
For purposes of this investigation, a covered product is of “iron” where the article has a carbon content of 1.7 percent by weight or above, regardless of the presence and amount of additional alloying elements.
Excluded from the scope are finished torsional vibration dampers (TVDs). A finished TVD is an engine component composed of three separate components: An inner ring, a rubber ring and an outer ring. The inner ring is an iron wheel or cylinder with a bore hole to fit a crank shaft which forms a seal to prevent leakage of oil from the engine. The rubber ring is a dampening medium between the inner and outer rings that effectively reduces the torsional vibration. The outer ring, which may be made of materials other than iron, may or may not have grooves in its outer circumference. To constitute a finished excluded TVD, the product must be composed of each of the three parts identified above and the three parts must be permanently affixed to one another such that both the inner ring and the outer ring are permanently affixed to the rubber ring. A finished TVD is excluded only if it meets the physical description provided above; merchandise that otherwise meets the description of the scope and does not satisfy the physical description of excluded finished TVDs above is still covered by the scope of this investigation regardless of end use or identification as a TVD.
Also excluded from the scope are certain TVD inner rings. To constitute an excluded TVD inner ring, the product must have each of the following characteristics: (1) A single continuous curve forming a protrusion or indentation on outer surface, also known as a sine lock, with a height or depth not less than 1.5 millimeters and not exceeding 4.0 millimeters and with a width of at least 10 millimeters as measured across the sine lock from one edge of the curve to the other;
The scope also excludes light-duty, fixed-pitch, non-synchronous sheaves (“excludable LDFPN sheaves”) with each of the following characteristics: Made from grey iron designated as ASTM (North American specification) Grade 30 or lower, GB/T (Chinese specification) Grade HT200 or lower, DIN (German specification) GG 20 or lower, or EN (European specification) EN-GJL 200 or lower; having no more than two grooves; having a maximum face width of no more than 1.75 inches, where the face width is the width of the part at its outside diameter; having a maximum outside diameter of not more than 18.75 inches; and having no teeth on the outside or datum diameter. Excludable LDFPN sheaves must also either have a maximum straight bore size of 1.6875 inches with a maximum hub diameter of 2.875 inches; or else have a tapered bore measuring 1.625 inches at the large end, a maximum hub diameter of 3.50 inches, a length through tapered bore of 1.0 inches, exactly two tapped holes that are 180 degrees apart, and a 2.0- inch bolt circle on the face of the hub. Excludable LDFPN sheaves more than 6.75 inches in outside diameter must also have an arm or spoke construction.
In addition to the above characteristics, excludable LDFPN sheaves must also have a maximum weight (pounds-per-piece) as follows: For excludable LDFPN sheaves with one groove and an outside diameter of greater than 4.0 inches but less than or equal to 8.0 inches, the maximum weight is 4.7 pounds; for excludable LDFPN sheaves with two grooves and an outside diameter of greater than 4.0 inches but less than or equal to 8.0 inches, the maximum weight is 8.5 pounds; for excludable LDFPN sheaves with one groove and an outside diameter of greater than 8.0 inches but less than or equal to 12.0 inches, the maximum weight is 8.5 pounds;
The scope also excludes light-duty, variable-pitch, non-synchronous sheaves with each of the following characteristics: Made from grey iron designated as ASTM (North American specification) Grade 30 or lower, GB/T (Chinese specification) Grade HT200 or lower, DIN (German specification) GG 20 or lower, or EN (European specification) EN-GJL 200 or lower; having no more than 2 grooves; having a maximum overall width of less than 2.25 inches with a single groove, or of 3.25 inches or less with two grooves; having a maximum outside diameter of not more than 7.5 inches; having a maximum bore size of 1.625 inches; having either one or two identical, internally-threaded
The scope also excludes certain IMTDC bushings. An IMTDC bushing is excluded only if it has a tapered angle of greater than or equal to 10 degrees, where the angle is measured between one outside tapered surface and the directly opposing outside tapered surface.
The merchandise covered by this investigation is currently classifiable under Harmonized Tariff Schedule of the United States (“HTSUS”) subheadings 8483.30.8090, 8483.50.6000, 8483.50.9040, 8483.50.9080, 8483.90.3000, 8483.90.8080. Covered merchandise may also enter under the following HTSUS subheadings: 7325.10.0080, 7325.99.1000, 7326.19.0010, 7326.19.0080, 8431.31.0040, 8431.31.0060, 8431.39.0010, 8431.39.0050, 8431.39.0070, 8431.39.0080, and 8483.50.4000. These HTSUS subheadings are provided for convenience and customs purposes. The written description of the scope of this investigation is dispositive.
Enforcement and Compliance, International Trade Administration, Department of Commerce.
The Department of Commerce (the Department) determines that imports of circular welded carbon-quality steel pipe (CWP) from the Socialist Republic of Vietnam (Vietnam) are being, or are likely to be, sold in the United States at less than fair value (LTFV). The period of investigation (POI) is April 1, 2015, through September 30, 2015. The final dumping margins of sales at LTFV are listed below in the “Final Determination” section of this notice.
Effective October 28, 2016.
Andrew Huston or Nancy Decker, AD/CVD Operations, Office VII, Enforcement and Compliance, International Trade Administration, U.S. Department of Commerce, 1401 Constitution Avenue NW., Washington, DC 20230; telephone: (202) 482-4261 or (202) 482-0196, respectively.
On June 8, 2016, the Department published the
The products covered by this investigation are CWP from Vietnam. For a full description of the scope of this investigation,
In the
No interested parties submitted scope comments in case or rebuttal briefs; therefore, for this final determination, the scope of this investigation remains unchanged from that published in the
All issues raised in the case and rebuttal briefs by parties in this investigation are addressed in the Final Issues and Decision Memorandum. A list of the issues raised is attached to this notice as Appendix II.
As provided in section 782(i) of the Tariff Act of 1930, as amended (the Act), in June and July 2016, the Department verified the sales and factors of production data reported by the mandatory respondents SeAH Steel VINA Corporation (SeAH) and Vietnam
Based on the Department's analysis of the comments received and our findings at verification, we made certain changes to our margin calculations. For a discussion of these changes,
As stated in the
Under section 735(c)(5)(A) of the Act, the rate for all other companies that have not been individually examined is normally an amount equal to the weighted average of the estimated weighted-average dumping margins established for exporters and producers individually investigated, excluding any zero and
In our
The Department determines that the final weighted-average dumping margins are as follows:
We intend to disclose the calculations performed to interested parties within five days of the public announcement of this final determination in accordance with 19 CFR 351.224(b).
Pursuant to section 735(c)(1)(B) of the Act, the Department will instruct U.S. Customs and Border Protection (CBP) to continue to suspend liquidation of all entries of CWP from Vietnam, except for those produced and exported by SeAH, the rate for which is zero, which were entered, or withdrawn from warehouse, for consumption on or after: (1) June 8, 2016 (the date of publication of the
In accordance with section 735(d) of the Act, we will notify the U.S. International Trade Commission (ITC) of the final affirmative determination of sales at LTFV. Because the final determination in this proceeding is affirmative, in accordance with section 735(b)(2) of the Act, the ITC will make its final determination as to whether the domestic industry in the United States is materially injured, or threatened with material injury, by reason of imports of CWP from Vietnam no later than 45 days after our final determination. If the ITC determines that material injury or threat of material injury does not exist, the proceeding will be terminated and all cash deposits will be refunded. If the ITC determines that such injury does exist, the Department will issue an antidumping duty order directing CBP to assess, upon further instruction by the Department, antidumping duties on all imports of the subject merchandise entered, or withdrawn from warehouse, for consumption on or after the effective date of the suspension of liquidation as discussed in the “Continuation of Suspension of Liquidation” section.
In the event we issue a final antidumping duty order, in future proceedings we expect Hongyuan's U.S. affiliate Midwest Air Technologies to modify its recordkeeping system to be able to track the country of origin of U.S. sales of subject merchandise.
This notice serves as a reminder to parties subject to an administrative protective order (APO) of their responsibility concerning the disposition of proprietary information disclosed under APO in accordance with 19 CFR 351.305(a)(3). Timely notification of the return or destruction of APO materials, or conversion to judicial protective order, is hereby requested. Failure to comply with the regulations and the terms of an APO is a violation subject to sanction.
This determination and this notice are issued and published pursuant to sections 735(d) and 777(i)(1) of the Act.
This investigation covers welded carbon-quality steel pipes and tube, of circular cross-section, with an outside diameter (O.D.) not more than nominal 16 inches (406.4 mm), regardless of wall thickness, surface finish (
(a) Iron predominates, by weight, over each of the other contained elements;
(b) the carbon content is 2 percent or less, by weight; and
(c) none of the elements listed below exceeds the quantity, by weight, as indicated:
(i) 1.80 percent of manganese;
(ii) 2.25 percent of silicon;
(iii) 1.00 percent of copper;
(iv) 0.50 percent of aluminum;
(v) 1.25 percent of chromium;
(vi) 0.30 percent of cobalt;
(vii) 0.40 percent of lead;
(viii) 1.25 percent of nickel;
(ix) 0.30 percent of tungsten;
(x) 0.15 percent of molybdenum;
(xi) 0.10 percent of niobium;
(xii) 0.41 percent of titanium;
(xiii) 0.15 percent of vanadium; or
(xiv) 0.15 percent of zirconium.
Covered products are generally made to standard O.D. and wall thickness combinations. Pipe multi-stenciled to a standard and/or structural specification and to other specifications, such as American Petroleum Institute (API) API-5L specification, may also be covered by the scope of these investigations. In particular, such multi-stenciled merchandise is covered when it meets the physical description set forth above, and also has one or more of the following characteristics: Is 32 feet in length or less; is less than 2.0 inches (50 mm) in outside diameter; has a galvanized and/or painted (
Standard pipe is ordinarily made to ASTM specifications A53, A135, and A795, but can also be made to other specifications. Structural pipe is made primarily to ASTM specifications A252 and A500. Standard and structural pipe may also be produced to proprietary specifications rather than to industry specifications.
Sprinkler pipe is designed for sprinkler fire suppression systems and may be made to industry specifications such as ASTM A53 or to proprietary specifications.
Fence tubing is included in the scope regardless of certification to a specification listed in the exclusions below, and can also be made to the ASTM A513 specification. Products that meet the physical description set forth above but are made to the following nominal outside diameter and wall thickness combinations, which are recognized by the industry as typical for fence tubing, are included despite being certified to ASTM mechanical tubing specifications:
The scope of this investigation does not include:
(a) Pipe suitable for use in boilers, superheaters, heat exchangers, refining furnaces and feedwater heaters, whether or not cold drawn, which are defined by standards such as ASTM A178 or ASTM A192;
(b) finished electrical conduit,
(c) finished scaffolding,
(d) tube and pipe hollows for redrawing;
(e) oil country tubular goods produced to API specifications;
(f) line pipe produced to only API specifications, such as API 5L, and not multi-stenciled; and
(g) mechanical tubing, whether or not cold-drawn, other than what is included in the above paragraphs.
The products subject to this investigation are currently classifiable in Harmonized Tariff Schedule of the United States (HTSUS) statistical reporting numbers 7306.19.1010, 7306.19.1050, 7306.19.5110, 7306.19.5150, 7306.30.1000, 7306.30.5015, 7306.30.5020, 7306.30.5025, 7306.30.5032, 7306.30.5040, 7306.30.5055, 7306.30.5085, 7306.30.5090, 7306.50.1000, 7306.50.5030, 7306.50.5050, and 7306.50.5070. The HTSUS subheadings above are provided for convenience and U.S. Customs purposes only. The written description of the scope of the investigation is dispositive.
Enforcement and Compliance, International Trade Administration, U.S. Department of Commerce.
The U.S. Department of Commerce (the Department) determines that countervailable subsidies are being provided to exporters and producers of circular welded carbon-quality steel pipe (circular welded pipe) from Pakistan. For information on the estimated subsidy rates, see the “Suspension of Liquidation” section of this notice.
Effective October 28, 2016.
Kaitlin Wojnar, AD/CVD Operations, Office VII, Enforcement and Compliance, International Trade Administration, U.S. Department of Commerce, 14th Street and Constitution Avenue NW., Washington, DC 20230; telephone: (202) 482-3857.
The petitioners in this investigation are Bull Moose Tube Company, EXLTUBE, Wheatland Tube Company, and Western Tube and Conduit (collectively, Petitioners). In addition to the Government of Pakistan (GOP), the mandatory respondent in this investigation is International Industries Limited (IIL). The period of investigation (POI) is July 1, 2014, through June 30, 2015.
The Department published its
The Department conducted this countervailing duty (CVD) investigation in accordance with section 701 of the Tariff Act of 1930, as amended (the Act). For each of the subsidy programs found countervailable, we determine that there is a subsidy (
The product covered by this investigation is circular welded pipe from Pakistan. For a complete
All issues raised in the comments filed by interested parties to this proceeding are discussed in the Issues and Decision Memorandum. A list of the issues raised by IIL and responded to by the Department in the Issues and Decision Memorandum is attached at Appendix II to this notice.
For purposes of this final determination, we have continued to rely on facts available with adverse inferences, in accordance with section 776(a)-(d) of the Act, to calculate the subsidy rate for the mandatory respondent. For this final determination, we continue to find all programs in this proceeding countervailable. A full discussion of our decision to rely on adverse facts available is presented in the “Use of Facts Otherwise Available and Adverse Inferences” section of the Issues and Decision Memorandum.
In accordance with section 705(c)(1)(B)(i)(I) of the Act, we have calculated a subsidy rate for IIL, the only individually investigated exporter/producer of the subject merchandise. Section 705(c)(5)(A)(ii) of the Act provides that, if the countervailable subsidy rates for all individually investigated exporters and producers are determined entirely in accordance with section 776 of the Act, the Department may use any reasonable method to establish an “all-others” rate for exporters and producers that were not individually investigated. As described above, IIL's subsidy rate was calculated entirely under section 776 of the Act. Therefore, consistent with section 705(c)(5)(A)(ii) of the Act, we have resorted to “any reasonable method” to derive the all-others rate and are basing the all-others rate on the rate calculated for IIL. This method is consistent with the Department's past practice.
We determine the total estimated countervailable subsidy rates to be as follows:
Pursuant to section 703(d) of the Act, we instructed U.S. Customs and Border Protection (CBP) to suspend liquidation of all entries of circular welded pipe from Pakistan, as described in the “Scope of the Investigation,” that were entered or withdrawn from warehouse for consumption on or after April 8, 2016, the date of publication of the
If the U.S. International Trade Commission (ITC) issues a final affirmative injury determination, we will reinstate the suspension of liquidation under section 706(a) of the Act, require a cash deposit of the estimated CVD duties for such entries in the amounts indicated above and issue a CVD order. If the ITC determines that material injury or threat of material injury does not exist, this proceeding will be terminated and all estimated duties deposited or securities posted as a result of the suspension of liquidation will be refunded or canceled.
In accordance with section 705(d) of the Act, we will notify the ITC of our determination. In addition, we are making all non-privileged and non-proprietary information related to this investigation available to the ITC. We will also allow the ITC to access all privileged and business proprietary information in our files, provided that the ITC confirms that it will not disclose such information, either publicly or under an administrative protective order (APO), without the written consent of the Assistant Secretary for Enforcement and Compliance.
In the event that the ITC issues a final negative injury determination, this notice will serve as the only reminder to parties such to an APO of their responsibility concerning the destruction of proprietary information disclosed under APO in accordance with 19 CFR 351.305(a)(3). Timely written notification of the return or destruction of APO materials or, alternatively, conversion to judicial protective order, is hereby requested. Failure to comply with the regulations and terms of an APO is a violation that is subject to sanction.
This determination is published pursuant to section 705(d) and 777(i) of the Act.
This investigation covers welded carbon-quality steel pipes and tube, of circular cross-section, with an outside diameter (O.D.) not more than nominal 16 inches (406.4 mm), regardless of wall thickness, surface finish (
(a) Iron predominates, by weight, over each of the other contained elements;
(b) the carbon content is 2 percent or less, by weight; and
(c) none of the elements listed below exceeds the quantity, by weight, as indicated:
(i) 1.80 percent of manganese;
(ii) 2.25 percent of silicon;
(iii) 1.00 percent of copper;
(iv) 0.50 percent of aluminum;
(v) 1.25 percent of chromium;
(vi) 0.30 percent of cobalt;
(vii) 0.40 percent of lead;
(viii) 1.25 percent of nickel;
(ix) 0.30 percent of tungsten;
(x) 0.15 percent of molybdenum;
(xi) 0.10 percent of niobium;
(xii) 0.41 percent of titanium;
(xiii) 0.15 percent of vanadium; or
(xiv) 0.15 percent of zirconium.
Covered products are generally made to standard O.D. and wall thickness combinations. Pipe multi-stenciled to a standard and/or structural specification and to other specifications, such as American Petroleum Institute (API) API-5L specification, may also be covered by the scope of this investigation. In particular, such multi-stenciled merchandise is covered when
Standard pipe is ordinarily made to ASTM specifications A53, A135, and A795, but can also be made to other specifications. Structural pipe is made primarily to ASTM specifications A252 and A500. Standard and structural pipe may also be produced to proprietary specifications rather than to industry specifications.
Sprinkler pipe is designed for sprinkler fire suppression systems and may be made to industry specifications such as ASTM A53 or to proprietary specifications.
Fence tubing is included in the scope regardless of certification to a specification listed in the exclusions below, and can also be made to the ASTM A513 specification. Products that meet the physical description set forth above but are made to the following nominal outside diameter and wall thickness combinations, which are recognized by the industry as typical for fence tubing, are included despite being certified to ASTM mechanical tubing specifications:
The scope of this investigation does not include:
(a) Pipe suitable for use in boilers, superheaters, heat exchangers, refining furnaces and feedwater heaters, whether or not cold drawn, which are defined by standards such as ASTM A178 or ASTM A192;
(b) finished electrical conduit,
(c) finished scaffolding,
(d) tube and pipe hollows for redrawing;
(e) oil country tubular goods produced to API specifications;
(f) line pipe produced to only API specifications, such as API 5L, and not multi-stenciled; and
(g) mechanical tubing, whether or not cold-drawn, other than what is included in the above paragraphs.
The products subject to this investigation are currently classifiable in Harmonized Tariff Schedule of the United States (HTSUS) statistical reporting numbers 7306.19.1010, 7306.19.1050, 7306.19.5110, 7306.19.5150, 7306.30.1000, 7306.30.5015, 7306.30.5020, 7306.30.5025, 7306.30.5032, 7306.30.5040, 7306.30.5055, 7306.30.5085, 7306.30.5090, 7306.50.1000, 7306.50.5030, 7306.50.5050, and 7306.50.5070. The HTSUS subheadings above are provided for convenience and U.S. Customs purposes only. The written description of the scope of the investigation is dispositive.
National Institute of Standards and Technology, Department of Commerce.
Notice of open meeting.
The Board of Overseers of the Malcolm Baldrige National Quality Award (Board) will meet in open session on Tuesday, December 6, 2016. The purpose of this meeting is to review and discuss the work of the private sector contractor, which assists the Director of the National Institute of Standards and Technology (NIST) in administering the Malcolm Baldrige National Quality Award (Award), and information received from NIST and from the Chair of the Judges' Panel of the Malcolm Baldrige National Quality Award in order to make such suggestions for the improvement of the Award process as the Board deems necessary. Details on the agenda are noted in the
The meeting will be held on Tuesday, December 6, 2016, from 8:30 a.m. Eastern time until 3:00 p.m. Eastern time. The meeting will be open to the public.
The meeting will be held at the National Institute of Standards and Technology, 100 Bureau Drive, Building 101, Lecture Room A, Gaithersburg, Maryland 20899. Please note admittance instructions under the
Robert Fangmeyer, Director, Baldrige Performance Excellence Program, National Institute of Standards and Technology, 100 Bureau Drive, Mail Stop 1020, Gaithersburg, Maryland 20899-1020, telephone number (301) 975-2360, or by email at
15 U.S.C. 3711a(d)(2)(B) and the Federal Advisory Committee Act, as amended, 5 U.S.C. App.
Pursuant to the Federal Advisory Committee Act, as amended, 5 U.S.C. App., notice is hereby given that the Board will meet in open session on Tuesday, December 6, 2016, from 8:30 a.m. Eastern time until 3:00 p.m. Eastern time. The Board is composed of eleven members selected for their preeminence in the field of organizational performance excellence and appointed by the Secretary of Commerce. The Board consists of a balanced representation from U.S. service, manufacturing, nonprofit, education, and health care industries. The Board includes members familiar with the quality improvement operations and competitiveness issues of manufacturing companies, service companies, small businesses, health care providers, and educational institutions. Members are also chosen who have broad experience
Individuals and representatives of organizations who would like to offer comments and suggestions related to the Board's affairs are invited to request a place on the agenda. On December 6, 2016 approximately one-half hour will be reserved in the afternoon for public comments, and speaking times will be assigned on a first-come, first-served basis. The amount of time per speaker will be determined by the number of requests received, but is likely to be about 3 minutes each. The exact time for public comments will be included in the final agenda that will be posted on the Baldrige Web site at
All visitors to the National Institute of Standards and Technology site must pre-register to be admitted. Please submit your name, time of arrival, email address and phone number to Nancy Young no later than 5:00 p.m. Eastern Time, Tuesday, November 29, 2015 and she will provide you with instructions for admittance. Non-U.S. citizens must submit additional information and should contact Ms. Young for instructions. Ms. Young's email address is
National Oceanic and Atmospheric Administration (NOAA), Commerce.
Notice.
The Department of Commerce, as part of its continuing effort to reduce paperwork and respondent burden, offers the general public and other Federal agencies 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 60 days after date of publication of this notice.
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 Stephen Stohs, (858) 546-7084
This request is for a new collection of information.
The Southwest Fisheries Science Center (SWFSC) is undertaking an economics data collection effort for the West Coast Swordfish Fishery (WCSF) in order to improve the SWFSC's capability to do the following: (1) Describe and monitor economic performance (
WCSF participants will be contacted and screened to participate in the data collection. A cost and earnings survey will be scheduled and administered to eligible respondents as appropriate. Screener, scheduling and survey modes may include in-person, Internet, phone, or mail.
WCSF participants are defined as current or former participants in the United States (U.S.) west-coast swordfish fisheries—drift gillnet, longline, harpoon and experimental deep-set buoy gear—and suppliers of support services to the fishery, such as processors and spotter-plane pilots.
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.
Office of National Marine Sanctuaries (ONMS), National Ocean Service (NOS), National Oceanic and Atmospheric Administration (NOAA), Department of Commerce (DOC).
Notice of open meeting.
Notice is hereby given of a meeting via web conference call of the Marine Protected Areas Federal Advisory Committee (Committee). The web conference call is open to the public; participants can dial in to the call. Participants who choose to use the web conferencing feature in addition to the audio will be able to view the presentations as they are being given.
Members of the public wishing to participate in the meeting should register in advance by Wednesday, November 9, 2016.
The meeting will be held Thursday, November 10, from 2:00 to 4:00 p.m. EDT. These times and the agenda topics described below are subject to change. Refer to the Web page listed below for the most up-to-date meeting agenda.
The meeting will be held via web conference call. Register by contacting Nicole Capps at
Lauren Wenzel, Designated Federal Officer, MPA FAC, National Marine Protected Areas Center, 1305 East West Highway, Silver Spring, Maryland 20910. (Phone: 240-533-0652); email:
The Committee, composed of external, knowledgeable representatives of stakeholder groups, was established by the Department of Commerce (DOC) to provide advice to the Secretaries of Commerce and the Interior on implementation of Section 4 of Executive Order 13158, on marine protected areas.
Committee for Purchase From People Who Are Blind or Severely Disabled.
Deletions from the Procurement List.
This action deletes a product and services from the Procurement List previously furnished by nonprofit agencies employing persons who are blind or have other severe disabilities.
Effective November 27, 2016.
Committee for Purchase From People Who Are Blind or Severely Disabled, 1401 S. Clark Street, Suite 715, Arlington, Virginia 22202-4149.
Barry S. Lineback, Telephone: (703) 603-7740, Fax: (703) 603-0655, or email
On 9/16/2016 (81 FR 63744-63745) and 9/23/2016 (81 FR 65629-65630), the Committee for Purchase From People Who Are Blind or Severely Disabled published notices of proposed deletions from the Procurement List.
After consideration of the relevant matter presented, the Committee has determined that the product and services listed below are no longer suitable for procurement by the Federal Government under 41 U.S.C. 8501-8506 and 41 CFR 51-2.4.
I certify that the following action will not have a significant impact on a substantial number of small entities. The major factors considered for this certification were:
1. The action will not result in additional reporting, recordkeeping or other compliance requirements for small entities.
2. The action may result in authorizing small entities to furnish the product and services to the Government.
3. There are no known regulatory alternatives which would accomplish the objectives of the Javits-Wagner-O'Day Act (41 U.S.C. 8501-8506) in connection with the product and services deleted from the Procurement List.
Accordingly, the following product and services are deleted from the Procurement List:
Committee for Purchase From People Who Are Blind or Severely Disabled.
Proposed Deletions from the Procurement List.
The Committee is proposing to delete products and services previously furnished by nonprofit agencies employing persons who are blind or have other severe disabilities.
Comments must be received on or before November 27, 2016.
Committee for Purchase From People Who Are Blind or Severely Disabled, 1401 S. Clark Street, Suite 715, Arlington, Virginia 22202-4149.
Barry S. Lineback, Telephone: (703) 603-7740, Fax: (703) 603-0655, or email
This notice is published pursuant to 41 U.S.C. 8503 (a)(2) and 41 CFR 51-2.3. Its purpose is to provide interested persons an opportunity to submit comments on the proposed actions.
The following products and services are proposed for deletion from the Procurement List:
11:00 a.m., Friday, November 4, 2016.
Three Lafayette Centre, 1155 21st Street NW., Washington, DC, 9th Floor Commission Conference Room.
Closed.
Matters To Be Considered: Surveillance, enforcement, and examinations matters. In the event that the time, date, or location of this meeting changes, an announcement of the change, along with the new time, date, and/or place of the meeting will be posted on the Commission's Web site at
Christopher Kirkpatrick, 202-418-5964.
Wednesday, November 2, 2016, 9:30 a.m.—11:30 a.m.
Hearing Room 420, Bethesda Towers, 4330 East West Highway, Bethesda, Maryland.
Commission Meeting—Open to the Public.
Decisional Matter: Portable Generators—Notice of Proposed Rulemaking
A live webcast of the Meeting can be viewed at
Wednesday, November 2, 2016; 1:30 p.m.—3:30 p.m.
Hearing Room 420, Bethesda Towers, 4330 East West Highway, Bethesda, Maryland.
Commission Meeting—Closed to the Public.
Compliance Matters: The Commission staff will brief the Commission on the status of various compliance matters.
Todd A. Stevenson, Office of the Secretary, U.S. Consumer Product Safety Commission, 4330 East West Highway, Bethesda, MD 20814, (301) 504-7923.
Department of Defense.
Notice of Federal Advisory Committee Meetings.
The Defense Science Board (DSB) will meet in closed session on Wednesday, November 2, 2016, from 8:00 a.m. to 11:00 a.m. and 1:00 p.m. to 5:00 p.m. and Thursday, November 3, 2016, from 8:30 a.m. to 11:30 a.m. and 12:30 p.m. to 4:00 p.m. in the Nunn-Lugar conference room 3E863 at the Pentagon, Washington, DC.
November 2, 2016, from 8:00 a.m. to 5:00 p.m.; and November 3, 2016, from 8:30 a.m. to 4:00 p.m.
Nunn-Lugar conference room 3E863 at the Pentagon, Washington, DC.
Ms. Debra Rose, Executive Officer, Defense Science Board, 3140 Defense Pentagon, Room 3B888A, Washington, DC 20301-3140, via email at
Due to difficulties beyond the control of the Department of Defense, the Designated Federal Officer was unable to submit the
This meeting is being held under the provisions of the Federal Advisory Committee Act (FACA) of 1972 (5 U.S.C., Appendix, as amended), the Government in the Sunshine Act of 1976 (5 U.S.C. 552b, as amended), and 41 CFR 102-3.150.
The mission of the DSB is to provide independent advice and recommendations on matters relating to the Department of Defense's (DoD) scientific and technical enterprise. The objective of the meeting is to obtain, review, and evaluate classified information related to the DSB's mission. DSB membership will meet with DoD Leadership to discuss current and future national security challenges within the Department. This meeting will focus on providing status and requesting additional input for current studies and proposed study topics on nuclear deterrence; rapid global tactical strike; cyber deterrence; military satellite communication and tactical networking; defense research enterprise assessment; achieving long-range military capabilities; and cyber supply chain. Additionally, it will provide background information on thoughts for study topics to help shape future study plans.
In accordance with section 10(d) of the FACA and 41 CFR 102-3.155, the DoD has determined that the DSB meeting will be closed to the public. Specifically, the Under Secretary of Defense (Acquisition, Technology, and Logistics), in consultation with the DoD Office of General Counsel, has determined in writing that all sessions will be closed to the public because it will consider matters covered by 5 U.S.C. 552b(c)(1). The determination is based on the consideration that it is expected that discussions throughout will involve classified matters of national security concern. To permit the meeting to be open to the public would preclude discussion of such matters and would greatly diminish the ultimate utility of the DSB's findings or recommendations to the Secretary of Defense and to the USD (AT&L).
In accordance with section 10(a)(3) of the FACA and 41 CFR 102-3.105(j) and 102-3.140, interested persons may submit a written statement for consideration by the DSB at any time regarding its mission or in response to the stated agenda of a planned meeting. Individuals submitting a written statement must submit their statement to the Defense Science Board Designated Federal Official (DFO) provided in the
Office of the Assistant Secretary of Defense for Health Affairs, DoD.
Notice.
In compliance with the
Consideration will be given to all comments received by December 27, 2016.
You may submit comments, identified by docket number and title, by any of the following methods:
•
•
Any associated form(s) for this collection may be located within this same electronic docket and downloaded for review/testing. Follow the instructions at
To request more information on this proposed information collection or to obtain a copy of the proposal and associated collection instruments, please write to the Defense Health Services Systems (DHSS) Program Executive Office (PEO), ATTN: CDR Patrick Amersbach, Defense Health Headquarters (DHHQ), 7700 Arlington Boulevard, Falls Church VA 22042-2902, or call 703-681-0845.
Currently, CCQAS provides credentialing, privileging, risk-management and adverse actions capabilities which support medical quality assurance activities in the direct care system. CCQAS is fully deployed world-wide and is used by all Services (Army, Navy, Air Force) and Components (Guard, Reserve). CCQAS serves users functioning at the facility (defined by an individual UIC), Service, and DoD levels. Access to CCQAS modules and capabilities within each module is permissions-based, so that users have access tailored to the functions they perform and sensitive information receives maximal protection. Within each module, access control is available to the screen level.
Department of the Navy; DoD.
Notice.
The inventions listed below are assigned to the United States Government as represented by the Secretary of the Navy and are available for domestic and foreign licensing by the Department of the Navy.
The following patents are available for licensing: U.S. Patent No. 8,552,282: Propulsion Defeating System//U.S. Patent No. 8,575,929: Magnetic Anomaly Surveillance System Using Spherical Trilateration//U.S. Patent No. 8,577,648: Simulating Fluid Flow at a Moving Boundary//U.S. Patent No. 8,583,573: Nonparametric Mine Line Detection Using Spatial Analysis//U.S. Patent No. 8,594,457: Correlation Image Detection//U.S. Patent No. 8,616,721: Solar Awning and Method//U.S. Patent No. 8,620,082: Sonar Image Texture Segmentation//U.S. Patent No. 8,639,475: System and Method for Spatially Invariant Signal Detection//U.S. Patent No. 8,714,069: Mine Clearance System and Method//U.S. Patent No. 8,743,654: Reflectivity Maps//U.S. Patent No. 8,777,285: Underwater Cable Capture and Pass Through Device//U.S. Patent No. 8,783,202: Subsurface Oscillating Blade Propellor//U.S. Patent No. 8,794,892: Torque Nut Assembly//U.S. Patent No. 8,823,316: Thermal Effluent to Electric Energy Harvesting System//
Requests for copies of the patents cited should be directed to Office of Counsel, Naval Surface Warfare Center Panama City Division, 110 Vernon Ave., Panama City, FL 32407-7001.
Ms. Brenda Squires, Patent Administration, Naval Surface Warfare Center Panama City Division, 110 Vernon Ave., Panama City, FL 32407-7001, telephone 850-234-4646.
35 U.S.C. 207, 37 CFR part 404.
Department of the Navy, DoD.
Notice.
Pursuant to 5 U.S.C. 4314(c) (4), the Department of Navy (DON) announces the appointment of members to the DON's numerous Senior Executive Service (SES) Performance Review Boards (PRBs). The purpose of the PRBs is to provide fair and impartial review of the annual SES performance appraisal prepared by the senior executive's immediate and second level supervisor; to make recommendations to appointing officials regarding acceptance or modification of the performance rating; and to make recommendations for performance bonuses and basic pay increases. Composition of the specific PRBs will be determined on an ad hoc basis from among the individuals listed below:
Tara Landis, Director, Executive Management Program Office, Office of Civilian Human Resources at 202 685-6186.
Section 309(a) of the Clean Air Act requires that EPA make public its comments on EISs issued by other Federal agencies. EPA's comment letters on EISs are available at:
Revision to the FR Notice Published 09/02/2016; Correction to Extended Comment Period from 10/30/2016 to 10/31/2016.
Revision to FR Notice Published 09/09/2016; Extending Comment Period from 10/24/2016 to 11/23/2016.
Federal Accounting Standards Advisory Board.
Notice.
Ms. Wendy M. Payne, Executive Director, 441 G Street NW., Mail Stop 6H19, Washington, DC 20548, or call (202) 512-7350.
Federal Advisory Committee Act, Pub. L. 92-463.
Federal Communications Commission.
Notice.
The following applicants filed AM or FM proposals to change the community of License: Caldwell County CBC, Inc., Station WAVJ, Facility ID 15527, BPH-20160916ABG, From
The agency must receive comments on or before December 27, 2016.
Federal Communications Commission, 445 Twelfth Street SW., Washington, DC 20554.
Tung Bui, 202-418-2700.
The full text of these applications is available for inspection and copying during normal business hours in the Commission's Reference Center, 445 12th Street, SW., Washington, DC 20554 or electronically via the Media Bureau's Consolidated Data Base System,
Federal Communications Commission.
Notice and request for comments.
As part of its continuing effort to reduce paperwork burdens, and as required by the Paperwork Reduction Act (PRA) of 1995, the Federal Communications Commission (FCC or the Commission) invites the general public and other Federal agencies to take this opportunity to comment on the following information collection. Comments are requested concerning: Whether the proposed collection of information is necessary for the proper performance of the functions of the Commission, including whether the information shall have practical utility; the accuracy of the Commission's burden estimate; ways to enhance the quality, utility, and clarity of the information collected; ways to minimize the burden of the collection of information on the respondents, including the use of automated collection techniques or other forms of information technology; and ways to further reduce the information collection burden on small business concerns with fewer than 25 employees. The FCC may not conduct or sponsor a collection of information unless it displays a currently valid control number. No person shall be subject to any penalty for failing to comply with a collection of information subject to the PRA that does not display a valid Office of Management and Budget (OMB) control number.
Written PRA comments should be submitted on or before December 27, 2016. If you anticipate that you will be submitting comments, but find it difficult to do so within the period of time allowed by this notice, you should advise the contact listed below as soon as possible.
Direct all PRA comments to Nicole Ongele, FCC, via email
For additional information about the information collection, contact Nicole Ongele at (202) 418-2991.
Part 63 of Title 47 of the Code of Federal Regulations (CFR) implements Section 214. Part 63 also implements provisions of the Cable Communications Policy Act of 1984 pertaining to video which was approved under this OMB Control Number 3060-0149. In 2009, the Commission modified Part 63 to extend to providers of interconnected Voice of Internet Protocol (VoIP) service the discontinuance obligations that apply to domestic non-dominant telecommunications carriers under Section 214 of the Communications Act of 1934, as amended. In 2014, the Commission adopted improved administrative filing procedures for domestic transfers of control, domestic discontinuances and notices of network changes, and among other adjustments, modified Part 63 to require electronic
In July 2016, the Commission concluded that applicants seeking to discontinue a legacy time division multiplexing (TDM)-based voice service as part of a transition to a new technology, whether Internet Protocol (IP), wireless, or another type (technology transition discontinuance application) must demonstrate that an adequate replacement for the legacy service exists in order to be eligible for streamlined treatment and revised part 63 accordingly. For any other domestic service for which a discontinuance application is filed, the existing framework governs automatic grant procedures. Unlike traditional applicants, technology transition discontinuance applicants seeking streamlined treatment will be required to submit with their application either a certification or a showing as to whether an “adequate replacement” exists in the service area. The Commission stressed that attempting to satisfy this “adequate replacement” test to establish eligibility for streamlined treatment is entirely voluntary for an applicant. Voice technology transition discontinuance applicants that decline to pursue this path are not eligible for streamlined treatment and will have their applications evaluated on a non-streamlined basis under the traditional five factor test. The Commission concluded that an applicant for a technology transition discontinuance may demonstrate that a service is an adequate replacement for a legacy voice service by certifying or showing that one or more replacement service(s) offers all of the following: (i) Substantially similar levels of network infrastructure and service quality as the applicant service; (ii) compliance with existing federal and/or industry standards required to ensure that critical applications such as 911, network security, and applications for individuals with disabilities remain available; and (iii) interoperability and compatibility with an enumerated list of applications and functionalities determined to be key to consumers and competitors. One replacement service must satisfy all the criteria to retain eligibility for automatic grant. To reduce burdens on carriers, the Commission adopted a more streamlined approach for discontinuances involving services that are substantially similar to those for which a Section 214 discontinuance has previously been approved and allowed Section 214 discontinuance applications to be eligible for automatic grant without any further showing if the applicant demonstrates that the service has zero customers in the relevant service area and no requests for service in the last six months.
The Commission also concluded that consumer education materials should be required as part of any technology transition discontinuance because customers must be informed of their choices to ensure seamless transitions. The Commission determined that information about the price of the legacy service and the proposed replacement service should be provided as part of the application because any potential increased costs would implicate the Commission's commitment to ensuring that technology transitions do not unduly impact our most vulnerable citizens. To further reduce burdens on carriers, the Commission also decided to allow carriers to provide notice via email to offer additional options to customers and addressed a gap in the Commission's rules to make a competitive LEC's application for discontinuance deemed granted on the effective date of any comer retirement that made the discontinuance unavoidable. The Commission further concluded that applicants must provide notice of discontinuance applications to any federally-recognized Tribal Nations. The Commission estimates that there will be five respondents submitting 25 applications/responses related to these revisions. The Commission also estimates that these revisions will result in a total of 1,775 annual burden hours and a total annual cost of $27,900. The Commission estimates that the total annual burden and annual cost of the entire collection, as revised, is 2,075 and $27,900, respectively.
Federal Communications Commission.
Notice.
The Incentive Auction Task Force and Wireless Telecommunications Bureau announce the spectrum clearing target of 108 megahertz and band plan for Stage 3 of the incentive auction, and that bidding in Stage 3 of the reverse auction is scheduled to begin on November 1, 2016. This document also announces details and dates regarding bidding and the availability of educational and informational materials for reverse and forward auction bidders eligible to participate in Stage 3; the availability of Stage 3 bidding and timing information in the Incentive Auction Public Reporting System; and the importance of bidder contingency plans. Finally, this document reminds each reverse and forward auction applicant of its continuing obligations under the FCC's rules.
This is a summary of the
1. The Incentive Auction Task Force (Task Force) and the Wireless Telecommunications Bureau (Bureau) announce the 108 megahertz spectrum clearing target that has been set by the Auction System's optimization procedure and the associated band plan for Stage 3 of the incentive auction, as well as the number of Category 1 and Category 2 generic license blocks in
2. The Auction System's clearing target determination procedure has set a spectrum clearing target of 108 megahertz for Stage 3 of the incentive auction. Under the band plan associated with this spectrum clearing target, 80 megahertz, or 8 paired blocks, of licensed spectrum will be offered in the forward auction on a near-nationwide basis.
3. The generic license blocks offered in Stage 3 of the forward auction under this band plan will consist of a total of 3,301 Category 1 blocks (zero to 15 percent impairment) and a total of two Category 2 blocks (greater than 15 percent and up to 50 percent impairment). Approximately 99.9 percent of the blocks offered will be Category 1 blocks, and 99.9 percent of the Category 1 blocks will be zero percent impaired. Attached to the
4. The clearing target for Stage 3 was determined by applying the procedure the Commission adopted in the
5.
6.
7. A bidder will need to use the RSA SecurID® tokens (RSA tokens) it used for placing bids in the previous stage to access the Reverse Auction Bidding System for Stage 3. RSA tokens with previously set personal identification numbers (PINs) may be used without setting a new PIN. Any authorized bidder that has not already set a PIN for his or her designated RSA token (
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16. As was the case for previous stages of the incentive auction, publicly available bidding and timing information for Stage 3 of the reverse auction and the forward auction will be accessible through the PRS. The PRS will display the same types of bidding and other information for Stage 3 as was available for previous stages. For more information about the types of bidding and other information available in the PRS, please see the
17. The Task Force and Bureau remind each bidder that it should maintain and continue to refine as necessary a comprehensive contingency plan that can be quickly implemented in case difficulties arise when participating in the incentive auction. While the Commission will correct any problems with Commission-controlled facilities, each bidder is solely responsible for anticipating and overcoming problems such as bidder computer failures or other technical issues, loss of or problems with data connections (including those used to access and place bids in the Reverse Auction Bidding System or the Forward Auction Bidding System), telephone service interruptions, adverse local weather conditions, unavailability of its authorized bidders, or the loss or breach of confidential security codes.
A bidder should ensure that each of its authorized bidders can access and place bids in the Reverse Auction Bidding System or Forward Auction Bidding System, and it should not rely upon the same computer or data connection to do so. Contingency plans should include arrangements for accessing and placing bids in the Reverse Auction Bidding System or the Forward Auction Bidding System from one or more alternative locations. A bidder's contingency plans might also include, among other arrangements, using the Auction Bidder Line as an alternative method of bidding in the incentive auction.
18. Each reverse auction bidder is further reminded that a failure to submit a bid for a station with the status “Bidding” is considered to be a missing bid and will be interpreted as a bid to drop out of the auction. The Reverse Auction Bidding System will automatically submit a bid to drop out of the auction for all stations with missing bids. The status of a station that bids to drop out of the auction will be “Exited—Voluntarily” once bid processing is complete for the round (unless the station first becomes frozen). Once a station has the status “Exited,” a bidder cannot bid for the station in any subsequent round or stage.
19. The Task Force and Bureau remind each forward auction bidder that its failure to submit a bid during a clock round will be considered a “missing” bid and will be treated as a bid for zero blocks, at the lowest price in the price range for the round, for any products in which the bidder had processed demand from the previous round. If there is insufficient excess demand, the “missing” bid may be partially applied or not applied at all and the bidder will continue to have processed demand for the product in the next round. If the “missing” bid is partially or fully applied, that bidder's eligibility may be irrevocably reduced in the next round.
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22. The Task Force and Bureau further remind each full power and Class A broadcast television licensee that even though communicating whether or not a party filed an application to participate in the reverse auction does not violate the rules prohibiting certain communications, communicating that a party “is not bidding” in or has “exited” the reverse auction could constitute an apparent violation that needs to be reported. All forward auction applicants, including those that did not qualify to bid and those that have since lost eligibility to bid in the forward auction, are also reminded that they remain subject to the rules prohibiting certain communications until the deadline for making down payments on winning bids.
23. The Commission's rules require covered parties to report violations of the prohibition of certain communications to Margaret W. Wiener, Chief of the Auctions and Spectrum Access Division, Wireless Telecommunications Bureau, by the most expeditious means available. Any such report should be submitted by email to Ms. Wiener at the following email address:
24. For a thorough discussion of the prohibition of certain communications during the incentive auction, please refer to the
25.
26. To make changes to its FCC Form 177 or FCC Form 175 while the Auction System is available, the applicant must make those changes electronically using the Auction System and submit a letter briefly summarizing the changes to its FCC Form 177 by email to
Board of Governors of the Federal Reserve System.
Notice.
The Board of Governors of the Federal Reserve System (Board) has approved the private sector adjustment factor (PSAF) for 2017 of $16.6 million and the 2017 fee schedules for Federal Reserve priced services and electronic access. These actions were taken in accordance with the Monetary Control Act of 1980, which requires that, over the long run, fees for Federal Reserve priced services be established on the basis of all direct and indirect costs, including the PSAF.
The new fee schedules become effective January 3, 2017.
For questions regarding the fee schedules: Susan V. Foley, Senior Associate Director, (202) 452-3596; Linda Healey, Senior Financial Services Analyst, (202) 452-5274, Division of Reserve Bank Operations and Payment Systems. For questions regarding the PSAF: Gregory L. Evans, Deputy Associate Director, (202) 452-3945; Lawrence Mize, Deputy Associate Director, (202) 452-5232; Max Sinthorntham, Senior Financial Analyst, (202) 452-2864, Division of Reserve Bank Operations and Payment Systems. For users of Telecommunications Device for the Deaf (TDD)
Table 1 summarizes 2015 actual, 2016 estimated, and 2017 budgeted cost-recovery rates for all priced services. Cost recovery is estimated to be 103.6 percent in 2016 and budgeted to be 100.0 percent in 2017.
Table 2 provides an overview of cost-recovery budgets, estimates, and performance for the 10-year period from 2006 to 2015, 2015 actual, 2016 budget, 2016 estimate, and 2017 budget by priced service.
1.
The Reserve Banks completed a multiyear technology initiative to modernize the processing platform for the Fedwire Securities Services in 2015. The capitalized software costs of this initiative will be amortized until October 2020 and thus remain a primary factor in the cost recovery calculation for these services in 2016.
2.
3.
The primary risks to the Reserve Banks' ability to achieve their targeted cost-recovery rates are unanticipated volume and revenue reductions and the potential for cost overruns with the technology modernization initiatives. In light of these risks, the Reserve Banks will continue refining their business and operational strategies to manage operating costs, to increase product revenue, and to capitalize on efficiencies gained from technology initiatives.
4.
Check
• The Reserve Banks announced in July 2016, restructured FedForward®, FedReturn®, and FedReceipt® fee schedules to reflect today's electronic check-processing environment and announced in October 2016 a minor additional modification.
For the October announcement,
FedACH
• The Reserve Banks will increase the minimum monthly fee for FedACH origination from $45 to $50 and the minimum monthly fee for FedACH receipt from $35 to $40.
• The Reserve Banks will increase the FedACH Account Servicing fee from
• The Reserve Banks will eliminate the on-us receipt credit of $0.0032 per item.
• The Reserve Banks will increase the FedACH Information Extract File fee from $100 to $150 per file.
• The Reserve Banks will increase the FedPayments Reporter fee approximately 10 percent rounded to the nearest $5 for each level of the tiered package pricing. The Reserve Banks also will introduce a new top tier, with a $1,800 monthly fee, for a package that includes more than 10,000 reports.
• The Reserve Banks will introduce a fixed monthly fee and a volume-based tiered pricing structure for the FedGlobal ACH service. The tiered pricing structure will include per-item surcharges that are in addition to the standard FedACH origination fee of $0.0032 and vary according to the transaction's destination, as seen in table 9. The top tier will cover monthly origination volume of more than 500 items and include a $185 fixed monthly fee and a per-item surcharge that is $0.12 lower than current per-item fees. The next tier will cover monthly origination volume between 161 and 500 items and include a $60 fixed monthly fee and a per-item surcharge that is $0.13 higher than current per-item fees. The bottom tier will cover monthly origination volume between 0 and 160 items and include a $20 fixed monthly fee and a per-item surcharge that is $0.38 higher than current per-item fees.
Fedwire Funds
• The Reserve Banks will increase the Tier 1 per-item preincentive fee from $0.790 to $0.820 per transaction, increase the Tier 2 per-item preincentive fee from $0.240 to $0.245, and increase the Tier 3 per-item preincentive fee from $0.155 to $0.170 per transaction.
• The Reserve Banks will increase the surcharge for offline transactions from $55 to $60.
National Settlement Services
• The Reserve Banks will keep prices at existing levels for the priced National Settlement Services.
Fedwire Securities
• The Reserve Banks will increase the online agency transfer fee from $0.65 to $0.77.
• The Reserve Banks will increase the offline origination and receipt surcharge transfer fee from $66 to $80.
• The Reserve Banks will increase the monthly agency issues maintenance fee from $0.65 to $0.77.
• The Reserve Banks will increase the monthly account maintenance fee from $48.00 to $57.50.
• The Reserve Banks will increase the joint custody origination surcharge from $44 to $46.
• The Reserve Banks will increase the claims adjustment fees from $0.75 to $0.80.
FedLine® Access Solutions
• The Reserve Banks will increase five existing monthly fees: (1) The FedLine Web® Plus fee from $140 to $160, (2) the FedLine Direct® Premier fee from $6,500 to $6,700, (3) the FedComplete® 200 Plus fee from $1,300 to $1,350, (4) the FedComplete 200 Premier fee from $1,375 to $1,425, and (5) the FedMail® Fax a la carte fee from $70 to $100.
• The Reserve Banks will implement a legacy software fee to encourage FedLine Direct customers to migrate to a new messaging solution. The fee will be introduced in July 2017 at $5,000 per month and will increase in steps to $20,000 per month by the end of 2017.
• The Reserve Banks will remove the legacy email service from all FedLine Web, Advantage®, Command®, and Direct packages and introduce a $20-per-month fee to purchase an a la carte subscription to this service.
• The Reserve Banks will modify the E-Payments Routing Directory and make associated changes to FedLine packages and fees. A new automated download directory service will be introduced and available only to subscribers of plus- and premier-level FedLine packages. A la carte fees for additional directory download codes, ranging from $75 to $2,000 per month, will also be introduced. In addition, the new lineup of FedLine Exchange packages, discussed below, will allow customers that do not use FedLine for Federal Reserve Financial Services to access the directory.
• The Reserve Banks will introduce a new FedLine Exchange® service, along with two new associated packages: A base-level and premier-level. The base package will be priced at $40 per month and include the manual download directory service. The premier package will be priced at $125 per month and include both the manual and automated download directory services.
• The Reserve Banks will introduce a new FedMail package, priced at $85 per month, which will include the same services as those included in the existing FedLine Exchange package to ensure continuity of this service. All existing FedLine Exchange subscribers will be transitioned to the new FedMail package and experience a fee increase of $45.
5.
The portion of Federal Reserve assets that will be used to provide priced services during the coming year is determined using information about actual assets and projected disposals and acquisitions. The priced portion of these assets is determined based on the allocation of depreciation and amortization expenses of each asset class. The priced portion of actual Federal Reserve liabilities consists of postemployment and postretirement benefits, accounts payable, and other liabilities. The priced portion of the actual net pension asset or liability is also included on the balance sheet.
The equity financing rate is the targeted ROE produced by the capital asset pricing model (CAPM). In the CAPM, the required rate of return on a firm's equity is equal to the return on a risk-free asset plus a market risk premium. The risk-free rate is based on the three-month Treasury bill; the beta is assumed to be equal to 1.0, which approximates the risk of the market as a whole; and the market risk premium is based on the monthly returns in excess of the risk-free rate over the most recent 40 years. The resulting ROE reflects the return a shareholder would expect when investing in a private business firm.
For simplicity, given that federal corporate income tax rates are graduated, state income tax rates vary, and various credits and deductions can apply, an actual income tax expense is not explicitly calculated for Reserve Bank priced services. Instead, the Board targets a pretax ROE that would provide sufficient income to fulfill the priced services' imputed income tax obligations. To the extent that performance results are greater or less than the targeted ROE, income taxes are adjusted using the effective tax rate.
The increase in the 2017 PSAF to $16.6 million from $13.1 million in 2016 is primarily attributable to a $2.0 million increase in the cost of debt and a $1.0 million increase in the return on equity offset by a $0.3 million decrease in the incremental return on imputed equity necessary for PSR policy compliance, all three of which were driven primarily by increased imputed funding needs arising from higher retail float asset balances.
Projected 2017 Federal Reserve priced-services assets, reflected in table 3, have increased $143.1 million from 2016. This increase is primarily due to a $234.0 million increase in the balance of imputed investments in federal funds and a net $42.8 million increase in long-term assets, inclusive of pension, Bank premises, furniture and equipment, and leasehold improvements and long-term prepayments. The increase was partially offset by an $80.0 million decrease in items in process of collection and a $55.8 million decrease in imputed investments in Treasury securities. The significant increase in the imputed investments in federal funds balance is related to a reduction in debit float due to new deposit deadlines associated with the Endpoint-Culled ICL deposit option deadlines implemented in July 2016, which are intended to reduce float and items in process of collection. These balances had increased significantly as a result of the PSR policy implementation in 2015. The Endpoint-Culled ICL deposit option defers the portion of deposits the Federal Reserve is unable to present after a specific deadline during the processing cycle to limit instances where same-day credit is offered under the PSR policy for items that cannot be collected same day. The resulting balance of 2017 imputed investments in federal funds was sufficient to comply with the PSR policy expectations for Fedwire Funds, and no additional costs were incurred. As shown in table 3, imputed equity for 2017 is $58.6 million, an increase of $4.8 million from the equity imputed for 2016. In accordance with ASC 715, this amount includes an accumulated other comprehensive loss of $635.1 million.
Table 4 reflects the portion of short- and long-term assets that must be financed with actual or imputed liabilities and equity. Debt and equity imputed to fund the 2017 priced services assets within the observed market leverage ratio produced an equity level that did not meet the FDIC minimum equity requirements. As a result, additional equity was imputed to meet the FDIC requirements, and imputed long-term debt was reduced. The ratio of capital to risk-weighted assets meets the required 10 percent of risk-weighted assets, and equity exceeds 5 percent of total assets (table 6). In 2017, long-term debt and equity was imputed to meet the asset funding requirements and reflects the leverage ratio observed in the market; additional equity of $14.1 million was required (table 5) to meet the market leverage ratio.
Table 5 shows the derivation of the 2017 and 2016 PSAF. Financing costs for 2017 are $2.7 million higher than in 2016. In addition to the increase in the levels of debt and equity mentioned above, the cost of equity increased in 2017 to 41.6 percent from 41.5 percent in 2016. The increased equity balance and the slightly higher cost of equity result in a pretax ROE that is $1.0 million higher than the 2016 pretax ROE. Imputed sales taxes increased to
C.
1.
The decline in Reserve Bank check volume, which is attributable to the decline in the number of checks written generally, was not as great as anticipated. Through August, total commercial forward check volume is 3.9 percent lower and total commercial return check volume is 3.3 percent lower than for the same period last year. For full-year 2016, the Reserve Banks estimate that their total forward check volume will decline 5.2 percent (compared with a budgeted decline of 6.2 percent) and their total return check volume will decline 6.8 percent (compared with a budgeted decline of 12.7 percent) from 2015 levels.
2.
In July 2016, the Reserve Banks announced restructured FedForward, FedReturn and FedReceipt fee schedules designed to reflect the efficiencies of electronic check processing and better serve the needs of the marketplace in today's electronic environment.
Specifically, the Reserve Banks announced simplified FedFoward and FedReturn deposit products. The simplified deposit products will offer two fixed-fee options: a per-image cash letter (ICL) fee and a daily subscription fee.
The Premium Daily Fee deposit options will include a fifth tier, Tier 0, comprised of routing numbers for which the Reserve Banks currently receive little to no volume from the specified subset of Reserve Bank customers (and therefore cannot currently be assigned to the other tiers with sufficient certainty). Tier 0 will also be evaluated annually, along with all other tiers, so that if volume migrates to routing numbers in tier 0 (enabling more information on which to assign a tier) those routing numbers will be moved to the appropriate tier.
In October 2016, the Reserve Banks announced minor modifications to the Premium Daily Fee products.
The Reserve Banks also announced that most sorted-deposit options will be eliminated, including the Fine Sort ICL, Deferred Fine Sort ICL, and Fixed Mixed ICL deposit options.
Finally, the Reserve Banks announced modifications to their FedReceipt product, including reduced FedReceipt fees for forward and return items and elimination of the FedReceipt Plus Deposit Discount for both FedForward and FedReturn deposits.
The Reserve Banks estimate that the price changes will result in a 3.5 percent average price decrease for check customers.
The primary risks to the Reserve Banks' ability to achieve budgeted 2017 cost recovery for the check service include lower-than-expected check volume due to reductions in check writing overall and competition from correspondent banks, aggregators, and direct exchanges, which would result in lower-than-anticipated revenue.
D.
1.
2.
The Reserve Banks will increase the minimum monthly fee for forward origination from $45 to $50 and the minimum monthly fee for receipt from $35 to $40.
Any receiving depository financial institution (RDFI) that incurs less than $40 in receipt fees and originates forward value and nonvalue items incurring less than $50 in origination fees will only be charged the difference in the origination fee to reach the minimum monthly origination fee of $50. Any RDFI that incurs less than $40 in receipt fees and is not originating forward value and nonvalue items will incur the $40 minimum monthly fee for receipt.
The Reserve Banks will increase the FedACH Information Extract File fee from $100 to $150 per file. The Reserve Banks also will increase the FedPayments Reporter fee approximately 10 percent rounded to the nearest $5 for each level of the tiered package pricing. They also will introduce a new top tier, with a $1,800 monthly fee, for a package that includes more than 10,000 reports.
Further, the Reserve Banks will introduce a fixed monthly fee and a volume-based tiered pricing structure for the FedGlobal ACH service.
The
While the Reserve Banks are not budgeted to fully recover costs in 2017, they are expected to fully recover costs
The primary risks to the Reserve Banks' ability to achieve budgeted 2017 cost recovery for the FedACH service are cost overruns associated with unanticipated problems related to efforts to modernize the FedACH processing platform and higher-than-expected support and overhead costs. Other risks include lower-than-expected volume and associated revenue due to unanticipated mergers and acquisitions and loss of market share due to direct exchanges and a shift of volume to the private-sector operator.
E.
1.
2.
The Reserve Banks will adjust the incentive pricing fees for the Fedwire Funds Service by increasing the Tier 1 per-item preincentive fee (the fee before volume discounts are applied) from $0.790 to $0.820, increasing the Tier 2 per-item preincentive fee from $0.240 to $0.245, and increasing the Tier 3 per-item preincentive fee from $0.155 to $0.170.
The Reserve Banks will not change National Settlement Service fees for 2017.
The primary risks to the Reserve Banks' ability to achieve budgeted 2017 cost recovery for these services are cost overruns from new initiatives to improve resiliency and operational functionality.
F.
1.
Through August, Fedwire Securities Service online agency transfer volume was 13.1 percent lower than during the same period last year. For full-year 2016, the Reserve Banks estimate Fedwire Securities Service online agency transfer volume will decline 13.5 percent from 2015 levels, compared with a budgeted decline of 5.4 percent. The lower-than-expected online agency transfer volume resulted from lower-than-projected Agency debt issuance, as Fannie Mae and Freddie Mac continue to reduce the overall size of their portfolios in accordance with Federal Housing Finance Agency guidelines. In addition, new mortgage originations and mortgage paydowns from refinancing activity are expected to decline before year-end if interest rates rise in the fourth quarter, which will result in falling levels of issuance and settlement activity for agency mortgage-backed securities over Fedwire Securities. Through August, account maintenance volume was 4.4 percent lower than during the same period last year. For the full year 2016, the Reserve Banks estimate that account maintenance volume will decline 5.0 percent over 2015 levels, compared with a budgeted decline of 8.8 percent. The higher account maintenance volume is the result of conservative estimates for customer account closures that have not materialized.
2.
Revenue is projected to be $29.0 million, an increase of 12.4 percent from the 2016 estimate; this projected rise in revenue results from higher fees, discussed below, that offset the anticipated online transfer and account maintenance volume declines. The Reserve Banks also project that 2017 expenses will increase by $3.2 million, compared with 2016 expenses, reflecting higher expected operating costs. Higher operating costs in 2017 reflect the amortization of capital software costs from completed modernization initiatives as well as the advancement of new initiatives to improve resiliency and operational functionality.
The Reserve Banks will increase the online agency transfer fee from $0.65 to $0.77 and increase the offline origination and receipt surcharge transfer fee from $66 to $80. The Reserve Banks also will increase the monthly agency issues maintenance fee from $0.65 to $0.77 and will increase the monthly account maintenance fee from $48 to $57.50. Moreover, the Reserve Banks will increase the joint custody origination surcharge from $44 to $46. Finally, the Reserve Banks will increase the claims adjustment fees from $0.75 to $0.80. The Reserve Banks estimate that the price changes will result in an 18.0 percent average price increase for Fedwire Securities customers.
The primary risks to the Reserve Banks' ability to achieve budgeted 2017 cost recovery for these services are lower-than-expected volume resulting from the pace of structural changes in government securities settlement, and cost overruns from new initiatives to improve resiliency and operational functionality.
G.
Six attended access packages offer manual access to critical payment and information services via a web-based interface. The FedLine Exchange package provides access to basic information services via email, while two FedLine Web packages offer an email option plus online attended access to a range of services, including cash services, FedACH information services, and check services. Three FedLine Advantage packages expand upon the FedLine Web packages and offer attended access to critical transactional services: FedACH, Fedwire Funds, and Fedwire Securities.
Three unattended access packages are computer-to-computer, IP-based interfaces. The FedLine Command package offers an unattended connection to FedACH, as well as most accounting information services. The two remaining options are FedLine Direct packages, which allow for unattended connections at one of two connection speeds to FedACH, Fedwire Funds, and Fedwire Securities transactional and information services and to most accounting information services.
For the 2017 FedLine fees, the Reserve Banks will increase five existing monthly fees: (1) The FedLine Web Plus fee from $140 to $160, (2) the FedLine Direct Premier fee from $6,500 to $6,700, (3) the FedComplete 200 Plus fee from $1,300 to $1,350, (4) the FedComplete 200 Premier fee from $1,375 to $1,425, and (5) the FedMail Fax a la carte fee from $70 to $100. As in previous years, the Reserve Banks will introduce new fees on legacy services. In particular, the Reserve Banks will implement a legacy software fee to encourage FedLine Direct customers to migrate to an enhanced messaging solution.
In addition, the Reserve Banks will modify the E-Payments Routing Directory and make several associated changes to FedLine packages and fees.
To accommodate the enhancements to the E-payments Directory, the Reserve Banks will introduce a new FedLine Exchange service, along with a new set of associated packages. Currently, the FedLine Exchange service is an email-based interface, and there is only one package available. The new FedLine Exchange service—which will be a web-based interface (that is, accessible via a web browser rather than email)—will allow customers that do not use FedLine for Federal Reserve Financial Services to access the E-Payments Routing Directory.
The Reserve banks will introduce a new FedMail package, priced at $85 per month, which will include the same email-based services included in the existing FedLine Exchange package.
The Reserve Banks estimate that the price changes will result in an 8.1 percent average price increase for FedLine customers.
All operational and legal changes considered by the Board that have a substantial effect on payment system participants are subject to the competitive impact analysis described in the March 1990 policy “The Federal Reserve in the Payments System.”
The 2017 fees, fee structures, and changes in service will not have a direct and material adverse effect on the ability of other service providers to compete effectively with the Reserve Banks in providing similar services. The changes should permit the Reserve Banks to earn a ROE that is comparable to overall market returns and provide for full cost recovery over the long run.
Centers for Medicare & Medicaid Services (CMS), HHS.
Final notice.
This final notice announces our decision to approve the request of Deaconess Women's Hospital of Southern Indiana doing business as (d/b/a) The Women's Hospital (The Women's Hospital) for an exception to the prohibition on expansion of facility capacity.
Section 1877 of the Social Security Act (the Act), also known as the physician self-referral law—(1) prohibits a physician from making referrals for certain “designated health services” (DHS) payable by Medicare to an entity with which he or she (or an immediate family member) has a financial relationship (ownership or compensation), unless the requirements of an applicable exception are satisfied; and (2) prohibits the entity from filing claims with Medicare (or billing another individual, entity, or third party payer) for those DHS furnished as a result of a prohibited referral.
Section 1877(d)(2) of the Act provides an exception, known as the rural provider exception, for physician ownership or investment interests in rural providers. In order for an entity to qualify for the rural provider exception, the DHS must be furnished in a rural area (as defined in section 1886(d)(2)(D) of the Act) and substantially all the DHS furnished by the entity must be furnished to individuals residing in a rural area.
Section 1877(d)(3) of the Act provides an exception, known as the hospital ownership exception, for physician ownership or investment interests held
Section 6001(a)(3) of the Patient Protection and Affordable Care Act (Pub. L. 111-148) as amended by the Health Care and Education Reconciliation Act of 2010 (Pub. L. 111-152) (hereafter referred to together as “the Affordable Care Act”) amended the rural provider and hospital ownership exceptions to the physician self-referral prohibition to impose additional restrictions on physician ownership and investment in hospitals. Since March 23, 2010, a physician-owned hospital that seeks to avail itself of either exception is prohibited from expanding facility capacity unless it qualifies as an “applicable hospital” or “high Medicaid facility” (as defined in sections 1877(i)(3)(E), (F) of the Act and 42 CFR 411.362(c)(2), (3) of our regulations) and has been granted an exception to the facility expansion prohibition by the Secretary of the Department of Health and Human Services (the Secretary). Section 1877(i)(3)(A)(ii) of the Act provides that individuals and entities in the community in which the provider requesting the exception is located must have an opportunity to provide input with respect to the provider's request for the exception. Section 1877(i)(3)(H) of the Act states that the Secretary shall publish in the
On November 30, 2011, we published a final rule in the
As stated in regulations at § 411.362(c)(5), we will solicit community input on the request for an exception by publishing a notice of the request in the
A request for an exception to the facility expansion prohibition is considered complete as follows:
• If the request, any written comments, and any rebuttal statement include only HCRIS data: (1) The end of the 30-day comment period if the Centers for Medicare & Medicaid Services (CMS) receives no written comments from the community; or (2) the end of the 30-day rebuttal period if CMS receives written comments from the community, regardless of whether the physician-owned hospital submitting the request submits a rebuttal statement (§ 411.362(c)(5)(i)).
• If the request, any written comments, or any rebuttal statement include data from an external data source, no later than: (1) 180 days after the end of the 30-day comment period if CMS receives no written comments from the community; and (2) 180 days after the end of the 30-day rebuttal period if CMS receives written comments from the community, regardless of whether the physician-owned hospital submitting the request submits a rebuttal statement (§ 411.362(c)(5)(ii)).
If we grant the request for an exception to the prohibition on expansion of facility capacity, the expansion may occur only in facilities on the hospital's main campus and may not result in the number of operating rooms, procedure rooms, and beds for which the hospital is licensed to exceed 200 percent of the hospital's baseline number of operating rooms, procedure rooms, and beds (§ 411.362(c)(6)). The CMS decision to grant or deny a hospital's request for an exception to the prohibition on expansion of facility capacity must be published in the
On July 28, 2016, we published a notice in the
In the notice, we solicited comments from individuals and entities in the community in which The Women's Hospital is located. During the 30-day public comment period, we received no public comments.
This final notice announces our decision to approve The Women's Hospital's request for an exception to the prohibition against expansion of facility capacity. As required by the November 30, 2011 final rule (76 FR 74122) and our public guidance documents, The Women's Hospital submitted the data and certifications necessary to demonstrate that it satisfies the criteria to qualify as a high Medicaid facility. Therefore in accordance with section 1877(i)(3) of the Act, we are granting The Women's Hospital's request for an exception to the expansion of facility capacity prohibition based on the following criteria:
• The Women's Hospital is not the sole hospital in the county in which the hospital is located;
• With respect to each of the 3 most recent 12-month periods for which data are available as of the date the hospital submitted its request, The Women's Hospital had an annual percent of total inpatient admissions under Medicaid that is estimated to be greater than such percent with respect to such admissions for any other hospital located in the
• The Women's Hospital certified that it does not discriminate against beneficiaries of Federal health care programs and does not permit physicians practicing at the hospital to discriminate against such beneficiaries.
Our decision grants The Women's Hospital's request to add a total of 75 operating rooms, procedure rooms, and beds. Pursuant to § 411.362(c)(6), the expansion may occur only in facilities on the hospital's main campus and may not result in the number of operating rooms, procedure rooms, and beds for which The Women's Hospital is licensed to exceed 200 percent of its baseline number of operating rooms, procedure rooms, and beds. The Women's Hospital certified that its baseline number of operating rooms, procedure rooms, and beds is 81. Accordingly, we find that granting an additional 75 operating rooms, procedure rooms, and beds will not exceed the limitation on a permitted expansion.
This document does not impose information collection requirements, that is, reporting, recordkeeping or third-party disclosure requirements. Consequently, there is no need for review by the Office of Management and Budget under the authority of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501
Centers for Medicare & Medicaid Services (CMS), HHS.
Final notice.
This final notice announces our decision to approve the request of Rockwall Regional Hospital, Limited Liability Company (LLC) doing business as (d/b/a) Texas Health Presbyterian Hospital Rockwall (Texas Health Rockwall) for an exception to the prohibition on expansion of facility capacity.
Effective Date: This notice is effective on October 28, 2016.
Section 1877 of the Social Security Act (the Act), also known as the physician self-referral law—(1) prohibits a physician from making referrals for certain “designated health services” (DHS) payable by Medicare to an entity with which he or she (or an immediate family member) has a financial relationship (ownership or compensation), unless the requirements of an applicable exception are satisfied; and (2) prohibits the entity from filing claims with Medicare (or billing another individual, entity, or third party payer) for those DHS furnished as a result of a prohibited referral.
Section 1877(d)(2) of the Act provides an exception, known as the rural provider exception, for physician ownership or investment interests in rural providers. In order for an entity to qualify for the rural provider exception, the DHS must be furnished in a rural area (as defined in section 1886(d)(2)(D) of the Act) and substantially all the DHS furnished by the entity must be furnished to individuals residing in a rural area.
Section 1877(d)(3) of the Act provides an exception, known as the hospital ownership exception, for physician ownership or investment interests held in a hospital located outside of Puerto Rico, provided that the referring physician is authorized to perform services at the hospital and the ownership or investment interest is in the hospital itself (and not merely in a subdivision of the hospital).
Section 6001(a)(3) of the Patient Protection and Affordable Care Act (Pub. L. 111-148) as amended by the Health Care and Education Reconciliation Act of 2010 (Pub. L. 111-152) (hereafter referred to together as “the Affordable Care Act”) amended the rural provider and hospital ownership exceptions to the physician self-referral prohibition to impose additional restrictions on physician ownership and investment in hospitals. Since March 23, 2010, a physician-owned hospital that seeks to avail itself of either exception is prohibited from expanding facility capacity unless it qualifies as an “applicable hospital” or “high Medicaid facility” (as defined in sections 1877(i)(3)(E), (F) of the Act and 42 CFR 411.362(c)(2), (3) of our regulations) and has been granted an exception to the facility expansion prohibition by the Secretary of the Department of Health and Human Services (the Secretary). Section 1877(i)(3)(A)(ii) of the Act provides that individuals and entities in the community in which the provider requesting the exception is located must have an opportunity to provide input with respect to the provider's request for the exception. Section 1877(i)(3)(H) of the Act states that the Secretary shall publish in the
On November 30, 2011, we published a final rule in the
As stated in regulations at § 411.362(c)(5), we will solicit community input on the request for an exception by publishing a notice of the request in the
A request for an exception to the facility expansion prohibition is considered complete as follows:
• If the request, any written comments, and any rebuttal statement include only HCRIS data: (1) The end of the 30-day comment period if the Centers for Medicare & Medicaid Services (CMS) receives no written comments from the community; or (2) the end of the 30-day rebuttal period if CMS receives written comments from the community, regardless of whether the physician-owned hospital submitting the request submits a rebuttal statement (§ 411.362(c)(5)(i)).
• If the request, any written comments, or any rebuttal statement include data from an external data source, no later than: (1) 180 days after the end of the 30-day comment period if CMS receives no written comments from the community; and (2) 180 days after the end of the 30-day rebuttal period if CMS receives written comments from the community, regardless of whether the physician-owned hospital submitting the request submits a rebuttal statement (§ 411.362(c)(5)(ii)).
If we grant the request for an exception to the prohibition on expansion of facility capacity, the expansion may occur only in facilities on the hospital's main campus and may not result in the number of operating rooms, procedure rooms, and beds for which the hospital is licensed to exceed 200 percent of the hospital's baseline number of operating rooms, procedure rooms, and beds (§ 411.362(c)(6)). The CMS decision to grant or deny a hospital's request for an exception to the prohibition on expansion of facility capacity must be published in the
On February 2, 2016, we published a notice in the
In the notice, we solicited comments from individuals and entities in the community in which Texas Health Rockwall is located. We received 43 comments during the 30-day public comment period. Forty-two comments were in favor of the request and one was in opposition.
The commenter that opposed the expansion request asserted that Texas Health Rockwall did not meet the inpatient Medicaid admissions criterion at § 411.362(c)(2)(ii). The commenter expressed concern that the HCRIS, the data source used by Texas Health Rockwall to demonstrate satisfaction of the inpatient Medicaid admissions criterion, does not accurately reflect all Medicaid admissions and discharges. The commenter expressed its belief that information from a different source, the Texas Health Care Information Collection (THCIC), does not indicate that Texas Health Rockwall's satisfied the inpatient Medicaid admissions criterion.
On April 13, 2016, Texas Health Rockwall submitted a rebuttal statement in response to the comment opposing its request. The statement satisfactorily rebutted the commenters' assertions regarding the inpatient Medicaid admissions criterion and addressed the concerns expressed by the commenter regarding HCRIS and THCIC data.
This final notice announces our decision to approve Texas Health Rockwall's request for an exception to the prohibition against expansion of facility capacity. As required by the November 30, 2011 final rule (76 FR 74122) and our public guidance documents, Texas Health Rockwall submitted the data and certifications necessary to demonstrate that it satisfies the criteria to qualify as an applicable hospital. In accordance with section 1877(i)(3) of the Act, we are granting Texas Health Rockwall's request for an exception to the expansion of facility capacity prohibition based on the following criteria:
• Texas Health Rockwall is located in a county that had a percentage increase in population that is at least 150 percent of the percentage increase in population of the State in which the hospital is located during the most recent 5-year period for which data are available as of the date that the hospital submitted its request;
• Texas Health Rockwall had an annual percent of total inpatient admissions under Medicaid that is equal to or greater than the average percent with respect to such admissions for all hospitals located in the county in which the hospital is located during the most recent fiscal year for which data are available as of the date that the hospital submitted its request;
• Texas Health Rockwall certified that it does not discriminate against beneficiaries of Federal health care programs and does not permit physicians practicing at the hospital to discriminate against such beneficiaries;
• Texas Health Rockwall is located in a State in which the average bed capacity in the State was less than the national average bed capacity during the most recent fiscal year for which data are available as of the date that the hospital submitted its request; and
• Texas Health Rockwall had an average bed occupancy rate that was greater than the average bed occupancy rate in the State in which the hospital is located during the most recent fiscal year for which data are available as of the date that the hospital submitted its request.
Our decision grants Texas Health Rockwall's request to add a total of 60 operating rooms, procedure rooms, and beds. Pursuant to § 411.362(c)(6), the expansion may occur only in facilities on the hospital's main campus and may not result in the number of operating rooms, procedure rooms, and beds for which Texas Health Rockwall is licensed to exceed 200 percent of its baseline number of operating rooms, procedure rooms, and beds. Texas Health Rockwall certified that its baseline number of operating rooms, procedure rooms, and beds is 60. Accordingly, we find that granting an additional 60 operating rooms, procedure rooms, and beds will not exceed the limitation on a permitted expansion.
This document does not impose information collection requirements, that is, reporting, recordkeeping or third-party disclosure requirements. Consequently, there is no need for review by the Office of Management and Budget under the authority of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501
Food and Drug Administration, HHS.
Notice.
The Food and Drug Administration (FDA) is announcing the issuance of four Emergency Use Authorizations (EUAs) (the Authorizations) for four in vitro diagnostic devices for detection and/or diagnosis of Zika virus in response to the Zika virus outbreak in the Americas. FDA issued these Authorizations under the Federal Food, Drug, and Cosmetic Act (the FD&C Act), as requested by Siemens Healthcare Diagnostics, Inc., Luminex Corporation, InBios International, Inc., and Roche Molecular Systems, Inc. The Authorizations contain, among other things, conditions on the emergency use of the authorized in vitro diagnostic devices. The Authorizations follow the February 26, 2016, determination by the Secretary of Health and Human Services (HHS) that there is a significant potential for a public health emergency that has a significant potential to affect national security or the health and security of U.S. citizens living abroad and that involves Zika virus. On the basis of such determination, the Secretary of HHS declared on February 26, 2016, that circumstances exist justifying the authorization of emergency use of in vitro diagnostic tests for detection of Zika virus and/or diagnosis of Zika virus infection, subject to the terms of any authorization issued under the FD&C Act. The Authorizations, which include an explanation of the reasons for issuance, are reprinted in this document.
The Authorization for Siemens Healthcare Diagnostics, Inc., is effective as of July 29, 2016; the Authorization for Luminex Corporation is effective as of August 4, 2016; the Authorization for InBios International, Inc., is effective as of August 17, 2016; and the Authorization for Roche Molecular Systems, Inc., is effective as of August 26, 2016.
Submit written requests for single copies of the EUAs to the Office of Counterterrorism and Emerging Threats, Food and Drug Administration, 10903 New Hampshire Ave., Bldg. 1, Rm. 4338, Silver Spring, MD 20993-0002. Send one self-addressed adhesive label to assist that office in processing your request or include a fax number to which the Authorizations may be sent. See the
Michael Mair, Office of Counterterrorism and Emerging Threats, Food and Drug Administration, 10903 New Hampshire Ave., Bldg. 1, Rm. 4336, Silver Spring, MD 20993-0002, 301-796-8510 (this is not a toll-free number).
Section 564 of the FD&C Act (21 U.S.C. 360bbb-3) as amended by the Project BioShield Act of 2004 (Pub L. 108-276) and the Pandemic and All-Hazards Preparedness Reauthorization Act of 2013 (Pub L. 113-5) allows FDA to strengthen the public health protections against biological, chemical, nuclear, and radiological agents. Among other things, section 564 of the FD&C Act allows FDA to authorize the use of an unapproved medical product or an unapproved use of an approved medical product in certain situations. With this EUA authority, FDA can help assure that medical countermeasures may be used in emergencies to diagnose, treat, or prevent serious or life-threatening diseases or conditions caused by biological, chemical, nuclear, or radiological agents when there are no adequate, approved, and available alternatives.
Section 564(b)(1) of the FD&C Act provides that, before an EUA may be issued, the Secretary of HHS must declare that circumstances exist justifying the authorization based on one of the following grounds: (1) A determination by the Secretary of Homeland Security that there is a domestic emergency, or a significant potential for a domestic emergency, involving a heightened risk of attack with a biological, chemical, radiological, or nuclear agent or agents; (2) a determination by the Secretary of Defense that there is a military emergency, or a significant potential for a military emergency, involving a heightened risk to U.S. military forces of attack with a biological, chemical, radiological, or nuclear agent or agents; (3) a determination by the Secretary of HHS that there is a public health emergency, or a significant potential for a public health emergency, that affects, or has a significant potential to affect, national security or the health and security of U.S. citizens living abroad, and that involves a biological, chemical, radiological, or nuclear agent or agents, or a disease or condition that may be attributable to such agent or agents; or (4) the identification of a material threat by the Secretary of Homeland Security under section 319F-2 of the Public Health Service (PHS) Act (42 U.S.C. 247d-6b) sufficient to affect national security or the health and security of U.S. citizens living abroad.
Once the Secretary of HHS has declared that circumstances exist justifying an authorization under section 564 of the FD&C Act, FDA may authorize the emergency use of a drug, device, or biological product if the Agency concludes that the statutory criteria are satisfied. Under section 564(h)(1) of the FD&C Act, FDA is required to publish in the
No other criteria for issuance have been prescribed by regulation under section 564(c)(4) of the FD&C Act. Because the statute is self-executing, regulations or guidance are not required for FDA to implement the EUA authority.
On February 26, 2016, the Secretary of HHS determined that there is a significant potential for a public health emergency that has a significant potential to affect national security or the health and security of U.S. citizens living abroad and that involves Zika virus. On February 26, 2016, under section 564(b)(1) of the FD&C Act, and on the basis of such determination, the Secretary of HHS declared that circumstances exist justifying the authorization of emergency use of in vitro diagnostic tests for detection of Zika virus and/or diagnosis of Zika virus infection, subject to the terms of any authorization issued under section 564 of the FD&C Act. Notice of the determination and declaration of the Secretary was published in the
An electronic version of this document and the full text of the Authorizations are available on the Internet at
Having concluded that the criteria for issuance of the Authorizations under section 564(c) of the FD&C Act are met, FDA has authorized the emergency use of four in vitro diagnostic devices for detection and/or diagnosis of Zika virus subject to the terms of the Authorizations. The Authorizations in their entirety (not including the authorized versions of the fact sheets and other written materials) follow and provide an explanation of the reasons for their issuance, as required by section 564(h)(1) of the FD&C Act:
Food and Drug Administration, HHS.
Notice.
The Food and Drug Administration (FDA or we) is announcing that a proposed collection of information has been submitted to the Office of Management and Budget (OMB) for review and clearance under the Paperwork Reduction Act of 1995.
Fax written comments on the collection of information by November 28, 2016.
To ensure that comments on the information collection are received, OMB recommends that written comments be faxed to the Office of Information and Regulatory Affairs, OMB, Attn: FDA Desk Officer, FAX: 202-395-7285, or emailed to
FDA PRA Staff, Office of Operations, Food and Drug Administration, Three White Flint North, 10A63, 11601 Landsdown St., North Bethesda, MD 20852,
In compliance with 44 U.S.C. 3507, FDA has submitted the following proposed collection of information to OMB for review and clearance.
Under Section 351 of the Public Health Services Act (42 U.S.C. 262), manufacturers of biological products must submit a license application for FDA review and approval before marketing a biological product in interstate commerce. Licenses may be issued only upon showing that the establishment and the products for which a license is desired meets standards prescribed in regulations designed to ensure the continued safety, purity, and potency of such products. All such licenses are issued, suspended, and revoked as prescribed by regulations in part 601 (21 CFR part 601).
Section 130(a) of the Food and Drug Administration Modernization Act (Pub. L. 105-115) amended the Federal Food, Drug, and Cosmetic Act (the FD&C Act) by adding a new provision (section 506B of the FD&C Act (21 U.S.C. 356b)) requiring reports of postmarketing studies for approved human drugs and licensed biological products. Section 506B of the FD&C Act provides FDA with additional authority to monitor the progress of postmarketing studies that applicants have made a commitment to conduct and requires the Agency to make publicly available information that pertains to the status of these studies. Under section 506B(a) of the FD&C Act, applicants that have committed to conduct a postmarketing study for an approved human drug or licensed biological product must submit to FDA a status report of the progress of the study or the reasons for the failure of the applicant to conduct the study. This report must be submitted within 1 year after the U.S. approval of the application and then annually until the study is completed or terminated.
A summary of the collection of information requirements follows:
Section 601.2(a) requires a manufacturer of a biological product to submit an application on forms prescribed for such purposes with accompanying data and information, including certain labeling information, to FDA for approval to market a product in interstate commerce. The container and package labeling requirements are provided under §§ 610.60 through 610.65 (21 CFR 610.60 through 610.65). The estimate for these regulations is included in the estimate under § 601.2(a) in table 1.
Section 601.5(a) requires a manufacturer to submit to FDA notice of its intention to discontinue manufacture of a product or all products. Section 601.6(a) requires the manufacturer to notify selling agents and distributors upon suspension of its license, and provide FDA of such notification.
Section 601.12(a)(2) requires, generally, that the holder of an approved Biologics License Application (BLA) must assess the effects of a manufacturing change before distributing a biological product made with the change. Section 601.12(a)(4) requires, generally, that the applicant must promptly revise all promotional labeling and advertising to make it consistent with any labeling changes implemented. Section 601.12(a)(5) requires the applicant to include a list of all changes contained in the supplement or annual report; for supplements, this list must be provided in the cover letter. The burden estimates for § 601.12(a)(2) are included in the estimates for supplements (§§ 601.12(b) and (c)) and annual reports (§ 601.12(d)). The burden estimates for § 601.12(a)(4) are included in the estimates under 601.12(f)(4) in table 1.
Sections 601.12(b)(1), (b)(3), (c)(1), (c)(3), (c)(5), (d)(1) and (d)(3) require applicants to follow specific procedures to submit information to FDA of any changes, in the product, production process, quality controls, equipment, facilities, or responsible personnel established in an approved license application. The appropriate procedure depends on the potential for the change to have a substantial, moderate, or minimal adverse effect on the identity, strength, quality, purity, or potency of the products as they may relate to the safety or effectiveness of the product. Under § 601.12(b)(4), an applicant may ask FDA to expedite its review of a supplement for public health reasons or if a delay in making the change described in it would impose an extraordinary hardship of the applicant. The burden estimate for § 601.12(b)(4) is minimal and included in the estimate under § 601.12(b)(1) and (b)(3) in table 1.
Section 601.12(e) requires applicants to submit a protocol, or change to a protocol, as a supplement requiring FDA approval before distributing the product. Section 601.12(f)(1), (2), and (3) requires applicants to follow specific procedures to report certain labeling changes to FDA. Section 601.12(f)(4) requires applicants to report to FDA advertising and promotional labeling and any changes.
Under § 601.14, the content of labeling required in 21 CFR 201.100(d)(3) must be in electronic format and in a form that FDA can process, review, and archive. This requirement is in addition to the provisions of §§ 601.2(a) and 601.12(f). The burden estimate for § 601.14 is minimal and included in the estimate under §§ 601.2(a) (BLAs) and 601.12(f)(1), (2), and (3) (labeling supplements and annual reports) in table 1.
Section 601.45 requires applicants of biological products for serious or life-threatening illnesses to submit to the Agency for consideration, during the pre-approval review period, copies of all promotional materials, including promotional labeling as well as advertisements.
In addition to §§ 601.2 and 601.12, there are other regulations in 21 CFR parts 640, 660, and 680 that relate to information to be submitted in a license application or supplement for certain blood or allergenic products as follows: §§ 640.6; 640.17; 640.21(c); 640.22(c); 640.25(c); 640.56(c); 640.64(c); 640.74(a) and (b)(2); 660.51(a)(4); and 680.1(b)(2)(iii) and (d).
In table 1, the burden associated with the information collection requirements in the applicable regulations is included in the burden estimate for §§ 601.2 and/or 601.12. A regulation may be listed under more than one subsection of § 601.12 due to the type of category under which a change to an approved application may be submitted.
There are also additional container and/or package labeling requirements for certain licensed biological products including: § 640.74(b)(3) and (4) for Source Plasma Liquid; § 640.84(a) and (c) for Albumin; § 640.94(a) for Plasma Protein Fraction; § 660.2(c) for Antibody to Hepatitis B Surface Antigen; § 660.28(a), (b), and (c) for Blood Grouping Reagent; § 660.35(a), (c through g), and (i through m) for Reagent Red Blood Cells; § 660.45 for Hepatitis B Surface Antigen; and § 660.55(a) and (b) for Anti-Human Globulin. The burden associated with the additional labeling requirements for submission of a license application for these certain biological products is minimal because the majority of the burden is associated with the
Section 601.27(a) requires that applications for new biological products contain data that are adequate to assess the safety and effectiveness of the biological product for the claimed indications in pediatric subpopulations, and to support dosing and administration information. Section 601.27(b) provides that an applicant may request a deferred submission of some or all assessments of safety and effectiveness required under § 601.27(a) until after licensing the product for use in adults. Section 601.27(c) provides that an applicant may request a full or partial waiver of the requirements under § 601.27(a) with adequate justification. The burden estimates for § 601.27(a) are included in the burden estimate under § 601.2(a) in table 1 since these regulations deal with information to be provided in an application.
Section 601.28 requires sponsors of licensed biological products to submit the information in § 601.28(a), (b), and (c) to the Center for Biologics Evaluation and Research (CBER) or to the Center for Drug Evaluation and Research (CDER) each year, within 60 days of the anniversary date of approval of the license. Section 601.28(a) requires sponsors to submit to FDA a brief summary stating whether labeling supplements for pediatric use have been submitted and whether new studies in the pediatric population to support appropriate labeling for the pediatric population have been initiated. Section 601.28(b) requires sponsors to submit to FDA an analysis of available safety and efficacy data in the pediatric population and changes proposed in the labeling based on this information. Section 601.28(c) requires sponsors to submit to FDA a statement on the current status of any postmarketing studies in the pediatric population performed by, on or behalf of, the applicant. If the postmarketing studies were required or agreed to, the status of these studies is to be reported under § 601.70 rather than under this section.
Sections 601.33 through 601.35 clarify the information to be submitted in an application to FDA to evaluate the safety and effectiveness of radiopharmaceuticals intended for in vivo administration for diagnostic and monitoring use. The burden estimates for §§ 601.33 through 601.35 are included in the burden estimate under § 601.2(a) in table 1 since these regulations deal with information to be provided in an application.
Section 601.70 (b) requires each applicant of a licensed biological product to submit annually a report to FDA on the status of postmarketing studies for each approved product application. Each annual postmarketing status report must be accompanied by a completed transmittal Form FDA 2252 (Form FDA 2252 approved under OMB control number 0910-0001). Under § 601.70(d), two copies of the annual report shall be submitted to FDA.
Sections 601.91 through 601.94 concern biological products for which human efficacy studies are not ethical or feasible. Section 601.91(b)(2) requires, in certain circumstances, such postmarking restrictions as are needed to ensure the safe use of the biological product. Section 601.91(b)(3) requires applicants to prepare and provide labeling with relevant information to patients or potential patients for biological products approved under part 601, subpart H, when human efficacy studies are not ethical or feasible (or based on evidence of effectiveness from studies in animals). Section 601.93 provides that biological products approved under subpart H are subject to the postmarketing recordkeeping and safety reporting applicable to all approved biological products. Section 601.94 requires applicants under subpart H to submit to the Agency for consideration during preapproval review period copies of all promotional materials including promotional labeling as well as advertisements. Under § 601.91(b)(2) and § 601.93, any potential postmarketing reports and/or recordkeeping burdens would be included under the adverse experience reporting (AER) requirements under 21 CFR part 600 (OMB control number 0910-0308). Therefore, any burdens associated with these requirements would be reported under the AER information collection requirements (OMB control number 0910-0308). The burden estimate for § 601.91(b)(3) is included in the estimate under §§ 610.60 through 610.65.
Section 610.9(a) requires the applicant to present certain information, in the form of a license application or supplement to the application, for a modification of any particular test method or manufacturing process or the conditions which it is conducted under the biologics regulations. The burden estimate for § 610.9(a) is included in the estimate under §§ 601.2(a) and 601.12(b) and (c) in table 1.
Under § 610.15(d), the Director of CBER or the Director of CDER may approve, as appropriate, a manufacturer's request for exceptions or alternatives to the regulation for constituent materials. Manufacturers seeking approval of an exception or alternative must submit a request in writing with a brief statement describing the basis for the request and the supporting data.
Section 640.120 requires licensed establishments to submit a request for an exception or alternative to any requirement in the biologics regulations regarding blood, blood components, or blood products. For licensed establishments, a request for an exception or alternative must be submitted in accordance with § 601.12; therefore, the burden estimate for § 640.120 is included in the estimate under § 601.12(b) in table 1.
Section 680.1(c) requires manufacturers to update annually their license file with the list of source materials and the suppliers of the materials. Section 680.1(b)(3)(iv) requires manufacturers to notify FDA when certain diseases are detected in source materials.
Sections 600.15(b) and 610.53(d) (21 CFR 610.53(d)) require the submission of a request for an exemption or modification regarding the temperature requirements during shipment and from dating periods, respectively, for certain biological products. Section 606.110(b) (21 CFR 606.110(b)) requires the submission of a request for approval to perform plasmapheresis of donors who do not meet certain donor requirements for the collection of plasma containing rare antibodies. Under §§ 600.15(b), 610.53(d), and 606.110(b), a request for an exemption or modification to the requirements would be submitted as a supplement. Therefore, the burden hours for any submissions under §§ 600.15(b), 610.53(d), and 606.110(b) are included in the estimates under § 601.12(b) in table 1.
In July 1997, FDA revised Form FDA 356h “Application to Market a New Drug, Biologic, or an Antibiotic Drug for Human Use” to harmonize application procedures between CBER and CDER. The application form serves primarily as a checklist for firms to gather and submit certain information to FDA. As such, the form, now entitled “Application to Market a New or Abbreviated New Drug or Biologic for Human Use” helps to ensure that the application is complete and contains all the necessary information, so that delays due to lack of information may be eliminated. In addition, the form provides key information to FDA for efficient handling and distribution to the appropriate staff for review. The
For advertisements and promotional labeling (e. g., circulars, package labels, container labels, etc.) and labeling changes, manufacturers of licensed biological products may submit to CBER or CDER Form FDA 2253. In August of 1998, FDA revised and harmonized Form FDA 2253 so the form may be used to transmit specimens of promotional labeling and advertisements for biological products as well as for prescription drugs and antibiotics. The revised, harmonized form updates the information about the types of promotional materials and the codes that are used to clarify the type of advertisement or labeling submitted, clarifies the intended audience for the advertisements or promotional labeling (
Respondents to this collection of information are manufacturers of biological products. Under tables 1 and 2, the numbers of respondents are based on the estimated annual number of manufacturers that submitted the required information to FDA or the number of submissions FDA received in fiscal year (FY) 2015. Based on information obtained from FDA's database systems, there are an estimated 391 licensed biologics manufacturers. The total annual responses are based on the estimated number of submissions (
Under §§ 601.2 and 601.12, the estimated hours per response are based on the average number of hours to submit the various submissions. The estimated average number of hours is based on the range of hours to complete a very basic application or supplement and a complex application or supplement.
Under section 601.6(a), the total annual responses are based on FDA estimates that establishments may notify an average of 20 selling agents and distributors of such suspension, and provide FDA of such notification. The number of respondents is based on the estimated annual number of suspensions of a biologic license. In table 1, FDA is estimating 1 in case a suspension occurs.
Under §§ 601.12(f)(4) and 601.45, manufacturers of biological products may use Form FDA 2253 to submit advertising and promotional labeling (which can include multiple pieces). Based on information obtained from FDA's database system, there were an estimated 11,676 submissions using Form FDA 2253 of advertising and promotional labeling from 114 respondents.
Under §§ 601.28 and 601.70(b), FDA estimates that it takes an applicant approximately 24 hours (8 hours per study ×3 studies) annually to gather, complete, and submit the appropriate information for each postmarketing status report (approximately two to four studies per report) and the accompanied transmittal Form FDA 2252. Included in these 24 hours is the time necessary to prepare and submit two copies of the annual progress report of postmarketing studies to FDA under § 601.70(d). For FY 2015, there were 139 reports from 82 respondents.
Under § 610.15(d), FDA has received no submissions since the implementation of the final rule in April 2011. Therefore, FDA is estimating one respondent and one annual request to account for a possible submission to CBER or CDER of a request for an exception or alternative for constituent materials under § 610.15(d).
There were a total of 2,777 amendments to an unapproved application or supplement and resubmissions submitted using Form FDA 356h.
In the
FDA estimates the burden of this collection of information as follows:
Under table 2, the estimated recordkeeping burden of 1 hour is based on previous estimates for the recordkeeping requirements associated with the AER system.
Food and Drug Administration, HHS.
Notice.
The Food and Drug Administration (FDA) 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 either electronic or written comments on the collection of information by December 27, 2016.
You may submit comments as follows:
Submit electronic comments in the following way:
•
• If you want to submit a comment with confidential information that you do not wish to be made available to the public, submit the comment as a written/paper submission and in the manner detailed (see “Written/Paper Submissions” and “Instructions”).
Submit written/paper submissions as follows:
•
• For written/paper comments submitted to the Division of Dockets Management, FDA will post your comment, as well as any attachments, except for information submitted, marked and identified, as confidential, if submitted as detailed in “Instructions.”
• Confidential Submissions—To submit a comment with confidential information that you do not wish to be made publicly available, submit your comments only as a written/paper submission. You should submit two copies total. One copy will include the information you claim to be confidential with a heading or cover note that states “THIS DOCUMENT CONTAINS CONFIDENTIAL INFORMATION.” The Agency will review this copy, including the claimed confidential information, in its consideration of comments. The second copy, which will have the claimed confidential information redacted/blacked out, will be available for public viewing and posted on
FDA PRA Staff, Office of Operations, Food and Drug Administration, Three White Flint North, 10A63, 11601 Landsdown St., North Bethesda, MD 20852,
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, FDA invites comments on these topics: (1) Whether the proposed collection of information is necessary for the proper performance of FDA's functions, including whether the information will have practical utility; (2) the accuracy of FDA's 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.
FDA is authorized by section 1003(d)(2)(D) of the Federal Food, Drug, and Cosmetic Act (21 U.S.C. 393(d)(2)(D)) to conduct educational and public information programs relating to the safety of regulated medical devices and radiation-emitting products. FDA must conduct needed research to ensure that such programs have the highest likelihood of being effective. Improving communications about medical devices and radiation emitting products will involve many research methods, including individual in-depth interviews, mall-intercept interviews, focus groups, self-administered surveys, gatekeeper reviews, and omnibus telephone surveys.
The information collected will serve three major purposes. First, as formative research it will provide critical knowledge needed about target audiences to develop messages and campaigns about medical device and radiation-emitting product use. Knowledge of consumer and health care professional decision making processes will provide the better understanding of target audiences that FDA needs to design effective communication strategies, messages, and labels. These communications will aim to improve public understanding of the risks and benefits of using medical devices and radiation-emitting products by providing users with a better context in which to place risk information more completely.
Second, as initial testing, it will allow FDA to assess the potential effectiveness of messages and materials in reaching and successfully communicating with their intended audiences. Testing messages with a sample of the target audience will allow FDA to refine messages while still in the developmental stage. Respondents will be asked to give their reaction to the messages in either individual or group settings.
Third, as evaluative research, it will allow FDA to ascertain the effectiveness of the messages and the distribution method of these messages in achieving the objectives of the message campaign. Evaluation of campaigns is a vital link in continuous improvement of communications at FDA.
Annually, FDA projects about 30 studies using a variety of research methods and lasting an average of 0.17 hours each (varying from 0.08 to 1.5 hours). FDA estimates the burden of this collection of information based on prior recent experience with the various types of data collection methods described earlier. FDA is requesting this burden so as not to restrict the Agency's ability to gather information on public sentiment for its proposals in its regulatory and communications programs.
FDA estimates the burden of this collection of information as follows:
Food and Drug Administration, HHS.
Notice of availability.
The Food and Drug Administration (FDA or we) is announcing the availability of a revised draft guidance for industry entitled “Listing of Ingredients in Tobacco Products.” The revised draft guidance document is intended to assist persons making tobacco product ingredient submissions to FDA as required by the Family Smoking Prevention and Tobacco Control Act (Tobacco Control Act).
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 revised draft guidance before it begins work on the final version of the guidance, submit either electronic or written comments on the revised draft guidance by November 28, 2016.
You may submit comments as follows:
Submit electronic comments in the following way:
•
• If you want to submit a comment with confidential information that you do not wish to be made available to the public, submit the comment as a written/paper submission and in the manner detailed (see “Written/Paper Submissions” and “Instructions”).
Submit written/paper submissions as follows:
•
• For written/paper comments submitted to the Division of Dockets Management, FDA will post your comment, as well as any attachments, except for information submitted, marked and identified, as confidential, if submitted as detailed in “Instructions.”
•
Submit written requests for single copies of the revised draft guidance to the Center for Tobacco Products, Food and Drug Administration, Document Control Center, 10903 New Hampshire Ave., Bldg. 71, Rm. G335, Silver Spring, MD 20993-0002. Send one self-addressed adhesive label to assist that office in processing your request or include a fax number to which the revised draft guidance may be sent. See the
Katherine Collins, Center for Tobacco Products, Food and Drug Administration, Document Control Center, 10903 New Hampshire Ave., Bldg. 71, Rm. G335, Silver Spring, MD 20993-0002, 1-877-287-1373, email:
We are announcing the availability of a revised draft guidance for industry entitled “Listing of Ingredients in Tobacco Products.” We are issuing this draft guidance consistent with our good guidance practices regulation (21 CFR 10.115).
The revised draft guidance document, when finalized, is intended to assist persons making tobacco product ingredient submissions to FDA as required by the Tobacco Control Act.
The Tobacco Control Act (Pub. L. 111-31), enacted on June 22, 2009, amends the Federal Food, Drug, and Cosmetic Act (the FD&C Act) and provides FDA with the authority to regulate the manufacture, marketing, and distribution of tobacco products to protect the public health. Among its many provisions, the Tobacco Control Act added section 904 to the FD&C Act (21 U.S.C. 387d), establishing requirements for tobacco product ingredient submissions.
The revised draft guidance discusses tobacco products that are newly deemed subject to chapter IX of the FD&C Act. Cigarettes, cigarette tobacco, roll-your-own tobacco (RYO), and smokeless tobacco were immediately covered by FDA's tobacco product authorities in chapter IX of the FD&C Act, including section 904, when the Tobacco Control Act went into effect. As for other types of tobacco products, section 901(b) of the FD&C Act (21 U.S.C 387a(b)) grants FDA authority to deem those products subject to chapter IX of the FD&C Act. Under that authority, FDA issued a final rule deeming all other products that meet the statutory definition of “tobacco product,” set forth in section 201(rr) of the FD&C Act (21 U.S.C. 321(rr)), except for accessories of those products, as subject to chapter IX of the FD&C Act (81 FR 28974, May 10, 2016). The final rule became effective on August 8, 2016. As a result, manufacturers or importers (or their agents) of tobacco products subject to the deeming rule are now required to comply with chapter IX of the FD&C Act, including the ingredient listing requirements in section 904(a)(1).
Section 904(a)(1) of the FD&C Act requires each tobacco product manufacturer or importer, or agent thereof, to submit a listing of all ingredients, including tobacco, substances, compounds, and additives that are added by the manufacturer to the tobacco, paper, filter, or other part of each tobacco product by brand and by quantity in each brand and subbrand. For cigarettes, cigarette tobacco, RYO, and smokeless tobacco products on the market as of June 22, 2009, the list of ingredients had to be submitted by December 22, 2009. For cigarettes, cigarette tobacco, RYO, and smokeless tobacco products not on the market as of June 22, 2009, section 904(c)(1) requires that the list of ingredients be submitted at least 90 days prior to delivery for introduction into interstate commerce. Section 904(c) of the FD&C Act also requires submission of information whenever any additive, or the quantity of any additive, is changed.
As described in the preamble to the final deeming rule, for products other than cigarettes, cigarette tobacco, RYO, and smokeless tobacco that are on the market as of August 8, 2016, FDA does not intend to enforce the section 904(a)(1) ingredient listing submission requirement until 6 months from the effective date of the rule or 12 months from the effective date for small-scale tobacco product manufacturers. Under this policy, FDA will not enforce the ingredient listing submission requirement until February 8, 2017, for businesses that are not considered small-scale tobacco product manufactures, and August 8, 2017, for small-scale tobacco product manufacturers. Manufacturers of tobacco products introduced into interstate commerce after August 8, 2016, must submit the ingredient information required by section 904(a)(1) at least 90 days before the product is delivered for introduction into interstate commerce, as with cigarettes, cigarette tobacco, RYO, and smokeless tobacco first marketed after June 22, 2009 (section 904(c)(1)).
FDA is issuing this revised draft guidance 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 ingredient listing. 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 revised 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 revised draft guidance includes information and recommendations for how to provide ingredient listing submissions. The collections of information in section 904(a)(1) of the FD&C Act have been approved under OMB control number 0910-0650.
Persons with access to the Internet may obtain an electronic version of the draft guidance at either
The Health Resources and Services Administration is publishing an updated monetary amount of the average cost of a health insurance policy as it relates to the National Vaccine Injury Compensation Program (VICP).
Section 100.2 of the VICP's implementing regulation (42 CFR part 100) states that the revised amount of the average cost of a health insurance policy, as determined by the Secretary, is effective upon its delivery by the Secretary to the United States Court of Federal Claims (the Court), and will be published periodically in a notice in the
In 2016, MEPS-IC, available at
Therefore, the Secretary announces that the revised average cost of a health insurance policy under the VICP is $511.33 per month. In accordance with § 100.2, the revised amount was effective upon its delivery by the Secretary to the Court. Such notice was delivered to the Court on October 24, 2016.
Assistant Secretary for Administration, Office of the Secretary (OS), Department of Health and Human Services (HHS).
Notice of deletion of multiple systems of records.
The Office of the Assistant Secretary for Administration (ASA) within the Department of Health and Human Services (HHS) is deleting eighteen (18) systems of records established pursuant to the Privacy Act of 1974, as amended (5 U.S.C. 552a), because HHS has determined that they duplicate other systems of records or are obsolete.
The public should address written comments to: Director for Workforce Management and Vitality, Office of Human Resources, 200 Independence Avenue SW., Suite 801, Washington, DC 20201. Comments will be available for public viewing at the same location. To review comments in person, please contact the Director for Workforce Management and Vitality.
Director for Workforce Management and Vitality, Office of Human Resources, 200 Independence Avenue SW., Suite 801, Washington, DC 20201.
The agency is deleting the following eighteen systems of records for the reasons indicated:
The Privacy Act (5 U.S.C. 552a) governs the means by which the U.S. Government collects, maintains, and uses information about individuals in a system of records. A “system of records” is a group of any records under the control of a Federal agency from which information about an individual
The following systems of records are now deleted:
1. 09-15-0004 Federal Employees Occupational Health Data System
2. 09-40-0013 PSC Parking Program, PSC Transhare Program Records, PSC Security Services, and PSC Employee and Contractors Identification Badge Issuances
3. 09-90-0006 Applicants for Employment Records
4. 09-90-0011 Employee Appraisal Program Records
5. 09-90-0012 Executive Development Records
6. 09-90-0013 Federal Employees Occupational Health Program Records
7. 09-90-0016 HHS Motor Vehicle Operator Records
8. 09-90-0018 Personnel Records in Operating Offices
9. 09-90-0019 Special Employment Program Records
10. 09-90-0021 Training Management Information System
11. 09-90-0022 Volunteer EEO Support Personnel Records
12. 09-90-0023 Departmental Parking Control Policy and Records System
13. 09-90-0028 Biographies and Photographs of HHS Officials
14. 09-90-0036 Employee Suggestion Program Records
15. 09-90-0075 MBTA Prepaid Pass Program Participants
16. 09-90-0095 Management Information System Efficiency Reporter (MISER)
17. 09-90-0200 Child Care Subsidy Program Records
18. 09-90-1101 Optional Form 55 Cards Issuance Log
Office of the Secretary, HHS.
Notice.
In compliance with section 3506(c)(2)(A) of the Paperwork Reduction Act of 1995, the Office of the Secretary (OS), Department of Health and Human Services, announces plans to submit a new Information Collection Request (ICR), described below, to the Office of Management and Budget (OMB). Prior to submitting the ICR to OMB, OS seeks comments from the public regarding the burden estimate, below, or any other aspect of the ICR.
Comments on the ICR must be received on or before December 27, 2016.
Submit your comments to
Information Collection Clearance staff,
When submitting comments or requesting information, please include the document identifier HHS-OS-0990-New-60D for reference.
Based upon these finding, in June, 2014, the HHS Office on Women's Health (OWH) launched a national initiative to provide information, education and resources to employers on how to best support the needs of their nursing employees upon their return to the workplace. OWH particularly targeted challenging work environments.
OWH has contracted with LTG Associates to conduct formative research to evaluate the effectiveness, utility and impact of this on-line lactation worksite resource and to heighten visibility and identify opportunities for effective dissemination.
OS specifically requests comments on (1) the necessity and utility of the proposed information collection for the proper performance of the agency's functions, (2) the accuracy of the estimated burden, (3) ways to enhance the quality, utility, and clarity of the information to be collected, and (4) the use of automated collection techniques or other forms of information technology to minimize the information collection burden.
Notice is hereby given of a change in the meeting of the National Institute of General Medical Sciences Special Emphasis Panel, December 01, 2016, 8:00 a.m. to December 01, 2016, 6:00 PM, Cambria Suites Rockville, 1 Helen Heneghan Way, Rockville, MD, 20850 which was published in the
The meeting notice is amended to change the date to the meeting from December 1, 2016 to December 2, 2016. The meeting is closed to the public.
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.
Office of the Assistant Secretary for Community Planning and Development, HUD.
Notice.
This Notice identifies unutilized, underutilized, excess, and surplus Federal property reviewed by HUD for suitability for use to assist the homeless.
Juanita Perry, Department of Housing and Urban Development, 451 Seventh Street SW., Room 7266, Washington, DC 20410; telephone (202) 402-3970; TTY number for the hearing- and speech-impaired (202) 708-2565 (these telephone numbers are not toll-free), call the toll-free Title V information line at 800-927-7588 or send an email to
In accordance with 24 CFR part 581 and section 501 of the Stewart B. McKinney Homeless Assistance Act (42 U.S.C. 11411), as amended, HUD is publishing this Notice to identify Federal buildings and other real property that HUD has reviewed for suitability for use to assist the homeless. The properties were
Properties reviewed are listed in this Notice according to the following categories: Suitable/available, suitable/unavailable, and suitable/to be excess, and unsuitable. The properties listed in the three suitable categories have been reviewed by the landholding agencies, and each agency has transmitted to HUD: (1) Its intention to make the property available for use to assist the homeless, (2) its intention to declare the property excess to the agency's needs, or (3) a statement of the reasons that the property cannot be declared excess or made available for use as facilities to assist the homeless.
Properties listed as suitable/available will be available exclusively for homeless use for a period of 60 days from the date of this Notice. Where property is described as for “off-site use only” recipients of the property will be required to relocate the building to their own site at their own expense. Homeless assistance providers interested in any such property should send a written expression of interest to HHS, addressed to: Ms. Theresa M. Ritta, Chief Real Property Branch, the Department of Health and Human Services, Room 12-07, Parklawn Building, 5600 Fishers Lane, Rockville, MD 20857, (301) 443-2265 (This is not a toll-free number.) HHS will mail to the interested provider an application packet, which will include instructions for completing the application. In order to maximize the opportunity to utilize a suitable property, providers should submit their written expressions of interest as soon as possible. For complete details concerning the processing of applications, the reader is encouraged to refer to the interim rule governing this program, 24 CFR part 581.
For properties listed as suitable/to be excess, that property may, if subsequently accepted as excess by GSA, be made available for use by the homeless in accordance with applicable law, subject to screening for other Federal use. At the appropriate time, HUD will publish the property in a Notice showing it as either suitable/available or suitable/unavailable.
For properties listed as suitable/unavailable, the landholding agency has decided that the property cannot be declared excess or made available for use to assist the homeless, and the property will not be available.
Properties listed as unsuitable will not be made available for any other purpose for 20 days from the date of this Notice. Homeless assistance providers interested in a review by HUD of the determination of unsuitability should call the toll free information line at 1-800-927-7588 or send an email to
For more information regarding particular properties identified in this Notice (
Fish and Wildlife Service, Interior.
Notice of availability; request for comments.
We, the U.S. Fish and Wildlife Service (Service), announce the availability of a final supplemental environmental impact statement (SEIS) that has been prepared to evaluate the Ballville Dam Project, in Sandusky County, Ohio, in accordance with the requirements of the National Environmental Policy Act (NEPA). We are also requesting public comments.
You may submit comments on the final SEIS by any one of the following methods:
•
•
•
Jessica Hogrefe, (612) 713-5102. Individuals who are hearing impaired or speech impaired may call the Federal Relay Service at (800) 877-8337 for TTY assistance.
We announce the availability of a final supplemental environmental impact statement (SEIS) that has been prepared to evaluate the Ballville Dam Project, in Sandusky County, Ohio, in accordance with the requirements of the National Environmental Policy Act (NEPA). We are also requesting public comments.
Ballville Dam was built in 1913 for hydroelectric power generation. The City of Fremont purchased the dam in 1959 from the Ohio Power Company for the purpose of supplying water to the city. With the construction of a raw water reservoir, the dam is no longer required for this purpose. Moreover, in 2007, the Ohio Department of Natural Resources issued a Notice of Violation to the City, stating that the dam was being operated in violation of the law as a result of its deteriorated condition.
Ballville Dam is currently a complete barrier to upstream fish passage and impedes hydrologic processes. The purpose for the issuance of Federal funds and preparation of this final SEIS is to remove Ballville Dam and restore natural hydrological processes over a 40-mile stretch of the Sandusky River, reopen fish passage to 22 miles of additional habitat, restore flow conditions for fish access to habitat above the impoundment, and improve overall conditions for native fish communities in the Sandusky River system, restoring self-sustaining fish resources.
We published a final EIS in the
We further published a draft SEIS in the
This final SEIS further incorporates information received during the public comment period for the draft SEIS, and finalizes the analyses and conclusions in the document.
Letters describing the proposed action and soliciting comments will be sent to appropriate Federal, State, and local agencies, and to private organizations and citizens who have previously expressed or are known to have interest in this proposal. To ensure that the full range of issues related to this proposed action are addressed and all significant issues identified, comments and suggestions are invited from all interested parties.
We request data, comments, new information, or suggestions from the public, concerned governmental agencies, the scientific community, tribes, industry, or any other interested party on this notice. We specifically request comments regarding the additional information and analyses presented in the final SEIS.
You may submit your comments and materials considering this notice by one of the methods listed in the
All comments and materials we receive in response to this request will be available for public inspection, by appointment, during normal business hours at the address listed in the
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.
This notice is being furnished as provided for by NEPA and its implementing Regulations (40 CFR 1501.7 and 1508.22). The intent of the notice is to obtain suggestions and additional information from other agencies and the public on the final SEIS. Comments and participation in this process are solicited.
Bureau of Land Management, Interior.
Notice.
In accordance with the National Environmental Policy Act of 1969, as amended, the Bureau of Land Management (BLM) has prepared a Final Environmental Impact Statement (EIS) for the 3 Bars Ecosystem and Landscape Restoration Project (3 Bars Project) and by this notice is announcing its availability.
The BLM will not issue a final decision on the proposal for a minimum of 30 days from the date that the Environmental Protection Agency publishes its Notice of Availability in the
Copies of the 3 Bars Project Final EIS are available for public inspection at the Bureau of Land Management, Mount Lewis Field Office, 50 Bastian Road, Battle Mountain, Nevada, during regular business hours of 7:30 a.m. to 4:30 p.m., Monday through Friday, except holidays. Interested persons may also view the Final EIS at:
Todd Erdody, Fire Ecologist 775-635-4109, Bureau of Land Management, Mount Lewis Field Office, 50 Bastian
The 3 Bars Project area in central Eureka County, Nevada, spans approximately 749,810 acres and includes all or portions of three major mountain ranges (Roberts Mountain, Simpson Park Range, and Sulphur Spring Range). Monitoring has indicated that resource conditions within the project area have deteriorated due to past land use activities, causing the BLM to target this area for restoration.
The BLM is proposing a comprehensive treatment program for improving the health of the ecosystem in the 3 Bars Project area. The proposed project focuses on restoration at the landscape level. The proposed treatments range from several acres to several thousand acres, depending on specific treatment and management goals and desired objectives for each resource. Possible treatment methods include manual, mechanical, and biological control treatments, prescribed fire, or wildland fire for resource benefit, and other management actions. The surface landownership consists of about 97 percent public lands administered by the BLM and three percent privately owned lands.
The BLM initiated the scoping period for the Project by publication of a Notice of Intent (75 FR 3916-3917) to prepare an Environmental Impact Statement (EIS) on January 25, 2010. The scoping period ended on March 10, 2010. Public scoping meetings were held in Battle Mountain, Nevada, on February 22, 2010, and in Eureka, Nevada, on February 23, 2010. The BLM received 24 scoping comment letters on the proposed 3 Bars Project. During the scoping period, 637 catalogued individual comments were recorded for the 3 Bars Project EIS. All comments that were received have been incorporated in a Scoping Summary Report and were considered in the subsequent preparation of the Draft EIS.
Based on the public comments received during the scoping period for the 3 Bars Project, the BLM developed and analyzed four alternatives in the Draft EIS; specifically, the All Treatment Method Alternative; No Fire Use Alternative; Minimal Land Disturbance Alternative; and No Action Alternative.
The BLM has identified site-specific treatment projects that it proposes to implement to restore and manage the 3 Bars Project area. Treatment projects were identified through an iterative process involving the BLM and other Federal, state and local agencies. Treatments would focus on four priority vegetation management concerns:
• Riparian—Treatments in riparian habitats would focus on restoring riparian functionality in areas where structural integrity (incised channel, headcuts, knickpoints, developments, and diversions) and/or appropriate species composition are compromised.
• Aspen—Treatments in quaking aspen habitats would focus on improving the health of aspen stands by stimulating aspen regeneration.
• Pinyon-juniper—Treatments in singleleaf pinyon pine and Utah juniper habitats would focus on thinning pinyon-juniper communities to promote woodland health and removing pinyon-juniper where it encroaches into riparian areas and upland habitats, including sagebrush habitat.
• Sagebrush—Treatments in sagebrush habitats would focus on restoring the sagebrush community by removing encroaching pinyon-juniper, promoting the reestablishment of native forbs and grasses in sagebrush communities, and promoting the development of sagebrush in areas where it occurred historically.
The BLM has prepared the Final EIS in coordination with its three Cooperating Agencies: the Nevada Department of Wildlife, Eureka County Board of Commissioners, and the National Park Service—National Trails Intermountain Region.
On September 27, 2013, a Notice of Availability of the Draft EIS was published in the
More than 6,800 comments were received, of which 6,530 were form letters containing identical or similar comments. The BLM identified 23 substantive issues as a result of the review process. Comments primarily pertained to potential impacts to wild horses, preservation of old growth woodlands, and protection of habitat for wildlife and special status species, including Greater Sage-Grouse. Substantive comments were considered by the BLM and changes to the Final EIS made accordingly.
The Final EIS has identified the All Available Methods Alternative as the preferred alternative, with treatments and treatment objectives that meet previously identified resource management goals. These goals are consistent with the 1986 Shoshone-Eureka Resource Management Plan, as amended by the BLM Nevada and Northeastern California Greater Sage-Grouse Approved Resource Management Plan Amendment and Record of Decision, which currently guides land management activities within the 3 Bars Project area. These goals focus primarily on wildlife and habitat enhancement, fire and fuels management, woodland and rangeland values, wetland and riparian restoration, wild horse management, and protection of traditional edible and medicinal plants and cultural resources.
The 3 Bars ecosystem provides habitat for Greater Sage-Grouse, a BLM special status species. The proposed 3 Bars Project is fully in conformance with the September 2015 BLM Nevada and Northeastern California Greater Sage-Grouse Approved Resource Management Plan Amendment and Record of Decision (ARMPA).
To ensure that treatments benefit Greater Sage-Grouse, sagebrush restoration treatments would adhere to ARMPA Required Design Features (RDFs). These include avoiding treatments near Greater Sage-Grouse leks and avoiding treatments in breeding, brood-rearing, and wintering habitats during those times of the year when Greater Sage-Grouse are using these habitats. The BLM will ensure proper livestock management is in place prior to treatments when necessary in
40 CFR 1506.6, 40 CFR 1506.10
Bureau of Land Management, Interior.
Notice of filing of plats of survey.
The Bureau of Land Management (BLM) will file the plat of survey of the lands described below in the BLM Montana State Office, Billings, Montana, on November 28, 2016.
A notice of protest of the survey must be filed before November 28, 2016 to be considered. A statement of reasons for a protest may be filed with the notice of protest and must filed within thirty days after the notice of protest is filed.
Protests of the survey should be sent to the Branch of Cadastral Survey, Bureau of Land Management, 5001 Southgate Drive, Billings, Montana 59101-4669.
Blaise Lodermeier, Cadastral Surveyor, Branch of Cadastral Survey, Bureau of Land Management, 5001 Southgate Drive, Billings, Montana 59101-4669, telephone (406) 896-5128 or (406) 896-5003,
This survey was executed at the request of the Chief, Branch of Realty, Lands and Renewable Energy, Bureau of Land Management, Billings, Montana, and was necessary to create Tracts of land to be transferred to the State of Montana through the indemnity selection process.
The lands we surveyed are:
The plat, in two sheets, representing the dependent resurvey of Tract O, Tract Z, and a portion of Tract N (Tps. 7 and 8 N., R. 47 E.), and the subdivision of Tract O and Tract Z into Tract CC, Tract DD, Tract EE, and Tract FF, Township 7 North, Range 47 East, Principal Meridian, Montana, was accepted March 17, 2016.
We will place a copy of the plat, in two sheets, in the open files. They will be available to the public as a matter of information. If the BLM receives a protest against this survey, as shown on this plat, in two sheets, prior to the date of the official filing, we will stay the filing pending our consideration of the protest. We will not officially file this plat, in two sheets, until the day after we have accepted or dismissed all protests and they have become final, including decisions or appeals. Before including your address, phone number, email address, or other personally identifying information in your comment, you should be aware that your entire comment—including your personally identifying information—may be made publicly available at any time. While you can ask us in your comment to withhold your personally identifying information from public review, we cannot guarantee that we will be able to do so.
43 U.S.C. Chap. 3.
National Park Service, Interior.
Notice.
The National Park Service is soliciting comments on the significance of properties nominated before October 1, 2016, for listing or related actions in the National Register of Historic Places.
Comments should be submitted by November 14, 2016.
Comments may be sent via U.S. 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.
The properties listed in this notice are being considered for listing or related actions in the National Register of Historic Places. Nominations for their consideration were received by the National Park Service before October 1, 2016. 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.
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:
60.13 of 36 CFR part 60.
Office of Surface Mining Reclamation and Enforcement.
Notice of availability; final environmental impact statement.
The Office of Surface Mining Reclamation and Enforcement (OSMRE) announces that the final Petition Evaluation Document and Environmental Impact Statement (PED/EIS) for the North Cumberland Wildlife Management Area Petition to Find Certain Lands Unsuitable for Surface Coal Mining Operations is available for public review and comment.
The OSMRE will not issue a final decision of the proposal for a minimum of 30 days after the date that the Environmental Protection Agency publishes the Notice of Availability in the
Copies of the Final PED/EIS for the Project may be viewed online at
Earl D. Bandy Jr., Director-Knoxville Field Office, Office of Surface Mining Reclamation and Enforcement, John J. Duncan Federal Building, 710 Locust Street, 2nd Floor, Knoxville, Tennessee 37902. Telephone: 865-545-4103 ext. 186. Email:
On September 30, 2010, pursuant to the Surface Mining Control and Reclamation Act, 30 U.S.C. 1272 (c) (SMCRA), the State of Tennessee filed a petition with the Office of Surface Mining and Reclamation and Enforcement (OSMRE) to designate certain lands in the state as unsuitable for surface coal mining operations. These lands include the area within 600 feet of all ridge lines (a 1,200 foot corridor) lying within the North Cumberland Wildlife Management Area (NCWMA)—comprised of the Royal Blue Wildlife Management Area, the Sundquist Wildlife Management Area, and the New River Wildlife Management Area (also known as the Brimstone Tract Conservation Easement)—and the Emory River Tracts Conservation Easement (ERTCE), encompassing approximately 67,326 acres and 505 miles of ridgelines. In Tennessee, OSMRE has operated a Federal regulatory program as the primary regulator under SMCRA since October 1984, when the state repealed its surface mining law; therefore, in accordance with its responsibility in administering the Federal program in Tennessee, the OSMRE must process and make decisions on all petitions submitted to designate areas in the state as unsuitable for surface coal mining operations.
The petition includes two primary allegations with numerous allegations of fact and supporting statements. In primary allegation 1, the petitioner contends that the petition area should be designated unsuitable for surface coal mining operations because mining in the area would be incompatible with existing state or local land use plans or programs. SMCRA 522(a)(3)(A), 30 U.S.C. 1272(a)(3)(A). In primary allegation 2, the petitioner contends that the OSMRE should designate the petition area as unsuitable for surface coal mining operations because such operations would affect fragile or historic lands, resulting in significant damage to important historic, cultural, scientific, and aesthetic values and natural systems. SMCRA 522(a)(3)(B), 30 U.S.C. 1272(a)(3)(B).
The Director, OSMRE, is required to make a decision on the petition. The Final PED/EIS considers in detail the following alternatives for action by the Director:
• Alternative 1—do not designate any of the petition area as unsuitable for surface coal mining operations (no-action). There would be no change in types of permit applications accepted for evaluation.
• Alternative 2—designate the entire petition area (67,326 acres) as unsuitable for all surface coal mining operations (state's proposed action). No types of surface mining permit applications would be accepted for this area.
• Alternative 3—designate the state petition area (67,326 acres) as unsuitable for surface coal mining operations that are not remining. Under this alternative, remining could continue to be permitted on a case-by-case basis. The only acceptable types of permits would be permits for remining.
• Alternative 4—grant an expanded corridor designation of independently identified ridgelines within the petition area (76,133 acres) as unsuitable for surface coal mining operations that are not remining (agency's preferred alternative). Under this alternative, remining could continue to be permitted on a case-by-case basis. The only acceptable types of permits would be permits for remining.
• Alternative 5—designate lands as unsuitable for surface coal mining based on the presence of certain sensitive resources (12,331 acres). No types of surface mining permits would be accepted for this area.
• Alternative 6—designate a reduced corridor of 600 feet (39,106 acres). No types of surface mining permits would be accepted for this area.
In accordance with the applicable regulations under 30 CFR parts 762 and 764 and the requirements of the National Environmental Policy Act of 1969 (NEPA), as amended, OSMRE evaluated the merits of the unsuitability petition and analyzed the impacts of these alternatives. This analysis is reflected in the Final PED/EIS, which notes the potential impacts of the project and alternatives on earth resources (geology, topography and physiography), air quality and greenhouse gases, groundwater, surface water, wetlands, vegetation, fish and wildlife including special status species, land use, aesthetics including visual resources and soundscapes, socioeconomics and environmental justice, cultural resources including archaeological, historic and ethnographic resources, and public health and safety. Mitigation measures to be included as part of project implementation will be noted in the final decision.
In accordance with Department of the Interior regulations (43 CFR 46.425), OSMRE identified Alternative 3 as the preferred alternative in the Draft EIS. However, based on public and agency comments, as well as the state's input, OSMRE has now identified alternative 4 as the preferred alternative because it is the most consistent with the state's request. OSMRE reached that decision based on its analysis and conclusion that the “agency's preferred alternative” is the alternative the agency believes would best accomplish the purpose of and need for action, and fulfill its statutory mission and responsibilities, while still giving consideration to economic, environmental, technical, and other factors. Alternative 4 is also the environmentally preferred alternative because of its long-term environmental benefits.
The OSMRE will prepare a Record of Decision (ROD) for the proposed petition after a 30-day period following publication of the NOA.
40 CFR 1506.6, 40 CFR 1506.1.
Employee Benefits Security Administration, Labor.
Grant of individual exemptions.
This document contains exemptions issued by the Department of Labor (the Department) from certain of the prohibited transaction restrictions of the Employee Retirement Income Security Act of 1974 (ERISA or the Act) and/or the Internal Revenue Code of 1986 (the Code). This notice includes the following: 2016-10, Royal Bank of Canada, D-11868; 2016-11, Northern Trust Corporation, D-11875; and, 2016-12, Extension of PTE 2015-15 involving Deutsche Bank AG, D-11879.
A notice was published in the
The notice of proposed exemption was issued and the exemption is being granted solely by the Department because, effective December 31, 1978, section 102 of Reorganization Plan No. 4 of 1978, 5 U.S.C. App. 1 (1996), transferred the authority of the Secretary of the Treasury to issue exemptions of the type proposed to the Secretary of Labor.
In accordance with section 408(a) of the Act and/or section 4975(c)(2) of the Code and the procedures set forth in 29 CFR part 2570, subpart B (76 FR 66637, 66644, October 27, 2011)
(a) The exemption is administratively feasible;
(b) The exemption is in the interests of the plan and its participants and beneficiaries; and
(c) The exemption is protective of the rights of the participants and beneficiaries of the plan.
Certain entities with specified relationships to Royal Bank of Canada Trust Company (Bahamas) Limited (RBCTC Bahamas) (hereinafter, the RBC QPAMs, as further defined in Section II(b)) will not be precluded from relying on the exemptive relief provided by Prohibited Transaction Exemption (PTE) 84-14,
(a) The RBC QPAMs (including their officers, directors, agents other than RBC, and employees of such RBC QPAMs) did not know of, have reason to know of, or participate in the criminal conduct of RBCTC Bahamas that is the subject of the Conviction (for purposes of this paragraph (a), “participate in” includes the knowing or tacit approval of the misconduct underlying the Conviction);
(b) The RBC QPAMs (including their officers, directors, agents other than RBC, and employees of such RBC
(c) The RBC QPAMs will not employ or knowingly engage any of the individuals that participated in the criminal conduct that is the subject of the Conviction (for purposes of this paragraph (c), “participated in” includes the knowing or tacit approval of the misconduct underlying the Conviction);
(d) An RBC QPAM will not use its authority or influence to direct an “investment fund,” (as defined in Section VI(b) of PTE 84-14) that is subject to ERISA or the Code and managed by such RBC QPAM, to enter into any transaction with RBCTC Bahamas or engage RBCTC Bahamas to provide any service to such investment fund, for a direct or indirect fee borne by such investment fund, regardless of whether such transaction or service may otherwise be within the scope of relief provided by an administrative or statutory exemption;
(e) Any failure of the RBC QPAMs to satisfy Section I(g) of PTE 84-14 arose solely from the Conviction;
(f) The criminal conduct that is the subject of the Conviction did not directly or indirectly involve the assets of any plan subject to Part 4 of Title I of ERISA (an ERISA-covered plan) or section 4975 of the Code (an IRA);
(g) RBCTC Bahamas has not provided nor will provide discretionary asset management services to ERISA-covered plans or IRAs, nor will it otherwise act as a fiduciary with respect to ERISA-covered plan and IRA assets;
(h)(1) Within four months of the date of the Conviction, each RBC QPAM must develop, implement, maintain, and follow written policies (the Policies) requiring and reasonably designed to ensure that:
(i) The asset management decisions of the RBC QPAM are conducted independently of the management and business activities of RBCTC Bahamas;
(ii) The RBC QPAM fully complies with ERISA's fiduciary duties and with ERISA and the Code's prohibited transaction provisions, and does not knowingly participate in any violations of these duties and provisions with respect to ERISA-covered plans and IRAs;
(iii) The RBC QPAM does not knowingly participate in any other person's violation of ERISA or the Code with respect to ERISA-covered plans and IRAs;
(iv) Any filings or statements made by the RBC QPAM to regulators, including but not limited to, the Department of Labor, the Department of the Treasury, the Department of Justice, and the Pension Benefit Guaranty Corporation, on behalf of ERISA-covered plans or IRAs are materially accurate and complete, to the best of such QPAM's knowledge at that time;
(v) The RBC QPAM does not make material misrepresentations or omit material information in its communications with such regulators with respect to ERISA-covered plans or IRAs, or make material misrepresentations or omit material information in its communications with ERISA-covered plan and IRA clients;
(vi) The RBC QPAM complies with the terms of this temporary exemption; and
(vii) Any violation of, or failure to comply with, an item in subparagraph (ii) through (vi), is corrected promptly upon discovery, and any such violation or compliance failure not promptly corrected is reported, upon discovering the failure to promptly correct, in writing, to appropriate corporate officers, the head of compliance and the General Counsel (or their functional equivalent) of the relevant RBC QPAM, and an appropriate fiduciary of any affected ERISA-covered plan or IRA where such fiduciary is independent of RBC; however, with respect to any ERISA-covered plan or IRA sponsored by an “affiliate” (as defined in Section VI(d) of PTE 84-14) of RBC or beneficially owned by an employee of RBC or its affiliates, such fiduciary does not need to be independent of RBC. An RBC QPAM will not be treated as having failed to develop, implement, maintain, or follow the Policies, provided that it corrects any instance of noncompliance promptly when discovered or when it reasonably should have known of the noncompliance (whichever is earlier), and provided that it adheres to the reporting requirements set forth in this subparagraph (vii);
(2) Within four months of the date of the Conviction, each RBC QPAM must develop and implement a program of training (the Training), conducted at least annually, for all relevant RBC QPAM asset/portfolio management, trading, legal, compliance, and internal audit personnel. The Training must be set forth in the Policies and at a minimum, cover the Policies, ERISA and Code compliance (including applicable fiduciary duties and the prohibited transaction provisions), ethical conduct, the consequences for not complying with the conditions of this temporary exemption (including any loss of exemptive relief provided herein), and prompt reporting of wrongdoing;
(i) Effective as of the effective date of this temporary exemption, with respect to any arrangement, agreement, or contract between an RBC QPAM and an ERISA-covered plan or IRA for which an RBC QPAM provides asset management or other discretionary fiduciary services, each RBC QPAM agrees:
(1) To comply with ERISA and the Code, as applicable with respect to such ERISA-covered plan or IRA; to refrain from engaging in prohibited transactions that are not otherwise exempt (and to promptly correct any inadvertent prohibited transactions); and to comply with the standards of prudence and loyalty set forth in section 404 of ERISA with respect to each such ERISA-covered plan and IRA;
(2) Not to require (or otherwise cause) the ERISA-covered plan or IRA to waive, limit, or qualify the liability of the RBC QPAM for violating ERISA or the Code or engaging in prohibited transactions;
(3) Not to require the ERISA-covered plan or IRA (or sponsor of such ERISA-covered plan or beneficial owner of such IRA) to indemnify the RBC QPAM for violating ERISA or engaging in prohibited transactions, except for violations or prohibited transactions caused by an error, misrepresentation, or misconduct of a plan fiduciary or other party hired by the plan fiduciary who is independent of RBC;
(4) Not to restrict the ability of such ERISA-covered plan or IRA to terminate or withdraw from its arrangement with the RBC QPAM (including any investment in a separately managed account or pooled fund subject to ERISA and managed by such QPAM), with the exception of reasonable restrictions, appropriately disclosed in advance, that are specifically designed to ensure equitable treatment of all investors in a pooled fund in the event such withdrawal or termination may have adverse consequences for all other investors as a result of an actual lack of liquidity of the underlying assets, provided that such restrictions are applied consistently and in like manner to all such investors;
(5) Not to impose any fees, penalties, or charges for such termination or withdrawal with the exception of reasonable fees, appropriately disclosed in advance, that are specifically designed to prevent generally recognized abusive investment practices or specifically designed to ensure equitable treatment of all investors in a pooled fund in the event such withdrawal or termination may have adverse consequences for all other
(6) Not to include exculpatory provisions disclaiming or otherwise limiting liability of the RBC QPAM for a violation of such agreement's terms, except for liability caused by an error, misrepresentation, or misconduct of a plan fiduciary or other party hired by the plan fiduciary who is independent of RBC; and
(7) To indemnify and hold harmless the ERISA-covered plan or IRA for any damages resulting from a violation of applicable laws, a breach of contract, or any claim arising out of the failure of such RBC QPAM to qualify for the exemptive relief provided by PTE 84-14 as a result of a violation of Section I(g) of PTE 84-14 other than the Conviction.
Within six (6) months of the date of the Conviction, each RBC QPAM will: Provide a notice of its obligations under this Section I(i) to each ERISA-covered plan and IRA for which an RBC QPAM provides asset management or other discretionary fiduciary services;
(j) The RBC QPAMs comply with each condition of PTE 84-14, as amended, with the sole exceptions of the violations of Section I(g) of PTE 84-14 that are attributable to the Conviction;
(k) Each RBC QPAM will maintain records necessary to demonstrate that the conditions of this temporary exemption have been met, for six (6) years following the date of any transaction for which such RBC QPAM relies upon the relief in the temporary exemption;
(l) During the effective period of this temporary exemption, RBC: (1) Immediately discloses to the Department any Deferred Prosecution Agreement (a DPA) or Non-Prosecution Agreement (an NPA) that RBC or an affiliate enters into with the U.S Department of Justice, to the extent such DPA or NPA involves conduct described in Section I(g) of PTE 84-14 or section 411 of ERISA; and (2) immediately provides the Department any information requested by the Department, as permitted by law, regarding the agreement and/or the conduct and allegations that led to the agreements; and
(m) An RBC QPAM will not fail to meet the terms of this temporary exemption, solely because a different RBC QPAM fails to satisfy a condition for relief under this temporary exemption, described in Sections I(c), (d), (h), (i), (j), and (k).
(a) The term “Conviction” means the potential judgment of conviction against RBCTC Bahamas for aiding and abetting tax fraud to be entered in France in the District Court of Paris, French Special Prosecutor No. 1120392066, French Investigative Judge No. JIRSIF/11/12;
(b) The term “RBC QPAM” means a “qualified professional asset manager” (as defined in section VI(a)
(c) The term “RBCTC Bahamas” means Royal Bank of Canada Trust Company (Bahamas) Limited, a Bahamian “affiliate” of RBC (as defined in section VI(c) of PTE 84-14);
(d) The terms “ERISA-covered plan” and “IRA” mean, respectively, a plan subject to Part 4 of Title I of ERISA and a plan subject to section 4975 of the Code; and
(e) The term “RBC” means Royal Bank of Canada, together with its current and future affiliates.
On October 12, 2016, the Department of Labor (the Department) published a notice of proposed temporary exemption in the
The Department is today granting this temporary exemption in order to protect ERISA-covered plans and IRAs from certain costs and/or investment losses that may arise to the extent entities with a corporate relationship to RBCTC Bahamas lose their ability to rely on PTE 84-14 as of the Conviction Date, as described in the proposed temporary exemption. The Department is considering proposing longer-term relief for RBC QPAMs to rely on PTE 84-14 notwithstanding the Conviction, in Application No. D-11912. The relief in this temporary exemption provides the Department more time to consider whether longer-term relief is warranted.
No relief from a violation of any other law is provided by this temporary exemption, including any criminal conviction described in the proposed temporary exemption. Furthermore, the Department cautions that the relief in this temporary exemption will terminate immediately if, among other things, an entity within the RBC corporate structure is convicted of a crime described in Section I(g) of PTE 84-14 (other than the Conviction) during the effective period of the temporary exemption. While such an entity could apply for a new exemption in that circumstance, the Department would not be obligated to grant the exemption. The terms of this temporary exemption have been specifically designed to permit plans to terminate their relationships in an orderly and cost effective fashion in the event of an additional conviction or a determination that it is otherwise prudent for a plan to terminate its relationship with an entity covered by the temporary exemption.
The Department invited all interested persons to submit written comments and/or requests for a public hearing with respect to the notice of proposed temporary exemption, published on October 12, 2016. All comments and requests for hearing were due by October 19, 2016. During the comment period, the Department received written comments from RBC and from The Clearing House. Although the Department has, for the most part, revised the proposed temporary exemption in the manner requested by RBC, the Department cautions that it may decline to include those revisions in any decision to grant more permanent relief.
RBC seeks several revisions to the conditions set forth in the proposed temporary exemption. First, RBC states that Section I(f) of the proposed temporary exemption may be unintentionally broad. As proposed, that condition states: “No entities holding assets that constitute the assets of any plan subject to Part 4 of Title I of ERISA (an ERISA-covered plan) or section 4975 of the Code (an IRA) were involved in the criminal conduct that is the subject of the Conviction.” RBC seeks to revise the condition to read: “The criminal conduct that is the subject of the Conviction did not directly or indirectly involve the assets of any plan subject to Part 4 of Title I of ERISA (an ERISA-covered plan) or section 4975 of the Code (an IRA).” The Department has decided to revise the condition in the manner requested by RBC.
Next, RBC notes that Section I(h) of the proposed temporary exemption requires that each RBC QPAM “immediately:” Develop, implement, maintain and follow certain written policies; and develop and implement a program of training. RBC seeks a period of up to four months following the date of its impending conviction to meet these requirements. The Department agrees that four months is a reasonable period of time with which to comply with the requirement of Section I(h) and has revised the condition accordingly.
RBC seeks another change to Section I(h)(1)(i), through the deletion of the bolded language, “The asset management decisions of the RBC QPAM are conducted independently of the management and business activities of RBC, including RBCTC Bahamas. RBC represents that it has neither committed, nor been accused of committing, a crime. The Department has revised the condition accordingly.
RBC also seeks to change the start date of the notice requirement set forth in Section I(i), such that each RBC must provide such notice within six months of the Conviction Date, rather than within six months of the date of publication of this granted temporary exemption. The Department concurs with this request, and has revised the temporary exemption accordingly.
RBC seeks deletion of the requirement in Section I(i) that requires each RBC QPAM to separately warrant in writing its obligations to ERISA-Covered Plans and IRAs. While the Department has made such revision for purposes of the limited relief herein, the Department re-emphasizes, as noted above, that it may decide to propose more permanent relief that does not contain this revision.
RBC seeks deletion of requirement set forth in Section I(i)(6) that, each RBC QPAM agrees: “Not to include exculpatory provisions disclaiming or otherwise limiting liability of the RBC QPAM for a violation of such agreement's terms.” The Department declines to make such deletion, but has revised the condition to read: “Not to include exculpatory provisions disclaiming or otherwise limiting liability of the RBC QPAM for a violation of such agreement's terms, except for liability caused by an error, misrepresentation, or misconduct of a plan fiduciary or other party hired by the plan fiduciary who is independent of RBC.”
RBC notes that, in addition to the asset managers identified in the proposed exemption, the following managers are owned in whole or in part by RBC: BlueBay Asset Management USA, LLC; City National Bank; City National Rochdale, LLC; City National Securities, Inc.; Convergent Wealth Advisors, LLC; LMCG Investments, LLC; Mid-Continent Capital, L.L.C.; and Symphonic Financial Advisors LLC be added to the list of primary U.S. bank and U.S. registered adviser affiliates in which RBC owns a significant interest. Three additional managers are owned in part but not currently controlled by RBC: Matthews International Capital Management, LLC; SKBA Capital Management, LLC; and O'Shaughnessy Asset Management, LLC. Further, RBC believes that Footnote 16 of the proposed exemption implies that the Hong Kong investigation is connected to RBCTC Bahamas' alleged conduct that is the subject of the French prosecution described in Section II(a) of the proposal. According to RBC, the Hong Kong investigation is entirely unrelated to the matter that is the subject of the French prosecution described in Section II(a).
Condition (l) set forth in the proposed exemption provided that during the effective period of this temporary exemption, neither RBC nor any affiliate enters into a Deferred Prosecution Agreement (a DPA) or a Non-Prosecution Agreement (an NPA) with the U.S Department of Justice, in connection with conduct described in Section I(g) of PTE 84-14 or section 411 of ERISA. RBC sought to reserve its right to comment on this condition in connection with the Department's consideration of more permanent relief. The Department has nonetheless revised condition (l) such that it now reads: During the effective period of this temporary exemption, RBC: (1) Immediately discloses to the Department any Deferred Prosecution Agreement (a DPA) or Non-Prosecution Agreement (an NPA) that RBC or an affiliate enters into with the U.S Department of Justice, to the extent such DPA or NPA involves conduct described in Section I(g) of PTE 84-14 or section 411 of ERISA; and (2) immediately provides the Department any information requested by the Department, as permitted by law, regarding the agreement and/or the conduct and allegations that led to the agreements.
The Clearing House Association L.L.C. (TCH) submitted a comment that expresses concern regarding condition (l) in Section I of the proposed temporary exemption. As noted above, the Department has revised that condition. The Department will continue to consider TCH's comment in connection with its consideration of more permanent relief for RBC.
After giving full consideration to the record, the Department has decided to grant the temporary exemption, as described above. The complete application file (Application No. D-11868) is available for public inspection in the Public Disclosure Room of the Employee Benefits Security Administration, Room N-1515, U.S. Department of Labor, 200 Constitution Avenue NW., Washington, DC 20210.
For a more complete statement of the facts and representations supporting the Department's decision to grant this temporary exemption, refer to the notice of proposed temporary exemption published on October 12, 2016 at 81 FR 70562.
Ms. Anna Mpras Vaughan of the Department, telephone (202) 693-8565. (This is not a toll-free number.)
Certain entities with specified relationships to Northern Trust Fiduciary Services (Guernsey) ltd. (NTFS) (hereinafter, the Northern QPAMs, as further defined in Section II(b)) will not be precluded from relying on the exemptive relief provided by Prohibited Transaction Exemption 84-
(a) The Northern QPAMs (including their officers, directors, agents other than Northern, and employees of such Northern QPAMs) did not know of, have reason to know of, or participate in the criminal conduct of NTFS that is the subject of the Conviction (for purposes of this paragraph (a), “participate in” includes the knowing or tacit approval of the misconduct underlying the Conviction);
(b) The Northern QPAMs (including their officers, directors, agents other than Northern, and employees of such Northern QPAMs) did not receive direct compensation, or knowingly receive indirect compensation, in connection with the criminal conduct that is the subject of the Conviction;
(c) The Northern QPAMs will not employ or knowingly engage any of the individuals that participated in the criminal conduct that is the subject of the Conviction (for purposes of this paragraph (c), “participated in” includes the knowing or tacit approval of the misconduct underlying the Conviction);
(d) A Northern QPAM will not use its authority or influence to direct an “investment fund,” (as defined in Section VI(b) of PTE 84-14) that is subject to ERISA or the Code and managed by such Northern QPAM, to enter into any transaction with NTFS or engage NTFS to provide any service to such investment fund, for a direct or indirect fee borne by such investment fund, regardless of whether such transaction or service may otherwise be within the scope of relief provided by an administrative or statutory exemption;
(e) Any failure of the Northern QPAMs to satisfy Section I(g) of PTE 84-14 arose solely from the Conviction;
(f) No entities holding assets that constitute the assets of any plan subject to Part 4 of Title I of ERISA (an ERISA-covered plan) or section 4975 of the Code (an IRA) were involved in the criminal conduct that is the subject of the Conviction;
(g) NTFS has not provided nor will provide discretionary asset management services to ERISA-covered plans or IRAs, nor will it otherwise act as a fiduciary with respect to ERISA-covered plan and IRA assets;
(h)(1) Within four months of the date of the Conviction, each Northern QPAM must develop, implement, maintain, and follow written policies (the Policies) requiring and reasonably designed to ensure that:
(i) The asset management decisions of the Northern QPAM are conducted independently of the management and business activities of NTFS;
(ii) The Northern QPAM fully complies with ERISA's fiduciary duties and with ERISA and the Code's prohibited transaction provisions, and does not knowingly participate in any violations of these duties and provisions with respect to ERISA-covered plans and IRAs;
(iii) The Northern QPAM does not knowingly participate in any other person's violation of ERISA or the Code with respect to ERISA-covered plans and IRAs;
(iv) Any filings or statements made by the Northern QPAM to regulators, including but not limited to, the Department of Labor, the Department of the Treasury, the Department of Justice, and the Pension Benefit Guaranty Corporation, on behalf of ERISA-covered plans or IRAs are materially accurate and complete, to the best of such QPAM's knowledge at that time;
(v) The Northern QPAM does not make material misrepresentations or omit material information in its communications with such regulators with respect to ERISA-covered plans or IRAs, or make material misrepresentations or omit material information in its communications with ERISA-covered plan and IRA clients;
(vi) The Northern QPAM complies with the terms of this temporary exemption; and
(vii) Any violation of, or failure to comply with, an item in subparagraph (ii) through (vi), is corrected promptly upon discovery, and any such violation or compliance failure not promptly corrected is reported, upon discovering the failure to promptly correct, in writing, to appropriate corporate officers, the head of compliance and the General Counsel (or their functional equivalent) of the relevant Northern QPAM, and an appropriate fiduciary of any affected ERISA-covered plan or IRA where such fiduciary is independent of Northern; however, with respect to any ERISA-covered plan or IRA sponsored by an “affiliate” (as defined in Section VI(d) of PTE 84-14) of Northern or beneficially owned by an employee of Northern or its affiliates, such fiduciary does not need to be independent of Northern. A Northern QPAM will not be treated as having failed to develop, implement, maintain, or follow the Policies, provided that it corrects any instance of noncompliance promptly when discovered or when it reasonably should have known of the noncompliance (whichever is earlier), and provided that it adheres to the reporting requirements set forth in this subparagraph (vii);
(2) Within four months of the date of the Conviction, Northern QPAM must develop and implement a program of training (the Training), conducted at least annually, for all relevant Northern QPAM asset/portfolio management, trading, legal, compliance, and internal audit personnel. The Training must be set forth in the Policies and at a minimum, cover the Policies, ERISA and Code compliance (including applicable fiduciary duties and the prohibited transaction provisions), ethical conduct, the consequences for not complying with the conditions of this temporary exemption (including any loss of exemptive relief provided herein), and prompt reporting of wrongdoing;
(i) Effective as of the effective date of this temporary exemption, with respect to any arrangement, agreement, or contract between a Northern QPAM and an ERISA-covered plan or IRA for which a Northern QPAM provides asset management or other discretionary fiduciary services, each Northern QPAM agrees:
(1) To comply with ERISA and the Code, as applicable with respect to such ERISA-covered plan or IRA; to refrain from engaging in prohibited transactions that are not otherwise exempt (and to promptly correct any inadvertent prohibited transactions); and to comply with the standards of prudence and loyalty set forth in section 404 of ERISA with respect to each such ERISA-covered plan and IRA;
(2) Not to require (or otherwise cause) the ERISA-covered plan or IRA to waive, limit, or qualify the liability of the Northern QPAM for violating ERISA or the Code or engaging in prohibited transactions;
(3) Not to require the ERISA-covered plan or IRA (or sponsor of such ERISA-covered plan or beneficial owner of
(4) Not to restrict the ability of such ERISA-covered plan or IRA to terminate or withdraw from its arrangement with the Northern QPAM (including any investment in a separately managed account or pooled fund subject to ERISA and managed by such QPAM), with the exception of reasonable restrictions, appropriately disclosed in advance, that are specifically designed to ensure equitable treatment of all investors in a pooled fund in the event such withdrawal or termination may have adverse consequences for all other investors as a result of an actual lack of liquidity of the underlying assets, provided that such restrictions are applied consistently and in like manner to all such investors;
(5) Not to impose any fees, penalties, or charges for such termination or withdrawal with the exception of reasonable fees, appropriately disclosed in advance, that are specifically designed to prevent generally recognized abusive investment practices or specifically designed to ensure equitable treatment of all investors in a pooled fund in the event such withdrawal or termination may have adverse consequences for all other investors, provided that such fees are applied consistently and in like manner to all such investors;
(6) Not to include exculpatory provisions disclaiming or otherwise limiting liability of the Northern QPAM for a violation of such agreement's terms, except for liability caused by an error, misrepresentation, or misconduct of a plan fiduciary or other party hired by the plan fiduciary who is independent of Northern Trust; and
(7) To indemnify and hold harmless the ERISA-covered plan or IRA for any damages resulting from a violation of applicable laws, a breach of contract, or any claim arising out of the failure of such Northern QPAM to qualify for the exemptive relief provided by PTE 84-14 as a result of a violation of Section I(g) of PTE 84-14 other than the Conviction.
Within six (6) months of the date of the Conviction, each Northern QPAM will: Provide a notice of its obligations under this Section I(i) to each ERISA-covered plan and IRA for which a Northern QPAM provides asset management or other discretionary fiduciary services;
(j) The Northern QPAMs comply with each condition of PTE 84-14, as amended, with the sole exceptions of the violations of Section I(g) of PTE 84-14 that are attributable to the Conviction;
(k) Each Northern QPAM will maintain records necessary to demonstrate that the conditions of this temporary exemption have been met, for six (6) years following the date of any transaction for which such Northern QPAM relies upon the relief in the temporary exemption;
(l) During the effective period of this temporary exemption, Northern Trust: (1) Immediately discloses to the Department any Deferred Prosecution Agreement (a DPA) or Non-Prosecution Agreement (an NPA) that Northern Trust enters into with the U.S Department of Justice, to the extent such DPA or NPA involves conduct described in Section I(g) of PTE 84-14 or section 411 of ERISA; and (2) immediately provides the Department any information requested by the Department, as permitted by law, regarding the agreement and/or the conduct and allegations that led to the agreements; and
(m) A Northern QPAM will not fail to meet the terms of this temporary exemption, solely because a different Northern QPAM fails to satisfy a condition for relief under this temporary exemption, described in Sections I(c), (d), (h), (i), (j), and (k).
(a) The term “Conviction” means the potential judgment of conviction against NTFS for aiding and abetting tax fraud to be entered in France in the District Court of Paris, French Special Prosecutor No. 1120392066, French Investigative Judge No. JIRSIF/11/12;
(b) The term “Northern QPAM” means a “qualified professional asset manager” (as defined in section VI(a)
(c) The term “NTFS” means Northern Trust Fiduciary Services (Guernsey) ltd., an affiliate” of Northern (as defined in section VI(c) of PTE 84-14) located in Guernsey;
(d) The terms “ERISA-covered plan” and “IRA” mean, respectively, a plan subject to Part 4 of Title I of ERISA and a plan subject to section 4975 of the Code; and
(e) The term “Northern” means Northern Trust Corporation, together with its current and future affiliates.
On October 12, 2016, the Department of Labor (the Department) published a notice of proposed temporary exemption in the
The Department is today granting this temporary exemption in order to protect ERISA-covered plans and IRAs from certain costs and/or investment losses that may arise to the extent entities with a corporate relationship to NTFS lose their ability to rely on PTE 84-14 as of the Conviction Date, as described in the proposed temporary exemption. The Department is considering proposing longer-term relief for Northern QPAMs to rely on PTE 84-14 notwithstanding the Conviction, in Application No. D-11911. The relief in this temporary exemption provides the Department more time to consider whether longer-term relief is warranted.
No relief from a violation of any other law is provided by this temporary exemption, including any criminal conviction described in the proposed temporary exemption. Furthermore, the
The Department invited all interested persons to submit written comments and/or requests for a public hearing with respect to the notice of proposed temporary exemption, published on October 12, 2016. All comments and requests for hearing were due by October 18, 2016. The Department received two written comments, one from Northern Trust, the other from Clearing House Association L.L.C. (TCH), both of which are described below.
Although the Department has revised, in part, the proposed exemption in the manner requested by Northern Trust, the Department cautions that it may decline to include such revisions in any decision to grant more permanent relief.
Northern Trust notes that Section I(h) of the proposed exemption requires that each Northern QPAM “immediately:” Develop, implement, maintain and follow certain written policies; and develop and implement a program of training. Northern Trust seeks a period of up to four months following the date of its impending conviction to meet these requirements. The Department agrees that four months is a reasonable period of time with which to comply with the requirement of Section I(h) and has revised the condition accordingly.
Northern Trust seeks another change to Section I(h)(1)(i), through the deletion of the bracketed language, “The asset management decisions of the Northern QPAM are conducted independently of the management and business activities of [Northern, including] NTFS [and Northern's non-asset management affiliates.]” Northern Trust represents that it has neither committed, nor been accused of committing, a crime. The Department has revised the condition accordingly.
Northern Trust seeks deletion of the requirement in Section I(i) that requires each Northern QPAM to separately warrant in writing its obligations to ERISA-Covered Plans and IRAs. While the Department has made such revision for purposes of the limited relief herein, the Department re-emphasizes, as noted above, that it may decide to propose more permanent relief that does not contain this revision.
Northern Trust seeks deletion of the requirement set forth in Section I(i)(6) that, each Northern QPAM agrees: “Not to include exculpatory provisions disclaiming or otherwise limiting liability of the Northern QPAM for a violation of such agreement's terms.” The Department declines to make such deletion, but has revised the condition to read: “Not to include exculpatory provisions disclaiming or otherwise limiting liability of the Northern QPAM for a violation of such agreement's terms, except for liability caused by an error, misrepresentation, or misconduct of a plan fiduciary or other party hired by the plan fiduciary who is independent of Northern Trust.”
Condition (l) of the proposed exemption provided that neither Northern Trust nor any affiliate could enter into a Deferred Prosecution Agreement (a DPA) or a Non-Prosecution Agreement (an NPA) with the U.S. Department of Justice, in connection with conduct described in Section I(g) of PTE 84-14 or section 411 of ERISA. Northern Trust sought to reserve its right to comment on this condition in connection with the Department's consideration of more permanent relief. The Department has nonetheless determined to revise condition (l), to require that, during the effective period of this temporary exemption, Northern Trust: (1) Immediately discloses to the Department any Deferred Prosecution Agreement (a DPA) or Non-Prosecution Agreement (an NPA) that Northern Trust enters into with the U.S. Department of Justice, to the extent such DPA or NPA involves conduct described in Section I(g) of PTE 84-14 or section 411 of ERISA; and (2) immediately provides the Department any information requested by the Department, as permitted by law, regarding the agreement and/or the conduct and allegations that led to the agreements.
The Clearing House Association L.L.C. (TCH) submitted a comment that expresses concern regarding condition (l) in Section I of the proposed temporary exemption. Although the Department has revised condition (l) in the manner described above, the Department will continue to consider TCH's comment in connection with its consideration of more permanent relief for Northern Trust.
After giving full consideration to the record, the Department has decided to grant the temporary exemption, as described above. The complete application file (Application No. D-11875) is available for public inspection in the Public Disclosure Room of the Employee Benefits Security Administration, Room N-1515, U.S. Department of Labor, 200 Constitution Avenue NW., Washington, DC 20210.
For a more complete statement of the facts and representations supporting the Department's decision to grant this temporary exemption, refer to the notice of proposed temporary exemption published on October 12, 2016 at 81 FR 70569.
Ms. Anna Mpras Vaughan of the Department, telephone (202) 693-8565. (This is not a toll-free number.)
Certain asset managers with specified relationships to Deutsche Bank (hereinafter, the DB QPAMs, as further defined in Section II(b)) shall not be precluded from relying on the exemptive relief provided by Prohibited Transaction Exemption (PTE) 84-14,
(a) The DB QPAMs (including their officers, directors, agents other than Deutsche Bank, and employees of such DB QPAMs) did not know of, have reason to know of, or participate in the criminal conduct of DSK that is the subject of the Korean Conviction;
(b) Any failure of the DB QPAMs to satisfy Section I(g) of PTE 84-14 arose solely from the Korean Conviction;
(c) The DB QPAMs (including their officers, directors, agents other than Deutsche Bank, and employees of such DB QPAMs) did not receive direct compensation, or knowingly receive indirect compensation, in connection with the criminal conduct that is the subject of the Conviction;
(d) A DB QPAM will not use its authority or influence to direct an “investment fund” (as defined in Section VI(b) of PTE 84-14) that is subject to ERISA and managed by such DB QPAM to enter into any transaction with DSK or engage DSK to provide additional services to such investment fund, for a direct or indirect fee borne by such investment fund regardless of whether such transactions or services may otherwise be within the scope of relief provided by an administrative or statutory exemption;
(e)(1) Each DB QPAM maintains and follows written policies (the Policies) requiring and reasonably designed to ensure that: (i) The asset management decisions of the DB QPAM are conducted independently of Deutsche Bank's management and business activities; (ii) the DB QPAM fully complies with ERISA's fiduciary duties and ERISA and the Code's prohibited transaction provisions and does not knowingly participate in any violations of these duties and provisions with respect to ERISA-covered plans and IRAs; (iii) the DB QPAM does not knowingly participate in any other person's violation of ERISA or the Code with respect to ERISA-covered plans and IRAs; (iv) any filings or statements made by the DB QPAM to regulators, including but not limited to, the Department of Labor, the Department of the Treasury, the Department of Justice, and the Pension Benefit Guaranty Corporation, on behalf of ERISA-covered plans or IRAs are materially accurate and complete, to the best of such DB QPAM's knowledge at that time; (v) the DB QPAM does not make material misrepresentations or omit material information in its communications with such regulators with respect to ERISA-covered plans or IRAs, or make material misrepresentations or omit material information in its communications with ERISA-covered plan and IRA clients; (vi) the DB QPAM complies with the terms of this Extension; and (vii) any violations of or failure to comply with items (ii) through (vi) are corrected promptly upon discovery and any such violations or compliance failures not promptly corrected are reported, upon discovering the failure to promptly correct, in writing to appropriate corporate officers, the head of Compliance and the General Counsel of the relevant DB QPAM (or their functional equivalent), the independent auditor responsible for reviewing compliance with the Policies, and an appropriate fiduciary of any affected ERISA-covered plan or IRA that is independent of Deutsche Bank; however, with respect to any ERISA-covered plan or IRA sponsored by an “affiliate” (as defined in Section VI(d) of PTE 84-14) of Deutsche Bank or beneficially owned by an employee of Deutsche Bank or its affiliates, such fiduciary does not need to be independent of Deutsche Bank. DB QPAMs will not be treated as having failed to develop, implement, maintain, or follow the Policies, provided that they correct any instances of noncompliance promptly when discovered or when they reasonably should have known of the noncompliance (whichever is earlier), and provided that they adhere to the reporting requirements set forth in this item (vii);
(2) Each DB QPAM maintains and follows a program of training (the Training), conducted during the effective period of this Extension, for relevant DB QPAM asset management, legal, compliance, and internal audit personnel (other than personnel who received training in a manner that meets the requirements of PTE 2015-15 within the prior 12 months); the Training must be set forth in the Policies and, at a minimum, cover the Policies, ERISA and Code compliance (including applicable fiduciary duties and the prohibited transaction provisions) and ethical conduct, the consequences for not complying with the conditions of this Extension, (including the loss of the exemptive relief provided therein), and prompt reporting of wrongdoing;
(f)(1) Each DB QPAM submits to an audit conducted by an independent auditor, who has been prudently selected and who has appropriate technical training and proficiency with ERISA and the Code to evaluate the adequacy of, and compliance with, the Policies and Training described herein; the audit requirement must be incorporated in the Policies. The audit must cover the period of time during which this Extension is effective, and must be completed no later than six (6) months after the period to which the audit applies;
(2) To the extent necessary for the auditor, in its sole opinion, to complete its audit and comply with the conditions for relief described herein, and as permitted by law, each DB QPAM and, if applicable, Deutsche Bank, will grant the auditor unconditional access to its business, including, but not limited to: its computer systems, business records, transactional data, workplace locations, training materials, and personnel;
(3) The auditor's engagement must specifically require the auditor to determine whether each DB QPAM has developed, implemented, maintained, and followed Policies in accordance with the conditions of this Extension and developed and implemented the Training, as required herein;
(4) The auditor's engagement shall specifically require the auditor to test each DB QPAM's operational compliance with the Policies and Training. In this regard, the auditor must test a sample of the QPAM's transactions involving ERISA-covered plans and IRAs sufficient in size and nature to afford the auditor a reasonable basis to determine the operational compliance with the Policies and Training;
(5) On or before the end of the period described in Section I(f)(1) for completing the audit, the auditor must issue a written report (the Audit Report) to Deutsche Bank and the DB QPAM to which the audit applies that describes the procedures performed by the auditor during the course of its examination. The Audit Report must include the auditor's specific determinations regarding the adequacy of, and compliance with, the Policies and Training; the auditor's recommendations (if any) with respect to strengthening such Policies and Training; and any instances of the respective DB QPAM's noncompliance with the written Policies and Training described in paragraph (e) above. Any determinations made by the auditor regarding the adequacy of the Policies and Training and the auditor's recommendations (if any) with respect to strengthening the Policies and Training of the respective DB QPAM must be promptly addressed by such DB QPAM, and any actions taken by such DB QPAM to address such recommendations must be included in an addendum to the Audit Report. Any determinations by the auditor that the
(6) The auditor shall notify the respective DB QPAM of any instances of noncompliance identified by the auditor within five (5) business days after such noncompliance is identified by the auditor, regardless of whether the audit has been completed as of that date;
(7) With respect to each Audit Report, the General Counsel or one of the three most senior executive officers of the DB QPAM to which the Audit Report applies certifies in writing, under penalty of perjury, that the officer has reviewed the Audit Report and this Extension; addressed, corrected, or remedied any inadequacies identified in the Audit Report; and determined that the Policies and Training in effect at the time of signing are adequate to ensure compliance with the conditions of this Extension and with the applicable provisions of ERISA and the Code;
(8) An executive officer of Deutsche Bank reviews the Audit Report for each DB QPAM and certifies in writing, under penalty of perjury, that such officer has reviewed each Audit Report;
(9) Each DB QPAM provides its certified Audit Report to the Department's Office of Exemption Determinations (OED), 200 Constitution Avenue NW., Suite 400, Washington DC 20210, no later than 45 days following its completion, and each DB QPAM makes its Audit Report unconditionally available for examination by any duly authorized employee or representative of the Department, other relevant regulators, and any fiduciary of an ERISA-covered plan or IRA, the assets of which are managed by such DB QPAM;
(10) Each DB QPAM and the auditor will submit to OED (A) any engagement agreement(s) entered into pursuant to the engagement of the auditor under this Extension, and (B) any engagement agreement entered into with any other entities retained in connection with such QPAM's compliance with the Training or Policies conditions of this Extension, no later than three (3) months after the effective date of the Extension (and one month after the execution of any agreement thereafter);
(11) The auditor shall provide OED, upon request, all of the workpapers created and utilized in the course of the audit, including, but not limited to: the audit plan, audit testing, identification of any instances of noncompliance by the relevant DB QPAM, and an explanation of any corrective or remedial actions taken by the applicable DB QPAM; and
(12) Deutsche Bank must notify the Department at least 30 days prior to any substitution of an auditor, except that no such replacement will meet the requirements of this paragraph unless and until Deutsche Bank demonstrates to the Department's satisfaction that such new auditor is independent of Deutsche Bank, experienced in the matters that are the subject of the Extension, and capable of making the determinations required of this Extension.
Notwithstanding the above, this audit requirement will be deemed met to the extent the Department issues more permanent relief that expressly supersedes this paragraph (f), and the terms of such new audit requirement have been met;
(g) With respect to each ERISA-covered plan or IRA for which a DB QPAM provides asset management or other discretionary fiduciary services, each DB QPAM agrees: (1) To comply with ERISA and the Code, as applicable with respect to such ERISA-covered plan or IRA, and refrain from engaging in prohibited transactions that are not otherwise exempt; (2) not to waive, limit, or qualify the liability of the DB QPAM for violating ERISA or the Code or engaging in prohibited transactions; (3) not to require the ERISA-covered plan or IRA (or sponsor of such ERISA-covered plan or beneficial owner of such IRA) to indemnify the DB QPAM for violating ERISA or engaging in prohibited transactions, except for violations or prohibited transactions caused by an error, misrepresentation, or misconduct of a plan fiduciary or other party hired by the plan fiduciary who is independent of Deutsche Bank; (4) not to restrict the ability of such ERISA-covered plan or IRA to terminate or withdraw from its arrangement with the DB QPAM, with the exception of reasonable restrictions, appropriately disclosed in advance, that are specifically designed to ensure equitable treatment of all investors in a pooled fund in the event such withdrawal or termination may have adverse consequences for all other investors, provided that such restrictions are applied consistently and in like manner to all such investors; and (5) not to impose any fees, penalties, or charges for such termination or withdrawal with the exception of reasonable fees, appropriately disclosed in advance, that are specifically designed to prevent generally recognized abusive investment practices or specifically designed to ensure equitable treatment of all investors in a pooled fund in the event such withdrawal or termination may have adverse consequences for all other investors, provided that such fees are applied consistently and in like manner to all such investors. Within two (2) months of the date of publication of this notice of Extension in the
(h) Each DB QPAM will maintain records necessary to demonstrate that the conditions of this Extension have been met, for six (6) years following the date of any transaction for which such DB QPAM relies upon the relief in the Extension;
(i) The DB QPAMs comply with each condition of PTE 84-14, as amended, with the sole exception of the violation of Section I(g) that is attributable to the Korean Conviction;
(j) The DB QPAMs will not employ any of the individuals that engaged in the spot/futures-linked market manipulation activities that led to the Korean Conviction;
(k) Deutsche Bank disgorged all of its profits generated by the spot/futures-linked market manipulation activities of DSK personnel that led to the Korean Conviction;
(l) Deutsche Bank imposes internal procedures, controls, and protocols on DSK designed to reduce the likelihood of any recurrence of the conduct that is the subject of the Korean Conviction, to the extent permitted by local law;
(m) DSK will not provide fiduciary or QPAM services to ERISA-covered Plans or IRAs, and will not otherwise exercise discretionary control over plan assets;
(n) No DB QPAM is a subsidiary of DSK, and DSK is not a subsidiary of any DB QPAM;
(o) The criminal conduct of DSK that is the subject of the Korean Conviction did not directly or indirectly involve the assets of any plan subject to Part 4 of Title I of ERISA or section 4975 of the Code; and
(p) A DB QPAM will not fail to meet the terms of this Extension solely because a different DB QPAM fails to satisfy the conditions for relief under
(a) The term “Korean Conviction” means the judgment of conviction against DSK entered on January 25, 2016, in Seoul Central District Court, relating to charges filed against DSK under Articles 176, 443, and 448 of South Korea's Financial Investment Services and Capital Markets Act for spot/futures-linked market price manipulation;
(b) The term “DB QPAM” means a “qualified professional asset manager” (as defined in section VI(a)
(c) The term “DSK” means Deutsche Securities Korea Co., a South Korean “affiliate” of Deutsche Bank (as the term “affiliate” is defined in section VI(c) of PTE 84-14).
On October 12, 2016, the Department of Labor (the Department) published a notice of proposed extension in the
The Department is today granting this Extension in order to protect ERISA-covered plans and IRAs from certain costs and/or investment losses that may arise to the extent entities with a corporate relationship to DSK lose their ability to rely on PTE 84-14 as of the expiration of PTE 2015-15. The relief in this Extension provides the Department more time to consider whether more permanent relief is warranted.
No relief from a violation of any other law is provided by this Extension, including any criminal conviction described in the proposed extension or in PTE 2015-15. Furthermore, the Department cautions that the relief in this Extension will terminate immediately if, among other things, an entity within the Deutsche Bank corporate family is convicted of a crime described in Section I(g) of PTE 84-14 during the effective period of the Extension. While such an entity could apply for a new exemption in that circumstance, the Department would not be obligated to grant that exemption. The terms of this Extension have been specifically designed to permit plans to terminate their relationships in an orderly and cost effective fashion in the event of an additional conviction or a determination that it is otherwise prudent for a plan to terminate its relationship with an entity covered by the Extension.
The Department invited all interested persons to submit written comments and/or requests for a public hearing with respect to the notice of proposed extension, published on October 12, 2016, at 81 FR 70577. All comments and requests for hearing were due by October 19, 2016. Because of the abbreviated comment period, the Department will consider comments received within a reasonable period of time after October 19, 2016 in connection with its consideration of long-term exemptive relief for the DB QPAMs in connection with Exemption Application No. D-11908, described above. During the comment period, the Department received two written comments, one from the independent auditor and one from Deutsche Bank AG, both of which are described below. Although the Department has, for the most part, revised the proposed exemption in the manner requested by Deutsche Bank AG, the Department cautions that it may decline to include those revisions in any decision to grant more permanent relief.
Section I(f)(1) of the proposed extension requires that the audit, along with the report, must be completed no later than three months after the period to which the audit relates. In its comment, the auditor requested that the audit requirement described in Section I(f)(1) of the proposed extension be modified to require that the audit report must be completed no later than six months after the period to which the audit relates. The auditor explains that, during the course of its audit, it needs to review an extensive amount of materials, relevant systems and training, and digest the information provided in response to various requests for information. Furthermore, the auditor states that it will take a significant amount of time to develop and review follow-up questions based upon its initial analysis of the materials and systems; and the report that the auditor provides to the Department needs to be robust, comprehensive and detailed.
The Department views a rigorous, transparent, and comprehensive audit as essential to ensuring that the conditions for exemptive relief described herein are followed by the DB QPAMs. As such, the Department has extended the deadline by which point the audit must be completed from three months following the period to which the audit applies to six months.
Deutsche Bank seeks several changes and/or clarifications to the proposed extension. First, Deutsche Bank requests that the Department revise the proposed exemption in a manner that would potentially extend the duration of this Extension. The Department declines to extend this duration of the Extension in the manner requested by Deutsche Bank, but notes that it is currently considering proposing more permanent relief pursuant to Application Numbers D-11879 and D-11908.
Regarding the audit, Deutsche Bank seeks to extend the certification period set forth in Section I(f)(9) from 30 days to 45 days. The Department has revised the condition accordingly. Deutsche Bank also requests that the timing of the audit be adjusted in the same manner sought by the auditor. This adjustment is discussed above.
Deutsche requests certain changes to the training requirement described in Section I(e)(2) of the proposed extension. Deutsche Bank seeks to coordinate that condition with the training requirement set forth in PTE 2015-15, such that duplicative training is not required over a short period of time. The Department has revised Section I(e)(2) to exclude training for personnel who received training in a manner that meets the requirements of PTE 2015-15 within the prior 12 months.
Deutsche Bank also seeks changes to the notice requirement described in Section I(g) of the proposed exemption. Deutsche Bank seeks to add the following bracketed language, such that Section I(g) reads: “Within two (2) months of the date of publication of this notice of Extension in the
Deutsche Bank requests an adjustment to certain restrictions the proposed exemption places on DSK. In this regard, Deutsche Bank seeks to add the following bracketed language, and to delete the following italicized language, such that Section I(m) reads: “DSK has not, and will not, provide [discretionary asset management services or other discretionary] fiduciary
Deutsche Bank also seeks clarification that for purposes of the Extension, the auditor, and not the QPAMs, must provide the relevant workpapers to the Department. The Department agrees with that interpretation of the condition.
In its letter to the Department, Deutsche Bank states that footnotes 38 and 42, which reference tax-related crimes, are unrelated to Deutsche Bank's application and should be deleted. Deutsche Bank also requests that the Department note for the record that “Deutsche Bank identified Mr. Ripley both as an employee of DBSI and a subject of the Korean case on numerous prior occasions, including as far back as 2011, as well as more recently.”
After giving full consideration to the entire record, the Department has decided to grant the Extension. The complete application file for the Extension (Exemption Application No. D-11879), including all supplemental submissions received by the Department, as well as the application file for PTE 2015-15 (Exemption Application No. D-11696), are available for public inspection in the Public Disclosure Room of the Employee Benefits Security Administration, Room N-1515, U.S. Department of Labor, 200 Constitution Avenue NW., Washington, DC 20210.
For a more complete statement of the facts and representations supporting the Department's decision to grant this Extension, refer to the notice of proposed extension, published on October 12, 2016, at 81 FR 70577.
Mr. Scott Ness of the Department, telephone (202) 693-8561. (This is not a toll-free number.)
The attention of interested persons is directed to the following:
(1) The fact that a transaction is the subject of an exemption under section 408(a) of the Act and/or section 4975(c)(2) of the Code does not relieve a fiduciary or other party in interest or disqualified person from certain other provisions to which the exemption does not apply and the general fiduciary responsibility provisions of section 404 of the Act, which among other things require a fiduciary to discharge his duties respecting the plan solely in the interest of the participants and beneficiaries of the plan and in a prudent fashion in accordance with section 404(a)(1)(B) of the Act; nor does it affect the requirement of section 401(a) of the Code that the plan must operate for the exclusive benefit of the employees of the employer maintaining the plan and their beneficiaries;
(2) These exemptions are supplemental to and not in derogation of, any other provisions of the Act and/or the Code, including statutory or administrative exemptions and transactional rules. Furthermore, the fact that a transaction is subject to an administrative or statutory exemption is not dispositive of whether the transaction is in fact a prohibited transaction; and
(3) The availability of these exemptions is subject to the express condition that the material facts and representations contained in the application accurately describes all material terms of the transaction which is the subject of the exemption.
Employee Benefits Security Administration, Department of Labor
Notice
The Department of Labor (the Department), in accordance with the Paperwork Reduction Act of 1995 (PRA 95) (44 U.S.C. 3506(c)(2)(A)), provides the general public and Federal agencies with an opportunity to comment on proposed 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. The Employee Benefits Security Administration (EBSA) is soliciting comments on the proposed extension of the information collection requests (ICRs) contained in the documents described below. A copy of the ICRs may be obtained by contacting the office listed in the
Written comments must be submitted to the office shown in the Addresses section on or before December 27, 2016.
G. Christopher Cosby, Department of Labor, Employee Benefits Security Administration, 200 Constitution Avenue NW., RoomN-5718, Washington, DC 20210,
This notice requests public comment on the Department's request for extension of the Office of Management and Budget's (OMB) approval of ICRs contained in the rules and prohibited transaction exemptions described below. The Department is not proposing any changes to the existing ICRs at this time. An agency may not conduct or sponsor, and a person is not required to respond to, an information collection unless it displays a valid OMB control number. A summary of the ICRs and the current burden estimates follows:
Among other conditions, PTE 1992-6 requires that pension plans inform the insured participant of a proposed sale of a life insurance or annuity policy to the employer, a relative, another plan, an owner-employee, or a shareholder employee. This recordkeeping requirement constitutes an information collection within the meaning of the PRA, which was approved by OMB under OMB Control Number 1210-0063 and is currently scheduled to expire on February 28, 2017.
The Pension Protection Act (PPA), Public Law 109-280, amended ERISA section 404(c) by adding subparagraph (c)(5)(A). The new subparagraph says that a participant in an individual account plan who fails to make investment elections regarding his or her account assets will nevertheless be treated as having exercised control over those assets so long as the plan provides appropriate notice (as specified) and invests the assets “in accordance with regulations prescribed by the Secretary [of Labor].” Section 404(c)(5)(A) further requires the Department of Labor (Department) to issue corresponding final regulations within six months after enactment of the PPA. The PPA was signed into law on August 17, 2006.
The Department of Labor issued a final regulation under ERISA section 404(c)(5)(A) offering guidance on the types of investment vehicles that plans may choose as their “qualified default investment alternative”(QDIA). The regulation also outlines two information collections. First, it implements the statutory requirement that plans provide annual notices to participants and beneficiaries whose account assets could be invested in a QDIA. Second, the regulation requires plans to pass certain pertinent materials they receive relating to a QDIA to those participants and beneficiaries with assets invested in the QDIA as well to provide certain information on request. The ICRs are approved under OMB Control Number 1210-0132, which is scheduled to expire on February 28, 2017.
The Department is particularly interested in comments that:
• Evaluate whether the collections of information are 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 collections 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,
Comments submitted in response to this notice will be summarized and/or included in the ICRs for OMB approval of the extension of the information collection; they will also become a matter of public record.
Employment and Training Administration, Labor.
Notice of meeting.
Pursuant to Section 308 of the Workforce Innovation and Opportunity Act of 2014 (WIOA) (Pub. L. 113-128), which amends section 15 of the Wagner-Peyser Act of 1933 (29 U.S.C. 491-2), notice is hereby given that the WIAC meet on November 16 and 17, 2016. The meeting will take place at the Bureau of Labor Statistics (BLS) Janet Norwood Training and Conference Center in Washington, DC. The WIAC was established in accordance with provisions of the Federal Advisory Committee Act (FACA), as amended (5 U.S.C. App.) and will act in accordance with the applicable provisions of FACA and its implementing regulation at 41 CFR 102-3. The meeting will be open to the public.
The meeting will take place on Wednesday, November 16 and Thursday, November 17, 2016 from 9:00 a.m. to 4:30 p.m. Public statements and requests for special accommodations or to address the Advisory Council must be received by November 9, 2016.
The meeting will be held at the BLS Janet Norwood Training and Conference Center, Rooms 9 and 10, in the Postal Square Building at 2 Massachusetts Ave. NE., Washington, DC 20212.
Steven Rietzke, Chief, Division of National Programs, Tools, and Technical Assistance, Employment and Training Administration, U.S. Department of Labor, Room C-4510, 200 Constitution Ave. NW., Washington, DC 20210; Telephone: 202-693-3912. Mr. Rietzke is the Designated Federal Officer for the WIAC.
The Department of Labor anticipates the WIAC will accomplish its objectives by: (1) Studying workforce and labor market information issues; (2) seeking and sharing information on innovative approaches, new technologies, and data to inform employment, skills training, and workforce and economic development decision making and policy; and (3) advising the Secretary on how the workforce and labor market information system can best support workforce development, planning, and program development. Additional information is available at
The meeting will resume at 9:00 a.m. on November 17, 2016. The second day will continue the previous day's discussions, with the goal of outlining the next steps for drafting recommendations for making improvements to the WLMI systems. The Advisory Council will open the floor for public comment at 1:00 p.m. on November 17, 2016. However, the precise schedule of events is subject to change and an up-to-date agenda will be available on WIAC's Web page (see URL below) prior to the meeting. The second day will conclude with a discussion of next steps, including action items and planning for the next meeting of the Advisory Council.
The meeting will adjourn at 4:30 p.m.
The full agenda for the meeting, and changes or updates to the agenda, will be posted on the WIAC's Web page,
Notice.
The Department of Labor, as part of its continuing effort to reduce paperwork and respondent burden, conducts a preclearance consultation program to provide the general public and Federal agencies with an opportunity to comment on proposed and/or continuing collections of information in accordance with the paperwork Reduction Act of 1995 (PRA95) [44 U.S.C. 3506 (c)(2)(A)]. This program helps to ensure that requested data can be provided in the desired format, reporting burden (time and financial resources) is minimized, collection instruments are clearly understood, and the impact of collection requirements on respondents can be properly assessed. Currently, the Office of Workers' Compensation Programs (OWCP) is soliciting comments concerning the proposed collection: Regulations Governing the Administration of the Longshore and Harbor Workers' Compensation Act (LS-200, LS-201, LS-203, LS-204, LS-262, LS-267, LS-271, LS-274, and LS-513). A copy of the proposed information collection request can be obtained by contacting the office listed below in the address section of this Notice.
Written comments must be submitted to the office listed in the addresses section below on or before December 27, 2016.
Ms. Yoon Ferguson, U.S. Department of Labor, 200 Constitution Ave. NW., Room S-3323, Washington, DC 20210, telephone/fax (202)354-9647, Email
The Office of Workers' Compensation Programs (OWCP) administers the Longshore and Harbor Workers' Compensation Act (LHWCA). LHWCA provides benefits to workers injured in maritime employment on the navigable waters of the United States or in an adjoining area customarily used by an employer in loading, unloading, repairing, or building a vessel. In addition, several Acts extend the Longshore Act's coverage to certain other employees. The following regulations have been developed to implement the Act's provisions and to provide clarification in those areas where it was deemed necessary (20 CFR 702.162, 702.174, 702.175, 20 CFR 702.242, 20 CFR 702.285, 702.321, 702.201, and 702.111). In some cases, prior regulations have been updated and changed either to reflect the intent of the amended Act or to correct recognized deficiencies. This information collection is currently approved for use through January 31, 2017.
The Department of Labor is particularly interested in comments which:
* 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,
The Department of Labor seeks the approval for the revision of this currently approved information collection.
Comments submitted in response to this notice will be summarized and/or included in the request for Office of Management and Budget approval of the information collection request; they will also become a matter of public record.
Office of the Assistant Secretary for Policy, Chief Evaluation Office, Department of Labor.
Notice.
The Department of Labor (DOL), as part of its continuing effort to reduce paperwork and respondent burden, conducts a preclearance consultation program to provide the general public and Federal agencies with an opportunity to comment on proposed and/or continuing collections of information in accordance with the Paperwork Reduction Act of 1995 (PRA95) [44 U.S.C. 3506(c)(2)(A)]. This program helps to ensure that requested data can be provided in the desired format, reporting burden (time and financial resources) is minimized, collection instruments are clearly understood, and the impact of collection
Currently, the Department of Labor is soliciting comments concerning the collection of data about the Family and Medical Leave Act (FMLA) Wave 4 Surveys. A copy of the proposed Information Collection Request (ICR) can be obtained by contacting the office listed below in the addressee section of this notice.
Written comments must be submitted to the office listed in the addressee section below on or before December 27, 2016.
You may submit comments by either one of the following methods:
Christina Yancey by email at
I.
This
*
*
II.
* Evaluate whether the proposed collection of information is necessary for the proper performance functions of the agency, including whether the information will have practical utility;
* evaluate the accuracy of the agency's burden estimate of the proposed information collection, including the validity of the methodology and assumptions;
* 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—for example, permitting electronic submissions of responses.
III.
Comments submitted in response to this request will be summarized and/or included in the request for Office of Management and Budget approval of the information collection request; they will also become a matter of public record.
Notice.
The Department of Labor, as part of its continuing effort to reduce paperwork and respondent burden, conducts a preclearance consultation program to provide the general public and Federal agencies with an opportunity to comment on proposed and/or continuing collections of information in accordance with the Paperwork Reduction Act of 1995 (PRA95) [44 U.S.C. 3506(c)(2)(A)]. This program helps to ensure that requested data can be provided in the desired format, reporting burden (time and financial resources) is minimized, collection instruments are clearly understood, and the impact of collection requirements on respondents can be properly assessed. Currently, the Office of Workers' Compensation Programs is soliciting comments concerning the proposed collection: Energy Employees Occupational Illness Compensation Program Act Forms (Forms EE-1, EE-2, EE-3, EE-4, EE-7, EE-8, EE-9, EE-10, EE-11A, EE-11B, EE-12, EE-13, EE-16, EE-20). A copy of the proposed information collection request can be obtained by contacting the office listed below in the addresses section of this Notice.
Written comments must be submitted to the office listed in the addresses section below on or before December 27, 2016.
Ms. Yoon Ferguson, U.S. Department of Labor, 200 Constitution Ave. NW., Room S-3323, Washington, DC 20210, telephone/fax (202) 354-9647, Email
The Office of Workers' Compensation Programs (OWCP) is the primary agency responsible for the administration of the Energy Employees Occupational Illness Compensation Program Act of 2000, as amended (EEOICPA or Act), 42 U.S.C. 7384
The Department of Labor is particularly interested in comments which:
* 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,
The Department of Labor seeks approval for the revision of this information collection in order to carry out its responsibility to determine a claimant's eligibility for compensation under the EEOICPA.
Comments submitted in response to this notice will be summarized and/or included in the request for Office of Management and Budget approval of the information collection request; they will also become a matter of public record.
The Legal Services Corporation's Institutional Advancement Committee will meet telephonically on November 2, 2016. The meeting will commence at 3:00 p.m., EDT, and will continue until the conclusion of the Committee's agenda.
John N. Erlenborn Conference Room, Legal Services Corporation Headquarters, 3333 K Street NW., Washington DC 20007.
Members of the public who are unable to attend in person but wish to listen to the public proceedings may do so by following the telephone call-in directions provided below.
• Call toll-free number: 1-866-451-4981;
• When prompted, enter the following numeric pass code: 9328090043
• When connected to the call, please immediately “MUTE” your telephone.
Members of the public are asked to keep their telephones muted to eliminate background noises. To avoid disrupting the meeting, please refrain from placing the call on hold if doing so will trigger recorded music or other sound. From time to time, the Chair may solicit comments from the public.
Open.
Katherine Ward, Executive Assistant to the Vice President & General Counsel, at (202) 295-1500. Questions may be sent by electronic mail to
LSC complies with the Americans with Disabilities Act and Section 504 of the 1973 Rehabilitation Act. Upon request, meeting notices and materials will be made available in alternative formats to accommodate individuals with disabilities. Individuals needing other accommodations due to disability in order to attend the meeting in person or telephonically should contact Katherine Ward, at (202) 295-1500 or
Notice.
This notice announces the membership of the National Endowment for the Arts (NEA) Senior Executive Service (SES) Performance Review Board (PRB).
Send comments concerning this notice to: National Endowment for the Arts, 400 7th Street SW., Washington, DC 20506.
Craig McCord Sr. by telephone at (202) 682-5473 or by email at
Sections 4314(c)(1) through (5) of Title 5, U.S.C., requires each agency to establish, in accordance with regulations prescribed by the Office of Personnel Management, one or more SES Performance Review Boards. The Board shall review and evaluate the initial appraisal of a senior executive's performance by the supervisor, along with any response by the senior executive, and make recommendations to the appointing authority relative to the performance of the senior executive.
The following persons have been selected to serve on the Performance Review Board of the National Endowment for the Arts (NEA):
National Mediation Board.
The Assistant Chief of Staff, Administration invites comments on the proposed information collection requests as required by the Paperwork Reduction Act of 1995.
Interested persons are invited to submit comments within 60 days from the date of this publication.
Section 3506 of the Paperwork Reduction Act of 1995 (U.S.C. Chapter 35) requires that the Office of Management and Budget
Currently, the National Mediation Board is soliciting comments concerning the proposed extension of the Application for Alternative Dispute Resolution (ADR) Services and is interested in public comment addressing the following issues: (1) Is this collection necessary to the proper functions of the agency; (2) will this information be processed and used in a timely manner; (3) is the estimate of burden accurate; (4) how might the agency enhance the quality, utility, and clarity of the information to be collected; and (5) how might the agency minimize the burden of this collection on the respondents, including through the use of information technology.
Requests for copies of the proposed information collection request may be accessed from
Comments regarding burden and/or the collection activity requirements should be directed to Samantha Jones at 202-692-5010 or via Internet address
National Science Foundation.
Notice of Availability and Notice of Public Meetings.
The National Science Foundation (NSF) has made available for public review and comment the Draft Environmental Impact Statement (DEIS) for Arecibo Observatory. This Draft Environmental Impact Statement (DEIS) has been prepared for the National Science Foundation (NSF) to evaluate the potential environmental effects of proposed operational changes due to funding constraints for the Arecibo Observatory in Arecibo, Puerto Rico. The DEIS was prepared in compliance with the National Environmental Policy Act of 1969. Consultation under Section 106 of the National Historic Preservation Act (NHPA) is being conducted concurrent to the NEPA process.
NSF will accept comments on the DEIS for 45 days following publication of this Notice of Availability. Comments may be submitted verbally during public meetings scheduled for November 16-17 (see
You may submit comments by either of the following methods:
•
•
A copy of the DEIS will be available for review at the following libraries in Puerto Rico:
For further information regarding the EIS
The Arecibo Observatory is an NSF-owned scientific research and education facility located in Puerto Rico. In 2011, NSF awarded a Cooperative Agreement to SRI International (SRI), which together with Universities Space Research Association (USRA) and Universidad Metropolitana (UMET) formed the Arecibo Management Team to operate and maintain the Arecibo Observatory for the benefit of research communities. The initial 5-year period of performance of the Cooperative Agreement has recently been extended 18 months, to 31 March 2018. Arecibo Observatory enables research in three scientific disciplines: Space and atmospheric sciences, radio astronomy, and solar system radar studies; the last of these is largely funded through a research award to USRA from the National Aeronautics and Space Administration. An education and public outreach program complements the Arecibo Observatory scientific program. A key component of the Arecibo Observatory research facility is a 305-meter diameter, fixed, spherical reflector. Arecibo Observatory infrastructure includes instrumentation for radio and radar astronomy, ionospheric physics, office and laboratory buildings, a heavily utilized visitor and education facility, and lodging facilities for visiting scientists.
Through a series of academic community-based reviews, NSF has identified the need to divest of several facilities from its portfolio in order to retain the balance of capabilities needed to deliver the best performance on the key science of the present decade and beyond. In 2012, NSF's Division of Astronomical Sciences' (AST's) portfolio review committee recommended that “continued AST involvement in Arecibo . . . be re-evaluated later in the decade in light of the science opportunities and budget forecasts at that time. In 2016, NSF's Division of Atmospheric and Geospace Sciences' (AGS') portfolio review committee recommended significantly decreasing funding for the Space and Atmospheric Sciences portion of the Arecibo mission. In response to these evolving recommendations, in 2016, NSF completed a feasibility study to inform and define options for the observatory's future disposition that would involve significantly decreasing or eliminating NSF funding of Arecibo. Concurrently, NSF sought viable concepts of operations from the scientific community via a Dear Colleague Letter NSF 16-005 (see
Proposed Alternatives to be analyzed in the DEIS include:
• Continued NSF investment for science-focused operations (No-Action Alternative).
• Collaboration with interested parties for continued science-focused operations (Agency Preferred Alternative).
• Collaboration with interested parties for transition to education-focused operations.
• Mothballing of facilities (suspension of operations in a manner such that operations could resume efficiently at some future date).
• Partial deconstruction and site restoration.
• Full deconstruction and site restoration.
No final decisions will be made regarding the proposed changes to operations at Arecibo Observatory prior to issuance of a Final Environmental Impact Statement and, subsequently, a Record of Decision for the Proposed Action.
(1) Colegio de Ingenieros y Agrimensores de Puerto Rico/Puerto Rico Professional College of Engineers and Land Surveyors (Arecibo Chapter), Ave. Manuel T. Guillan Urdaz, Conector 129 Carr. 10, Arecibo, Puerto Rico, Phone: (787) 758-2250, November 16, 6:00 p.m. to 8:00 p.m.
(2) Doubletree by Hilton Hotel San Juan, 105 Avenida De Diego, San Juan, PR, Phone: (787) 721-6500, November 17, from 10:00 a.m. to 12:00 p.m.
The meetings will be transcribed by a court reporter. Spanish language translation will be provided. Please contact NSF at least one week in advance of the meeting if you would like to request special accommodations (
A separate consultation meeting, pursuant to Section 106 of the NHPA, will be held from 1:00 p.m. to 2:30 p.m. at the Doubletree by Hilton Hotel San Juan, 105 Avenida De Diego, San Juan, PR on November 17, 2016, beginning one hour after the public meeting on the DEIS. All persons and entities that are consulting parties or are interested in becoming consulting parties are invited to attend. Spanish language translation will also be provided for this meeting.
There are no meetings scheduled for the week of November 7, 2016.
There are no meetings scheduled for the week of November 14, 2016.
There are no meetings scheduled for the week of November 21, 2016.
This meeting will be webcast live at the Web address—
The schedule for Commission meetings is subject to change on short notice. For more information or to verify the status of meetings, contact Denise McGovern at 301-415-0681 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
Nuclear Regulatory Commission.
Renewal of existing information collection; request for comment.
The U.S. Nuclear Regulatory Commission (NRC) invites public comment on the renewal of Office of Management and Budget (OMB) approval for four existing collections of information. The information collections are entitled, DOE/NRC Form 740M, “Concise Note;” DOE/NRC Form 741, “Nuclear Material Transaction Report;” DOE/NRC Form 742, “Material Balance Report;” and DOE/NRC Form 742C, “Physical Inventory Listing.”
Submit comments by December 27, 2016. Comments received after this date will be considered if it is practical to do so, but the Commission is able to ensure consideration only for comments received on or before this date.
You may submit comments by any of the following methods:
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For additional direction on obtaining information and submitting comments, see “Obtaining Information and Submitting Comments” in the
David Cullison, Office of the Chief Information Officer, U.S. Nuclear Regulatory Commission, Washington, DC 20555-0001; telephone: 301-415-2084; email:
Please refer to Docket ID NRC-2016-0174 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:
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The NRC cautions you not to include identifying or contact information in comment submissions that you do not want to be publicly disclosed in your comment submission. All comment submissions are posted at
If you are requesting or aggregating comments from other persons for submission to the OMB, then you should inform those persons not to include identifying or contact
In accordance with the Paperwork Reduction Act of 1995 (44 U.S.C. Chapter 35), the NRC is requesting public comment on its intention to request the OMB's approval for the information collection summarized below.
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Any licensee who ships, receives, or otherwise undergoes an inventory change of special nuclear material or source material is required to submit a DOE/NRC Form 741 to document the change. Additional information regarding these transactions shall be submitted through Form 740M, with Safeguards Information identified and handled in accordance with title 10 of the
Any licensee who had possessed in the previous reporting period, at any one time and location, special nuclear material in a quantity totaling one gram or more shall complete DOE/NRC Form 742. In addition, each licensee, Federal or State, who is authorized to possess, at any one time or location, one kilogram of foreign obligated source material, is required to file with the NRC an annual statement of source material inventory which is foreign obligated.
Any licensee, who had possessed in the previous reporting period, at any one time and location, special nuclear material in a quantity totaling one gram or more shall complete DOE/NRC Form 742C.
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The NRC is seeking comments that address the following questions:
1. Is the proposed collection of information necessary for the NRC to properly perform its functions? Does the information have practical utility?
2. Is the estimate of the burden of the information collection accurate?
3. Is there a way to enhance the quality, utility, and clarity of the information to be collected?
4. How can the burden of the information collection on respondents be minimized, including the use of automated collection techniques or other forms of information technology?
For the Nuclear Regulatory Commission.
In accordance with the purposes of Sections 29 and 182b of the Atomic Energy Act (42 U.S.C. 2039, 2232b), the Advisory Committee on Reactor Safeguards (ACRS) will hold a meeting on November 3-5, 2016, 11545 Rockville Pike, Rockville, Maryland.
Procedures for the conduct of and participation in ACRS meetings were published in the
Thirty-five hard copies of each presentation or handout should be provided 30 minutes before the meeting. In addition, one electronic copy of each presentation should be emailed to the Cognizant ACRS Staff one day before meeting. If an electronic copy cannot be provided within this timeframe, presenters should provide the Cognizant ACRS Staff with a CD containing each presentation at least 30 minutes before the meeting.
In accordance with Subsection 10(d) of Public Law 92-463 and 5 U.S.C. 552b(c), certain portions of this meeting may be closed, as specifically noted above. Use of still, motion picture, and television cameras during the meeting may be limited to selected portions of the meeting as determined by the Chairman. Electronic recordings will be permitted only during the open portions of the meeting.
ACRS meeting agendas, meeting transcripts, and letter reports are available through the NRC Public Document Room at
Video teleconferencing service is available for observing open sessions of ACRS meetings. Those wishing to use this service should contact Mr. Theron Brown, ACRS Audio Visual Technician (301-415-8066), between 7:30 a.m. and 3:45 p.m. (ET), at least 10 days before the meeting to ensure the availability of this service. Individuals or organizations requesting this service will be responsible for telephone line charges and for providing the equipment and facilities that they use to establish the video teleconferencing link. The availability of video teleconferencing services is not guaranteed.
For the Nuclear Regulatory Commission.
Monday, November 14, 2016, at 1:00 p.m.; and Tuesday, November 15, at 10:00 a.m. and 1:00 p.m.
Washington, DC, at U.S. Postal Service Headquarters, 475 L'Enfant Plaza SW., in the Benjamin Franklin Room.
Monday, November 14, at 1:00 p.m.—Closed; Tuesday, November 15, at
Julie S. Moore, Secretary of the Board, U.S. Postal Service, 475 L'Enfant Plaza SW., Washington, DC 20260-1000. Telephone: (202) 268-4800.
In accordance with the Paperwork Reduction Act of 1995 (44 U.S.C. Chapter 35), the Railroad Retirement Board (RRB) is forwarding an Information Collection Request (ICR) to the Office of Information and Regulatory Affairs (OIRA), Office of Management and Budget (OMB). Our ICR describes the information we seek to collect from the public. Review and approval by OIRA ensures that we impose appropriate paperwork burdens.
The RRB invites comments on the proposed collections of information to determine (1) the practical utility of the collections; (2) the accuracy of the estimated burden of the collections; (3) ways to enhance the quality, utility, and clarity of the information that is the subject of collection; and (4) ways to minimize the burden of collections on respondents, including the use of automated collection techniques or other forms of information technology. Comments to the RRB or OIRA must contain the OMB control number of the ICR. For proper consideration of your comments, it is best if the RRB and OIRA receive them within 30 days of the publication date.
Section 2 of the Railroad Retirement Act (RRA) provides for payment of disability annuities to qualified employees and widow(ers). The establishment of permanent disability for work in the applicant's “regular occupation” or for work in any regular employment is prescribed in 20 CFR 220.12 and 220.13 respectively.
The RRB utilizes Form G-251,
Completion is required to obtain or retain a benefit. One response is requested of each respondent.
Comments regarding the information collection should be addressed to Charles Mierzwa, Railroad Retirement Board, 844 North Rush Street, Chicago, Illinois 60611-2092 or
Notice of request for information.
The Subcommittee on Ocean Science and Technology (SOST) is requesting input on the overall framing and content of a plan for Ocean Research in the Coming Decade (“the Plan”). The SOST is chartered under the National Science and Technology Council to advise and assist on national issues related to ocean science and technology. The SOST contributes to the goals for Federal ocean science and technology, including identifying priorities and developing coordinated interagency strategies. The Plan will describe the most pressing research questions and most promising areas of opportunity within the ocean science and technology enterprise for the coming decade. It will set the stage for agency-specific and interagency coordinated actions across Federal agencies and with non-Federal sectors to address societal needs and issues of national importance. This notice solicits relevant public input, particularly suggestions directed toward how the Plan should be structured and specific topic areas that should be considered for inclusion.
Public comments must be received by January 1, 2017 to be considered.
Public input for the Plan can be submitted electronically at
Responses to this RFI may be used by the government for program planning on a non-attribution basis. The Office of Science and Technology Policy (OSTP) therefore requests that no business proprietary information, copyrighted information, or personally identifiable information be submitted in response to this RFI. Please note that the U.S. Government will not pay for response preparation, or for the use of any information contained in the response.
Roxanne Nikolaus, Division of Ocean Sciences, National Science Foundation, 4201 Wilson Boulevard, Arlington, VA 22230, (703) 292-8580, or
A Plan prospectus intended to stimulate feedback from the public on the overall framing and content of the Plan is available for public viewing at
The Plan will describe:
• Societal Themes that highlight the benefits-based rationale for conducting ocean research;
• Research Goals that reflect and address the Societal Themes; and
• Research Activities that support the Research Goals and represent current and growing opportunities to provide the Nation with the scientific and technical means to address the Societal Themes.
Pursuant to the provisions of Section 19(b)(1) of the Securities Exchange Act of 1934 (“Act”)
The Exchange is filing a proposal to amend the MIAX Options Fee Schedule (the “Fee Schedule”).
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 Exchange proposes to amend the Fee Schedule to reflect the addition of
The Exchange recently adopted new rules governing the trading in, and detailing the functionality of the MIAX System
The Exchange is proposing to include complex orders in its current interfaces to the System that enable Members to connect with the System for various uses. Specifically, the Exchange is proposing to enhance the MIAX Financial Information Exchange (“FIX”) Port, the MIAX Express Interface (“MEI”) Port, the MIAX Clearing Trade Drop (“CTD”) Port, and the MIAX FIX Trade Drop (“FXD”) Port (each described below) to support the trading of complex orders on MIAX. The Exchange is proposing to reflect this enhancement by adding new language to the Fee Schedule describing the application of these interfaces to complex orders.
The Financial Information Exchange (“FIX”) Port
The MIAX Express Interface (“MEI”)
The Clearing Trade Drop (“CTD”) provides Exchange members with real-time clearing trade updates. The updates include the Member's clearing trade messages on a low latency, real-time basis. The trade messages are routed to a Member's connection containing certain information. The information includes, among other things, the following: (i) Trade date and time; (ii) symbol information; (iii) trade price/size information; (iv) Member type (for example, and without limitation, Market Maker, EEM, Broker-Dealer); and (v) Exchange Member Participant Identifier (“MPID”) for each side of the transaction, including Clearing Member MPID. CTD Port Fees are assessed in any month the Member is credentialed to use the CTD Port in the production environment. The Exchange is proposing to state clearly in Section 5(d)(iii) of the Fee Schedule that the CTD Port users will receive strategy specific information for complex transactions.
The FIX Drop Copy Port (“FXD”) is a messaging interface that provides a copy of real-time trade execution, trade correction and trade cancellation information to FIX Drop Copy Port users who subscribe to the service. FIX Drop Copy Port users are those users who are designated by an EEM to receive the information and the information is restricted for use by the EEM only. FXD Port Fees are assessed in any month the Member is credentialed to use the FXD Port in the production environment. The Exchange is proposing to state clearly in Section 5(d)(iv) of the Fee Schedule that the FXD is a messaging interface that will provide a copy of real-time trade execution, trade correction and trade cancellation information for simple and complex orders to FIX Drop Copy Port users who subscribe to the service. FXD Port users will receive a copy of real-time trade execution, trade correction and cancellation information for transactions in simple and complex orders on MIAX.
The Exchange is also proposing to expand the scope of certain market data products to include data relating to complex orders traded on the Exchange at no additional cost to subscribers. Specifically, the Exchange is proposing to expand the MIAX Top of Market (“ToM”) feed, the MIAX Order Feed (“MOR”), and the Administrative Information Subscriber (“AIS”) data feeds, as described below, to include data for complex orders traded on MIAX.
MIAX Top of Market (“ToM”) is a market data product that provides a
The Exchange is proposing to provide complex order market data in a similar fashion by way of a new market data product known as MIAX Complex Top of Market (“cToM”). The cToM data feed is a separate new product that is complex order specific and is available to those who wish to subscribe to it. cToM will provide subscribers with the same information as the ToM market data product as it relates to the Strategy Book,
cToM will also contain a feature (“feature”) that provides the number of Priority Customer
In addition, cToM will provide subscribers with the identification of the complex strategies currently trading on MIAX; complex strategy last sale information; and the status of securities underlying the complex strategy (
The Exchange will include certain administrative information concerning complex orders to Administrative Information Subscribers (“AIS”). The AIS market data feed includes opening imbalance condition information; opening routing information; Expanded Quote Range information, as provided in MIAX Rule 503(f)(5); Post-Halt Notification, as provided in MIAX Rule 504(d); and Liquidity Refresh condition information, as provided in MIAX Rule 515(c)(2) (collectively, the “administrative information”). An AIS is a market participant that connects with the MIAX System for purposes of receiving the administrative information. Thus, an AIS that elects not to receive the top of market data through a subscription to cToM or act as a MIAX Market Maker will be able to receive the administrative information via connectivity to the MIAX System through an AIS Port.
The Exchange proposes to include complex order information as an enhanced feature of the MIAX Order Feed (“MOR”) data product. MOR is a real-time full order book data feed that provides information for orders on the MIAX Book. MOR will now also include the same information regarding complex orders on the Strategy Book. MOR will provide real-time information to enable users to keep track of the Strategy Book for all complex strategies traded on MIAX. Specifically, MOR will now include information concerning the identification of complex orders on the Strategy Book (as described in the proposal to establish rules for the trading of complex orders on the Exchange).
MIAX believes that its proposed rule change is consistent with Section 6(b) of the Act
In addition, the Exchange believes the proposed rule change also furthers the objectives of Section 6(b)(5)
The proposed addition of complex order information to the various enumerated ports and market data products are [sic] designed to promote just and equitable principles of trade by providing MIAX participants with trading information and market data that should enable them to make informed decisions concerning complex orders on the MIAX Exchange by using the data provided by MIAX to assess market conditions that directly affect such decisions. The proposal to include the value-added feature of complex order information to existing ports and data products removes impediments to, and is designed to further perfect, the mechanisms of a free and open market
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. On the contrary, the Exchange believes that the addition of information concerning complex orders to the various ports and market data products will enhance inter-market competition by supplementing existing ports and data products with information concerning complex orders traded on MIAX. This transparency and access should enable MIAX to compete with other exchanges for order flow in complex orders in the options markets.
Additionally, respecting intra-market competition, the value-added features relating to complex orders in the various ports and data products are available to all subscribers at no additional cost, thus providing all subscribers to the ports and data products with an even playing field with respect to information and access to trade complex orders on MIAX.
Written comments were neither solicited nor received.
Because the foregoing proposed rule change does not: (i) Significantly affect the protection of investors or the public interest; (ii) impose any significant burden on competition; and (iii) become operative for 30 days from the date on which it was filed, or such shorter time as the Commission may designate, it has become effective pursuant to Section 19(b)(3)(A) of the Act
A proposed rule change filed under Rule 19b-4(f)(6) normally does not become operative for 30 days from the date of filing. However, pursuant to Rule 19b-4(f)(6)(iii),
At any time within 60 days of the filing of the proposed rule change, the Commission summarily may temporarily suspend such rule change if it appears to the Commission that such action is necessary or appropriate in the public interest; for the protection of investors; or otherwise in furtherance of the purposes of the Act.
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 Exchange proposes to adopt Phlx Rule 765 (Prohibition Against Trading Ahead of Customer Orders). Phlx also proposes to amend Rule 3404 (Recording of Order Information) to include an additional order reporting requirement related to one of the exceptions in Rule 765.
The text of the proposed rule change is set forth below. Proposed new language is italicized; deleted text is in brackets.
With respect to orders for securities listed on the NASDAQ Stock Market or the Exchange, member organizations and persons associated with a member organization shall comply with the following Rule:
(a) No Change.
(b) Order Origination and Receipt
Unless otherwise indicated, the following order information must be recorded under this Rule when an order is received or originated. For purposes of this Rule, the order origination or receipt time is the time the order is received from the customer.
(1) through (16) No Change.
(17) an identification of the order as related to a Program Trade or an Index Arbitrage Trade; [and]
(18) the type of account,
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.
Phlx proposes to adopt Rule 765 (Prohibition Against Trading Ahead of Customer Orders). This rule will largely incorporate FINRA Rule 5320 (Prohibition Against Trading Ahead of Customer Orders), commonly known as the “Manning Rule”, by reference. Phlx also proposes to adopt, as part of Rule 3404 (Recording of Order Information), language that specifies how members shall comply with the exception set forth in FINRA Rule 5320.02 (No-Knowledge Exception) if the member implements information barriers in reliance on that exception.
Phlx believes that Rule 765 will add important additional safeguards to the treatment of customer orders by members, and that the amendment to Rule 3404 will increase regulatory efficiency in conducting surveillance to ensure compliance with Rule 765. In addition, both The Nasdaq Stock Market LLC (“Nasdaq”) and NASDAQ BX, Inc. (“BX”) have previously adopted rules prohibiting the trading ahead of customer orders that reference FINRA Rule 5320, and so this proposal will further align the Phlx rules with Nasdaq and BX rules in this regard.
Proposed Rule 765 contains three distinct elements. First, Rule 765 states that members shall be required to comply with FINRA Rule 5320 as if that rule were part of Phlx's rules. As part of incorporating FINRA Rule 5320 by reference, Rule 765 states that references to FINRA shall be construed as references to Phlx, and replaces cross-references to other FINRA rules with cross-references to corresponding Phlx rules. Second, Rule 765 exempts members from complying with FINRA Rule 5320.02(b) and the reference to FINRA Rule 6420 therein, as those provisions deal with trading in OTC equity securities, which Phlx does not regulate. Finally, Rule 765 addresses how members and persons associated with a member relying upon the exception set forth in FINRA Rule 5320.03 (relating to riskless principal transactions) shall comply with the reporting requirements stated therein. These elements are further discussed below.
Rule 765 states that Phlx members and persons associated with a member shall comply with FINRA Rule 5320 as if such Rule were part of Phlx's rules. As part of incorporating FINRA Rule 5320 by reference, Rule 765 states that references to “FINRA” shall be construed as references to “Phlx”.
Rule 765 also changes cross-references from FINRA rules to Phlx rules. Specifically, FINRA Rule 5320 cross-references FINRA Rules 5310 (Best Execution and Interpositioning), 5320 (Prohibition Against Trading Ahead of Customer Orders) and 7440 (Recording of Order Information). Rule 765 changes those cross-references to references to Phlx Rules 764 (Best Execution and Interpositioning), 765 (Prohibition Against Trading Ahead of Customer Orders) and 3404 (Recording of Order Information), respectively.
Finally, FINRA Rule 5320 contains an exception for large orders (10,000 shares or more, unless such orders are less than $100,000 in value) and for orders for customers that meet the definition of an “institutional account”, as defined in FINRA Rule 4512(c). Phlx proposes to adopt a similar exception by cross-referencing Phlx Rule 763(c), which defines a “non-institutional customer” using the same criteria as FINRA Rule 4512(c).
Phlx believes that it is appropriate to adopt a Manning rule that is substantively the same as the current FINRA rule, including the various exceptions to that rule. First, Phlx believes that the rationale for initially adopting the Manning rule continues to apply today. In initially approving NASD IM-2110-2, the Commission found that the rule would enhance investor confidence by allowing more trade volume to be made available to customers by giving customer orders priority over the market maker's proprietary trading, which would result in quicker and more frequent executions for customers.
Second, as noted above, both Nasdaq and BX have adopted rules prohibiting the trading ahead of customer orders that largely adopt FINRA Rule 5320 by reference, and so this proposal will further align the Phlx rules with Nasdaq and BX rules in this regard.
Phlx also believes that it is appropriate to incorporate by reference the various exceptions set forth in the FINRA rule. With respect to incorporating FINRA's definition of an institutional account, and that rule's corresponding carve-out for institutional accounts, the SEC noted in originally approving NASD IM-2110-2 (which allowed members to set the specific terms and conditions for acceptance of institutional orders) that institutional orders may qualify for special treatment. The SEC found that, because most market makers cannot typically fill institutional-size orders out of inventory, institutions generally only hold market makers to a “best efforts” standard in return for the willingness of the market maker to put up substantial capital to provide liquidity for large orders.
Phlx also believes that it is appropriate to incorporate by reference the exception in FINRA Rule 5320 for riskless principal trades.
Rule 765 excludes a provision of FINRA's Manning rule that relates to the over-the-counter market. Specifically, Rule 765 provides that FINRA Rule 5320.02(b) and its reference to FINRA Rule 6420 therein shall be disregarded. FINRA Rule 5320.02 applies the Manning rule to OTC equity securities, which are defined in FINRA Rule 6420.
Finally, Phlx proposes to adopt language governing how Phlx members may comply with one of the exceptions to FINRA's Manning rule; specifically, the exception for riskless principal trades.
Phlx also proposes to adopt, as part of Rule 3404 (Recording of Order Information) language that specifies how members shall comply with the exception set forth in FINRA Rule 5320.02 (No-Knowledge Exception) if the member implements information barriers in reliance on that exception. Under this exception, if a member implements and utilizes an effective system of internal controls, such as appropriate information barriers, that operate to prevent one trading unit from obtaining knowledge of customer orders held by a separate trading unit, those other trading units trading in a proprietary capacity may continue to trade at prices that would satisfy the customer orders held by the separate trading unit.
As part of incorporating FINRA's Manning rule, Phlx proposes to adopt, as Rule 3404(b)(19), corresponding language that sets forth how members shall comply with the no-knowledge exception if members utilize information barriers in reliance on that exception. Just as FINRA Rule 5320.02 references the applicable requirement in FINRA Rule 7440(b) that members identify the appropriate information barriers in place in connection with the order that is subject to the no-knowledge exception, Rule 765 shall reference the corresponding requirement in Rule 3404.
Phlx believes that it is appropriate to adopt a corresponding requirement that a member identify, at the time of order receipt or origination, the appropriate information barriers in place if a member is utilizing information barriers in reliance on the no-knowledge exception. In initially proposing this requirement as part of FINRA Rule 7440, FINRA stated that it would enhance regulatory efficiency by allowing FINRA to ascertain, on an automated basis, those firms that are claiming the no-knowledge exception, thereby reducing the number of “false positives” where trading ahead may otherwise be indicated.
The Exchange believes that its proposal is consistent with Section 6(b) of the Act,
The Exchange does not believe that the proposed rule change will impose any burden on competition not necessary or appropriate in furtherance of the purposes of the Act. The proposed rule will apply equally to all similarly-situated members,
No written comments were either solicited or received.
Because the foregoing proposed rule change does not: (i) Significantly affect the protection of investors or the public interest; (ii) impose any significant burden on competition; and (iii) become operative for 30 days from the date on which it was filed, or such shorter time as the Commission may designate, it has become effective pursuant to Section 19(b)(3)(A)(iii) 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-Phlx-2016-109 and should be submitted on or before November 18, 2016.
For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.
Securities and Exchange Commission (“Commission”).
Notice of an application under (a) section 6(c) of the Investment Company Act of 1940 (“Act”) for an exemption from sections 2(a)(32), 2(a)(35), 14(a), 19(b), 22(d) and 26(a)(2)(C) of the Act and rules 19b-1 and rule 22c-1 thereunder and (b) sections 11(a) and 11(c) of the Act for approval of certain exchange and rollover privileges.
Secretary, Securities and Exchange Commission, 100 F Street NE., Washington, DC 20549-1090; Applicants, c/o Anna T. Pinedo, Esq., Morrison & Foerster LLP, 250 West 55th Street, New York, NY 10019-9601.
Bruce R. MacNeil, Senior Counsel, at (202) 551-6817, or Daniele Marchesani, 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 an applicant using the Company name box, at
1. ALAIA Market Linked Trust is a UIT that is registered under the Act. Any future Trust will be a registered UIT. BHSI, a New York corporation, is registered under the Securities Exchange Act of 1934 as a broker-dealer and is the Depositor of ALAIA Market Linked Trust. Each Series will be created by a trust indenture between the Depositor and a banking institution or trust company as trustee (“Trustee”).
2. The Depositor acquires a portfolio of securities, which it deposits with the Trustee in exchange for certificates representing units of fractional undivided interest in the Series' portfolio (“Units”). The Units are offered to the public through the Depositor and dealers at a price which, during the initial offering period, is based upon the aggregate market value of the underlying securities, or, the aggregate offering side evaluation of the underlying securities if the underlying securities are not listed on a securities exchange, plus a front-end sales charge, a deferred sales charge or both. The maximum sales charge may be reduced in compliance with rule 22d-1 under the Act in certain circumstances, which are disclosed in the Series' prospectus.
3. The Depositor may, but is not legally obligated to, maintain a secondary market for Units of an outstanding Series. Other broker-dealers may or may not maintain a secondary market for Units of a Series. If a secondary market is maintained, investors will be able to purchase Units on the secondary market at the current public offering price plus a front-end sales charge. If such a market is not maintained at any time for any Series, holders of the Units (“Unitholders”) of that Series may redeem their Units through the Trustee.
1. Applicants request an order to the extent necessary to permit one or more Series to impose a sales charge on a deferred basis (“DSC”). For each Series, the Depositor would set a maximum sales charge per Unit, a portion of which may be collected “up front” (
2. When a Unitholder redeems or sells Units, the Depositor intends to deduct any unpaid DSC from the redemption or sale proceeds. When calculating the amount due, the Depositor will assume that Units on which the DSC has been paid in full are redeemed or sold first. With respect to Units on which the DSC has not been paid in full, the Depositor will assume that the Units held for the longest time are redeemed or sold first. Applicants represent that the DSC collected at the time of redemption or sale, together with the Installment Payments and any amount collected up front, will not exceed the maximum sales charge per Unit. Under certain circumstances, the Depositor may waive the collection of any unpaid DSC in connection with redemptions or sales of Units. These circumstances will be disclosed in the prospectus for the relevant Series and implemented in accordance with rule 22d-1 under the Act.
3. Each Series offering Units subject to a DSC will state the maximum charge per Unit in its prospectus. In addition, the prospectus for such Series will include the table required by Form N-1A (modified as appropriate to reflect the difference between UITs and open-end management investment companies) and a schedule setting forth the number and date of each Installment Payment, along with the duration of the collection period. The prospectus also will disclose that portfolio securities may be sold to pay the DSC if distribution income is insufficient and that securities will be sold pro rata, if practicable, otherwise a specific security will be designated for sale.
1. Applicants request an order to the extent necessary to permit Unitholders of a Series to exchange their Units for Units of another Series (“Exchange Option”) and Unitholders of a Series that is terminating to exchange their Units for Units of a new Series of the same type (“Rollover Option”). The Exchange Option and Rollover Option would apply to all exchanges of Units sold with a front-end sales charge, a DSC or both.
2. A Unitholder who purchases Units under the Exchange Option or Rollover Option would pay a lower sales charge than that which would be paid for the Units by a new investor. The reduced sales charge will be reasonably related to the expenses incurred in connection with the administration of the DSC program, which may include an amount that will fairly and adequately compensate the Depositor and participating underwriters and brokers for their services in providing the DSC program.
1. Section 4(2) of the Act defines a “unit investment trust” as an investment company that issues only redeemable securities. Section 2(a)(32) of the Act defines a “redeemable security” as a security that, upon its presentation to the issuer, entitles the holder to receive approximately his or her proportionate share of the issuer's current net assets or the cash equivalent of those assets. Rule 22c-1 under the Act requires that the price of a redeemable security issued by a registered investment company for purposes of sale, redemption or repurchase be based on the security's current net asset value (“NAV”). Because the collection of any unpaid DSC may cause a redeeming Unitholder to receive an amount less than the NAV of the redeemed Units, applicants request relief from section 2(a)(32) and rule 22c-1.
2. Section 22(d) of the Act and rule 22d-1 under the Act require a registered investment company and its principal underwriter and dealers to sell securities only at the current public offering price described in the investment company's prospectus, with the exception of sales of redeemable securities at prices that reflect scheduled variations in the sales load. Section 2(a)(35) of the Act defines the term “sales load” as the difference between the sales price and the portion of the proceeds invested by the
3. Under section 6(c) of the Act, the Commission may exempt classes of transactions, if and to the extent that 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 proposal meets the standards of section 6(c). Applicants state that the provisions of section 22(d) are intended to prevent (a) riskless trading in investment company securities due to backward pricing, (b) disruption of orderly distribution by dealers selling shares at a discount, and (c) discrimination among investors resulting from different prices charged to different investors. Applicants assert that the proposed DSC program will present none of these abuses. Applicants further state that all scheduled variations in the sales load will be disclosed in the prospectus of each Series and applied uniformly to all investors, and that applicants will comply with all the conditions set forth in rule 22d-1.
4. Section 26(a)(2)(C) of the Act, in relevant part, prohibits a trustee or custodian of a UIT from collecting from the trust as an expense any payment to the trust's depositor or principal underwriter. Because the Trustee's payment of the DSC to the Depositor may be deemed to be an expense under section 26(a)(2)(C), applicants request relief under section 6(c) from section 26(a)(2)(C) to the extent necessary to permit the Trustee to collect Installment Payments and disburse them to the Depositor. Applicants submit that the relief is appropriate because the DSC is more properly characterized as a sales load.
1. Sections 11(a) and 11(c) of the Act prohibit any offer of exchange by a UIT for the securities of another investment company unless the terms of the offer have been approved in advance by the Commission. Applicants request an order under sections 11(a) and 11(c) for Commission approval of the Exchange Option and the Rollover Option.
1. Section 14(a) of the Act requires that a registered investment company have $100,000 of net worth prior to making a public offering. Applicants state that each Series will comply with this requirement because the Depositor will deposit more than $100,000 of securities. Applicants assert, however, that the Commission has interpreted section 14(a) as requiring that the initial capital investment in an investment company be made without any intention to dispose of the investment. Applicants state that, under this interpretation, a Series would not satisfy section 14(a) because of the Depositor's intention to sell all the Units of the Series.
2. Rule 14a-3 under the Act exempts UITs from section 14(a) if certain conditions are met, one of which is that the UIT invest only in “eligible trust securities,” as defined in the rule. Applicants state that they may not rely on rule 14a-3 because certain Series (collectively, “Structured Series”) will invest all or a portion of their assets in equity securities, shares of registered investment companies, or Flexible Exchange® Options (“FLEX Options”)
3. Applicants request an exemption under section 6(c) of the Act to the extent necessary to exempt the Structured Series from the net worth requirement in section 14(a). Applicants state that the Series and the Depositor will comply in all respects with the requirements of rule 14a-3, except that the Structured Series will not restrict their portfolio investments to “eligible trust securities.”
1. Section 19(b) of the Act and rule 19b-1 under the Act provide that, except under limited circumstances, no registered investment company may distribute long-term gains more than once every twelve months. Rule 19b-1(c), under certain circumstances, exempts a UIT investing in eligible trust securities (as defined in rule 14a-3) from the requirements of rule 19b-1. Because the Structured Series do not limit their investments to eligible trust securities, however, the Structured Series will not qualify for the exemption in paragraph (c) of rule 19b-1. Applicants therefore request an exemption under section 6(c) from section 19(b) and rule 19b-1 to the extent necessary to permit capital gains earned in connection with the sale of portfolio securities to be distributed to Unitholders along with the Structured Series' regular distributions. In all other respects, applicants will comply with section 19(b) and rule 19b-1.
2. Applicants state that their proposal meets the standards of section 6(c). Applicants assert that any sale of portfolio securities would be triggered by the need to meet Trust expenses, Installment Payments, or by redemption requests, events over which the Depositor and the Structured Series do not have control. Applicants further state that, because principal distributions must be clearly indicated in accompanying reports to Unitholders as a return of principal and will be relatively small in comparison to normal dividend distributions, there is little danger of confusion from failure to differentiate among distributions.
Applicants agree that any order granting the requested relief will be subject to the following conditions:
1. Whenever the Exchange Option or Rollover Option is to be terminated or its terms are to be amended materially, any holder of a security subject to that privilege will be given prominent notice of the impending termination or amendment at least 60 days prior to the date of termination or the effective date of the amendment, provided that: (a) No such notice need be given if the only material effect of an amendment is to reduce or eliminate the sales charge payable at the time of an exchange, to add one or more new Series eligible for the Exchange Option or the Rollover Option, or to delete a Series which has terminated; and (b) no notice need be given if, under extraordinary circumstances, either (i) there is a suspension of the redemption of Units of the Series under section 22(e) of the Act and the rules and regulations promulgated thereunder, or (ii) a Series temporarily delays or ceases the sale of its Units because it is unable to invest amounts effectively in accordance with applicable investment objectives, policies and restrictions.
2. An investor who purchases Units under the Exchange Option or Rollover Option will pay a lower sales charge than that which would be paid for the Units by a new investor.
3. The prospectus of each Series offering exchanges or rollovers and any sales literature or advertising that mentions the existence of the Exchange Option or Rollover Option will disclose that the Exchange Option and the Rollover Option are subject to modification, termination or suspension
4. Any DSC imposed on a Series' Units will comply with the requirements of subparagraphs (1), (2) and (3) of rule 6c-10(a) under the Act.
5. Each Series offering Units subject to a DSC will include in its prospectus the disclosure required by Form N-1A relating to deferred sales charges (modified as appropriate to reflect the differences between UITs and open-end management investment companies) and a schedule setting forth the number and date of each Installment Payment.
Applicants will comply in all respects with the requirements of rule 14a-3 under the Act, except that the Structured Series will not restrict their portfolio investments to “eligible trust securities.”
For the Commission, by the Division of Investment Management, under delegated authority.
Notice is hereby given of the following determinations: Pursuant to the authority vested in me by the Act of October 19, 1965 (79 Stat. 985; 22 U.S.C. 2459), E.O. 12047 of March 27, 1978, the Foreign Affairs Reform and Restructuring Act of 1998 (112 Stat. 2681,
For further information, including an imported object list, contact the Office of Public Diplomacy and Public Affairs in the Office of the Legal Adviser, U.S. Department of State (telephone: 202-632-6471; email:
Notice is hereby given of the following determinations: Pursuant to the authority vested in me by the Act of October 19, 1965 (79 Stat. 985; 22 U.S.C. 2459), E.O. 12047 of March 27, 1978, the Foreign Affairs Reform and Restructuring Act of 1998 (112 Stat. 2681,
For further information, including a list of the imported objects, contact the Office of Public Diplomacy and Public Affairs in the Office of the Legal Adviser, U.S. Department of State (telephone: 202-632-6471; email:
Surface Transportation Board.
Notice tentatively approving and authorizing finance transaction.
On September 29, 2016, AAAHI Acquisition Corporation (AAC), a noncarrier, filed an application under 49 U.S.C. 14303 for AAC to acquire All Aboard America! Holdings, Inc. (AAAHI), a noncarrier holding company that wholly owns passenger motor carriers Hotard Coaches, Inc. (Hotard), Industrial Bus Lines, Inc. d/b/a All Aboard America (Industrial), Sureride Charter Inc. d/b/a Sundiego Charter Co. (Sundiego), Ace Express Coaches, LLC (Ace Express), All Aboard Transit Services, LLC (AATS), and All Aboard America! School Transportation, LLC (AAAST) (collectively Acquisition Carriers). The Board is tentatively approving and authorizing the transaction, and, if no opposing comments are timely filed, this notice will be the final Board action. Persons wishing to oppose the application must follow the rules at 49 CFR 1182.5 and 1182.8.
Comments must be filed by December 12, 2016. The applicant may file a reply by December 27, 2016. If no opposing comments are filed by December 12, 2016, this notice shall be effective December 13, 2016.
Send an original and 10 copies of any comments referring to Docket No. MCF 21071 to: Surface Transportation Board, 395 E Street SW., Washington, DC 20423-0001. In addition, send one copy of comments to
Amy Ziehm (202) 245-0391. Federal Information Relay Service (FIRS) for the hearing impaired: 1-800-877-8339.
AAC states that it is a noncarrier Delaware corporation that is wholly owned by AAAHI Intermediate Holdings LLC, which is wholly owned by AAAHI Topco Corporation, which is in turn wholly owned by AAAHI Holdings LLC. According to AAC, the majority owner of AAAHI Holdings LLC is Tensile-AAAHI Holdings LLC, and the majority holder of Tensile-AAAHI Holdings LLC is Tensile Capital Partners Master Fund LP. AAC states that Tensile Capital Partners LP owns 89.6% of Tensile Capital Partners Master Fund LP. AAC further states that AAC and the above-named entities in its ownership chain (Ownership Entities) do not possess motor carrier authority, do not have USDOT Numbers or Safety Ratings, and do not have any direct or indirect ownership interest in any interstate or intrastate passenger motor carriers.
AAC states that each of the Acquisition Carriers is a direct wholly owned subsidiary of AAAHI, and AAAHI's plurality shareholder is Celerity AHI Holdings SPV, LLC (Celerity Holdings). According to AAC, Celerity Holdings is a consortium of corporate and institutional investors along with Celerity Partners IV, LLC, a private equity firm that also acts as the managing member of Celerity Holdings. AAC states that other capital providers (including Gemini Investors V, L.P., a private equity firm) do not participate in Celerity Holdings but do hold minority interests in AAAHI directly. None of AAAHI's investors currently hold a controlling interest in any regulated bus transportation provider other than the Acquisition Carriers. According to AAC, the Acquisition Carriers exercise substantial independence in running their diverse operations.
AAC provides a description of each of the Acquisition Carriers, as summarized below:
• Hotard is a Louisiana corporation that provides local and regional charter services within Louisiana and Mississippi, and to and from various points in the continental United States. It holds common carrier operating authority from the Federal Motor Carrier Safety Administration (FMCSA) as a motor carrier of passengers (MC-143881). Hotard operates a fleet of 240 vehicles, of which 79 are full-sized motor coaches and the remainder are mid-sized buses, minibuses, and school buses. The school buses are mainly used for employee shuttle services under contract with large employers, operating interstate between Texas and Louisiana and intrastate within Louisiana.
• Industrial is a New Mexico corporation that provides local and regional charter services in Arizona, New Mexico, and Texas. Industrial holds common carrier operating authority from FMCSA as a motor carrier of passengers (MC-133171). Its fleet consists of 80 full-sized motor coaches and 10 minibuses.
• Sundiego is a California corporation that operates a fleet of 72 full-sized motor coaches and 8 minibuses. It holds common carrier operating authority from FMCSA as a motor carrier of passengers (MC-324772). Sundiego provides local and regional charter, tour, and contract shuttles services from its base in National City, Cal., and from satellite locations in San Marcos and Anaheim, Cal.
• Ace Express is a Delaware limited liability company with its principal place of business in Golden, Colo. Ace Express operates charter, contract, and casino services. It holds common carrier operating authority from FMCSA as a motor carrier of passengers (MC-908184). Ace Express provides charter services with its fleet of 57 motor coaches and 17 minibuses. Other services are provided on a contract basis for corporate and municipal clients.
• AATS is a Delaware limited liability company with its principal place of business in Commerce City, Colo. It provides paratransit services under a contract with Denver Rapid Transit District (RTD). AATS operates 80 paratransit vehicles that are provided by RTD. AATS provides the drivers, maintenance of vehicles, and supervision of employees involved in the paratransit service. AATS does not conduct interstate passenger operations and thus does not hold passenger carrier operating authority from FMCSA. AATS does not possess Colorado intrastate passenger carrier authority, as its operations are exempt from the need for such authority.
• AAAST is a Texas limited liability company that provides transportation for school children under contract with a number of school districts in Texas. The school districts typically provide the school buses and AAAST provides the drivers, maintenance of vehicles, and supervisions of employees. AAAST currently operates 72 buses for five school districts. AAAST does not conduct interstate passenger operations and thus does not hold passenger carrier operating authority from FMCSA. AAAST does not possess Texas intrastate passenger carrier authority, as all of the school bus operations in which AAAST participates are exempt from state regulation.
AAC explains that under the proposed transaction, AAC would acquire the ownership interest of AAAHI, the effect of which would be to place the Acquisition Carriers under the control of AAC. AAC states that it will assume indirect 100% control of the Acquisition Carriers.
Under 49 U.S.C. 14303(b), the Board must approve and authorize a transaction that it finds consistent with the public interest, taking into consideration at least: (1) The effect of the proposed transaction on the adequacy of transportation to the public; (2) the total fixed charges that result; and (3) the interest of affected carrier employees. AAC has submitted the information required by 49 CFR 1182.2, including information to demonstrate that the proposed transaction is consistent with the public interest under 49 U.S.C. 14303(b) and a statement that the gross operating revenues of AAC and its motor carrier affiliated companies exceeded $2 million for the preceding 12-month period.
AAC asserts that this acquisition is in the public interest. AAC states that services currently provided by the Acquisition Carriers would continue to be provided under the same names currently used to provide such services. AAC further explains that it anticipates that services to the public would be improved, because the Acquisition Carriers would continue to operate, but in the future they would operate as part of the AAC corporate family. Under this new ownership, AAC states that it intends to use its business and financial management skills, as well as its capital, to increase the efficiencies and enhance the viability of the Acquisition Carriers, thereby ensuring the continued availability of adequate passenger transportation service for the public.
AAC states that there are no fixed charges associated with the proposed transaction or the proposed acquisition of control. In addition, according to AAC, the proposed transaction would have no material impact on employees or labor conditions, as AAC intends to continue the existing operations of the Acquisition Carriers and does not
AAC also claims that neither competition nor the public interest would be adversely affected, as the proposed transaction involves merely a transfer of one holding company to another holding company. AAC states that, because it does not currently have any ownership interest in any passenger motor carrier, there would be no net gain in market power with respect to the Acquisition Carriers under the proposed transaction. Furthermore, AAC states that the bus operations of the Acquisition Carriers are geographically dispersed and there is little or no overlap in service areas or in customer base. Thus, AAC states that the impact of the proposed transaction on the regulated motor carrier industry would be minimal and that neither competition nor the public interest would be adversely affected.
On the basis of the application, the Board finds that the proposed acquisition is consistent with the public interest and should be tentatively approved and authorized. If any opposing comments are timely filed, these findings will be deemed vacated, and, unless a final decision can be made on the record as developed, a procedural schedule will be adopted to reconsider the application.
This action is categorically excluded from environmental review under 49 CFR 1105.6(c).
Board decisions and notices are available on our Web site at “
1. The proposed transaction is approved and authorized, subject to the filing of opposing comments.
2. If opposing comments are timely filed, the findings made in this notice will be deemed as having been vacated.
3. This notice will be effective December 13, 2016, unless opposing comments are filed by December 12, 2016.
4. A copy of this notice will be served on: (1) The U.S. Department of Transportation, Federal Motor Carrier Safety Administration, 1200 New Jersey Avenue SE., Washington, DC 20590; (2) the U.S. Department of Justice, Antitrust Division, 10th Street & Pennsylvania Avenue NW., Washington, DC 20530; and (3) the U.S. Department of Transportation, Office of the General Counsel, 1200 New Jersey Avenue SE., Washington, DC 20590.
By the Board, Chairman Elliott, Vice Chairman Miller, and Commissioner Begeman.
Federal Aviation Administration, Transportation; National Park Service, Interior.
List of exempt parks.
The National Parks Air Tour Management Act (NPATMA) requires the Federal Aviation Administration (FAA) and National Park Service (NPS) to develop an air tour management plan for units of the national park system where an operator has applied for authority to conduct commercial air tours. The FAA Modernization and Reform Act of 2012 amended various provisions of NPATMA. One provision exempted national park units with 50 or fewer annual flights from the requirement to prepare an air tour management plan or voluntary agreement and requires FAA and NPS to jointly publish a list of exempt parks. By
Keith Lusk—Mailing address: Federal Aviation Administration, P.O. Box 92007, Los Angeles, California 90009-2007. Telephone: (310) 725-3808. Email address:
1. NPATMA (Pub. L. 106-181, codified at 49 U.S.C. 40128) requires the FAA and NPS to develop an air tour management plan for units of the national park system where an operator has requested authority to provide commercial air tours. The FAA Modernization and Reform Act of 2012 (2012 Act) amended various provisions of NPATMA.
2. This
a. Exempt national park units that have 50 or fewer commercial air tour operations each year from the requirement to prepare an air tour management plan or voluntary agreement.
b. Authorize NPS to withdraw the exemption if the Director determines that an air tour management plan or voluntary agreement is necessary to protect resources and values or visitor use and enjoyment.
c. Require FAA and NPS to publish a list each year of national parks covered by the exemption.
1. This list is based on the number of commercial air tour operations reported to the FAA and NPS by air tour operators conducting air tours under interim operating authority at national park units in calendar year 2014 for which the total operations was 50 or fewer. Parks on the exempt list are those that have at least one operator who has been granted operating authority to conduct commercial air tours over that park. Exempt parks are as follows:
2. NPS is authorized to withdraw a park from the exempt list if NPS determines that an air tour management plan or voluntary agreement is necessary to protect park resources and values or park visitor use and enjoyment. Under this statutory authority, the NPS Director informed the FAA Administrator in writing on September 15, 2015, that NPS withdrew the exemption for Death Valley National Park and Mount Rainier National Park. These two parks have been removed from the 2014 exempt list.
1. This list is based on the number of commercial air tour operations reported to the FAA and NPS by air tour operators conducting air tours under interim operating authority at national park units in calendar year 2015 for which the total operations was 50 or fewer. Parks on the exempt list are those that have at least one operator who has been granted operating authority to conduct commercial air tours over that park. Exempt parks are as follows:
2. Mesa Verde National Park, CO, is on the 2014 exempt list but not on the 2015 exempt list because the combined number of commercial air tours reported by all air tour operators was 50 tours or fewer in 2014, but exceeded 50 tours in 2015.
3. Cape Hatteras National Seashore, NC, is not on the 2014 exempt list but is on the 2015 exempt list because the combined number of commercial air tours reported by all air tour operators exceeded 50 tours in 2014, but was 50 tours or fewer in 2015.
4. Colonial National Historical Park, VA; Lake Chelan National Recreation Area, WA; and Lassen Volcanic National Park, CA are on the 2014 exempt list but not on the 2015 exempt list because there is no longer any operator(s) who has applied for operating authority to conduct commercial air tours over those parks. At all the other parks on the 2015 list, there is at least one operator who has applied for operating authority to conduct tours over that park.
The FAA and NPS will publish a list of exempt parks annually. The list could change from year to year since parks may be added to or removed from the exempt list based on the previous year's number of annual operations. In order to continue to be exempt, a park must have 50 or fewer annual commercial air tour operations in any given calendar year. The list could also change if NPS withdraws an exempted park. NPS is authorized to withdraw a park from the exempt list if NPS determines that an air tour management plan or a voluntary agreement is necessary to protect park resources and values or park visitor use and enjoyment. Pursuant to the 2012 Act, the NPS shall inform the FAA in writing of each determination to withdraw an exemption. At parks that lose exempt status, operators will return to interim operating authority requirements until an air tour management plan or a voluntary agreement has been established.
Federal Aviation Administration (FAA), DOT.
Notice of intent of waiver with respect to land; Cherry Capital Airport, Traverse City, Michigan.
The FAA is considering a proposal to change 1.25 acres of airport land from aeronautical use to non-aeronautical use and to authorize the sale of airport property located at Cherry Capital Airport, Traverse City, Michigan. The aforementioned land is not needed for aeronautical use.
The proposed property is located east of the airport terminal area adjacent to the current South Airport Road right-of-way at the Cherry Capital Airport. The property is currently a wooded area maintained for compatible land use surrounding the airfield. The proposed non-aeronautical land use would be for roadway improvements to support the new commercial/industrial development.
Comments must be received on or before November 28, 2016.
Documents are available for review by appointment at the FAA Detroit Airports District Office, Irene R. Porter, Program Manager, 11677 South Wayne Road, Suite 107, Romulus, Michigan 48174. Telephone: (734) 229-2915/Fax: (734) 229-2950 and Cherry Capital Administrative Offices, 727 Fly Don't Drive, Traverse City, Michigan. Telephone: (231) 947-2250.
Irene R. Porter, Program Manager, Federal Aviation Administration, Airports Detroit District Office, 11677 South Wayne Road, Suite 107, Romulus, Michigan 48174, Telephone Number: (734) 229-2915/FAX Number: (734) 229-2950.
In accordance with section 47107(h) of Title 49, United States Code, this notice is required to be published in the
The property is currently a wooded area maintained for compatible land use surrounding the airfield. The proposed non-aeronautical land use would be for roadway improvements to support the new commercial/industrial development. The property was originally owned by the City of Traverse City, Michigan and was subject to an AP-4 Instrument of conveyance from the City to the United States Government dated May 17, 1943. At the end of the war the U.S. Government transferred the property back to the City of Traverse City, Michigan. In 1966 the National Emergency Use Provision was released from this property. The airport will receive Fair Market Value for the land to be transferred to the County to support the road improvements. The disposition of proceeds from the sale of the airport property will be in accordance with FAA's Policy and Procedures Concerning the Use of Airport Revenue, published in the
This notice announces that the FAA is considering the release of the subject airport property at the Cherry Capital Airport, Traverse City, Michigan, from federal land covenants, subject to a reservation for continuing right of flight as well as restrictions on the released property as required in FAA Order 5190.6B section 22.16. Approval does not constitute a commitment by the FAA to financially assist in the disposal of the subject airport property nor a determination of eligibility for grant-in-aid funding from the FAA.
Part of Section 18, T27N, R10W, City of Traverse City, Grand Traverse County, Michigan, described as: Commencing at the West
Federal Aviation Administration (FAA), DOT.
Notice of intent of waiver with respect to land; Cherry Capital Airport, Traverse City, Michigan.
The FAA is considering a proposal to change 63.04 acres of airport land from aeronautical use to non-aeronautical use and to authorize the lease of airport property located at Cherry Capital Airport, Traverse City, Michigan. The aforementioned land is not needed for aeronautical use.
The proposed property is located east of the airport terminal area along South Airport Road at the Cherry Capital Airport. The property is currently a wooded area maintained for compatible land use surrounding the airfield. The proposed non-aeronautical land use would be for compatible commercial/industrial development, allowing the airport to become more self-sustaining.
Comments must be received on or before November 28, 2016.
Documents are available for review by appointment at the FAA
Written comments on the Sponsor's request must be delivered or mailed to: Irene R. Porter, Program Manager, Federal Aviation Administration, Airports Detroit District Office, 11677 South Wayne Road, Suite 107, Romulus, Michigan 48174, Telephone Number: (734) 229-2915/FAX Number: (734) 229-2950.
Irene R. Porter, Program Manager, Federal Aviation Administration, Airports Detroit District Office, 11677 South Wayne Road, Suite 107, Romulus, Michigan 48174, Telephone Number: (734) 229-2915/FAX Number: (734) 229-2950.
In accordance with section 47107(h) of Title 49, United States Code, this notice is required to be published in the
The property is currently a wooded area maintained for compatible land use surrounding the airfield. The proposed non-aeronautical land use would be for compatible commercial/industrial development, allowing the airport to become more self-sustaining. The property was originally owned by the City of Traverse City, Michigan and was subject to an AP-4 Instrument of conveyance from the City to the United States Government dated May 17, 1943. At the end of the war the US Government transferred the property back to the City of Traverse City, Michigan. In 1966 the National Emergency Use Provision was released from this property. A portion of the property has a proposed lessor/developer identified and it has been appraised. The airport will receive Fair Market Value for the land to be leased.
The disposition of proceeds from the lease of the airport property will be in accordance with FAA's Policy and Procedures Concerning the Use of Airport Revenue, published in the
This notice announces that the FAA is considering the release of the subject airport property at the Cherry Capital Airport, Traverse City, Michigan, from its obligations to be maintained for aeronautical purposes. Approval does not constitute a commitment by the FAA to financially assist in the change in use of the subject airport property nor a determination of eligibility for grant-in-aid funding from the FAA.
Part of section 18, T27N, R10W, city of Traverse City, Grand Traverse County, Michigan, described as: Commencing at the west
Federal Aviation Administration (FAA), DOT.
Notice of Availability (NOA), Record of Decision (ROD).
In accordance with the National Environmental Policy Act of 1969 (NEPA; 42 U.S.C. 4321
In the ROD, the FAA selected the following alternative for implementation:
Airport 12a with Access 12a which involves the construction of a land-based airport consisting of a paved, 3,300-foot-long and 75-foot-wide runway and associated access road. The project will be located on lands owned or managed by private landowners; Kootznoowoo, Inc.; and the City of Angoon.
The FAA has included determinations on the project based upon evidence set forth in the FEIS, public input, and the supporting administrative record.
Copies of the ROD are available at the following locations. Paper copies may be viewed during regular business hours.
Leslie Grey, AAL-611, Federal Aviation Administration, Alaskan Region, Airports Division, 222 W. 7th Avenue Box #14, Anchorage, AK 99513. Ms. Grey may be contacted during business hours at (907) 271-5453 (telephone) and (907) 271-2851 (fax), or by email at
Maritime Administration, Department of Transportation.
Notice.
As authorized by 46 U.S.C. 12121, the Secretary of Transportation, as represented by the Maritime Administration (MARAD), is authorized to grant waivers of the U.S.-build requirement of the coastwise laws under certain circumstances. A request for such a waiver has been received by MARAD. The vessel, and a brief description of the proposed service, is listed below.
Submit comments on or before November 28, 2016.
Comments should refer to docket number MARAD-2016-0108. Written comments may be submitted by hand or by mail to the Docket Clerk, U.S. Department of Transportation, Docket Operations, M-30, West Building Ground Floor, Room W12-140, 1200 New Jersey Avenue SE., Washington, DC 20590. You may also send comments electronically via the Internet at
Bianca Carr, U.S. Department of Transportation, Maritime Administration, 1200 New Jersey Avenue SE., Room W23-453, Washington, DC 20590. Telephone 202-366-9309, Email
As described by the applicant the intended service of the vessel KINSHIP is:
The complete application is given in DOT docket MARAD-2016-0108 at
Anyone is able to search the electronic form of all comments received into any of our dockets by the name of the individual submitting the comment (or signing the comment, if submitted on behalf of an association, business, labor union, etc.). You may review DOT's complete Privacy Act Statement in the
By Order of the Maritime Administrator.
Maritime Administration, Department of Transportation.
Notice.
As authorized by 46 U.S.C. 12121, the Secretary of Transportation, as represented by the Maritime Administration (MARAD), is authorized to grant waivers of the U.S.-build requirement of the coastwise laws under certain circumstances. A request for such a waiver has been received by MARAD. The vessel, and a brief description of the proposed service, is listed below.
Submit comments on or before November 28, 2016.
Comments should refer to docket number MARAD-2016-0106. Written comments may be submitted by hand or by mail to the Docket Clerk, U.S. Department of Transportation, Docket Operations, M-30, West Building Ground Floor, Room W12-140, 1200 New Jersey Avenue SE., Washington, DC 20590. You may also send comments electronically via the Internet at
Bianca Carr, U.S. Department of Transportation, Maritime Administration, 1200 New Jersey Avenue SE., Room W23-453, Washington, DC 20590. Telephone 202-366-9309, Email
As described by the applicant the intended service of the vessel VALKYRIE is:
The complete application is given in DOT docket MARAD-2016-0106 at
Anyone is able to search the electronic form of all comments received into any of our dockets by the name of the individual submitting the comment (or signing the comment, if submitted on behalf of an association, business, labor union, etc.). You may review DOT's complete Privacy Act Statement in the
By Order of the Maritime Administrator.
Maritime Administration, Department of Transportation.
Notice.
As authorized by 46 U.S.C. 12121, the Secretary of Transportation, as represented by the Maritime Administration (MARAD), is authorized to grant waivers of the U.S.-build requirement of the coastwise laws under certain circumstances. A request for such a waiver has been received by MARAD. The vessel, and a brief description of the proposed service, is listed below.
Submit comments on or before November 28, 2016.
Comments should refer to docket number MARAD-2016-0107. Written comments may be submitted by hand or by mail to the Docket Clerk, U.S. Department of Transportation, Docket Operations, M-30, West Building Ground Floor, Room W12-140, 1200 New Jersey Avenue SE., Washington, DC 20590. You may also send comments electronically via the Internet at
Bianca Carr, U.S. Department of Transportation, Maritime Administration, 1200 New Jersey Avenue SE., Room W23-453, Washington, DC 20590. Telephone 202-366-9309, Email
As described by the applicant the intended service of the vessel QUIET CHAOS is:
Intended Commercial Use of Vessel: Primarily overnight charter sighting seeing and sport fishing trips. Occasional day trips.
The complete application is given in DOT docket MARAD-2016-0107 at
Anyone is able to search the electronic form of all comments received into any of our dockets by the name of the individual submitting the comment (or signing the comment, if submitted on behalf of an association, business, labor union, etc.). You may review DOT's complete Privacy Act Statement in the
By Order of the Maritime Administrator.
National Highway Traffic Safety Administration (NHTSA), Department of Transportation (DOT).
Grant of petition for exemption.
This document grants in full the Fiat Chrysler Automobiles US LLC, (FCA) petition for exemption of the “MP” MPV line in accordance with 49 CFR part 543,
The exemption granted by this notice is effective beginning with 2017 model year (MY).
Ms. Carlita Ballard, International Policy, Fuel Economy and Consumer Programs, NHTSA, West Building, W43-439, 1200 New Jersey Avenue SE., Washington, DC 20590. Ms. Ballard's phone number is (202) 366-5222. Her fax number is (202) 493-2990.
In a petition dated June 1, 2016, FCA requested an exemption from the parts-marking requirements of the Theft Prevention Standard for its “MP” MPV line beginning with MY 2017. The petition requested an exemption from parts-marking pursuant to 49 CFR part 543,
Under 49 CFR part 543.5(a), a manufacturer may petition NHTSA to grant an exemption for one vehicle line per model year. In its petition, FCA provided a detailed description and diagram of the identity, design, and location of the components of the antitheft device for its “MP” MPV line. FCA stated that its MY 2017 “MP” MPV line will be installed with the Sentry Key Immobilizer System (SKIS)/MiniCrypt antitheft device as standard equipment on the entire vehicle line. The SKIS will provide passive vehicle protection by preventing the engine from operating unless a valid electronically encoded key is detected in the ignition system of the vehicle. Key components of the antitheft device will include an immobilizer, Radio Frequency Hub Module (RFHM), Engine Control Module (ECM), Body Controller
FCA's submission is considered a complete petition as required by 49 CFR 543.7 in that it meets the general requirements contained in 543.5 and the specific content requirements of 543.6.
In addressing the specific content requirements of 49 CFR part 543.6, FCA provided information on the reliability and durability of the device. FCA conducted tests based on its own specified standards (
FCA stated that the SKIS will be placed on its keyless entry and keyed vehicles. According to FCA, in its keyed vehicles, the SKIS immobilizer feature is activated when the key is removed from the ignition system (whether the doors are open or not). Specifically, the RFHM is paired with the IGNM that contains either a rotary ignition switch (keyed vehicles) or a START/STOP push button (keyless vehicles). FCA stated that the functions and features of the SKIS are all integral to the BCM in this vehicle. The RFHM contains a Radio Frequency (RF) transceiver and a microprocessor and it initiates the ignition process by communicating with the BCM through SKIS. The microprocessor-based SKIS hardware and software also uses electronic messages to communicate with other electronic modules in the vehicle.
FCA also stated that, in its keyed vehicles, the SKIS uses RF communication to obtain confirmation that the transponder key is a valid key to operate the vehicle. The RFHM receives Low Frequency (LF) and/or RF signals from the Sentry Key transponder. For its keyed vehicles, the IGNM transmits an LF signal to excite the transponder in the key when the ignition switch is turned to the ON position. The IGNM waits for a signal response from the transponder and transmits the response to the RFHM. If the response identifies that the transponder key is invalid or if no response is received from the transponder key, the RFHM will send an invalid key message to the Engine Control Module, which will disable engine operation and immobilize the vehicle after two seconds of running.
Only a valid key inserted into the ignition system will allow the vehicle to start and continue to run. FCA stated that, in its keyless vehicles, the RFHM is connected to a Keyless Ignition Node (KIN) with a START/STOP push button as an ignition switch. FCA stated that when the keyless START/STOP button is pressed, the RFHM transmits a signal to the transponder key through LF antennas to the RFHM. The RFHM then waits for a signal from the key FOB transponder. If the response from the transponder identifies the transponder key as invalid or the transponder key is not within the car's interior, the engine will be disabled and the vehicle will be immobilized after two seconds of running.
To avoid any perceived delay when starting the vehicle with a valid transponder key and also to prevent unburned fuel from entering the exhaust, FCA stated that the engine is permitted to run for no more than two seconds if an invalid transponder key is used. Additionally, FCA stated that only six consecutive invalid vehicle start attempts will be permitted and that all other attempts will be locked out by preventing the fuel injectors from firing and the starter will be disabled.
FCA stated that its vehicles are also equipped with a security indicator that acts as a diagnostic indicator. FCA stated that if the RFHM detects an invalid transponder key or if a transponder key related fault occurs, the security indicator will flash. If the RFHM detects a system malfunction or the SKIS becomes ineffective, the security indicator will stay on. The SKIS also performs a self-test each time the ignition system is turned to the RUN position and will store fault information in the form of a diagnostic trouble code in RFHM memory if a system malfunction is detected. FCA also stated that the vehicle is equipped with a Customer Learn transponder programming feature that when in use will cause the security indicator to flash.
FCA stated that each ignition key used in the SKIS has an integral transponder chip included on the circuit board. Each transponder key has a unique transponder identification code that is permanently programmed into it by the manufacturer and must be programmed into the RFHM to be recognized by the SKIS as a valid key. FCA stated that once a Sentry Key has been programmed to a particular vehicle, it cannot be used on any other vehicle.
FCA further stated that it expects the `MP' MPV vehicle line to mirror the lower theft rate results achieved by the Jeep Grand Cherokee vehicle line when ignition immobilizer systems were installed as standard equipment on the line. FCA stated that it has offered the SKIS immobilizer device as standard equipment on all Jeep Grand Cherokee vehicles since the 1999 model year. According to FCA, the average theft rate, based on NHTSA's theft rate data, for Jeep Grand Cherokee vehicles for the four model years prior to 1999 (1995-1998), when a vehicle immobilizer device was not installed as standard equipment, was 5.3574 per one thousand vehicles produced and significantly higher than the 1990/1991 median theft rate of 3.5826. However, FCA also indicated that the average theft rate for the Jeep Grand Cherokee for the nine model years (1999-2009, excluding MY 2007 and 2009) after installation of the standard immobilizer device was 2.5704, which is significantly lower than the median. The Jeep Grand Cherokee vehicle line was granted an exemption from the parts-marking requirements beginning with MY 2004 (67 FR 79687, December 30, 2002). FCA further exerts that NHTSA's theft data for the Jeep Grand Cherokee indicates that the inclusion of a standard immobilizer device resulted in a 52 percent net average reduction in vehicle thefts.
Based on the evidence submitted by FCA, the agency believes that the antitheft device for the `MP' MPV line is likely to be as effective in reducing and deterring motor vehicle theft as compliance with the parts-marking requirements of the Theft Prevention Standard (49 CFR 41). The agency concludes that the device will provide four of the five types of performance listed in 49 CFR part 543.6(a)(3): promoting activation; preventing defeat or circumvention of the device by unauthorized persons; preventing operation of the vehicle by unauthorized entrants; and ensuring the reliability and durability of the device.
Pursuant to 49 U.S.C. 33106 and 49 CFR part 543.7(b), the agency grants a petition for exemption from the parts-marking requirements of part 541, either in whole or in part, if it determines that, based upon substantial evidence, the
For the foregoing reasons, the agency hereby grants in full CFCA's petition for exemption for its `MP' MPV line from the parts-marking requirements of 49 CFR part 541, beginning with its `MP' MPV model year vehicles. The agency notes that 49 CFR part 541, Appendix A-1, identifies those lines that are exempted from the Theft Prevention Standard for a given model year. 49 CFR part 543.7(f) contains publication requirements incident to the disposition of all part 543 petitions. Advanced listing, including the release of future product nameplates, the beginning model year for which the petition is granted and a general description of the antitheft device is necessary in order to notify law enforcement agencies of new vehicle lines exempted from the parts marking requirements of the Theft Prevention Standard. FCA stated that an official nameplate for the vehicle has not yet been determined. However, as a condition to the formal granting of FCA's petition for exemption from the parts-marking requirements of 49 CFR part 541 for the MY 2017 `MP' MPV line, the agency fully expects FCA to notify the agency of the nameplate for the vehicle line prior to its introduction into the United States commerce for sale.
If FCA decides not to use the exemption for this vehicle line, it must formally notify the agency. If such a decision is made, the vehicle line must be fully marked as required by 49 CFR parts 541.5 and 541.6 (marking of major component parts and replacement parts).
NHTSA notes that if FCA wishes in the future to modify the device on which this exemption is based, the company may have to submit a petition to modify the exemption. 49 CFR part 543.7(d) states that a part 543 exemption applies only to vehicles that belong to a line exempted under this part and equipped with the anti-theft device on which the line's exemption is based. Further, 49 CFR part 543.9(c)(2) provides for the submission of petitions “to modify an exemption to permit the use of an antitheft device similar to but differing from the one specified in that exemption.”
The agency wishes to minimize the administrative burden that 49 CFR part 543.9(c)(2) could place on exempted vehicle manufacturers and itself. The agency did not intend in drafting part 543 to require the submission of a modification petition for every change to the components or design of an antitheft device. The significance of many such changes could be
Issued in Washington, DC under authority delegated in 49 CFR part 1.95.
National Highway Traffic Safety Administration (NHTSA), Department of Transportation (DOT).
Request for public comment.
NHTSA invites public comment on its
You should submit your comments early enough to ensure that Docket Management receives them no later than November 28, 2016.
Comments should refer to the docket number above and be submitted by one of the following methods:
•
•
•
•
•
For technical issues: Mr. Arthur Carter of NHTSA's Office of Vehicle Crash Avoidance & Electronic Controls Research at (202) 366-5669 or by email at
A top NHTSA priority is enhancing vehicle cybersecurity to mitigate cyber threats that could present unreasonable safety risks to the public or compromise sensitive data such as personally identifiable information. And, the agency is actively engaged in approaches to improve the cybersecurity of modern vehicles. The agency has been conducting research and actively engaging stakeholders to identify effective methods to address the vehicle cybersecurity challenges. For example, in January 2016, NHTSA convened a public vehicle cybersecurity roundtable meeting in Washington, DC to facilitate diverse stakeholder discussion on key vehicle cybersecurity topics. Over 300 individuals attended this meeting. These attendees represented over 200 unique organizations that included 17 Original Equipment Manufacturers (OEMs), 25 government entities, and 13 industry associations. During the roundtable meeting, the stakeholder groups identified actionable steps for
As a result of the extensive public and private stakeholder engagement, NHTSA has developed a set of best practices for the automotive industry that the agency believes will further automotive cybersecurity. The agency notes that the Alliance of Automobile Manufacturers and the Association of Global Automakers, through the Auto Information Sharing and Analysis Center (Auto ISAC), released a “Framework for Automotive Cybersecurity Best Practices” on July 22, 2016.
NHTSA invites public comments on all aspects of these best practices, including how to make the best practices more robust, what gaps remain and whether there is sufficient research and/or practices to address those gaps.
Your comments must be written and in English. To ensure that your comments are filed correctly in the docket, please include the docket number of this document in your comments.
Your comments must not be more than 15 pages long (49 CFR 553.21). NHTSA established this limit to encourage you to write your primary comments in a concise fashion. However, you may attach necessary additional documents to your comments. There is no limit on the length of the attachments.
Please submit one copy (two copies if submitting by mail or hand delivery) of your comments, including the attachments, to the docket following the instructions given above under
If you wish to submit any information under a claim of confidentiality, you should submit three copies of your complete submission, including the information you claim to be confidential business information, to the Office of the Chief Counsel, NHTSA, at the address given above under
NHTSA will consider all comments received before the close of business on the comment closing date indicated above under
You may read the comments received at the address given above under
Please note that, even after the comment closing date, NHTSA will continue to file relevant information in the docket as it becomes available. Further, some people may submit late comments. Accordingly, the agency recommends that you periodically check the docket for new material.
Anyone is able to search the electronic form of all comments received into any of our dockets by the name of the individual submitting the comment (or signing the comment, if submitted on behalf of an association, business, labor union, etc.). You may review DOT's complete Privacy Act Statement in the
Sec. 31402, Pub. L. 112-141.
The Department of the Treasury will submit the following information collection request(s) 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 November 28, 2016 to be assured of consideration.
Send comments regarding the burden estimates, or any other aspect of the information collection(s), 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 submissions may be obtained by emailing
To assist the Agency is accomplishing the goal outlined in the Strategic Plan, the Wage and Investment Division continuously maintains a “customer-first” focus through routinely soliciting information concerning the needs and characteristics of its customers and implementing programs based on the information received. W&I Strategies and Solutions (WISS), is developing the implementation of a Behavioral Laboratory to identify, plan and deliver business improvement processes that support fulfillment of the IRS strategic goals.
The collection of information through the Behavioral Laboratory is necessary to enable the Agency to garner customer and stakeholder feedback in an efficient, timely manner, in accordance with the commitment to improving taxpayer service delivery. Improving agency programs requires ongoing assessment of service delivery. WISS, through the Behavioral Laboratory, will collect, analyze, and interpret information gathered through this generic clearance to identify strengths and weaknesses of current services and make improvements in service delivery based on feedback provided by taxpayers and employees of the Internal Revenue Service.
Office of Energy Efficiency and Renewable Energy, Department of Energy.
Direct final rule.
The effective date of this rule is February 27, 2017 unless adverse comment is received by February 15, 2017. If adverse comments are received that DOE determines may provide a reasonable basis for withdrawal of the final rule, a timely withdrawal of this rule will be published in the
Any comments submitted must identify the direct final rule for Energy Conservation Standards for miscellaneous refrigeration products and provide docket number EERE-2011-BT-STD-0043 and/or regulatory information number (RIN) 1904-AC51. Comments may be submitted using any of the following methods:
(1)
(2)
(3)
(4)
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”).
Docket: The docket, which includes
A link to the docket Web page can be found at:
Joseph Hagerman, 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) 586-4549. 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))
DOE received a statement submitted jointly by interested persons that are fairly representative of relevant points of view (including representatives of manufacturers of the covered equipment at issue, States, and efficiency advocates) containing recommendations with respect to new energy conservation standards for MREFs (see section III.A of this document for a description of the jointly-submitted statement). DOE has determined that the recommended standards contained in the statement are in accordance with 42 U.S.C. 6295(o), which prescribes the conditions under which DOE may adopt new standards. Under the authority provided by 42 U.S.C. 6295(p)(4), DOE is issuing this direct final rule to establish new energy conservation standards for MREFs.
The new MREF standards, which are expressed in maximum allowable annual energy use (“AEU”) in kilowatt-hours per year (“kWh/yr”) as a function of the calculated adjusted volume (“AV”) in cubic feet (“ft
Table I.3 presents DOE's evaluation of the economic impacts of the adopted standards on consumers of MREFs, as measured by the average life-cycle cost (“LCC”) savings and the simple payback period (“PBP”).
DOE's analysis of the impacts of the adopted standards on consumers is described in section IV.F of this document.
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 (2016 to 2048). Using a real discount rate of 7.7 percent, DOE estimates that the INPV for manufacturers of MREFs in the case without standards is $263.3 million for coolers and $108.2 million for combination cooler refrigeration products in 2015$. Under the new standards, DOE expects that manufacturers may lose up to 20.8 percent of this INPV for coolers, which is approximately $54.8 million; and manufacturers may lose up to 0.7 percent of this INPV for combination cooler refrigeration products, which is approximately $0.8 million. Additionally, based on DOE's interviews with the manufacturers of MREFs, DOE does not expect significant impacts on manufacturing capacity or loss of employment for the industry as a whole to result from the standards for MREFs adopted in this direct final rule.
DOE's analysis of the impacts of new standards on manufacturers is described in section IV.J of this document.
DOE's analyses indicate that the adopted energy conservation standards for MREFs would save a significant amount of energy. Relative to the no-new-standards case, the lifetime energy
The cumulative net present value (“NPV”) of total consumer costs and savings of the standards for MREFs ranges from $4.78 billion (at a 7-percent discount rate) to $11.02 billion (at a 3-percent discount rate). This NPV expresses the estimated total value of future operating-cost savings minus the estimated increased product costs for MREFs purchased in 2019-2048.
In addition, the standards for MREFs are projected to yield significant environmental benefits. DOE estimates that the standards would result in cumulative greenhouse gas emission reductions (over the same period as for energy savings) of 91.8 million metric tons (“Mt”)
The value of the CO
Table I.4 summarizes the economic benefits and costs expected to result from the adopted standards for MREFs.
The benefits and costs of the adopted standards for MREFs sold in 2019 to 2048 can also be expressed in terms of annualized values. The monetary values for the total annualized net benefits are the sum of (1) the national economic value of the benefits in reduced operating costs, minus (2) the increases in product purchase prices and installation costs, plus (3) the value of the benefits of CO
The national operating cost savings are domestic private U.S. consumer monetary savings that occur as a result of purchasing the covered products. The national operating cost savings is measured for the lifetime of MREFs shipped in 2019-2048. The CO
Estimates of annualized benefits and costs of the adopted standards are shown in Table I.5. 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 SCC series has a value of $40.6/t in 2015, the estimated cost of the standards is $157 million per year in increased equipment costs, while the estimated annual benefits are $754 million in reduced operating costs, $165 million in CO
DOE's analysis of the national impacts of the adopted standards is described in sections IV.H, IV.K, and IV.L of this document.
Based on the analyses culminating in this direct final rule, DOE found the benefits to the nation of the standards (energy savings, consumer LCC savings, positive NPV of consumer benefit, and emission reductions) outweigh the burdens (reduction of INPV for manufacturers). DOE has concluded that the standards in this direct final rule represent the maximum improvement in energy efficiency that is technologically feasible and economically justified, and would result in significant conservation of energy.
Under the authority provided by 42 U.S.C. 6295(p)(4), DOE is issuing this direct final rule to establish new energy conservation standards for MREFs.
The following section briefly discusses the statutory authority underlying this direct final rule, as well as some of the relevant historical background related to the establishment of standards for MREFs.
As indicated above, EPCA includes provisions covering the products addressed by this Direct final rule. EPCA addresses, among other things, the energy efficiency of certain types of consumer products. Relevant provisions of the Act specifically include definitions (42 U.S.C. 6291), energy conservation standards (42 U.S.C. 6295), test procedures (42 U.S.C. 6293), labeling provisions (42 U.S.C. 6294), and the authority to require information and reports from manufacturers (42 U.S.C. 6296).
Under 42 U.S.C. 6292(a)(20), DOE may extend coverage over a particular type of consumer product provided that DOE determines that classifying products of such type as covered products is necessary or appropriate to carry out the purposes of EPCA and that the average annual per-household energy use by products of such type is likely to exceed 100 kilowatt-hours (“kWh”) or its British thermal unit (“Btu”) equivalent per year. See 42 U.S.C. 6292(b)(1). EPCA sets out the following additional requirements to establish energy conservation standards for a new covered product: (1) The average per household domestic energy use by such products exceeded 150 kWh or its Btu equivalent for any 12-month period ending before such determination; (2) the aggregate domestic household energy use by such products exceeded 4.2 million kWh or its Btu equivalent for any such 12-month period; (3) substantial energy efficiency of the products is technologically feasible; and (4) applying a labeling rule is unlikely to be sufficient to induce manufacturers to produce, and consumers and other persons to purchase, products of such type that achieve the maximum level of energy efficiency. See 42 U.S.C. 6295(l)(1).
Pursuant to EPCA, DOE's energy conservation program for covered products consists essentially of four parts: (1) Testing; (2) labeling; (3) the establishment of 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 develop test procedures to measure the energy efficiency, energy use, or estimated annual operating cost of each covered product. (42 U.S.C. 6295(o)(3)(A) and (r)) Manufacturers of covered products must use the prescribed DOE test procedure as the basis for certifying to DOE that their products comply with the applicable energy conservation standards adopted under EPCA and when making representations to the public regarding the energy use or efficiency of those products. (42 U.S.C. 6293(c) and 6295(s)) Similarly, DOE must use these test procedures to determine whether the products comply with standards adopted pursuant to EPCA. (42 U.S.C. 6295(s)) The DOE test procedure for MREFs currently appears at title 10 of the Code of Federal Regulations (“CFR”) part 430, subpart B, appendix A (appendix A).
DOE follows specific criteria when prescribing new or amended standards for covered products. As indicated above, any new or 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 MREFs, if no test procedure has been established for the product, or (2) if DOE determines by rule that the new or amended standard is not technologically feasible or economically justified. (42 U.S.C. 6295(o)(3)(A)-(B)) In deciding whether a new or amended standard is economically justified, 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 after receiving comments on the proposed standard and considering, to the greatest extent practicable, the following seven 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 imposition of the standard;
3. The total projected amount of energy, or as applicable, water, savings likely to result directly from the imposition of the standard;
4. Any lessening of the utility or the performance of the covered products likely to result from the imposition of 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 imposition of the standard;
6. The need for national energy and water conservation; and
7. Other factors the Secretary of Energy (Secretary) considers relevant. (42 U.S.C. 6295(o)(2)(B)(i)(I)-(VII))
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))
EPCA 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 the evidence that the standard is likely to result in the unavailability in the United States in 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))
Additionally, DOE may set energy conservation standards for a covered product that has two or more subcategories. In those instances, DOE must specify a different standard level for a type or class of products 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 which 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 such a 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).
DOE is also 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 the 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 test procedures for MREFs address standby mode and off mode energy use, as do the new standards adopted in this direct final rule.
With particular regard to direct final rules, the Energy Independence and Security Act of 2007 (“EISA 2007”), Public Law 110-140 (December 19, 2007), amended EPCA, in relevant part, to grant DOE authority to issue a type of final rule (
DOE also notes that it typically finalizes its test procedures for a given regulated product or equipment prior to
DOE has not previously established energy conservation standards for MREFs. Consistent with its statutory obligations, DOE sought to establish regulatory coverage over these products prior to establishing energy conservation standards to regulate MREF efficiency. On November 8, 2011, DOE published a notice of proposed determination of coverage (“NOPD”) to address the potential coverage of those refrigeration products that do not use a compressor-based refrigeration system. 76 FR 69147. Rather than employing a compressor/condenser-based system typically installed in the refrigerators, refrigerator-freezers, and freezers found in most U.S. homes, these “non-compressor-based” refrigeration products use a variety of other means to introduce chilled air into the interior of the storage cabinet of the product. Two systems that DOE specifically examined were thermoelectric- and absorption-based systems.
On February 13, 2012, DOE published a document announcing the availability of the framework document, “Energy Conservation Standards Rulemaking Framework Document for Wine Chillers and Miscellaneous Refrigeration Products,” and a public meeting to discuss the proposed analytical framework for the energy conservation standards rulemaking. 77 FR 7547. In the framework document, DOE described the procedural and analytical approaches it anticipated using to evaluate potential energy conservation standards for four types of consumer refrigeration products: Wine chillers, non-compressor refrigerators, hybrid refrigerators (
DOE held a public meeting on February 22, 2012, to present the framework document, describe the analyses DOE planned to conduct during the rulemaking, seek comments from interested parties on these subjects, and inform them about, and facilitate their involvement in, the rulemaking. At the public meeting and during the comment period, DOE received multiple comments that addressed issues raised in the framework document and identified additional issues relevant to the rulemaking.
On October 31, 2013, DOE published in the
DOE published a notice of public meeting and availability of the preliminary technical support document (“TSD”) for the MREF energy conservation standards rulemaking on December 3, 2014. 79 FR 71705. The preliminary analysis considered potential standards for the products proposed for coverage in the October 2013 SNOPD. The preliminary TSD includes the results of the following DOE preliminary analyses: (1) Market and technology assessment; (2) screening analysis; (3) engineering analysis; (4) markups analysis; (5) energy use analysis; (6) LCC and PBP analyses; (7) shipments analysis; (8) national impact analysis (“NIA”); and (9) preliminary manufacturer impact analysis (“MIA”).
DOE held a public meeting on January 9, 2015, during which it presented preliminary results for the engineering and downstream economic analyses and sought comments from interested parties on these subjects. At the public meeting and during the comment period, DOE received comments that addressed issues raised in the preliminary analysis and identified additional issues relevant to this rulemaking. After reviewing the comments received in response to both the preliminary analysis and a test procedure NOPR published on December 16, 2014 (the “December 2014 Test Procedure NOPR,” 79 FR 74894), DOE ultimately determined that the development of test procedures and potential energy conservation standards for MREFs would benefit from a negotiated rulemaking process.
On April 1, 2015, DOE published a notice of intent to establish an Appliance Standards and Rulemaking Federal Advisory Committee (“ASRAC”) negotiated rulemaking working group for MREFs (the “MREF Working Group” or in context, the “Working Group”) to discuss and, if possible, reach consensus on recommended scope of coverage, definitions, test procedures, and energy conservation standards. 80 FR 17355. The MREF Working Group consisted of 15 members, including two members from ASRAC and one DOE representative. The MREF Working Group met in person during six sets of meetings in 2015: May 4-5, June 11-12, July 15-16, August 11-12, September 16-17, and October 20.
On August 11, 2015, the MREF Working Group reached consensus on a term sheet to recommend a scope of coverage, set of definitions, and test procedures for MREFs (“Term Sheet #1”).
In addition to these steps, DOE sought to ensure that it had obtained complete information and input regarding certain aspects related to manufacturers of thermoelectric refrigeration products. To this end, on December 15, 2015, DOE published a notice of data availability (the “December 2015 NODA”) in which it requested additional public feedback on the methods and information used in the development of the MREF Working Group term sheets. 80 FR 77589. DOE noted in particular its interest in information related to manufacturers of thermoelectric refrigeration products.
After considering the MREF Working Group recommendations and comments received in response to the December 2015 NODA, DOE published an SNOPD and notice of proposed rulemaking (the “March 2016 SNOPD”) on March 4, 2016. 81 FR 11454. The March 2016 SNOPD proposed establishing coverage, definitions, and terminology consistent with Term Sheet #1. It also proposed to determine that coolers and combination cooler refrigeration products—as defined under the proposal—would meet the requirements under EPCA to be considered covered products.
The July 2016 Final Coverage Determination established coolers and combination cooler refrigeration products as covered products under EPCA. Because DOE did not receive any comments in response to the March 2016 SNOPD that would substantively alter its proposals, the findings of the final determination were unchanged from those presented in the March 2016 SNOPD. Moreover, DOE determined in the July 2016 Final Coverage Determination that MREFs, on average, consume more than 150 kWh/yr, and that the aggregate annual national energy use of these products exceeds 4.2 TWh. Accordingly, these data indicate that MREFs satisfy at least two of the four criteria required under EPCA in order for the Secretary to set standards for a product whose coverage is added pursuant to 42 U.S.C. 6292(b). See 42 U.S.C. 6295(l)(1)(A)-(D). See also 81 FR 46768 at 46773-46775 (detailing the data used to evaluate the energy usage of MREF products).
In addition to establishing coverage, the July 2016 Final Coverage Determination established definitions for “miscellaneous refrigeration products,” “coolers,” and “combination cooler refrigeration products” in 10 CFR 430.2. The July 2016 Final Coverage Determination also amended the existing definitions for “refrigerator,” “refrigerator-freezer,” and “freezer” for consistency with the newly established MREF definitions. These definitions were generally consistent with the March 2016 SNOPD.
As discussed in section II.B of this document, the MREF Working Group approved two term sheets that recommended a scope of coverage, definitions, test procedures, and energy conservation standards for MREFs. ASRAC approved the two term sheets during open meetings and sent them to the Secretary of Energy for consideration.
After carefully considering the consensus recommendations related to new energy conservation standards for MREFs submitted by the MREF Working Group and adopted by ASRAC, DOE has determined that these recommendations comprise a statement submitted by interested persons who are fairly representative of relevant points of view on this matter. In reaching this determination, DOE took into consideration the fact that the Working Group, in conjunction with ASRAC members who approved the recommendations, consisted of representatives of manufacturers of covered products, States, and efficiency advocates—all of which are groups specifically identified by Congress as potentially relevant parties to any consensus recommendation submitted by ASRAC. (42 U.S.C. 6295(p)(4)(A)) As delineated above, Term Sheet #2 was submitted by a broad cross-section of interests, including the manufacturers who produce the subject products, a trade association representing these manufacturers, environmental and energy-efficiency advocacy organizations, and an electric utility company. Although States were not direct signatories to the Term Sheet, the ASRAC Committee approving the Working Group's recommendations included one member representing the State of California.
By its plain terms, the statute contemplates that the Secretary will exercise discretion to determine whether a given statement is submitted jointly by interested persons that are fairly representative of relevant points of view (including representatives of manufacturers of covered products, States, and efficiency advocates). In this case, given the broad range of persons participating in the process that led to the submission—in the Working Group and in ASRAC—and given the breadth of perspectives expressed in that process, DOE has determined that the statements it received meet this criterion.
Pursuant to 42 U.S.C. 6295(p)(4), the Secretary must also determine whether a jointly-submitted recommendation for an energy conservation standard satisfies the criteria presented in 42 U.S.C. 6295(o). To make this determination, DOE has conducted an analysis to evaluate whether the potential energy conservation standards under consideration would meet these requirements. This evaluation is the same comprehensive approach that DOE typically conducts whenever it considers potential energy conservation standards for a given type of product or equipment. DOE applies the same principles to any consensus recommendations it may receive to satisfy its statutory obligation to ensure that any energy conservation standard that it adopts achieves the maximum improvement in energy efficiency that is technologically feasible and economically justified and will result in the significant conservation of energy. Upon review, the Secretary determined that the standards recommended in Term Sheet #2 submitted to DOE through ASRAC meet the standard-setting criteria set forth under 42 U.S.C. 6295(o). The consensus-recommended efficiency levels were included as trial standard level (“TSL”) 2 for coolers and TSL 1 for combination cooler refrigeration products (see section V.A of this document for a description of all of the considered TSLs). The details regarding how the consensus-
In sum, as the relevant criteria under 42 U.S.C. 6295(p)(4) have been satisfied, the Secretary has determined that it is appropriate to adopt the consensus-recommended energy conservation standards for MREFs as presented in Term Sheet #2 through this direct final rule.
Pursuant to the same statutory provision, DOE is also simultaneously publishing a NOPR proposing that the identical standard levels contained in this direct final rule be adopted. Consistent with the statute, DOE is providing a 110-day public comment period on this direct final rule. Based on the comments received during this period, the direct final rule will either become effective or DOE will withdraw it if: (1) One or more adverse comments is received; and (2) DOE determines that those comments, when viewed in light of the rulemaking record related to the direct final rule, provide a reasonable basis for withdrawal of the direct final rule under 42 U.S.C. 6295(o) and for DOE to continue this rulemaking under the NOPR. (Receipt of an alternative joint recommendation may also trigger a DOE withdrawal of the direct final rule in the same manner.) See 42 U.S.C. 6295(p)(4)(C). Typical of other rulemakings, it is the substance, rather than the quantity, of comments that will ultimately determine whether a direct final rule will be withdrawn. To this end, the substance of any adverse comment(s) received will be weighed against the anticipated benefits of the jointly-submitted recommendations and the likelihood that further consideration of the comment(s) would change the results of the rulemaking. DOE notes that, to the extent an adverse comment had been previously raised and addressed in the rulemaking proceeding, such a submission will not typically provide a basis for withdrawal of a direct final rule.
The MREF Working Group recommended standards for all MREF product classes of coolers and combination cooler refrigeration products. Table III.1 and Table III.2 show the recommended standard levels, which are expressed as an equation whose value varies based on the calculated AV of a given product. The MREF Working Group recommended that these standard levels take effect three years following the publication of the direct final rule. See Term Sheet #2.
When establishing new standards for products not previously covered, EPCA provides that newly-established standards shall not apply to products manufactured within five years after the publication of the final rule. See 42 U.S.C. 6295(l)(2). As part of its set of comprehensive recommendations, the MREF Working Group recommended that DOE instead apply a 3-year lead time.
DOE has the authority under section 42 U.S.C. 6295(p)(4) to accept recommendations for compliance dates contained in a joint submission recommending amended standards. In DOE's view, the direct final rule authority provision specifies the finding DOE has to make. Specifically, Congress specified that if DOE determines that the recommended standard is in accordance with 42 U.S.C. 6295(o), DOE may issue a final rule establishing those standards. See 42 U.S.C. 6295(p)(4)(A)(i). Applying the direct final rule provision in this manner meets Congress's goal to promote consensus agreements that reflect broad input from interested parties who can fashion agreements that best promote the aims of the statute. In the absence of a consensus agreement, DOE notes that the more specific prescriptions of EPCA would ordinarily prevail. However, when DOE receives a recommendation resulting from the appropriate process—in this case, the detailed procedure laid out in the direct final rule provision of EPCA—that process provides the necessary fidelity to the statute, along with compliance with section 6295(o), that Congress instructed DOE to apply.
DOE notes that its analysis of whether the consensus-recommended and other TSLs satisfy the criteria presented in 42 U.S.C. 6295(o) contemplates two compliance periods. For consensus-recommended TSLs, the analysis is based on a 2019 compliance date, as recommended by the MREF Working Group. The analysis for all other TSLs is based on a 2021 compliance date consistent with EPCA, which provides that newly-established standards shall not apply to products manufactured within five years after the publication of the final rule. In other words, DOE followed the prescriptions of EPCA for all TSLs that were not recommended by the MREF Working Group. The two different compliance dates are indicated in the relevant sections throughout this document.
In the preliminary analysis, DOE considered potential standards for four consumer product categories proposed for coverage in the October 2013 SNOPD: Cooled cabinets, non-compressor refrigerators, ice makers, and hybrid products. See chapter 3 of the preliminary TSD.
Based on comments received in response to the preliminary analysis, and on the recommendations of the MREF Working Group, DOE subsequently proposed in the March 2016 SNOPD that consumer ice makers and non-compressor refrigerators would not be included within MREFs. DOE proposed to remove ice makers from the scope of MREFs because they are significantly different from the other product types being considered for coverage, consistent with the MREF Working Group's recommendation. For non-compressor refrigerators, DOE is not aware of any products available on the market that would be considered non-compressor refrigerators. Instead, non-compressor products available on the market would be considered coolers under the March 2016 SNOPD proposal. DOE also revised the proposed definitions for cooled cabinets and hybrid products to designate these products as coolers and combination cooler refrigeration products, respectively, in accordance with the definitions recommended by the MREF Working Group in Term Sheet #1. See 81 FR 11454, 11456, 11458-11459. Interested parties generally supported the scope of coverage, energy use analysis, and definitions proposed in the March 2016 SNOPD. Therefore, in the July 2016 Final Coverage Determination, DOE determined that MREFs (including coolers and combination cooler refrigeration products) are covered products under EPCA. The July 2016 Final Coverage Determination also established definitions for these products that are generally consistent with the March 2016 SNOPD proposal. 81 FR 46768. This direct final rule establishes energy conservation standards for MREFs as defined in the July 2016 Final Coverage Determination.
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 differing standards. 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 determines are appropriate. (42 U.S.C. 6295(q))
In this direct final rule, DOE is establishing energy conservation standards for four product classes of coolers and nine product classes of combination cooler refrigeration products. These product classes are consistent with those recommended by the MREF Working Group in Term Sheet #2. The product classes established in this direct final rule and their descriptions are provided in Table III.3.
EPCA sets forth generally applicable criteria and procedures for DOE's adoption and amendment of test procedures. (42 U.S.C. 6293) Manufacturers of covered products must use these test procedures to certify to DOE that their product complies with energy conservation standards and to quantify the efficiency of their product. Similarly, DOE must use these test procedures to determine compliance with its energy conservation standards. (42 U.S.C. 6295(s))
DOE published the December 2014 Test Procedure NOPR on December 16, 2014, in which it proposed to establish definitions and test procedures for the product categories proposed for coverage in the October 2013 SNOPD. The proposed test procedures would measure the energy efficiency, energy use, and estimated annual operating cost of these products during a representative average use period and that would not be unduly burdensome to conduct, as required under 42 U.S.C. 6293(b)(3). 79 FR 74894.
After reviewing comments responding to the December 2014 Test Procedure NOPR, DOE ultimately determined that developing the test procedures for these products would benefit from a negotiated rulemaking process. Therefore, DOE included potential test procedures within the scope of work for
The test procedures for MREFs, which are consistent with the MREF Working Group Recommendation, were codified in appendix A by the July 2016 Final Coverage Determination. 81 FR 46768. The test procedures, which follow a similar methodology to those in place for refrigerators, refrigerator-freezers, and freezers, provide the provisions for determining a product's annual energy usage (kWh/yr) and total AV, which are the basis of the energy conservation standards established in this direct final rule.
To assess the technological feasibility of setting standards for a product, DOE conducts a screening analysis based on information gathered on all current technology options and prototype designs that could improve its efficiency. 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 direct final rule discusses the results of the screening analysis for MREFs, particularly the designs DOE considered, those it screened out, and those that are the basis for the standards considered in this rulemaking. For further details on the screening analysis for this rulemaking, see chapter 4 of the direct final rule TSD.
When DOE proposes to adopt a new 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 MREFs, 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 are described in section IV.C of this direct final rule and in chapter 5 of the direct final rule TSD.
For each TSL, DOE projected energy savings from application of the TSL to MREFs purchased in the 30-year period that begins in the year of compliance with any new standards (2019-2048 for the TSLs recommended by the MREF Working Group, 2021-2050 for all other TSLs).
DOE used its NIA spreadsheet models to estimate energy savings from potential standards for MREFs. The NIA spreadsheet model (described in section IV.H of this document) calculates savings in site energy, which is the energy directly consumed by products at the locations where they are used. Based on the site energy, DOE calculates national energy savings (“NES”) in terms of primary energy savings at the site or at power plants, and also in terms of full-fuel-cycle (“FFC”) energy savings. The FFC metric includes the energy consumed in extracting, processing, and transporting primary fuels (
To adopt 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
As noted above, 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 potential energy conservation standards on manufacturers, DOE conducts a manufacturer impact analysis (
For individual consumers, measures of economic impact include the changes in LCC and PBP associated with new standards. These measures are discussed further in the following section. For consumers in the aggregate, DOE also calculates the national NPV of the economic impacts applicable to a particular rulemaking. DOE often also evaluates the LCC impacts of potential standards on identifiable subgroups of consumers that may be affected disproportionately by a national standard, such as low income and senior households. In the case of MREFs, the available house sample sizes for identifiable subgroups were insufficient to yield meaningful results.
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 analysis.
The LCC is the sum of the purchase price of a product (including its installation) and the operating cost (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 discount rates appropriate for consumers. 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.
The PBP is the estimated amount of time (in years) it takes consumers to recover the increased purchase cost (including installation) of a more-efficient product through lower operating costs. DOE calculates the PBP by dividing the change in purchase cost due to a more-stringent standard by the change in annual operating cost for the year that standards are assumed to take effect.
For its LCC and PBP analysis, DOE assumes that consumers will purchase the covered products in the first year of compliance with new standards. The LCC savings for the considered efficiency levels are calculated relative to the case that reflects projected market trends in the absence of new standards (the no-new-standards case). DOE's LCC and PBP analysis is discussed in further detail in section IV.F of this document.
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 of this document, DOE uses the NIA spreadsheet models 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 adopted in this direct final rule 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)(1)(B)(i)(V)) Specifically, it instructs DOE to consider the impact of any lessening of competition, as determined in writing by the Attorney General that is likely to result from the imposition of the standard. DOE is simultaneously publishing a NOPR containing proposed energy conservation standards identical to those set forth in this direct final rule and has transmitted a copy of the rule and the accompanying TSD to the Attorney General, requesting that the U.S. Department of Justice (“DOJ”) provide its determination on this issue. DOE will consider DOJ's comments on the direct final rule in determining whether to proceed with finalizing its standards. DOE will also publish and respond to the DOJ's comments in the
DOE also considers the need for national energy conservation in determining whether a new standard is economically justified. (42 U.S.C. 6295(o)(2)(B)(i)(VI)) The energy savings from the adopted standards are likely to provide improvements to the security and reliability of the nation's energy system. 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.0 of this document.
Additionally, apart from the savings described above, the adopted 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 and use. DOE conducts an emissions analysis to estimate how potential standards may affect these emissions, as discussed in section IV.K of this document; the emissions impacts are reported in section V.B.6 of this document. DOE also estimates the economic value of emissions reductions resulting from the considered TSLs, as discussed in section IV.L of this document.
In determining whether a standard is economically justified, DOE may consider any other factors that it deems to be relevant. (42 U.S.C. 6295(o)(2)(B)(i)(VII)) In developing the direct final rule, DOE has considered the submission of the jointly-submitted Term Sheet #2 from the MREF Working Group. In DOE's view, the term sheet sets forth a statement by interested persons that are fairly representative of relevant points of view (including representatives of manufacturers of covered equipment, States, and efficiency advocates) and contains recommendations with respect to energy
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 effect potential new 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 IV.F of this direct final rule.
This section addresses the analyses DOE has performed for this rulemaking with regard to MREFs. Separate subsections address each component of DOE's analyses.
DOE presented information on its initial analytical approach in the preliminary analysis. As discussed in section II.B of this direct final rule, DOE received comments from interested parties in response to both the preliminary analysis and the December 2014 Test Procedure NOPR indicating that these rulemakings would benefit from a negotiated rulemaking process. Based on the subsequent MREF Working Group discussions, in the July 2016 Final Coverage Determination, DOE revised its scope of coverage, product definitions, and test procedures for MREFs, which resulted in significant changes to the rulemaking analysis. 81 FR 46786. Because of these significant changes, many comments received in response to the preliminary analysis are no longer applicable.
Additionally, the substantive comments received in response to the preliminary analysis were from interested parties that were represented by members of the MREF Working Group. The Working Group discussed in detail all of the issues identified by these interested parties. As a result of these discussions, many MREF Working Group members revised their position on certain issues with respect to the analysis. To avoid presenting information that may not reflect the current opinions of Working Group members, DOE has not included summaries of comments received from Working Group members in response to the preliminary analysis in the following sections describing the direct final rule analyses. Rather, DOE has included summaries of the Working Group discussions, including citations to the relevant Working Group meeting transcripts that addressed issues with the preliminary analysis and recommended approaches for DOE in this direct final rule analysis.
DOE used several analytical tools to estimate the impact of the standards considered in this document. The first tool is a spreadsheet that calculates the LCC savings and PBP of potential amended or new energy conservation standards. The NIA uses a second spreadsheet set that provides shipments forecasts and calculates national energy savings and net present value of total consumer costs and savings expected to result from potential energy conservation standards. DOE uses the third spreadsheet tool, the Government Regulatory Impact Model (“GRIM”), to assess manufacturer impacts of potential standards. These three spreadsheet tools are available on the DOE Web site for this rulemaking:
DOE develops information in the market and technology assessment 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 rulemaking include: (1) A determination of the scope of the rulemaking and product classes; (2) manufacturers and industry structure; (3) existing efficiency programs; (4) shipments information; (5) market and industry trends; and (6) technologies or design options that could improve the energy efficiency of MREFs. The key findings of DOE's market assessment are summarized below. See chapter 3 of the direct final rule TSD for further discussion of the market and technology assessment.
In the preliminary market and technology assessment, and consistent with the October 2013 SNOPD, DOE identified four consumer product categories that would be subject to potential energy conservation standards. These were: Cooled cabinets, non-compressor refrigerators, hybrid refrigerators, and ice makers. DOE received multiple comments about the scope of coverage and the product classes considered in the preliminary analysis, summarized in the following sections. As described in section II.B of this document, the MREF Working Group discussed concerns regarding scope of coverage raised in comments received in response to the preliminary analysis.
The following sections describe how DOE has revised its scope of coverage for MREFs since the preliminary analysis and after considering the MREF Working Group recommendations. DOE initially proposed a revised scope of coverage in the March 2016 SNOPD (81 FR 11454), and finalized the scope of coverage in the July 2016 Final Coverage Determination. 81 FR 46768.
In the December 2014 Test Procedure NOPR, DOE generally proposed to define the term “cooled cabinet” as a product with a refrigeration system that requires electric energy input only that does not meet the regulatory definition for “refrigerator” because its compartment temperatures are warmer
The MREF Working Group's Term Sheet #1 recommended that DOE revise the term “cooled cabinet” to “cooler” and incorporated a number of other changes to the proposed definition of this new term. The Working Group recommended that compartment temperatures be determined during operation in a 90 °F ambient temperature to maintain consistency with the test conditions used for other refrigeration products. (ASRAC Public Meeting Transcript, No. 44 at pp. 158-202)
In the March 2016 SNOPD, DOE proposed to define coolers based on its proposed definition from the December 2014 Test Procedure NOPR but updated to reflect the Working Group's recommendations. 81 FR at 11458-11459. DOE did not receive any comments that would substantively change this proposed updated definition in response to the March 2016 SNOPD. Hence, in the July 2016 Final Coverage Determination, DOE established the definition for cooler as proposed in the March 2016 SNOPD, with minor revisions, in 10 CFR 430.2. 81 FR at 46775-46776.
In the December 2014 Test Procedure NOPR, DOE proposed the term “hybrid refrigeration product” to refer to products with a warm-temperature compartment (
The MREF Working Group discussed the proposed definition and recommended that DOE revise the term from “hybrid refrigeration product” to “combination cooler refrigeration product” to more clearly describe the product category. The Working Group also recommended that DOE refer to the warmer compartment within combination cooler refrigeration products as a “cooler compartment” (defined by the same temperature ranges as proposed for coolers) and that DOE drop the proposed requirement that cooler compartments make up at least 50 percent of a combination cooler refrigeration product's total volume. The Working Group noted that all products with cooler compartments would likely be used in the same way and asserted that the 50-percent threshold was an arbitrary cutoff. It further recommended that DOE exclude products designed for use without doors from the combination cooler refrigeration product definitions for the same reasons discussed for coolers (
DOE agreed with the recommended changes from the MREF Working Group and the Working Group's reasoning for each of them. The term “combination cooler refrigeration product” more clearly describes the characteristics of the products that would fall in this category. Additionally, the recommendation to remove the 50-percent threshold would limit the potential for circumvention by manufacturing products with cooler compartment volumes either just above or below the threshold. Removing the cooler compartment volume threshold ensures that all products with cooler compartments (which are likely to be used in the same way, as indicated by the MREF Working Group) are categorized consistently. Therefore, DOE proposed to define terms for combination cooler refrigeration products in the March 2016 SNOPD consistent with the definitions included in Term Sheet #1. See 81 FR at 11459 (detailing DOE's rationale for adopting the Working Group's approach). DOE did not receive any comments that would substantively change the proposed definitions of combination cooler refrigeration products in response to the March 2016 SNOPD; therefore, DOE subsequently codified the definition, with only minor revisions, in 10 CFR 430.2 through the July 2016 Final Coverage Determination. Further, the July 2016 Final Coverage Determination codified the definition for “cooler compartment” as recommended by the MREF Working Group into appendix A. See 81 FR at 46776-46777.
In the preliminary analysis, DOE presented information regarding ice makers, which DOE tentatively defined as a consumer product other than a refrigerator, refrigerator-freezer, freezer, hybrid refrigeration product, non-compressor refrigerator, or cooled cabinet designed to automatically produce and harvest ice, but excluding any basic model that is certified under American National Standards Institute (ANSI)/NSF International (NSF) 12-2012 “Automatic Ice Making Equipment.”
In response to the preliminary analysis, DOE received feedback from several interested parties regarding ice maker coverage within MREFs. As such, the MREF Working Group discussed the issue of whether ice makers should be considered MREFs for coverage under EPCA. The MREF Working Group
Consistent with the MREF Working Group's recommendation, the March 2016 SNOPD proposed excluding ice makers from coverage as MREFs. 81 FR at 11456. DOE did not receive comments opposing this approach in response to the March 2016 SNOPD, and, therefore, excluded ice makers from coverage as MREFs in the July 2016 Final Coverage Determination. 81 FR at 46773. Accordingly, DOE has not analyzed or adopted standards for ice makers as part of this direct final rule.
EPCA specifies that refrigerators, refrigerator-freezers, and freezers with compressor and condenser units as integral parts of the cabinet assembly (
DOE tested six non-compressor refrigerator models in support of the preliminary analysis. In that testing, DOE determined that none of the six models were able to maintain compartment temperatures in the specified refrigerator range when tested in a 90 °F ambient temperature consistent with the current DOE test procedure for refrigerators and the approach recommended by the Working Group. See chapter 5 of the preliminary TSD.
The MREF Working Group discussed whether non-compressor refrigerators should be considered MREFs. As discussed in the March 2016 SNOPD, the Working Group recommended that the compartment temperature ranges included in definitions be determined during product operation in a 90 °F ambient temperature. 81 FR at 11458-11460. Based on this suggested definition, the Working Group members stated that they were unaware of any products that would be considered non-compressor refrigerators available on the market, and recommended that DOE not establish a definition for this product category. (ASRAC Public Meeting Transcript, No. 45 at pp. 49-52; No. 91 at pp. 157-158) See Term Sheet #1.
In examining the merits of creating a separate product category and definition for non-compressor refrigerators, DOE conducted additional literature reviews and manufacturer interviews. DOE, however, did not find any non-compressor (thermoelectric or absorption) products available on the market that would be capable of maintaining compartment temperatures in the range necessary for a refrigerator as specified in 10 CFR 430.2 when tested in a 90 °F ambient temperature consistent with the current refrigerator test procedure and the approach ultimately recommended by the Working Group. Accordingly, in light of the Working Group's recommendation, DOE did not establish a separate product category for non-compressor refrigerators under MREFs, a discussed in the July 2016 Final Coverage Determination. See 81 FR at 46775-46776. DOE notes that products previously analyzed as non-compressor refrigerators would be covered as coolers under the MREF definitions established in the July 2016 Final Coverage Determination.
In the preliminary analysis, DOE proposed a single product class for all coolers (at the time referred to as “cooled cabinets”). DOE was aware of both vapor-compression and non-compressor coolers available on the market; however, DOE did not analyze these products in separate product classes because it did not identify any unique consumer utility associated with the different refrigeration systems. See chapter 3 of the preliminary TSD.
The MREF Working Group discussed the topic of product classes when considering recommended standards for MREFs. For coolers, the Working Group agreed with DOE's preliminary analysis determination that there is no unique consumer utility associated with either thermoelectric or vapor-compression refrigeration systems. (ASRAC Public Meeting Transcript, No. 45 at pp. 13-14, 162) Working Group members also compared coolers to refrigerators, refrigerator-freezers, and freezers, and considered similar characteristics for differentiating product classes. Working Group members noted that compact and built-in coolers each provide unique consumer utility and have different energy use characteristics compared to full-size or freestanding coolers, respectively. (ASRAC Public Meeting Transcript, No. 44 at pp. 155-157; No. 45 at pp. 160-166) Accordingly, the Working Group recommended that DOE establish definitions and energy conservation standards for four cooler product classes: Built-in compact, built-in, freestanding compact, and freestanding. See Term Sheets #1 and #2.
DOE sought additional information related to the consideration of non-compressor products in the December 2015 NODA. 80 FR 77589. DOE did not receive any information indicating that the approach used by the MREF Working Group was inappropriate.
Based on the recommendations of the MREF Working Group, DOE proposed definitions for each of the cooler product classes in the March 2016 SNOPD, and subsequently codified the definitions in 10 CFR 430.2 in the July 2016 Final Coverage Determination. 81 FR at 11459; 81 FR at 46775-46776. The standards adopted in this direct final rule are based on these four cooler product classes discussed above.
In the preliminary analysis, DOE proposed that combination cooler refrigeration products (at the time referred to as “hybrid refrigeration products”) would be subject to the same product class structure as currently in place for refrigerators, refrigerator-freezers, and freezers. See generally, 10 CFR 430.32(a) (detailing the different classes applicable to refrigerators, refrigerator-freezers, and freezers). Under this approach, the applicable product class would be determined based on the total product volume, the compartment temperature ranges for the non-cooler compartments, and any relevant product features (
The MREF Working Group discussed the topic of product classes when considering recommended standards for MREFs. Similar to coolers, the Working Group discussed how combination cooler refrigeration products are similar to refrigerators, refrigerator-freezers, and freezers. The Working Group considered whether the product class structure DOE proposed in the preliminary analysis would be appropriate. However, the Working Group indicated that because only certain of the previously considered product classes were available on the market or likely to become available on the market, DOE should only conduct analysis and consider potential standards for these product classes. Accordingly, the Working Group recommended that DOE establish eight product classes for combination cooler refrigeration products. These eight product classes represent the combination cooler refrigeration products that are either currently available on the market or very similar to products currently available (
Based on the recommendations of the MREF Working Group, in this direct final rule, DOE is establishing eight product classes for combination cooler refrigeration products. DOE has determined that each product class offers a unique consumer utility and has different energy use characteristics, warranting separate product classes. Table I.2 of this direct final rule includes a description of the eight product classes. More detailed descriptions of each of the product classes can be found in chapter 3 of the direct final rule TSD.
In the preliminary analysis, DOE identified multiple technology options that may be used to improve MREF efficiencies. The preliminary analysis technology options are listed in Table IV.1 and described in chapter 3 of the preliminary TSD.
After receiving feedback from interested parties, conducting manufacturer interviews, and participating in the MREF Working Group discussions, DOE did not identify any additional technology options beyond those considered in the preliminary analysis. In this direct final rule, DOE considered the same list of technology options as presented in Table IV.1.
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.
10 CFR part 430, subpart C, appendix A, 4(a)(4) and 5(b).
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.
In the preliminary analysis, DOE assessed the feasibility of each of the technologies listed in Table IV.1. Several of these technology options were found not to meet the four required screening criteria and were therefore screened out from further consideration in DOE's analysis. Table IV.2 lists the technology options DOE screened out for the preliminary analysis. More details on why these technology options were screened out can be found in chapter 4 of the preliminary TSD.
For this direct final rule analysis, DOE has maintained one technology option for consideration in the engineering analysis that was screened out in the preliminary analysis. DOE is no longer screening out improved evaporator and condenser heat exchange. DOE received feedback during confidential manufacturer interviews that there may be opportunities to optimize evaporator and condenser designs for more effective heat transfer. For this direct final rule, DOE has continued to screen out the remaining technology options listed in Table IV.2.
Through a review of each technology, DOE concludes that all of the other identified technology options listed in section IV.A.3 of this document meet all four screening criteria to be examined further as design options in the direct final rule engineering analysis. In summary, and as explained further in this section, DOE did not screen out the following technology options shown in Table IV.3.
DOE determined that these technology options are technologically
In the engineering analysis, DOE establishes the relationship between the manufacturer production cost (“MPC”) and improved efficiency of MREFs. 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 associated efficiency of various efficiency-improving design changes to the baseline product to model different levels of efficiency. The efficiency-level approach uses estimates of costs and efficiencies of products available on the market at distinct efficiency levels to develop the cost-efficiency relationship. 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 ranges from that of the least-efficient MREFs sold today to the max-tech efficiency level. At each efficiency level examined, DOE determines the MPC; this relationship is referred to as a cost-efficiency curve.
In the preliminary analysis, DOE adopted a combined efficiency-level/design-option/reverse-engineering approach to develop cost-efficiency curves for coolers. DOE first established efficiency levels by defining annual energy use as a percent of the California Energy Commission (“CEC”)-equivalent energy use. This is the maximum allowable energy use of the CEC energy standards for wine chillers with automatic defrost, adjusted to account for the fact that the CEC test procedure uses a different usage factor than DOE considered in its analysis. DOE based its analysis on the potential efficiency improvements associated with groups of design options. See chapter 5 of the preliminary TSD.
DOE then developed manufacturing cost models based on its reverse-engineering of various MREF products. These reverse-engineering efforts yielded additional information that helped support DOE's calculation of the incremental costs associated with efficiency improvements. To develop the analytically derived cost-efficiency curves, DOE collected information from various sources on the manufacturing costs and energy use reductions associated with each of the considered design options. DOE reviewed product literature, conducted testing and reverse-engineering of current products, and interviewed component and product manufacturers. DOE modeled energy use reductions associated with design options using the Efficient Refrigerator Analysis program developed for the 2011 residential refrigeration products rulemaking and modified for this MREF standards rulemaking analysis. The incremental cost estimates combined with test data and energy modeling results led to the cost-efficiency curves for coolers developed for the preliminary analysis. See chapter 5 of the preliminary TSD.
DOE did not receive any feedback on the overall methodology used for the coolers preliminary engineering analysis. In this direct final rule, DOE conducted the engineering analysis using the same approach as the preliminary analysis. However, DOE has updated its analysis to reflect the changes to the scope of coverage and product classes as discussed in sections IV.A.1 and IV.A.2 of this document. DOE also incorporated feedback from manufacturers obtained during additional interviews and information from MREF Working Group members during the Working Group discussions. Additional information on the methodology used for this direct final rule engineering analysis is available in chapter 5 of the direct final rule TSD.
As described in section IV.C.1.a of this document, for the preliminary analysis, DOE considered efficiency levels defined by their performance with respect to the CEC-equivalent baseline level. DOE considered the CEC-equivalent standard level to be the baseline point of comparison for coolers; however, DOE observed that certain coolers performed worse than the CEC-equivalent standard level. From DOE's test sample, the worst-performing unit was a non-compressor cooler that tested at 267 percent of the CEC-equivalent standard. DOE used this level as the baseline in its preliminary engineering analysis. The best-performing unit in DOE's test sample was a vapor-compression cooler that tested at 48 percent of the CEC-equivalent standard. DOE estimates that this level represented the maximum efficiency available on the market. In the preliminary analysis, DOE considered efficiency levels beyond the maximum available by using energy modeling. The energy model for the maximum technologically feasible (max-tech) level was based on incorporating all applicable design options for coolers. That energy modeling resulted in an efficiency level at 32 percent of the CEC-equivalent standard level. DOE analyzed efficiency levels at 10-percent intervals between the CEC-equivalent and max-tech levels, and at somewhat larger intervals between the baseline and CEC-equivalent levels.
Table IV.4 lists the efficiency levels considered for coolers in the preliminary analysis. Chapter 5 of the preliminary TSD provides additional information on the development of the preliminary analysis efficiency levels.
For this direct final rule, DOE primarily relied on the same test data and modeling data as used in the preliminary analysis to evaluate efficiency levels. However, because DOE is establishing four separate product classes for coolers, DOE used this information to determine appropriate efficiency levels for each product class.
The test data from the preliminary analysis apply to both the freestanding and freestanding compact product classes. Accordingly, DOE analyzed the same efficiency levels for these product classes as considered in the preliminary analysis. However, DOE also tested one additional freestanding unit with an energy consumption at approximately 300 percent of the CEC-equivalent level. DOE therefore revised the
For the built-in product classes, DOE reviewed available market information and sought information on product availability from manufacturers during interviews and during the MREF Working Group discussions. DOE determined that all built-in coolers use vapor-compression refrigeration systems, and that there are no built-in coolers available at efficiencies lower than the CEC-equivalent level. So, for built-in coolers and built-in compact coolers, DOE established Efficiency Level 4 (100 percent of the CEC-equivalent) as the baseline efficiency level.
DOE also received feedback from MREF Working Group members indicating that built-in coolers use more energy than similarly constructed freestanding coolers, consistent with the higher maximum allowable annual energy use standards for built-in refrigerator, refrigerator-freezer, and freezer product classes as compared to their corresponding freestanding counterparts. The MREF Working Group recommended that DOE consider a similar energy adder for built-in coolers in its analysis. (ASRAC Public Meeting Transcript, No. 44 at pp. 155-157; No. 87 at pp. 74-77) DOE compared the built-in refrigerator, refrigerator-freezer, and freezer product classes to their equivalent freestanding counterparts, and determined that built-in products similar to coolers typically have approximately 10-percent higher energy use than freestanding products. See chapter 5 of the direct final rule TSD for the comparison of built-in and freestanding performance. DOE applied this 10-percent adder to its analysis for built-in coolers. DOE maintained intermediate efficiency levels at 10-percent CEC-equivalent intervals between the baseline and max-tech efficiency levels, so the built-in adder is only apparent at the max-tech efficiency level (
Additional details regarding the selection of efficiency levels for coolers are available in chapter 5 of the direct final rule TSD.
In the preliminary analysis, DOE developed cost-efficiency curves for coolers with total refrigerated volumes of 2 ft
For 2-ft
DOE followed a similar approach for developing a cost-efficiency curve for 6-ft
Table IV.7 presents the cost-efficiency curves developed for 2-ft
DOE used the preliminary engineering analysis as the basis for the MPCs in this direct final rule engineering analysis. The primary updates made to the preliminary analysis MPCs reflected the incorporation of the four cooler product classes and updated market information.
Similar to the preliminary engineering analysis, DOE analyzed products at representative volumes in each of the four cooler product classes for this direct final rule. DOE did not reverse-engineer products at each of these volumes. To develop MPCs for those products, DOE used its cost model and scaled certain components to reflect the changes that would be necessary with different cabinet sizes. DOE also relied on market information to verify cost information and product specifications. Table IV.8 shows the representative product volumes DOE considered for this direct final rule engineering analysis.
After reviewing updated market information, DOE is now aware of products with volumes greater than 2 ft
For this direct final rule, DOE expects that manufacturers would rely on the same design changes as considered in the preliminary analysis to reach higher efficiency levels. DOE presented the design option changes associated with higher efficiencies to manufacturers during interviews conducted under non-disclosure agreements and to the MREF Working Group. Feedback from the manufacturers and Working Group members generally supported the design option changes and their corresponding efficiency increases.
DOE used the preliminary analysis as the basis for the costs associated with these design changes; however, DOE updated its cost estimates based on feedback from manufacturer interviews and from the MREF Working Group. This updated information included feedback on specific component pricing and on the order in which manufacturers would apply the different design options.
In addition to the revised analysis, DOE also updated its cost estimates to 2015$, the most recent year for which full-year cost data was available at the time of the direct final rule analysis. Based on these updates to the preliminary analysis, DOE developed cost-efficiency curves presented in Table IV.9 for each of the analyzed volumes for the cooler product classes established in this direct final rule. Chapter 5 of the direct final rule TSD includes additional information on the engineering analysis.
In the preliminary analysis, DOE observed that combination coolers were very similar in design to refrigerators, refrigerator-freezers, and freezers. Because of these similarities, DOE did not conduct a full engineering analysis for these products. Instead, DOE considered whether it would be appropriate to apply the standards currently in place for refrigerators, refrigerator-freezers, and freezers to combination cooler refrigeration products. To do this, DOE modeled the heat loads for various combination product configurations at two representative product volumes (6 ft
During the MREF Working Group discussions, Working Group members recommended that DOE conduct the full analysis, including establishing product classes, efficiency levels, and incremental MPC estimates for these products.
For this direct final rule engineering analysis, DOE conducted the full engineering analysis as recommended by the MREF Working Group. DOE used an approach based on modeling different product configurations and design options to estimate performance. This approach was similar to what DOE used in the preliminary engineering analysis. DOE conducted its engineering analysis on three of the eight product classes of combination cooler refrigeration products, as discussed in section IV.A.2 of this document, and on the typical product configurations (
For the preliminary engineering analysis, DOE did not specifically analyze different efficiency levels for combination cooler refrigeration products. DOE instead modeled sets of design options corresponding to the baseline and higher efficiencies to determine whether these products would be capable of meeting the existing energy conservation standards for refrigerators, refrigerator-freezers, and freezers.
In this direct final rule, DOE is establishing eight product classes for combination cooler refrigeration products, representing the product types either currently available on the market or likely to be available in the future. For the purposes of the engineering analysis, DOE analyzed only the product classes with current product offerings (C-3A, C-9, and C-13A). DOE applied this analysis to the remaining similar product classes in the downstream analyses. Based on market data, DOE identified a representative total refrigerated volume and configuration for each of these three analyzed product classes, as described in Table IV.10. For all three product classes, DOE observed that the cooler compartment typically had a glass door, while the fresh food or freezer compartment had a solid door.
DOE then used its modeling tool (discussed in detail in chapter 5 of the direct final rule TSD) to evaluate the thermal load on a typical baseline unit (
For performance at higher efficiency levels, DOE modeled the thermal load impacts of increased insulation thickness and improved glass door resistivity. These design changes would reduce the total thermal load for the refrigeration system to offset. At the higher efficiency levels DOE also considered improved refrigeration system efficiencies through higher-efficiency compressors and optimized heat exchangers, similar to the design options analyzed for coolers. DOE estimated max-tech performance by combining the lowest modeled thermal load with the highest-efficiency refrigeration system. DOE considered intermediate efficiency levels at even increments between the baseline and max-tech. For each product class, DOE
Based on the updated product class structure and DOE's modeling analysis, DOE analyzed the efficiency levels as shown in Table IV.11. The values corresponding to each efficiency level reflect the modeled energy use relative to the existing standards for the corresponding refrigerator, refrigerator-freezer, or freezer product classes, where 100 percent represents the current standard level for products tested according to the existing test procedure waivers. Chapter 5 of the direct final rule TSD provides more information on the development of combination cooler refrigeration product efficiency levels.
As discussed in section IV.C.2.a of this document, DOE did not estimate the increases in MPC associated with improving combination cooler refrigeration product efficiencies in the preliminary analysis. For this direct final rule, DOE extended the engineering analysis to include the development of combination cooler refrigeration product cost-efficiency curves.
Because combination cooler refrigeration products are similar to coolers and refrigerators, DOE used data from the reverse-engineering of coolers and refrigerators to inform the cost estimates associated with design options. DOE also considered information from confidential manufacturer interviews to determine which design options would be appropriate for combination cooler refrigeration products and to gather feedback on cost estimates. DOE used its cost model to scale certain design options to the three typical volumes identified for each of the analyzed product classes, as described in section IV.C.2.b of this document. DOE presented its initial updates to the engineering analysis to the MREF Working Group
To develop the cost-efficiency curves, DOE determined that manufacturers would likely make incremental improvements to both the thermal load and the refrigeration system when moving from baseline to max-tech. Table IV.12 presents the incremental MPCs, in 2015$, associated with these improvements for the three product classes considered in this engineering analysis. Chapter 5 of the direct final rule TSD includes additional information regarding the cost-efficiency curves.
The markups analysis develops appropriate markups (
For MREFs, the main distribution chain goes from manufacturers to appliance retailers, and then to
The manufacturer markup converts MPC to manufacturer selling price (“MSP”). DOE developed an average manufacturer markup by examining the annual Securities and Exchange Commission (“SEC”) 10-K reports filed by publicly-traded manufacturers engaged in producing MREFs.
For retailers and wholesalers, DOE developed separate markups for baseline products (baseline markups) and for the incremental cost of more-efficient products (incremental markups). Incremental markups are coefficients that relate the change in the MSP of higher-efficiency models to the change in the retailer sales price. DOE used the 2012 Annual Retail Trade Survey
Chapter 6 of the direct final rule TSD provides details on DOE's development of markups for MREFs.
The purpose of the energy use analysis is to determine the annual energy consumption of MREFs at different efficiencies in representative U.S. households, and to assess the energy savings potential of increased MREF efficiency. The energy use analysis estimates the range of energy use of MREFs in the field (
DOE determined a range of annual energy use of MREFs as a function of unit volume. DOE developed a sample of households that use MREFs from surveys of MREF owners.
DOE developed distributions of product volumes for each product class based on the MREF models listed in DOE's Compliance Certification Management System (“CCMS”) database,
Chapter 7 of the direct final rule TSD provides details on DOE's energy use analysis for MREFs.
DOE conducted LCC and PBP analyses to evaluate the economic impacts on individual consumers of potential energy conservation standards for MREFs. 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:
• The LCC (life-cycle cost) is the total consumer expense of an appliance or product over the life of that product, consisting of total installed cost (MPC, manufacturer markups, distribution chain markups, sales tax, and installation costs) plus operating costs (expenses for energy use, maintenance, and repair). To compute the operating costs, DOE discounts future operating costs to the time of purchase and sums them over the lifetime of the product.
• The PBP (payback period) is the estimated amount of time (in years) it takes consumers to recover the increased purchase cost (including installation) of a more-efficient product through lower operating costs. DOE calculates the PBP by dividing the change in purchase cost at higher efficiency levels by the change in annual operating cost for the year that amended or new standards are assumed to take effect.
For any given efficiency level, DOE measures the change in LCC relative to the LCC in the no-new-standards case, which reflects the estimated efficiency distribution of MREFs in the absence of new energy conservation standards. In contrast, the PBP for a given efficiency level is measured relative to the lowest efficiency level in the no-new-standards distribution.
For each considered efficiency level in each product class, DOE calculated the LCC and PBP for a nationally representative set of housing units. As stated previously, DOE developed household samples from the results of a study on MREFs using online surveys. For each sample household, DOE determined the energy consumption for the MREFs and the appropriate electricity price. By developing a representative sample of households, the analysis captured the variability in energy consumption and energy prices associated with the use of MREFs.
Inputs to the calculation of total installed cost include the cost of the product—which includes MPCs, manufacturer markups, retailer and distributor markups, and sales taxes—and installation costs. Inputs to the calculation of operating expenses include annual energy consumption, energy prices and price projections, repair and maintenance costs, product lifetimes, and discount rates. DOE created distributions of values for product lifetimes, discount rates, and sales taxes, with probabilities attached to each value, to account for their uncertainty and variability.
The computer model DOE uses to calculate the LCC and PBP, which incorporates Crystal Ball
DOE calculated the LCC and PBP for all consumers as if each were to purchase a new product in the expected year of compliance with new standards. In its analysis, DOE used two different
Table IV.13 summarizes the approach and data DOE used to derive inputs to the LCC and PBP calculations. The subsections that follow provide further discussion. Details of the spreadsheet model, and of all the inputs to the LCC and PBP analyses, are contained in chapter 8 of the direct final rule TSD and its appendices.
To calculate consumer product costs, DOE multiplied the MPCs developed in the engineering analysis by the markups described above (along with sales taxes). DOE used different markups for baseline products and higher-efficiency products, because DOE applies an incremental markup to the increase in MSP associated with higher-efficiency products.
Historical price data specific to MREFs are not available. Hence, DOE used a constant price assumption as the default product price trend to project the prices of MREFs sold in each year in the forecast period.
Installation cost includes labor, overhead, and any miscellaneous materials and parts needed to install the product. DOE included installation cost as part of the LCC analysis during the preliminary analysis, but the cost did not vary with efficiency levels. As part of the MREF Working Group discussions, stakeholders confirmed that installation cost for MREFs does not vary between efficiency levels. (ASRAC Public Meeting, No. 85 at pp. 155-157) As a result, DOE did not include installation cost as part of the analysis for this direct final rule.
For each sampled household, DOE determined the energy consumption for MREFs at different efficiency levels using the approach described in section IV.E of this document.
For the LCC and PBP analysis, DOE used average electricity prices (for baseline products) and marginal prices (for higher-efficiency products) which vary by region. DOE estimated these prices using data published with the EEI Typical Bills and Average Rates reports for summer and winter 2014.
DOE defined the average price as the ratio of the total bill to the total electricity consumption. DOE used the EEI data to also define a marginal price as the ratio of the change in the bill to the change in energy consumption.
Regional weighted-average values for each type of price were calculated for the nine census divisions and four large States (CA, FL, NY and TX). Each EEI utility in a division or large State was assigned a weight based on the number of consumers it serves. Consumer counts were taken from the most recent EIA Form 861 data (2012).
To estimate future prices, DOE used the projected annual changes in average residential electricity prices in the Reference case projection in
Repair costs are associated with repairing or replacing product components that have failed in an appliance; maintenance costs are associated with maintaining the operation of the product. DOE included maintenance and repair costs as part of the LCC analysis during the preliminary analysis, but the costs did not vary with efficiency levels. As part of the MREF Working Group discussions, stakeholders confirmed that maintenance and repair costs for MREFs
DOE is aware of only limited available data to be used in the modeling and analysis of MREF lifetimes. In the preliminary analysis, DOE estimated the average product lifetime for coolers based on survey data.
For all full-size MREF product classes, DOE applied the lifetime distribution used for full-size refrigerators in the 2011 refrigerators, refrigerator-freezers, and freezers final rule, with an average lifetime of 17.4 years. 76 FR 57516 (September 15, 2011). For all compact MREF product classes, DOE scaled the lifetime distribution used for compact freezers in the 2011 refrigerators, refrigerator-freezers, and freezers final rule to match the estimated 10-year average lifetime provided by the Association of Home Appliance Manufacturers (“AHAM”) and manufacturer feedback. (ASRAC Public Meeting, No. 85 at p. 160; ASRAC Public Meeting, No. 87 at pp. 93-94, 175-176) This resulted in an average lifetime of 10.3 years for compact MREF product classes. See chapter 8 of the direct final rule TSD.
In calculating the LCC, DOE applies discount rates appropriate to households to estimate the present value of future operating costs. DOE estimated a distribution of residential discount rates for MREFs based on consumer financing costs and opportunity cost of funds related to appliance energy cost savings and maintenance costs.
To establish residential discount rates for the LCC analysis, DOE identified all relevant household debt or asset classes in order to approximate a consumer's opportunity cost of funds related to appliance energy cost savings. It estimated the average percentage shares of the various types of debt and equity by household income group using data from the Federal Reserve Board's Survey of Consumer Finances
To accurately estimate the share of consumers that would be affected by a potential energy conservation standard at a particular efficiency level, DOE's LCC analysis considered the projected distribution (market shares) of product efficiencies in the no-new-standards case (
DOE estimated the current distribution of product efficiencies using product owner surveys;
The PBP is the amount of time it takes the consumer to recover the additional installed cost of more-efficient products, compared to baseline products, through energy cost savings. PBPs are expressed in years. PBPs that exceed the life of the product mean that the increased total installed cost is not recovered in reduced operating expenses.
The inputs to the PBP calculation for each efficiency level are the change in total installed cost of the product and the change in the first-year annual operating expenditures relative to the baseline. The PBP calculation uses the same inputs as the LCC analysis, except that discount rates are not needed.
As noted above, EPCA, as amended, 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 first year's energy savings resulting from the standard, as calculated under the applicable test procedure. (42 U.S.C. 6295(o)(2)(B)(iii)) For each considered efficiency level, DOE determined the value of the first year's energy savings by calculating the energy savings in accordance with the applicable DOE test procedure, and multiplying those savings by the average energy price forecast for the year in which compliance with the new standards would be required.
DOE uses forecasts of annual product shipments to calculate the national impacts of potential new energy conservation standards on energy use, NPV, and future manufacturer cash flows.
To estimate cooler shipments, DOE first estimated total stock based on estimates of market saturation and stock from manufacturer feedback and surveys on product ownership.
For combination cooler refrigeration products, DOE used manufacturer feedback from confidential interviews to estimate the number of units shipped in 2014. DOE estimated that shipments would increase in line with the increase in housing stock in the United States in order to project shipments forward to 2050. DOE used the distribution of available models to allocate shipments to each product class.
MREFs are a discretionary product and sales would be expected to be sensitive to the product price. To estimate the effect of new standards on MREF shipments, which are expected to result in higher prices, DOE applied relative price elasticity in the shipments model. This approach gives some weight to the operating cost savings from higher-efficiency products. In general, price elasticity reflects the expectation that demand will decrease when prices increase. The price elasticity value is derived from data on refrigerators, clothes washers, and dishwashers.
For details on the shipments analysis, see chapter 9 of the direct final rule TSD.
The NIA assesses the national energy savings (
DOE evaluates the impacts of new and amended standards by comparing a case without such standards with standards-case projections. The no-new-standards case characterizes energy use and consumer costs for each product class in the absence of new or amended energy conservation standards. For this projection, DOE considers historical trends in efficiency and various forces that are likely to affect the mix of efficiencies over time. DOE compares the no-new-standards case with projections characterizing the market for each product class if DOE adopted new or amended standards at specific energy efficiency levels (
DOE uses a spreadsheet model to calculate the energy savings and the national consumer costs and savings from each TSL. Interested parties can review DOE's analyses by changing various input quantities within the spreadsheet. The NIA spreadsheet model uses typical values (as opposed to probability distributions) as inputs.
Table IV.16 summarizes the inputs and methods DOE used for the NIA analysis for this direct final rule. Discussion of these inputs and methods follows the table. See chapter 10 of the direct final rule TSD for further details.
A key component of the NIA is the trend in energy efficiency projected for the no-new-standards case and each of the standards cases. As described in section IV.F.8 of this document, DOE developed an energy efficiency distribution for the no-new-standards case (which yields a shipment-weighted average efficiency) for each of the considered product classes. Because there are no data on trends in efficiency for MREFs, DOE assumed that these efficiency distributions will remain constant throughout the analysis period.
For the standards cases, DOE used a “roll-up” scenario to establish the shipment-weighted efficiency for the year that standards are assumed to become effective (2019 for TSLs from the MREF Working Group recommendations and 2021 for other TSLs). In this scenario, the market share of products in the no-new-standards case that do not meet the standard under consideration would “roll up” to meet the new standard level, and the market share of products above the standard would remain unchanged.
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 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). DOE calculated annual NES based on the difference in national energy consumption for the no-new-standards case and for each higher efficiency standard case. DOE estimated energy consumption and savings based on site energy and converted the electricity consumption and savings to primary energy (
In 2011, 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 which DOE explained its determination that EIA's National Energy Modeling System (“NEMS”) is the most appropriate tool for its FFC analysis and its intention to use NEMS for that purpose. 77 FR 49701 (August 17, 2012). NEMS is a public domain, multi-sector, partial equilibrium model of the U.S. energy sector
The inputs for determining the NPV of the total costs and benefits experienced by consumers are: (1) Total annual installed cost; (2) total annual operating costs; and (3) a discount factor to calculate the present value of costs and savings. DOE calculates net savings
As discussed in section IV.F.1 of this document, DOE assumed a constant MREF price trend to forecast prices for each product class at each considered efficiency level throughout the analysis period.
To evaluate the effect of uncertainty regarding the price trend estimates, DOE investigated the impact of different product price forecasts on the consumer NPV for the considered TSLs for MREFs. In addition to the default constant price trend, DOE considered two product price sensitivity cases: (1) A high price decline case based on the Producer Price Index (“PPI”) for household refrigerator and home freezer manufacturing from 1991 to 2014;
The operating cost savings are energy cost savings, which are calculated using the estimated energy savings in each year and the projected price of electricity. To estimate energy prices in future years, DOE multiplied the average regional energy prices by the forecast of annual national-average residential energy price changes in the Reference case from
In calculating the NPV, DOE multiplies the net savings in future years by a discount factor to determine their present value. For this direct final rule, DOE estimated 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.
In analyzing the potential impact of new or amended standards on consumers, DOE evaluates the impact on identifiable subgroups of consumers that may be disproportionately affected by a new or amended national standard, such as low-income and senior households. DOE evaluates impacts on subgroups of consumers by analyzing the LCC impacts and PBP for those particular consumers from alternative standard levels. For this final rule, DOE analyzed the impacts of the considered standard levels on two subgroups: (1) Low-income households and (2) senior-only households. The analysis used subsets of the full household sample composed of households that meet the criteria for the considered subgroups. DOE used the LCC and PBP spreadsheet model to estimate the impacts of the considered efficiency levels on these subgroups. Chapter 11 in the final rule TSD describes the consumer subgroup analysis.
DOE performed an MIA to estimate the potential financial impacts of energy conservation standards on manufacturers of MREFs and to estimate the potential impacts of such standards on employment and manufacturing capacity. The MIA has both quantitative and qualitative aspects and includes analyses of forecasted industry cash flows, the INPV, investments in research and development (“R&D”) and manufacturing capital, and domestic manufacturing employment. Additionally, the MIA seeks to determine how energy conservation standards might affect manufacturing employment, capacity, and competition, as well as how standards contribute to overall regulatory burden. Finally, the MIA serves to identify any disproportionate impacts on manufacturer subgroups, including small business manufacturers.
The quantitative part of the MIA primarily relies on the Government Regulatory Impact Model (
The qualitative part of the MIA addresses manufacturer characteristics and market trends. Specifically, the MIA considers such factors as manufacturing capacity, competition within the industry, the cumulative impact of other DOE and non-DOE regulations, and impacts on manufacturer subgroups. The complete MIA is outlined in chapter 12 of the direct final rule TSD.
DOE conducted the MIA for this rulemaking in three phases. In Phase 1 of the MIA, DOE prepared a profile of the MREF manufacturing industry based on the market and technology assessment, preliminary manufacturer interviews, and publicly-available information. This included a top-down analysis of MREF manufacturers that DOE used to derive preliminary financial inputs for the GRIM (
In Phase 2 of the MIA, DOE prepared an industry cash-flow analysis to quantify the potential impacts of new energy conservation standards. The GRIM uses several factors to determine a series of annual cash flows starting with the announcement of the standard and extending over a 30-year period following the compliance date of the standard. These factors include annual expected revenues, costs of sales, SG&A and R&D expenses, taxes, and capital expenditures. In general, energy conservation standards can affect manufacturer cash flow in three distinct ways: (1) Create a need for increased investment; (2) raise production costs per unit; and (3) alter revenue due to higher per-unit prices and changes in sales volumes.
In addition, during Phase 2, DOE conducted structured, detailed interviews with manufacturers of MREFs in order to develop other key GRIM inputs, including product and capital conversion costs, and to gather additional information on the anticipated effects of energy conservation standards on revenues, direct employment, capital assets, industry competitiveness, and subgroup impacts. Before the interviews, DOE distributed an interview guide to interviewees. The interview guides are available in appendix 12A of the direct final rule TSD. See section IV.J.3 of this document for a description of the key issues raised by manufacturers during the interviews.
In Phase 3 of the MIA, DOE evaluated subgroups of manufacturers that may be disproportionately impacted by new standards or that may not be accurately represented by the average cost assumptions used to develop the industry cash flow analysis. Such manufacturer subgroups may include small business manufacturers, low-volume manufacturers (“LVMs”), niche players, and/or manufacturers exhibiting a cost structure that largely differs from the industry average. DOE identified two MREF manufacturer subgroups for which average cost assumptions may not hold: Small businesses and domestic LVMs.
Manufacturers of MREFs have primary North American Industry Classification System (“NAICS”) codes of 335222, “Household Refrigerator and Home Freezer Manufacturing” and 333415, “Air-Conditioning and Warm Air Heating Equipment and Commercial and Industrial Refrigeration Equipment Manufacturing.” Based on the size standards published by the Small Business Administration (“SBA”), to be categorized as a small business manufacturer of MREFs under NAICS codes 335222 or 333415, a MREF manufacturer and its affiliates may employ a maximum of 1,250 employees or less.
In addition to the small, domestic businesses described above, DOE identified three domestic manufacturers of niche MREF products that have much lower revenues than their diversified competitors. Although these manufacturers do not qualify as small businesses under the SBA definition, they are concentrated in the production of residential refrigeration products and, in some cases, commercial refrigeration equipment. DOE subsequently assigned these manufacturers to an LVM subgroup to evaluate any disproportionate impacts of new standards for MREFs on these manufacturers.
The MREF manufacturer subgroup analysis is discussed in greater detail in chapter 12 of the direct final rule TSD and in sections V.B.2 and VI.B of this document.
In addition, in Phase 3 of the MIA, DOE used feedback obtained from manufacturer interviews to assess the impacts of new standards on direct employment and manufacturing capacity within the MREF industry, and on the cumulative regulatory burdens felt by MREF manufacturers.
DOE uses the GRIM to quantify the changes in cash flow due to new standards that result in a higher or lower industry value. The GRIM analysis uses a standard annual, discounted cash-flow methodology that incorporates manufacturer costs, markups, shipments, and industry financial information as inputs. The GRIM models changes in costs, distribution of shipments, investments, and manufacturer margins that could result from new energy conservation standards. The GRIM spreadsheet uses the inputs to arrive at a series of annual cash flows, beginning in 2016 (the base year of the analysis) and continuing to 2048 (the end of the analysis period for TSLs with a 3-year compliance period) or 2050 (the end of the analysis period for TSLs with a 5-year compliance period).
The GRIM calculates cash flows using standard accounting principles and compares changes in INPV between the no-new-standards case and each standards case. The difference in INPV between the no-new-standards case and a standards case represents the financial impact of the new energy conversation standards on manufacturers. DOE collected this information on the critical GRIM inputs from a number of sources, including publicly-available data, interviews with manufacturers, and MREF Working Group meetings, including information gathered from manufacturers by a third-party consultant on behalf of AHAM.
Manufacturing higher-efficiency products is typically more costly than manufacturing baseline products due to the use of more complex components, which are typically more expensive than baseline components. The changes in the MPC 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 of this document and further detailed in chapter 5 of the direct final rule TSD. In addition, DOE used information from its teardown analysis, described in chapter 5 of the direct final rule TSD, to disaggregate the MPCs into material, labor, and overhead costs. To calculate the MPCs for products above the baseline, DOE added the incremental material, labor, and overhead costs from the engineering cost-efficiency curves to the baseline MPCs. These cost breakdowns were validated and revised based on manufacturer comments received during interviews and the MREF Working Group discussions.
The GRIM estimates manufacturer revenues based on total unit shipment forecasts and the distribution of these values by product class and efficiency level. Changes in sales volumes and efficiency mix over time can significantly affect manufacturer finances. For the MREF analysis, the GRIM used the shipments analysis to estimate shipments either from 2016 (the base year of the analysis) and continuing to 2048 (the end of the analysis period for TSLs with a 3-year compliance period) or 2050 (the end of the analysis period for TSLs with a 5-year compliance period). See chapter 9 of the direct final rule TSD for additional details.
A new energy conservation standard 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) Product conversion costs and (2) capital conversion costs. Product conversion costs are one-time investments in R&D, testing, marketing, and other non-capitalized costs necessary to make product designs comply with the new energy conservation standard. Capital conversion costs are one-time investments in property, plant, and equipment necessary to adapt or change existing production facilities such that products with new, compliant designs can be fabricated and assembled.
DOE used manufacturer interviews to gather data needed to evaluate the level of capital conversion expenditures manufacturers would likely incur to comply with new energy conservation standards at each efficiency level for MREFs. DOE also obtained information relating to capital conversion costs from manufacturers during the MREF Working Group meetings, including information gathered from manufacturers by a third-party consultant on behalf of AHAM.
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 cost of each efficiency level from multiple manufacturers during confidential interviews and during the MREF Working Group meetings
To calculate the MSPs in the GRIM, DOE applied manufacturer markups to the MPCs estimated in the engineering analysis for each product class and efficiency level. Modifying these manufacturer markups in the standards case yields different sets of manufacturer impacts. For the MIA, DOE modeled two standards-case manufacturer markup scenarios to represent the uncertainty regarding the potential impacts on prices and profitability for manufacturers following the implementation of new energy conservation standards: (1) A preservation of gross margin percentage markup scenario; and (2) a preservation of per-unit operating profit markup scenario. These scenarios lead to different manufacturer markup values that, when applied to the inputted MPCs, result in varying revenue and cash flow impacts.
Under the preservation of gross margin percentage scenario, DOE applied a single uniform “gross margin percentage” markup across all efficiency levels, which assumes that manufacturers would be able to maintain the same amount of profit as a percentage of revenues 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 MREFs as well as comments from manufacturer interviews, DOE estimated the average manufacturer markups by product class as shown in Table IV.17.
This markup scenario assumes that manufacturers would be able to maintain their gross margin percentage markup as production costs increase in response to a new energy conservation standard. Manufacturers stated that this scenario is optimistic and represents a high bound to industry profitability.
In the preservation of operating profit scenario, manufacturer markups are set so that operating profit one year after the compliance date of the new energy conservation standard is the same as in the no-new-standards case. Under this scenario, as the costs of production increase under a standards case, manufacturers are generally required to reduce their markups to a level that maintains no-new-standards case operating profit. The implicit assumption behind this markup
To inform the MIA, DOE interviewed several manufacturers with an estimated total cooler market share of approximately 25 percent and an estimated total combination cooler refrigeration products market share of 60 to 70 percent. (The remaining manufacturers in the market consist of overseas companies or those who were contacted but declined to participate.) The information gathered during these interviews enabled DOE to tailor the GRIM to reflect the unique financial characteristics of the MREF industry. These confidential interviews provided information that DOE used to evaluate the impacts of new energy conservation standards on manufacturer cash flows, manufacturing capacity, and employment levels.
During the interviews, DOE asked manufacturers to describe the major issues they anticipate to result from new energy conservation standards for MREFs. The following sections describe the most significant issues identified by manufacturers.
During confidential interviews, multiple manufacturers expressed concerns related to the impact of cumulative regulatory burdens on the MREF industry if DOE finalizes new energy conservation standards for MREFs. Because most manufacturers produce other residential products and commercial equipment, they already face regulations by DOE, the Environmental Protection Agency (“EPA”), the European Union, and Canada, as well as third-party industry certifications and standards. Complying with various overlapping regulatory and environmental standards puts a strain on manufacturers' resources and profitability. Additionally, smaller, domestic manufacturers of high-end MREFs expressed concern that they have significantly less human and capital resources to devote to regulatory compliance than larger, more diversified manufacturers. This has a direct impact on the amount of resources these companies are able to devote to product innovation, and thus MREF manufacturers expect that energy conservation standards would negatively impact their competitive position in the MREF industry.
Multiple manufacturers expressed concerns regarding the impact of new energy conservations standards for MREFs on smaller, domestic manufacturers (referred to as small businesses and LVMs in this direct final rule). These manufacturers stated that smaller, domestic manufacturers must devote a much larger percentage of their engineering resources to regulatory compliance than do the larger, multi-national companies selling MREFs in the United States. These manufacturers also noted that the smaller, domestic manufacturers have substantially fewer overall shipments than larger, diversified manufacturers, and MREFs make up a much larger portion of the smaller, domestic companies' sales. Finally, manufacturers commented that smaller, domestic manufacturers produce high-end, niche products. Accordingly, manufacturers stated that, depending on the stringency of new energy conservation standards for MREFs, the availability of these products could be threatened if these manufacturers are forced to drop certain product lines.
The emissions analysis consists of two components. The first component estimates the effect of potential energy conservation standards on power sector and site (where applicable) combustion emissions of CO
The analysis of power sector emissions uses marginal emissions factors that were derived from data in
Combustion emissions of CH
The emissions intensity factors are expressed in terms of physical units per megawatt-hour (MWh) or million Btu of site energy savings. Total emissions reductions are estimated using the energy savings calculated in the NIA.
For CH
The
SO
EIA was not able to incorporate CSAPR into
The attainment of emissions caps is typically flexible among EGUs and is enforced through the use of emissions allowances and tradable permits. Under existing EPA regulations, any excess SO
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, DOE's energy conservation standards would likely reduce Hg emissions. DOE estimated mercury emissions reduction using emissions factors based on
As part of the development of this rule, DOE considered the estimated monetary benefits from the reduced emissions of CO
For this direct final rule, DOE relied on a set of values for the social cost of carbon (SCC) that was developed by a Federal interagency process. The basis for these values is summarized in the next section, and a more detailed description of the methodologies used is provided as an appendix to chapter 14 of the direct final rule 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) climate-change-related 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 CO
Under section 1(b) 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 these 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 CO
Despite the limits of both quantification and monetization, SCC estimates can be useful in estimating the social benefits of reducing CO
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 Federal 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. Specially, 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 the three integrated assessment models, at discount rates of 2.5, 3, and 5 percent. The fourth set, which represents the 95th percentile SCC estimate across all three models at a 3-percent discount rate, was 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,
The SCC values used for this direct final rule were generated using the most recent versions of the three integrated assessment models that have been published in the peer-reviewed literature, as described in the 2013 update from the interagency working group (revised July 2015).
It is important to recognize that a number of key uncertainties remain, and that current SCC estimates should be treated as provisional and revisable because 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 previously 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 previously, DOE has estimated how the considered energy conservation standards would reduce site NO
DOE estimated the monetized value of NO
DOE multiplied the emissions reduction (in tons) in each year by the associated $/ton values, and then discounted each series using discount rates of 3 percent and 7 percent as appropriate.
DOE is evaluating appropriate monetization of avoided SO
The utility impact analysis estimates several effects on the electric power industry that would result from the adoption of new or amended energy conservation standards. The utility impact analysis estimates the changes in installed electrical capacity and generation that would result for each TSL. The analysis is based on published output from the NEMS associated with
The output of this analysis is a set of time-dependent coefficients that capture the change in electricity generation, primary fuel consumption, installed capacity and power sector emissions due to a unit reduction in demand for a given end use. These coefficients are multiplied by the stream of electricity savings calculated in the NIA to provide estimates of selected utility impacts of new or amended energy conservation standards.
DOE considers employment impacts in the domestic economy as one factor in selecting a standard. Employment impacts from new or amended energy conservation standards include both direct and indirect impacts. Direct employment impacts are any changes in the number of employees of manufacturers of the products subject to standards, their suppliers, and related service firms. 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 net jobs created or eliminated in the national economy, other than in the manufacturing sector being regulated, caused by: (1) Reduced spending by end users on energy; (2) reduced spending on new energy supplies by the utility industry; (3) increased consumer spending on new products to which the new standards apply; 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”).
DOE estimated indirect national employment impacts for the standard levels considered in this direct final rule using an input/output model of the U.S. economy called Impact of Sector Energy Technologies version 3.1.1 (“ImSET”).
DOE notes that ImSET is not a general equilibrium forecasting model, and understands the uncertainties involved in projecting employment impacts, especially changes in the later years of the analysis. Because ImSET does not incorporate price changes, the employment effects predicted by ImSET may over-estimate actual job impacts over the long run for this rule. Therefore, DOE generated results for near-term timeframes, where these uncertainties are reduced. For more details on the employment impact analysis, see chapter 16 of the direct final rule TSD.
The following section addresses the results from DOE's analyses with respect to the considered energy conservation standards for MREFs. It addresses the TSLs examined by DOE, the projected impacts of each of these levels if adopted as energy conservation standards for MREFs, and the standards levels that DOE is adopting in this direct final rule. Additional details regarding DOE's analyses are contained in the direct final rule TSD supporting this notice.
DOE analyzed the benefits and burdens of four TSLs for coolers and four TSLs for combination cooler refrigeration products. These TSLs were developed by combining specific efficiency levels for each of the product classes analyzed by DOE. DOE presents the results for the TSLs in this document, while the results for all efficiency levels that DOE analyzed are in the direct final rule TSD.
Table V.1 presents the TSLs and the corresponding efficiency levels for coolers. TSL 4 represents the max-tech efficiency levels for all product classes. TSL 3 consists of the efficiency levels with maximum consumer NPV at 7-percent discount rate. TSL 2 corresponds to the standard levels recommended by the MREF Working Group. TSL 1 represents the current CEC energy efficiency standard for wine chillers.
Table V.2 presents the TSLs and the corresponding efficiency levels for combination cooler refrigeration products. TSL 4 represents the max-tech efficiency levels for all product classes. TSL 3 represents a mid-point between TSL 2 and TSL 4. TSL 2 consists of the efficiency levels with maximum consumer NPV at 7-percent discount rate. TSL 1 corresponds to the standard levels recommended by the MREF Working Group.
In its analysis of the benefits and burdens of each TSL, DOE used two different compliance dates. For the consensus-recommended TSLs, the analysis is based on a 2019 compliance date as recommended by the MREF Working Group. For all other TSLs the analysis is based on a 2021 compliance date consistent with EPCA, which provides that newly-established standards shall not apply to products manufactured within five years after the publication of the final rule. In other words, DOE followed the prescriptions of EPCA for all TSLs that were not recommended by the MREF Working Group. The two different compliance dates are indicated in the relevant sections of the results and discussed in section III.B of this document.
DOE analyzed the economic impacts on MREF consumers by looking at the effects that potential new standards at each TSL would have on the LCC and PBP. These analyses are discussed below.
In general, higher-efficiency products affect consumers in two ways: (1) Purchase prices increase and (2) annual operating costs decrease. Inputs used for calculating the LCC and PBP include total installed costs (
Table V.3 through Table V.22 show the LCC and PBP results for the TSL efficiency levels considered for each product class. In the first of each pair of tables, the simple payback is measured relative to the baseline product. In the second table, the impacts are measured relative to the efficiency distribution in the no-new-standards case in the compliance year (see section IV.F of this document). The average savings reflect the fact that some consumers purchase products with higher efficiency in the no-new-standards case, and the savings refer only to the other consumers who are affected by a standard at a given TSL. Consumers for whom the LCC increases at a given TSL experience a net cost.
In the consumer subgroup analysis, DOE estimated the impact of the considered TSLs on low-income households and senior-only households. DOE is not presenting the consumer subgroup results in this final rule, because the household sample sizes for the above subgroups were not large enough to yield meaningful results. For information purposes, chapter 11 of the final rule TSD presents the LCC and PBP results for the subgroups.
As discussed in section III.H.2 of this document, 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
Table V.23 presents the rebuttable-presumption payback periods for the considered TSLs. While DOE examined the rebuttable-presumption criterion, it considered whether the standard levels evaluated for this rule are economically justified through a more detailed analysis of the economic impacts of those levels, pursuant to 42 U.S.C. 6295(o)(2)(B)(i), which considers the full range of impacts to the consumer, manufacturer, Nation, and environment. The results of that 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.
DOE performed an MIA to estimate the impact of new energy conservation standards on manufacturers of MREFs. The section below describes the expected impacts on manufacturers at each TSL. Chapter 12 of the direct final rule TSD explains the analysis in further detail.
The following tables illustrate the estimated financial impacts (represented by changes in INPV) of new energy conservation standards on manufacturers of MREFs, as well as the conversion costs that DOE estimates manufacturers would incur for each product class at each TSL. To evaluate the range of cash flow impacts on MREF manufacturers, DOE modeled two different markup scenarios using different assumptions that correspond to the range of anticipated market responses to potential new energy conservation standards: (1) The preservation of gross margin percentage, and (2) the preservation of per-unit operating profit. Each of these scenarios is discussed 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. During confidential interviews, manufacturers indicated that it is optimistic to assume that they would be able to maintain the same gross margin markup as their production costs increase in response to a new energy conservation standard, particularly at higher TSLs.
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 be able to earn the same operating margin in absolute dollars per-unit in the standards case as in the no-new-standards case. In this scenario, while manufacturers make the necessary investments required to convert their facilities to produce new standards-compliant products, operating profit does not change in absolute dollars per unit and decreases as a percentage of revenue.
Each of the modeled scenarios 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 no-new-standards case and each standards case that results from the sum of discounted cash flows from the base year 2016 through 2048 (the end of the analysis period for TSLs with a 3-year compliance period, as recommended by the MREF Working Group) or 2050 (the end of the analysis period for TSLs with a 5-year compliance period).
DOE modeled separate INPV impacts for the cooler and combination cooler refrigeration product industries. Table V.24 and Table V.25 display the potential INPV impacts on the cooler industry under the preservation of gross margin markup scenario and preservation of operating profit markup
At TSL 1, DOE estimates impacts on INPV of cooler manufacturers to range from $244.3 million to $264.0 million, or a change in INPV of −7.2 percent to 0.3 percent under the preservation of per-unit operating profit markup scenario and preservation of gross margin percentage markup scenario, respectively. At TSL 1, industry free cash flow is expected to decrease by approximately 57.7 percent to $7.1 million, compared to the no-new-standards case value of $16.7 million in 2020, the year prior to the 2021 compliance year.
An estimated 71 percent of cooler industry shipments are below the efficiency level corresponding to TSL 1 (EL 4, the CEC-equivalent level for all cooler product classes). DOE estimated that compliance with TSL 1 will require a total industry investment of $25.8 million. Implicit in this estimate is that DOE expects approximately two-thirds of cooler models using non-vapor-compression refrigeration systems will switch to vapor-compression refrigeration systems to reach TSL 1. Industry conversion costs are related to the integration of heat pipes for a portion of the non-vapor-compression coolers remaining on the market, increased production capacity for vapor-compression coolers, and testing and marketing costs associated with all cooler models.
At TSL 2, the TSL recommended by the MREF Working Group, DOE estimates INPV for cooler manufacturers to range from $208.5 million to $253.3 million, or a change in INPV of −20.8 percent to −3.8 percent. At this standard level, industry free cash flow is estimated to decrease by as much as 151.0 percent to −$8.3 million, compared to the no-new-standards case value of $16.3 million in 2018, the year prior to the 2019 compliance year.
An estimated 95 percent of cooler industry shipments are below the efficiency level corresponding to TSL 2
At TSL 3, DOE estimates impacts on INPV for cooler manufacturers to range from $168.4 million to $226.5 million, or a change in INPV of −36.0 percent to −14.0 percent. At this standard level, industry free cash flow is estimated to decrease by as much as 310.0 percent to -$35.2 million, compared to the no-new-standards case value of $16.7 million in 2020.
An estimated 99 percent of cooler industry shipments are below the efficiency level corresponding to TSL 3 (EL 9 for all cooler product classes). DOE estimated that compliance with TSL 3 will require a total industry investment of $138.4 million. Again, implicit in this estimate is that the majority of cooler models using non-vapor-compression refrigeration systems will not be able to reach TSL 3, and the corresponding share of the market will switch to coolers using vapor-compression refrigeration systems. Industry conversion costs are related to the integration of heat pipes and insulation changes for all non-vapor-compression coolers remaining on the market. For vapor-compression coolers, industry conversion costs are related to improved glass, increases in insulation thickness, the integration of forced-convection evaporators, more efficient compressors, and increased production capacity for vapor-compression coolers. Finally, all cooler models would incur testing and marketing costs.
At TSL 4, DOE estimates impacts on INPV for cooler manufacturers to range from $110.5 million to $283.8 million, or a change in INPV of −58.0 percent to 7.8 percent. At TSL 4, industry free cash flow is estimated to decrease by as much as 446.0 percent to −$57.9 million, compared to the no-new-standards case value of $16.7 million in 2020.
Similar to TSL 3, an estimated 99 percent of cooler industry shipments are below the efficiency level corresponding to TSL 4 (EL 11 for all cooler product classes). DOE estimated that compliance with TSL 4 will require a total industry investment of $189.1 million. At TSL 4, DOE assumed that none of the cooler models using non-vapor-compression refrigeration systems will be able to reach TSL 4, and the corresponding share of the market will switch to coolers using vapor-compression refrigeration systems. For vapor-compression coolers, in addition to the design changes associated with reaching TSL 3, industry conversion costs are related to improved heat exchangers, the integration of VIPs and triple-pane glass, and switching to brushless direct current (DC) condenser fan motors and variable-speed compressors.
TSL 1, the MREF Working Group recommended level, corresponds to EL 2 for combination cooler refrigeration product classes C-3A and C-3A-BI, and EL 3 for product classes C-9, C-9-BI, C-13A and C-13A-BI. At TSL 1, DOE estimates INPV for combination cooler refrigeration product manufacturers to range from $107.4 million to $107.6 million, or a change in INPV of −0.7 percent to −0.5 percent, relative to the no-new-standards case. At this TSL, industry free cash flow is estimated to decrease by as much as 5.7 percent to $6.3 million, compared to the no-new-standards case value of $6.7 million in 2018, the year before the 2019 compliance year.
An estimated 11 percent of combination cooler refrigeration product industry shipments are below the efficiency levels corresponding to TSL 1. Products with efficiencies below those corresponding to TSL 1 are concentrated in product class C-13A. At TSL 1, DOE estimated that manufacturers of C-13A combination cooler refrigeration products will incur conversion costs of $1.0 million in order to comply with the 2019 standard. The design changes associated with this conversion cost estimate include increased compressor efficiency and increased insulation thickness.
At TSL 2, DOE estimates INPV for combination cooler refrigeration product manufacturers to range from $103.7 million to $107.5 million, or a change in INPV of −4.1 percent to −0.6 percent. At this TSL, industry free cash flow is estimated to decrease by as much as 36.9 percent to $4.3 million, compared to the no-new-standards case value of $6.9 million in 2020.
In contrast to TSL 1, an estimated 100 percent of combination cooler refrigeration product industry shipments are below the efficiency levels corresponding to TSL 2 (EL 4 for product classes C-3A, C-3A-BI, C-13A and C-13A-BI; EL 5 for product classes C-9 and C-9-BI). DOE estimated that compliance with TSL 2 will require a total industry investment of $6.8 million by 2021. The design changes associated with this conversion cost estimate include increased compressor efficiency, changes to insulation thickness, and the incorporation of VIPs.
At TSL 3, DOE estimates INPV for combination cooler refrigeration product manufacturers to range from $101.6 million to $117.7 million, or a change in INPV of −6.0 percent to 8.9 percent. At this TSL, industry free cash flow is estimated to decrease by as much as 51.9 percent to $3.3 million, compared to the no-new-standards case value of $6.9 million in 2020.
An estimated 100 percent of combination cooler refrigeration product industry shipments are below the efficiency levels corresponding to TSL 3 (EL 5 for product classes C-3A, C-3A-BI; EL 6 for product classes C-13A, C-13A-BI, C-9, and C-9-BI). DOE estimated that compliance with TSL 3 will require a total industry investment of $9.5 million by 2021. Again, the design changes associated with this conversion cost estimate relate increased compressor efficiency, changes to insulation thickness, and the incorporation of VIPs. Incorporation of high efficiency glass would also be required for some product classes at TSL 3.
At TSL 4, DOE estimates INPV for combination cooler refrigeration product manufacturers to range from $100.1 million to $128.5 million, or a change in INPV of −7.5 percent to 18.8 percent. At this TSL, industry free cash flow is estimated to decrease by as much as 62.9 percent to $2.6 million, compared to the no-new-standards case value of $6.9 million in 2020.
An estimated 100 percent of combination cooler refrigeration product industry shipments are below the efficiency levels corresponding to TSL 4 (EL 7 for all combination cooler product classes). DOE estimated that compliance with TSL 4 will require a total industry investment of $11.3 million by 2021. Again, the design changes associated with this conversion cost estimate relate increased compressor efficiency, changes to insulation thickness, and the incorporation of VIPs. Incorporation of high-efficiency glass would also be required for all product classes at TSL 4.
To quantitatively asses the impacts of energy conservation standards on direct employment in the MREF industry, DOE used the GRIM to estimate the domestic labor expenditures and number of employees in the no-new-standards case and at each TSL from 2016 through either 2048 or 2050, the end of the analysis period depending on the TSL. DOE used statistical data from the U.S. Census Bureau's 2011
The total labor expenditures in the GRIM were then converted to domestic production employment levels by dividing production labor expenditures by the annual payment per production worker (production worker hours multiplied by the labor rate found in the U.S. Census Bureau's 2011
DOE's estimates only account for production workers who manufacture the specific products covered by this rulemaking. Thus, the estimated number of impacted employees in the MIA is separate and distinct from the total number of employees used to determine whether a manufacturer is a small business. Finally, this analysis also does not factor in the dependence by some manufacturers on production volumes to make their operations viable.
In the GRIM, DOE used the labor content of each product and manufacturing production costs from the engineering analysis to estimate the annual labor expenditures in the MREF manufacturing industry. DOE used information gained through interviews with manufacturers to estimate the portion of the total labor expenditures that can be attributed to domestic production labor. The employment impacts shown in Table V.28 represent the range of potential production employment impacts in the cooler industry that could result in the compliance year of new energy conservation standards and Table V.29 represents the range of potential production employment impacts in the combination cooler refrigeration product industry that could result in the compliance year of new energy conservation standards.
The upper end of the results in the tables represents the maximum increase in the number of production workers after the implementation of new energy conservation standards and assumes that manufacturers would continue to produce the same covered products within the United States. This corresponds to the direct employment impacts calculated in the GRIM. In general, more efficient products are more complex and more labor intensive to manufacture. Per-unit labor requirements and production time requirements increase with a higher energy conservation standard. As a result, if shipments remain relatively steady, the model forecasts job growth at the upper bound of direct employment impacts.
The lower bound assumes that as the standard increases, manufacturers choose to retire sub-standard product lines (or to move production of sub-standard product lines abroad) rather than invest in domestic manufacturing facility conversions and product redesigns. In this scenario, there is a loss of employment because manufacturers consolidate and operate fewer domestic production lines. To estimate this lower bound, DOE assumed that the percentage loss in employment relative to the no-new-standards case would be equal to the percentage of non-compliant, domestically-produced platforms relative to all domestically-produced platforms. Because this represents a worst-case scenario for employment, there is no consideration given to the fact that there may be employment growth in higher-efficiency product lines.
DOE estimates that in the absence of new energy conservation standards, there would be 168 and 173 domestic production workers in the cooler industry in 2019 and 2021, respectively, and 130 and 134 domestic production workers in the combination cooler refrigeration product industry in 2019 and 2021, respectively.
Direct production employment impacts are also detailed in chapter 12 of the direct final rule TSD.
DOE notes that the direct employment impacts discussed here are independent of the indirect employment impacts to the broader U.S. economy, which are documented in chapter 16 of the direct final rule TSD.
Based on feedback from domestic MREF manufacturers during confidential interviews and MREF Working Group meetings, DOE does not expect significant impacts on domestic manufacturing capacity for the industry as a whole to result from the standards for MREFs adopted in this direct final rule. However, at more stringent standard levels than those adopted in this direct final rule, disproportionate impacts experienced by domestic manufacturers could lead these manufacturers to abandon certain niche production lines.
Additionally, although DOE does not believe the standards adopted in this direct final rule will lead to a decrease in manufacturing capacity for the MREF industry as a whole, DOE recognizes that standards will likely lead to decreased manufacturing capacity for cooler products using non-vapor-compression cooling technologies.
Small manufacturers, niche equipment manufacturers, and manufacturers exhibiting a cost structure substantially different from the industry average could be disproportionately affected by new energy conservation standards for MREFs. Using average cost assumptions developed for an industry cash-flow estimate is adequate to assess differential impacts among manufacturer subgroups. For the MREF industry, DOE identified and evaluated the impact of new energy conservation standards on two subgroups: Small businesses and domestic LVMs.
The SBA defines a “small business” as having 1,250 employees or less for both NAICS 335222 (“Household Refrigeration and Home Freezer Manufacturing”) and NAICS 333415 (“Air-Conditioning and Warm Air Heating Equipment and Commercial and Industrial Refrigeration Equipment Manufacturing”). Based on the SBA employee threshold of 1,250 employees, DOE identified two entities involved in the sale of MREF products in the United States that qualify as small businesses. One of these businesses is a manufacturer of MREF products. The other small business imports and rebrands MREFs for sale in the United States. For a discussion of the potential impacts on the small manufacturer subgroup, see section VI.B of this document and chapter 12 of the TSD.
In addition to the small businesses discussed previously, DOE identified three domestic LVMs of MREFs that could be disproportionately affected by a DOE energy conservation standard for MREFs. Unlike the larger, diversified manufacturers selling MREFs in the United States, these businesses are highly concentrated in specific market segments (refrigeration) and/or earn a greater proportion of their sales from products covered by this rulemaking. Additionally, although the LVMs do not qualify as small businesses according to the SBA criteria discussed above (
Based on manufacturer feedback, DOE believes that the three LVMs, along with the small domestic manufacturer identified by DOE, are four of only five manufacturers producing MREFs domestically. In contrast, the entities with the greatest estimated overall market share in the U.S. MREF market rebrand coolers and combination cooler refrigeration products sourced from foreign original equipment manufacturers (“OEMs”).
DOE has estimated that two of the LVMs and the small MREF manufacturer account for approximately 50 percent of built-in cooler basic models (both compact and full-size) that are currently available in the U.S. market. DOE estimates that the standard adopted in this direct final rule (70 percent of the CEC-Equivalent) will require the LVMs to update over 70 percent of their cooler models (overall, and for built-in coolers only).
Additionally, two of the LVMs are the only manufacturers producing combination cooler refrigeration products domestically. Combined, these
Generally, manufacturers indicated during confidential interviews that the MREF products produced by the domestic LVMs are niche products and are more expensive to produce (and, therefore, have higher selling prices) than the majority of the MREFs sold in the United States. The LVMs generally utilize a two-tier distribution system for MREFs, unlike large-scale manufacturers that sell directly to large-volume retail outlets. (ASRAC Public Meeting, No. 85 at p. 144) Accordingly, the cost and markup structure of these two types of manufacturers are significantly different.
Manufacturers also expressed during confidential interviews that LVMs (along with the small manufacturer) typically pay higher prices for components because of lower purchasing volumes, while their large competitors likely receive volume purchasing discounts. Despite the fact that the MREF industry as a whole is a relatively low-volume industry, larger manufacturers, with a significantly larger proportion of their total sales derived from the sale of other products (non-MREF products), are able to purchase components in high quantities due to the similarities between MREFs and the other higher-volume products they sell (
LVMs may also be disproportionately affected by product and capital conversion costs. Product redesign, testing, and certification costs tend to be fixed per basic model and do not scale with sales volume. Both large manufacturers and LVMs must make investments in R&D to redesign their products, but LVMs lack the sales volumes to sufficiently recoup these upfront investments without substantially marking up their products' selling prices. Furthermore, the LVMs and major re-branders both offer similar numbers of MREF basic models. Up-front capital investments in new manufacturing for each platform redesign and any depreciated manufacturing capital would be spread across a lower volume of shipments for LVMs.
To this end, feedback from LVMs received during confidential interviews suggested that new energy conservation standards for MREFs could result in such a significant increase in their costs (both per-unit and upfront costs) that selling prices would increase beyond what consumers are willing to pay. This could cause the LVMs to discontinue certain model lines that, in turn, would negatively impact customer choice, competition, and domestic employment within the MREF industry.
Finally, the LVMs considered in this analysis have fewer resources to devote to the cumulative regulations impacting the appliance industry. According to manufacturer feedback received during confidential interviews, the LVMs will be particularly challenged in meeting amended energy conservation standards for commercial refrigeration equipment (with an estimated compliance date of 2017) and for residential refrigerators and freezers (with an estimated compliance date of 2020), in addition to the EPA Significant New Alternatives Policy Program (SNAP) program restrictions relating to foam blowing agents and any future restrictions relating to acceptable refrigerants for use in consumer refrigeration products. Table V.32 lists the impending DOE energy conservation standards that may have a significant impact on the MREF LVMs, the corresponding expected industry conversion costs (where available), and the LVM U.S. market share for the products being regulated.
In summary,
One aspect of assessing manufacturer burden involves looking at the cumulative impact of multiple DOE standards and the regulatory actions of other Federal agencies and States that affect the manufacturers of a covered product or equipment. A standard level is not economically justified if it contributes to an unacceptable cumulative regulatory burden. While any one regulation may not impose a significant burden on manufacturers, the combined effects of several existing or impending regulations may have serious consequences for some manufacturers, groups of manufacturers,
DOE aims to recognize and seeks to mitigate the overlapping effects on manufacturers of new or revised DOE standards and other regulatory actions affecting the same products, components, and other equipment. DOE estimates that there are approximately 48 entities selling MREFs in the United States. Only approximately 16 of these entities are OEMs of MREF products. In addition to new energy conservation standards for MREFs, DOE identified a number of requirements that MREF manufacturers will face for products they manufacture approximately 3 years prior to and 3 years after the estimated compliance date of these new standards. The following section addresses key concerns that manufacturers raised during interviews regarding cumulative regulatory burden.
In addition to Federal energy conservation standards, DOE identified other Federal-level and state-level regulatory burdens and third-party standard programs that would affect MREF manufacturers. For more details, see chapter 12 of the direct final rule TSD.
DOE will evaluate its approach to assessing cumulative regulatory burden for use in future rulemakings to ensure that it is effectively capturing the overlapping impacts of its regulations. In particular, DOE will assess whether looking at rules where any portion of the compliance period potentially overlaps with the compliance period for the subject rulemaking would yield a more accurate reflection of cumulative regulatory burdens.
To estimate the energy savings attributable to potential standards for MREFs, DOE compared the energy consumption of those products under the no-new-standards case to their anticipated energy consumption under each TSL. The savings are measured over the entire lifetime of products purchased in the 30-year period that begins in the year of anticipated compliance with new standards (2019-2048 for the TSLs that represent the MREF Working Group recommendations and 2021-2050 for other TSLs). Table V.34 and Table V.35 present DOE's projections of the national energy savings for each TSL considered for coolers and combination cooler refrigeration products, respectively. The savings were calculated using the approach described in section IV.H of this document.
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 MREFs. In accordance with OMB's guidelines on regulatory analysis,
The NPV results based on the aforementioned 9-year analytical period are presented in Table V.40 and Table V.41. As mentioned previously, such results are presented for informational purposes only and are not indicative of any change in DOE's analytical methodology or decision criteria.
The above results reflect the use of a constant default trend to estimate the change in price for MREFs over the analysis period (see section IV.H.3 of this document). DOE also conducted a sensitivity analysis that considered one scenario with low price decline and one scenario with high price decline. The results of these alternative cases are
DOE expects energy conservation standards for MREFs to reduce energy bills for consumers of those products, with the resulting net savings being redirected to other forms of economic activity. These expected shifts in spending and economic activity could affect the demand for labor. 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 within five years of the compliance date, where these uncertainties are reduced.
The results suggest that the adopted standards are 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 direct final rule TSD presents detailed results regarding anticipated indirect employment impacts.
As discussed in section IV.A.2.a of this document and chapter 3 of the direct final rule TSD, DOE has concluded that the standards adopted in this direct final rule would not reduce the utility or performance of the MREFs under consideration in this rulemaking. Manufacturers of these products currently offer units that meet or exceed the adopted standards.
As discussed in section III.H.1.e of this document, the Attorney General of the United States (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 the impact. DOE published a proposed rule containing energy conservation standards identical to those set forth in this direct final rule and transmitted a copy of this direct final rule and the accompanying TSD to the Attorney General, requesting that DOJ provide its determination on this issue. DOE will consider DOJ's comments on the rule in determining whether to proceed with the direct final rule. DOE will also publish and respond to DOJ's comments in the
Enhanced energy efficiency, where economically justified, improves the Nation's energy security, strengthens the economy, and reduces the environmental impacts (costs) of energy production. Reduced electricity demand due to energy conservation standards is also likely to reduce the cost of maintaining the reliability of the electricity system, particularly during peak-load periods. As a measure of this reduced demand, chapter 15 in the direct final rule TSD presents the estimated reduction in generating capacity, relative to the no-new-standards case, for the TSLs that DOE considered in this rulemaking.
Energy conservation resulting from new standards for MREFs is expected to yield environmental benefits in the form of reduced emissions of air pollutants and greenhouse gases. Table V.42 and Table V.43 provide DOE's estimate of cumulative emissions reductions expected to result from the TSLs considered in this rulemaking. The tables include both power sector emissions and upstream emissions. The emissions were calculated using the multipliers discussed in section IV.K of this document. DOE reports annual emissions reductions for each TSL in chapter 13 of the direct final rule TSD. The energy conservation standards being adopted by this direct final rule are economically justified under EPCA with regard to the added benefits achieved through reduced emissions of air pollutants and greenhouse gases.
As part of the analysis for this rule, DOE estimated monetary benefits likely to result from the reduced emissions of CO
Table V.44 and Table V.45 present the global value of CO
DOE is well aware that scientific and economic knowledge about the contribution of CO
DOE also estimated 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)(VII)) In developing the direct final rule, DOE has considered the submission of the jointly-submitted Term Sheet #2 from the MREF Working Group and approved by ASRAC. In DOE's view, Term Sheet #2 sets forth a statement by interested persons that are fairly representative of relevant points of view (including representatives of manufacturers of covered equipment, States, and efficiency advocates) and contains recommendations with respect to energy conservation standards that are in accordance with 42 U.S.C. 6295(o), as required by EPCA's direct final rule provision. See 42 U.S.C. 6295(p)(4). DOE has encouraged the submission of agreements such as the one developed and submitted by the MREF Working Group as a way to bring diverse stakeholders together, to develop an independent and probative analysis useful in DOE standard setting, and to expedite the rulemaking process. DOE also believes that standard levels recommended in Term Sheet #2 may increase the likelihood for regulatory compliance, while decreasing the risk of litigation.
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.48 and Table V.49 present the NPV value that results from adding the estimates of the potential economic benefits resulting from reduced CO
In considering the above results, two issues are relevant. First, the national operating cost savings are domestic U.S. monetary savings that occur as a result of market transactions, while the value of CO
When considering standards, the new or amended energy conservation standards that DOE adopts for any type (or class) of covered product must be designed to achieve the maximum improvement in energy efficiency that the Secretary determines is technologically feasible and economically justified. (42 U.S.C. 6295(o)(2)(A)) In determining whether a standard is economically justified, the Secretary must determine whether the benefits of the standard exceed its burdens by, to the greatest extent practicable, considering the seven statutory factors discussed previously. (42 U.S.C. 6295(o)(2)(B)(i)). The new or amended standard must also result in significant conservation of energy. (42 U.S.C. 6295(o)(3)(B))
For this direct final rule, DOE considered the impacts of new standards for MREFs 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 as DOE discusses the benefits and/or burdens of each TSL, tables in this section present a summary of the results of DOE's quantitative analysis for each TSL. In addition to the quantitative results presented in the tables, DOE also considers other burdens and benefits that affect economic justification.
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, between renters and owners, or builders and purchasers). Having less than perfect foresight and a high degree of uncertainty about the future, consumers may trade off these types of investments at a higher than expected rate between current consumption and uncertain future energy cost savings.
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 the purchase of a product in the standards case, this decreases sales for product manufacturers, and the impact on manufacturers attributed to lost revenue 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 regulatory option decreases the number of products purchased by consumers, this decreases the potential energy savings from an energy conservation standard. DOE provides estimates of shipments and changes in the volume of product purchases in chapter 9 of the direct final rule TSD. However, 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 energy conservation standards, and potential enhancements to the methodology by
Table V.50 and Table V.51 summarize the quantitative impacts estimated for each TSL for coolers. The national impacts are measured over the lifetime of coolers purchased in the 30-year period that begins in the anticipated year of compliance with new standards (2019-2048 for TSL 2, and 2021-2050 for the other TSLs). 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 of this document.
DOE first considered TSL 4, which represents the max-tech efficiency levels. TSL 4 would save 2.02 quads of energy, an amount DOE considers significant. Under TSL 4, the NPV of consumer benefit would be $1.81 billion using a discount rate of 7 percent, and $6.83 billion using a discount rate of 3 percent.
The cumulative emissions reductions at TSL 4 are 121.3 Mt of CO
At TSL 4, the average LCC savings range from −$254 to $123. The simple payback period ranges from 3.5 years to 17.7 years. The fraction of consumers experiencing a net LCC cost ranges from 51 percent to 93 percent.
At TSL 4, the projected change in INPV ranges from a decrease of $152.8 million to an increase of $20.5 million, which correspond to a decrease of 58.0 percent to an increase of 7.8 percent, respectively. Manufacturer feedback during confidential interviews indicated that all cooler segments are highly price sensitive, and therefore the lower bound of INPV impacts is more likely to occur. Additionally, at TSL 4, disproportionate impacts on the LVMs may be severe. This could have a direct impact on domestic manufacturing capacity and production employment in the cooler industry.
The Secretary concludes that at TSL 4 for coolers, the benefits of energy savings, positive NPV of consumer benefits, emission reductions, and the estimated monetary value of the emissions reductions would be outweighed by the economic burden on some consumers, and the impacts on manufacturers, including the conversion costs and profit margin impacts that could result in a large reduction in INPV. Consequently, the Secretary has concluded that TSL 4 is not economically justified.
DOE then considered TSL 3, which would save an estimated 1.84 quads of energy, an amount DOE considers significant. Under TSL 3, the NPV of consumer benefit would be $4.81 billion using a discount rate of 7 percent, and $12.19 billion using a discount rate of 3 percent.
The cumulative emissions reductions at TSL 3 are 110.6 Mt of CO
At TSL 3, the average LCC savings range from $60 to $288. The simple payback period ranges from 1.6 years to 4.7 years. The fraction of consumers experiencing a net LCC cost ranges from 7 percent to 27 percent.
At TSL 3, the projected change in INPV ranges from a decrease of $94.8 million to a decrease of $36.8 million, which correspond to decreases of 36.0 percent and 14.0 percent, respectively. Manufacturer feedback from confidential interviews indicated that all cooler segments are highly price sensitive, and therefore the lower bound of INPV impacts is more likely to occur. Again, at TSL 3, disproportionate impacts on the LVMs may be severe. This could have a direct impact on domestic manufacturing capacity and production employment in the cooler industry.
The Secretary concludes that at TSL 3 for coolers, the benefits of energy savings, positive NPV of consumer benefits, emission reductions, and the estimated monetary value of the emissions reductions would be outweighed by the impacts on manufacturers, including the conversion costs and profit margin impacts that could result in a large reduction in INPV. Consequently, the Secretary has concluded that TSL 3 is not economically justified.
DOE then considered TSL 2, which reflects the standard levels recommended by the MREF Working Group. TSL 2 would save an estimated 1.51 quads of energy, an amount DOE considers significant. Under TSL 2, the NPV of consumer benefit would be $4.78 billion using a discount rate of 7 percent, and $11.02 billion using a discount rate of 3 percent.
The cumulative emissions reductions at TSL 2 are 91.8 Mt of CO
At TSL 2, the average LCC savings range from $28 to $265. The simple payback period ranges from 1.4 years to 6.1 years. The fraction of consumers experiencing a net LCC cost ranges from 9 percent to 29 percent.
At TSL 2, the projected change in INPV ranges from a decrease of $54.8 million to a decrease of $10.0 million, which represent decreases of 20.8 percent and 3.8 percent, respectively. Feedback from the LVMs indicated that TSL 2 would not impede their ability to maintain their current MREF product offerings.
After considering the analysis and weighing the benefits and burdens, DOE has determined that the recommended standards for coolers are in accordance with 42 U.S.C. 6295(o). Specifically, the Secretary has determined the benefits of energy savings, positive NPV of consumer benefits, emission reductions, the estimated monetary value of the emissions reductions, and positive average LCC savings would outweigh the negative impacts on some consumers and on manufacturers, including the conversion costs that could result in a reduction in INPV for manufacturers. Accordingly, the Secretary has concluded that TSL 2 would offer the maximum improvement in efficiency that is technologically feasible and economically justified, and would result in the significant conservation of energy.
Under the authority provided by 42 U.S.C. 6295(p)(4), DOE is issuing this direct final rule that establishes new energy conservation standards for coolers at TSL 2. The new energy conservation standards for coolers, which are expressed as maximum annual energy use, in kWh/yr, as a
Table V.53 and Table V.54 summarize the quantitative impacts estimated for each TSL for combination cooler refrigeration products. The national impacts are measured over the lifetime of products purchased in the 30-year period that begins in the anticipated year of compliance with new standards (2019-2048 for TSL 1, and 2021-2050 for the other TSLs). The energy savings, emissions reductions, and value of emissions reductions refer to FFC results. The efficiency levels contained in each TSL are described in section V.A of this document.
DOE first considered TSL 4, which represents the max-tech efficiency levels. TSL 4 would save 0.016 quads of energy, an amount DOE considers significant. Under TSL 4, the NPV of consumer benefit would be −$0.09 billion using a discount rate of 7 percent, and −$0.14 billion using a discount rate of 3 percent.
The cumulative emissions reductions at TSL 4 are 0.96 Mt of CO
At TSL 4, the average LCC savings range from −$237 to −$182. The simple payback period ranges from 16.0 years to 25.4 years. The fraction of consumers experiencing a net LCC cost ranges from 90 percent to 98 percent.
At TSL 4, the projected change in INPV ranges from a decrease of $8.1 million to an increase of $20.3 million, which correspond to a decrease of 7.5 percent to an increase of 18.8 percent, respectively. Similar to coolers, manufacturer feedback from confidential interviews indicated that combination cooler refrigeration products are highly price sensitive, and therefore the lower bound of INPV impacts is more likely to occur. Additionally, in the context of new standards for coolers and other cumulative regulatory burdens, at TSL 4, disproportionate impacts on domestic LVMs of combination cooler refrigeration products may be severe. This could have a direct impact on the availability of certain niche combination cooler refrigeration products, as well as on competition, domestic manufacturing capacity, and production employment related to the combination cooler refrigeration product industry.
The Secretary concludes that at TSL 4 for combination cooler refrigeration products, the benefits of energy savings, emission reductions, and the estimated monetary value of the emissions reductions would be outweighed by the negative NPV of consumer benefits, the economic burden on some consumers, and the disproportionate impacts on the LVMs, which could directly impact the availability of certain niche combination cooler products. Consequently, the Secretary has concluded that TSL 4 is not economically justified.
DOE then considered TSL 3, which would save an estimated 0.012 quads of energy, an amount DOE considers significant. Under TSL 3, the NPV of consumer benefit would be −$0.04 billion using a discount rate of 7 percent, and −$0.06 billion using a discount rate of 3 percent.
The cumulative emissions reductions at TSL 3 are 0.73 Mt of CO
At TSL 3, the average LCC savings range from −$151 to $59. The simple payback period ranges from 6.8 years to 21.6 years. The fraction of consumers experiencing a net LCC cost ranges from 26 percent to 97 percent.
At TSL 3, the projected change in INPV ranges from a decrease of $6.5 million to an increase of $9.6 million, which represent a decrease of 6.0 percent and an increase of 8.9 percent, respectively. Again, manufacturers indicated that combination cooler refrigeration products are highly price sensitive, and therefore the lower bound of INPV impacts is more likely to occur. In the context of new standards for coolers and other cumulative regulatory burdens, at TSL 3, disproportionate impacts on domestic LVMs of combination cooler refrigeration products may be severe. This could have a direct impact on the availability of certain niche combination cooler refrigeration products, as well as on competition, domestic manufacturing capacity and production employment related to the combination cooler refrigeration product industry.
The Secretary concludes that at TSL 3 for combination cooler refrigeration products, the benefits of energy savings, emission reductions, and the estimated monetary value of the emissions
DOE then considered TSL 2, which reflects the efficiency levels with maximum consumer NPV at seven percent discount rate. TSL 2 would save an estimated 0.007 quads of energy, an amount DOE considers significant. Under TSL 2, the NPV of consumer benefit would be $0.011 billion using a discount rate of 7 percent, and $0.035 billion using a discount rate of 3 percent.
The cumulative emissions reductions at TSL 2 are 0.44 Mt of CO
At TSL 2, the average LCC savings range from $8 to $102. The simple payback period ranges from 2.6 years to 6.5 years. The fraction of consumers experiencing a net LCC cost ranges from zero percent to 49 percent.
At TSL 2, the projected change in INPV ranges from a decrease of $4.4 million to a decrease of $0.6 million, which represent decreases of 4.1 percent and 0.6 percent, respectively. Again, in the context of new standards for coolers and other cumulative regulatory burdens, at TSL 2, disproportionate impacts on domestic LVMs may be severe. This could have a direct impact on the availability of certain niche combination cooler refrigeration products, as well as on competition, domestic manufacturing capacity and production employment related to the combination cooler refrigeration product industry.
The Secretary concludes that at TSL 2 for combination cooler refrigeration products, the benefits of energy savings, positive NPV of consumer benefits, emission reductions, and the estimated monetary value of the emissions reductions would again be outweighed by the disproportionate impacts on the domestic LVMs, which could directly impact the availability of certain niche combination cooler products. Consequently, the Secretary has concluded that TSL 2 is not economically justified.
DOE then considered TSL 1, which reflects the standard levels recommended by the MREF Working Group. TSL 1 would save an estimated 0.00084 quads of energy, an amount DOE considers significant. Under TSL 1, the NPV of consumer benefit would be $0.0017 billion using a discount rate of 7 percent, and $0.0045 billion using a discount rate of 3 percent.
The cumulative emissions reductions at TSL 1 are 0.05 Mt of CO
At TSL 1, the combination cooler refrigeration products currently available on the market already meet or exceed the corresponding efficiency levels in all product classes except for C-13A. As a result, for five of the product classes, no consumers experience a net cost, and the LCC savings and simple payback period are not applicable. For product class C-13A, the average LCC savings is $32, the simple payback period is 4.3 years, and the fraction of consumers experiencing a net LCC cost is 6 percent.
At TSL 1, the projected change in INPV ranges from a decrease of $0.8 million to a decrease of $0.5 million, which represent decreases of 0.7 percent and 0.5 percent, respectively. DOE estimated that all combination cooler refrigeration products manufactured domestically by LVMs currently meet the standard levels corresponding to TSL 1. Therefore, at TSL 1, DOE believes that domestic manufacturers will continue to offer the same combination cooler refrigeration products as those they currently offer.
After considering the analysis and weighing the benefits and burdens, DOE has determined that the recommended standards for combination cooler refrigeration products are in accordance with 42 U.S.C. 6295(o). Specifically, the Secretary has determined the benefits of energy savings, positive NPV of consumer benefits, emission reductions, the estimated monetary value of the emissions reductions, and positive average LCC savings would outweigh the negative impacts on some consumers and on manufacturers, including the conversion costs that could result in a reduction in INPV for manufacturers. Accordingly, the Secretary has concluded that TSL 1 would offer the maximum improvement in efficiency that is technologically feasible and economically justified, and would result in the significant conservation of energy.
Under the authority provided by 42 U.S.C. 6295(p)(4), DOE is issuing this direct final rule that establishes new energy conservation standards for combination cooler refrigeration products at TSL 1. The new energy conservation standards for combination cooler refrigeration products, which are expressed as maximum annual energy use, in kWh/yr, as a function of AV, in ft
The benefits and costs of the adopted standards can also be expressed in terms of annualized values. The annualized net benefit is the sum of: (1) The annualized national economic value (expressed in 2015$) of the benefits from operating products that meet the adopted standards (consisting primarily of operating cost savings from using less energy, minus increases in product purchase costs, and (2) the annualized monetary value of the benefits of CO
Table V.56 shows the annualized values for MREFs under TSL 2 for coolers and TSL 1 for combination cooler refrigeration products, expressed in 2015$. 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 SCC series has a value of $40.6/t in 2015, the estimated cost of the standards is $157 million per year in increased equipment costs, while the estimated annual benefits are $754 million in reduced operating costs, $165 million 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 that the adopted standards for MREFs are intended to address are as follows:
(1) Insufficient information and the high costs of gathering and analyzing relevant information leads some consumers to miss opportunities to make cost-effective investments in energy efficiency.
(2) In some cases the benefits of more efficient equipment are not realized due to misaligned incentives between purchasers and users. An example of such a case is when the equipment purchase decision is made by a building contractor or building owner who does not pay the energy costs, which is likely to result in the least costly equipment being purchased rather than more efficient alternatives that would benefit the users of that equipment.
(3) There are external benefits resulting from improved energy efficiency of MREFs that are not captured by the users of such equipment. These benefits include externalities related to public health, environmental protection and national energy security that are not reflected in energy prices, such as reduced emissions of air pollutants and greenhouse gases that impact human health and global warming. DOE attempts to qualify some of the external benefits through use of social cost of carbon values.
The Administrator of the Office of Information and Regulatory Affairs (“OIRA”) in the OMB has determined that the proposed regulatory action is a significant regulatory action under section (3)(f) of Executive Order 12866. Accordingly, pursuant to section 6(a)(3)(B) of the Order, DOE has provided to OIRA: (i) The text of the draft regulatory action, together with a reasonably detailed description of the need for the regulatory action and an explanation of how the regulatory action will meet that need; and (ii) An assessment of the potential costs and benefits of the regulatory action, including an explanation of the manner in which the regulatory action is consistent with a statutory mandate. DOE has included these documents in the rulemaking record.
In addition, the Administrator of OIRA has determined that the proposed regulatory action is an “economically” significant regulatory action under section (3)(f)(1) of Executive Order 12866. Accordingly, pursuant to section 6(a)(3)(C) of the Order, DOE has provided to OIRA an assessment, including the underlying analysis, of benefits and costs anticipated from the regulatory action, together with, to the extent feasible, a quantification of those costs; and an assessment, including the underlying analysis, of costs and benefits of potentially effective and reasonably feasible alternatives to the planned regulation, and an explanation of why the planned regulatory action is preferable to the identified potential alternatives. These assessments 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 (January 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 cumulative regulations; (3) select, in choosing among alternative regulatory approaches, those approaches that maximize net benefits (including potential economic, environmental, public health and safety, and other advantages; distributive impacts; and equity); (4) to the extent feasible, specify performance objectives, rather than specifying the behavior or manner of compliance that regulated entities must adopt; and (5) identify and assess available alternatives to direct regulation, including providing economic incentives to encourage the desired behavior, such as user fees or marketable permits, or providing information upon which choices can be made by the public.
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, OIRA 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 direct final rule 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 MREFs, the SBA has set a size threshold, which defines those entities classified as “small businesses” for the purposes of the statute. Manufacturers of MREFs have primary NAICS codes of 335222, “Household Refrigerator and Home Freezer Manufacturing” and 333415, “Air-Conditioning and Warm Air Heating Equipment and Commercial and Industrial Refrigeration Equipment Manufacturing.” The SBA sets a threshold of 1,250 employees or less for an entity to be considered as a small business for both NAICS 335222 and NAICS 333415.
DOE conducted a market survey using available public information to identify potential small manufacturers. DOE first attempted to identify all potential MREF manufacturers by researching the CEC
The MREF industry in the United States is primarily an import industry. DOE estimated that less than 8 percent of coolers sold in the United States are produced domestically. The percentage of domestic production of the niche combination cooler refrigeration products is much larger (approximately 40 percent), although total shipments for the combination cooler refrigeration products segment equal only approximately 2 percent of cooler shipments in the United States. DOE estimates that there are approximately 48 entities involved in the sale and/or manufacture of MREFs sold in the U.S. market. Based on manufacturer interview feedback and publicly-available information, DOE determined that 46 of these entities either exceed the size thresholds defined by SBA or are completely foreign-owned and operated. DOE determined that the remaining two companies meet the SBA's definition of a “small business.”
One of the two small, domestic businesses selling MREFs in the United States, accounting for an estimated 1 percent of MREF shipments, does not manufacture any of the MREFs covered by this rulemaking but instead outsources the manufacture of them to foreign OEMs. Because this business does not manufacture MREFs, DOE believes that this company would incur no fixed capital costs related to new energy conservation standards for MREFs. However, this entity may incur costs related to testing, certification, and marketing in order to comply with the standards adopted in this direct final rule. As discussed in section VII.B of the July 2016 Final Coverage Determination, DOE assumes that existing cooler models that are being sold in the United States have already been tested according to test methods similar to those established in the July 2016 Final Coverage Determination and would require only an adjustment of the calculated energy use. Using the costs of adjusting calculated energy use outlined in section VII.B of the July 2016 Final Coverage Determination, as well as an estimate of $50,000 for updates to product literature and marketing materials as a result of new MREF standards, DOE conservatively estimates that the small importer may incur approximately $63,000 in product conversion costs in order to maintain its current MREF product offering. 81 FR at 46786-46787. DOE assumes these upfront costs will be spread over a 3-year period leading up to the compliance year. Accordingly, on an annual basis, the estimated upfront product conversion costs equate to less than 0.1 percent of this entity's annual revenues.
The second small, domestic business identified by DOE manufactures compact coolers. Based on DOE's research, this manufacturer accounts for less than 1 percent of MREF market share in the United States. The models produced and sold by this manufacturer correspond with an estimated four unique platforms with associated efficiencies at or just below (less efficient than) the standard efficiency levels for coolers adopted in this direct final rule. DOE expects that this manufacturer will likely be able to comply with the standards adopted in this direct final rule by making component changes within its existing products (
As discussed above, although the small manufacturer and small importer will incur some costs related to compliance with new MREF standards, the costs to these entities represent a small portion of their annual revenues. For this reason, DOE certifies that the standards for MREFs set forth in this direct final rule would not have a significant economic impact on a substantial number of small entities. Accordingly, DOE has not prepared a regulatory flexibility analysis for this
DOE has determined that MREFs are a covered product under EPCA. 81 FR 46768 (July 18, 2016). Because MREFs are a covered product, manufacturers would need to 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 MREFs, 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 MREFs. See generally 10 CFR part 429. 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 30 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 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 app. B, B(1)-(5). The rule fits within this 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 direct final rule. DOE's CX determination for this direct final 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 direct final rule and has 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 direct final 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 (February 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 direct final 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 regulatory action likely to result in a rule that may cause the expenditure by State, local, and Tribal governments, in the aggregate, or by the private sector of $100 million or more in any one year (adjusted annually for inflation), section 202 of UMRA requires a Federal agency to publish a written statement that estimates the resulting costs, benefits, and other effects on the national economy. (2 U.S.C. 1532(a), (b)) The UMRA also requires a Federal agency to develop an effective process to permit timely input by elected officers of State, local, and Tribal governments on a “significant intergovernmental mandate,” and requires an agency plan for giving notice and opportunity for timely input to potentially affected small governments before establishing any requirements that might significantly or uniquely affect them. On March 18, 1997, DOE published a statement of policy on its process for intergovernmental consultation under UMRA. 62 FR 12820. DOE's policy statement is also available at
DOE reviewed this rule and determined that it does not contain a Federal intergovernmental mandate, nor is it expected to require expenditures of $100 million or more in any one year by the private sector. As a result, no further assessment or analysis is required under UMRA.
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 direct final rule will 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 18, 1988), DOE has determined that this direct final rule will 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 direct final rule 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 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 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 concluded that this regulatory action, which sets forth new energy conservation standards for MREFs, is not a significant energy action because the 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 direct final rule.
On December 16, 2004, OMB, in consultation with the Office of Science and Technology Policy, issued its Final Information Quality Bulletin for Peer Review (the Bulletin). 70 FR 2664 (January 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:
As required by 5 U.S.C. 801, DOE will report to Congress on the promulgation of this rule prior to its effective date. The report will state that it has been determined that the direct final rule is a “major rule” as defined by 5 U.S.C. 804(2).
DOE will accept comments, data, and information regarding this rule until the date provided in the
DOE welcomes comments on any aspect of the analysis as described in this direct final rule. DOE is also interested in receiving comments and views of interested parties concerning the following issues:
1. Whether the standards outlined in this rulemaking would result in any lessening of utility for MREFs, including whether certain features would be eliminated from these products. See sections III.H.1.d and IV.2 of this rule.
2. The incremental manufacturer production costs DOE estimated at each efficiency level. See section IV.C of this rule.
3. DOE's method to estimate MREF shipments under the no-new-standards case and under potential energy conservation standards levels. See section IV.G of this rule.
4. The assumption that installation, maintenance, and repair costs do not vary for MREFs at higher efficiency levels. See section IV.F of this rule.
5. The manufacturer conversion costs (both product and capital) used in DOE's analysis. See section V.B.2.d this rule.
6. The cumulative regulatory burden to MREF manufacturers associated with the standards in this direct final rule and on the approach DOE used in evaluating cumulative regulatory burden, including the timeframes and regulatory dates evaluated. See section V.B.2.e of this rule.
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. Otherwise, persons viewing comments will see only first and last names, organization names, correspondence containing comments, and any documents submitted with the comments.
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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 telefacsimiles (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 that 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).
The Secretary of Energy has approved publication of this direct final rule.
Administrative practice and procedure, Confidential business information, Energy conservation, Household appliances, Imports, Intergovernmental relations, Reporting and recordkeeping requirements, Small businesses.
For the reasons set forth in the preamble, DOE amends 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.
(aa)
(1) Coolers manufactured starting on October 28, 2019 shall have Annual Energy Use (AEU) no more than:
(2) Combination cooler refrigeration products manufactured starting on October 28, 2019 shall have Annual Energy Use (AEU) no more than:
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Proposed rule; request for comments.
This proposed rule would establish the 2017-2018 harvest specifications and management measures for groundfish taken in the U.S. exclusive economic zone off the coasts of Washington, Oregon, and California, consistent with the Magnuson-Stevens Fishery Conservation and Management Act (MSA) and the Pacific Coast Groundfish Fishery Management Plan (PCGFMP). This proposed rule would also revise the management measures that are intended to keep the total catch of each groundfish species or species complex within the harvest specifications. This action also includes regulations to implement Amendment 27 to the PCGFMP, which adds deacon rockfish to the PCGFMP, reclassifies big skate as an actively managed stock, add a new inseason management process for commercial and recreational in California, and makes several clarifications.
Comments must be received no later than November 28, 2016.
Submit your comments, identified by NOAA-NMFS-2016-0094, by either of the following methods:
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Gretchen Hanshew, phone: 206-526-6147, fax: 206-526-6736, or email:
This proposed rule is accessible via the Internet at the Office of the Federal Register Web site at
This proposed rule would implement the 2017-2018 harvest specifications and management measures for groundfish species taken in the U.S. exclusive economic zone off the coasts of Washington, Oregon, and California, implement harvest specifications consistent with default harvest control rules, and implement Amendment 27 to the PCGFMP. The purpose of the proposed action is to conserve and manage Pacific Coast groundfish fishery resources to prevent overfishing, to rebuild overfished stocks, to ensure conservation, to facilitate long-term protection of essential fish habitats (EFH), and to realize the full potential of the Nation's fishery resources. This action proposes harvest specifications for 2017-2018 consistent with existing or revised default harvest control rules for all stocks, and establishes management measures designed to keep catch within the appropriate limits. The harvest specifications are set consistent with the optimum yield (OY) harvest management framework described in Chapter 4 of the PCGFMP. The proposed rule would also implement Amendment 27 to the PCGFMP. Amendment 27 adds deacon rockfish to the PCGFMP, reclassifies big skate as “in the fishery,” adds a new inseason management process for California fisheries, and makes several clarifications. This rule is authorized by 16 U.S.C. 1854 and 1855 and by the PCGFMP.
This proposed rule contains two types of major provisions. The first are the harvest specifications (overfishing limits (OFLs), acceptable biological catches (ABCs), and annual catch limits (ACLs)), and the second are management measures designed to keep fishing mortality within the ACLs. The harvest specifications (OFLs, ABCs, and ACLs) in this rule have been developed through a rigorous scientific review and decision making process, which is described later in this proposed rule.
In summary, the OFL is the maximum sustainable yield (MSY) harvest level and is an estimate of the catch level above which overfishing is occurring. OFLs are based on recommendations by the Pacific Fishery Management Council's (Council) Scientific and Statistical Committee (SSC) as the best scientific information available. The ABC is an annual catch specification that is the stock or stock complex's OFL reduced by an amount associated with scientific uncertainty. The SSC-recommended method for incorporating scientific uncertainty is referred to as the P star-sigma approach and is discussed in detail in the proposed and final rules for the 2011-2012 (75 FR 67810, November 3, 2010; 76 FR 27508, May 11, 2011) and 2013-2014 (77 FR 67974, November 12, 2012; 78 FR 580, January 3, 2013) biennial harvest specifications and management measures. The ACL is a harvest specification set equal to or below the ABC. The ACLs are decided in a manner to achieve OY from the fishery, which is the amount of fish that will provide the greatest overall benefit to the Nation, particularly with respect to food production and recreational opportunities, and taking into account the protection of marine ecosystems. The ACLs are based on consideration of conservation objectives, socio-economic concerns, management uncertainty, and other factors. All known sources of fishing and scientific research catch are counted against the ACL.
This proposed rule includes ACLs for the five overfished species managed under the PCGFMP. For the 2017-2018 biennium darkblotched rockfish and Pacific ocean perch (POP) have rebuilding plan changes to their Harvest Control Rules, while maintaining the current target year for rebuilding (T
This rulemaking also proposes to implement Amendment 27 to the PCGFMP. Amendment 27 consists of five components that would: (1) Reclassify big skate from an ecosystem component species to “in the fishery,” (2) add deacon rockfish to the list of species in the PCGFMP, (3) establish a new inseason management process in California for black, canary, and yelloweye rockfishes, (4) make updates to clarify several stock assessment descriptions, and (5) update several sections of the PCGFMP because canary rockfish and petrale sole are rebuilt. The Notice of Availability for Amendment 27 to the PCGFMP published on September 30, 2016 (81 FR 67287) and is available for public comment (see
In order to keep mortality of the species managed under the PCGFMP within the ACLs the Council also recommended management measures. Generally speaking, management measures are intended to rebuild overfished species, prevent ACLs from being exceeded, and allow for the harvest of healthy stocks. Management measures include time and area restrictions, gear restrictions, trip or bag limits, size limits, and other management tools. Management measures may vary by fishing sector because different fishing sectors require different types of management to control catch. Most of the management measures the Council recommended for 2017-2018 were slight variations to existing management measures, and do not represent a change from current management practices. These types of changes include changes to trip limits, bag limits, closed areas, etc. Additionally, several new management measures were recommended by the Council including: Changes to flatfish retention in the Oregon recreational fishery, creation of a new inseason process for changes to recreational and commercial fisheries in California outside of a Council meeting, changes to petrale sole and starry flounder season in the California recreational fishery, and management measures resulting from reclassifying big skate as “in the fishery.”
The Pacific Coast Groundfish fishery is managed under the PCGFMP. The PCGFMP was prepared by the Council, approved on July 30, 1984, and has been amended numerous times. Regulations at 50 CFR part 660, subparts C through G, implement the provisions of the PCGFMP.
The PCGFMP requires the harvest specifications and management measures for groundfish to be set at least biennially. This proposed rule is based on the Council's final recommendations that were made at its June 2016 meeting as well as harvest specifications for some stocks adopted at the Council's November 2015 and April 2016 meetings.
The process for setting the 2017-2018 harvest specifications began in 2014 with the preparation of stock assessments. A stock assessment is the scientific and statistical process where the status of a fish population or subpopulation (stock) is assessed in terms of population size, reproductive status, fishing mortality, and sustainability. In the terms of the PCGFMP, stock assessments generally provide: (1) An estimate of the current biomass (reproductive potential); (2) an F
When spawning stock biomass falls below the minimum stock size threshold (MSST), a stock is declared overfished and a rebuilding plan must be developed that determines the strategy for rebuilding the stock to B
For overfished stocks, in addition to any stock assessments or stock assessment updates, rebuilding analyses may also be prepared. The rebuilding analysis is used to project the future status of the overfished resource under a variety of alternative harvest strategies and to determine the probability of recovering to B
The Council considered new stock assessments, stock assessment updates, rebuilding analysis for POP, public comment, and advice from its advisory bodies over the course of six Council meetings during development of its recommendations for the 2017-2018 harvest specifications and management measures. At each Council meeting between June 2015 and June 2016, the Council made a series of decisions and recommendations that were, in some cases, refined after further analysis and discussion. Detailed information, including the supporting documentation the Council considered at each meeting is available at the Council's Web site,
The 2017-2018 biennial management cycle was the first cycle following PCGFMP Amendment 24, which established default harvest control rules and included an Environmental Impact Statement (EIS). The EIS described the ongoing implementation of the PCGFMP and default harvest control rules, along with ten year projections for harvest specifications and a range of management measures. Therefore, a draft Environmental Assessment (EA) identifying the preferred alternative new management measures and other decision points that were not described in the 2015 EIS is posted on the NMFS WCR along with this proposed rule. At the Council's June 2016, meeting, following public comment and Council consideration, the Council made its final recommendations for the 2017-2018 harvest specifications and management measures as well as for Amendment 27 to the PCGFMP.
This biennial cycle is the first since the implementation of Amendment 24, which established default harvest control rules for most stocks and evaluated ten year projections for harvest specifications and routinely adjusted management measures (80 FR 12567, March 10, 2015). This resulted in a streamlined decision making process for the 2017-2018 biennial cycle. The use of default harvest control rules and their addition to the PCGFMP was intended to simplify the Council's harvest specifications process and acknowledge that the Council generally maintains the policy choices from the previous biennium to determine the harvest specifications for the next biennium. Under Amendment 24, the harvest control rules used to determine the previous biennium's harvest specifications (
In addition to the use of defaults to simplify the harvest specifications process, Amendment 24 made changes to the description of the type of management measures that may be addressed through the biennial process. Under Amendment 24, management measures that may be implemented during the biennial process include: (1) Measures that will be classified as routine for future biennial cycles; (2) adjustments to current management measures that are already classified as routine; and (3) new management measures not previously analyzed. This was intended to simplify the management measures proposed through each biennial cycle.
Information regarding the OFLs, ABCs, and ACLs proposed for groundfish stocks and stock complexes in 2017-2018 is presented below, followed by a discussion of the proposed management measures for commercial and recreational groundfish fisheries.
Amendment 27 consists of 5 components: (1) Reclassify big skate from an ecosystem component species to “in the fishery,” (2) add deacon rockfish to the list of species in the PCGFMP, (3) establish a new inseason management process in California for black, canary, and yelloweye rockfish, (4) make updates to clarify several stock assessment descriptions, and (5) update several sections to reflect the rebuilt status of canary rockfish and petrale sole.
Amendment 24 to PCGFMP classified several species, including big skate, as ecosystem component species. The information available during development of Amendment 24 indicated that big skate was not targeted and had only small amounts of landings. However, a majority of the unspecified skate landed in the Shorebased IFQ Program is now known to be big skate. According to National Standard Guideline 1, a stock may be classified as an ecosystem component species if it is not determined to be (1) a target species or target stock; (2) subject to overfishing, approaching overfished, or overfished; (3) likely to become subject to overfishing or overfished, according to the best available information, in the absence of conservation and management measures; and (4) generally retained for sale or personal use. Such large landings indicate big skate are being targeted and therefore generally retained for sale, and can no longer be considered an ecosystem species. Therefore, Amendment 27 reclassifies big skate as “in the fishery,” and this rule proposes species specific harvest specifications.
The objective of any inseason management system is to be responsive to the needs of fishing participants while keeping catch within the established harvest specifications. The scope and magnitude of options available to address management issues is highly dependent on the amount of time between when an issue is identified and when corrective action(s) can be implemented. The summer months tend to be the busiest times for both the commercial and recreational fisheries in California, and mortality tends to accumulate more quickly during these times. The Council meets in June and September of each year. If an action is not warranted based on information available at the June meeting, there is a lag of up to four months before additional inseason actions can be implemented. Because fisheries are ongoing during this time, overages identified at the September meeting tend to be of a higher magnitude requiring more severe corrective actions (
Minor edits in Amendment 27 clarify the applicability of several stock assessment procedures and categories that were inadvertently omitted when Amendment 23 modified the PCGFMP consistent with the revised National Standard Guidelines in 2011.
Deacon rockfish (
Finally, canary rockfish and petrale sole were declared rebuilt on August 4, 2015; therefore, all references to them as overfished stocks must be updated. The Notice of Availability for the PCGFMP Amendment 27 was published on September 30, 2016 (81 FR 67287).
The PCGFMP requires the Council to set harvest specifications and management measures for groundfish at least biennially. This proposed rule would set 2017-2018 harvest specifications and management measures for all of the 90 plus groundfish species or species groups managed under the PCGFMP, except for Pacific whiting. Pacific whiting harvest specifications are established annually through a separate bilateral process with Canada.
This section describes the proposed OFLs for overfished species managed under rebuilding plans, non-overfished species managed with individual species-specific harvest specifications, and species managed within stock complexes.
The OFLs for groundfish species with stock assessments are derived by applying the F
For 2017-2018, the Council maintained a policy of using a default harvest rate as a proxy for the fishing mortality rate that is expected to achieve the maximum sustainable yield (F
For the 2017-2018 biennial specification process, seven full stock assessments and three stock assessment updates were prepared. Full stock assessments, those that consider the appropriateness of the assessment model and that revise the model as necessary, were prepared for the following stocks: Black rockfish, bocaccio south of 40°10′ N. lat., canary rockfish, China rockfish, darkblotched rockfish, kelp greenling between 46°16′ N. lat. and 42° N. lat., and widow rockfish. A stock assessment update, which runs new data through an existing model, was prepared for chilipepper rockfish south of 42° N. lat., petrale sole, and sablefish. Updated projections from existing models, where actual catches for recent years replaced assumed catches for those same years in the model, were also prepared for arrowtooth flounder, blue rockfish south of 42° N. lat., greenspotted rockfish, Dover sole, lingcod, POP, and yelloweye rockfish.
Each new stock assessment includes a base model and two alternative models. The alternative models are developed from the base model by bracketing the dominant dimension of uncertainty (
For individually managed species that did not have new stock assessments or update assessments prepared, the Council recommended OFLs derived from applying the F
There are currently eight stock complexes used to manage groundfish stocks pursuant to the PCGFMP. These stock complexes are: (1) Minor Nearshore Rockfish north; (2) Minor Nearshore Rockfish south; (3) Minor Shelf Rockfish north; (4) Minor Shelf Rockfish south (5) Minor Slope Rockfish north; (6) Minor Slope Rockfish south;
The proposed OFLs for stock complexes are the sum of the OFL contributions for the component stocks, when known. For the 2017-2018 biennial specification process—similar to 2011-2012, 2013-2014, and 2015-2016—Depletion-Corrected Average Catch (DCAC), Depletion-Based Stock Reduction Analysis (DB-SRA), or other SSC-endorsed methodologies were used to determine the OFL contributions made by category three species (data limited species). In general, OFL contribution estimates should not vary from year to year for the category three stocks; the OFL contributions for unassessed component stocks that remain in the eight stock complexes are the same in 2017-2018 as in 2015-2016 and 2013-2014.
The proposed OFLs for each complex can also be found in tables 1a and 2a of this proposed rule. In addition to OFL contributions derived by DCAC, DB-SRA, or other SSC approved estimates, OFL contributions for the following stocks were determined by applying the F
A summary table below describes the scientific basis for the proposed OFLs for stocks with new or updated stock assessments, Minor Slope Rockfish complex south of 40°10′ N. lat., and big skate. In addition, a detailed description of the scientific basis for all of the SSC-recommended OFLs proposed in this rule are included in the Stock Assessment and Fishery Evaluation (SAFE) document for 2016.
POP was last assessed in 2011. For this cycle, the 2011 rebuilding analysis was updated with actual catches for 2011-2014. The POP OFLs of 964 mt for 2017 and 984 mt for 2018 are based on the F
Big skate was one of several species that NMFS and the Council designated as ecosystem component species beginning in 2015, as described in the proposed and final rules for the 2015-2016 biennial harvest specifications and management measures (80 FR 687,
The Minor Slope Rockfish south complex is comprised of: Aurora rockfish (
Blackgill rockfish south was assessed in 2011. Blackgill rockfish contributes 143 mt in 2017 and 146 mt for 2018 to the Minor Slope Rockfish south OFL. The 2017 and 2018 OFL contributions are based on the F
Introduction The ABC is the stock or stock complex's OFL reduced by an amount associated with scientific uncertainty. The SSC-recommended P star-Sigma approach determines the amount by which the OFL is reduced to establish the ABC. Under this approach, the SSC recommends a sigma (σ) value. The σ value is generally based on the scientific uncertainty in the biomass estimates generated from stock assessments. After the SSC determines the appropriate σ value, the Council chooses a P star (P*) based on its chosen level of risk aversion considering the scientific uncertainties. As the P* value is reduced, the probability of the ABC being greater than the “true” OFL becomes lower. In combination, the P* and σ values determine the amount by which the OFL will be reduced to establish the SSC-endorsed ABC.
Since 2011, the SSC has quantified major sources of scientific uncertainty in the estimate of OFL and generally recommended a σ value of 0.36 for category one stocks, a σ value of 0.72 for category two stocks, and a σ value of 1.44 for category three stocks. For category two and three stocks, there is typically greater scientific uncertainty in the estimate of OFL because the stock assessments have less data to inform them. Therefore, the scientific uncertainty buffer is generally greater than that recommended for stocks with quantitative stock assessments. Assuming the same P* is applied, a larger σ value results in a larger reduction from the OFL. For 2017-2018, the Council continued the general policy of using the SSC-recommended σ values for each species category. However, an exception to the general σ values assigned to each category was made by the SSC for kelp greenling (off Oregon) and aurora rockfish as described below.
Two stocks in 2017-2018 have unique sigma values calculated because the proxy sigma values are not deemed the best available by the SSC. Kelp greenling was assessed in 2015. A unique sigma of 0.44 was calculated for kelp greenling (off Oregon) because the variance in estimated spawning biomass was greater than the 0.36 sigma used as a proxy for other category 1 stocks. For the same reason, a unique sigma value for aurora rockfish of 0.39 has been used to calculate the ABC since 2015 and will continue to be used in 2017-2018.
The PCGFMP specifies that the upper limit of P* will be 0.45. A P* of 0.5 equates to no additional reduction for scientific uncertainty beyond the sigma value reduction. A lower P* is more risk averse than a higher value, meaning that the probability of the ABC being greater than the “true” OFL is lower. For 2017-2018, the Council largely maintained the P* policies it established for the 2011-2012, 2013-2014, and 2015-2016 bienniums. The Council recommended using P* values of 0.45 for all individually managed category one species, except sablefish, as was done in 2015-2016. Combining the category one σ value of 0.36 with the P* value of 0.45 results in a reduction of 4.4 percent from the OFL when deriving the ABC. For category two and three stocks, the Council's general policy was to use a P* of 0.4, with a few exceptions. The Council recommended a P* of 0.45 for all of the stocks managed in the Minor Rockfish complexes and the Other Fish complex, as was done in 2015-2016. When combined with the σ values of 0.72 and 1.44 for category two and three stocks, a P* value of 0.40 corresponds to 16.7 percent and 30.6 percent reductions, respectively. The Council recommended using P* values of 0.40 for all individually managed category two and three species, except those described below. The Council recommended a P* of 0.45 for big skate, California scorpionfish south of 40°10′ N. lat., cowcod, English sole, and yellowtail rockfish south of 40°10′ N. lat., as was done in 2015-2016 because there was no new scientific information indicating a change in P* value was warranted. The Council also maintained the P* of 0.45 for the Minor Rockfish complexes and the Other Fish complex, that been used since 2011. For 2017-2018 the Council recommended a P* of 0.45 for big skate and black rockfish off Oregon. The P* recommendations for 2017-2018 that deviated from the Council's general policies are described here and are shown in the table below.
Additional information about the σ values used for different species categories as well as the P*- σ approach can be found in the proposed and final rules from the 2011-2012 biennium (75 FR 67810, November 3, 2010; 76 FR 27508, May 11, 2011) and the 2013-2014 biennium (77 FR 67974, November 14, 2012; 78 FR 580, January 3, 2013). Those rules also include a discussion of the P* values used in combination with the σ values. Tables 1a and 2a of this proposed rule present the harvest specifications for each stock and stock complex, including the proposed ABCs, while the footnotes to these tables describe how the proposed specifications were derived. Below is a summary table showing stocks for which the P*- σ approach deviated from the policies that the SSC and Council generally apply, as explained above.
ACLs are specified for each stock and stock complex that is “in the fishery.” An ACL is a harvest specification set equal to or below the ABC to address conservation objectives, socioeconomic concerns, management uncertainty, or other factors necessary to meet management objectives. Under PCGFMP Amendment 24, the Council set up default harvest control rules, which established default policies that would be applied to the best available scientific information to set ACLs each biennial cycle, unless the Council has reasons to diverge from that harvest control rule. A complete description of the default harvest control rules for setting ACLs is described in the proposed and final rule for the 2015-2016 harvest specifications and management measures and PCGFMP Amendment 24 (80 FR 687, January 6, 2015; 80 FR 12567, March 10, 2015). That discussion includes a description of the harvest policies applied to stocks based on their depletion level (
Many groundfish stocks are managed with species-specific harvest specifications. Often these species have been assessed and their stock status is known, or individual management of the stock is recommended to address conservation objectives, socioeconomic concerns, management uncertainty, or other factors necessary to meet management objectives. The default harvest control rule for stocks above MSY is to set the ACL equal to the ABC.
Stocks may be grouped into complexes for various reasons, including: When stocks in a multispecies fishery cannot be targeted independent of one another and MSY cannot be defined on a stock-by-stock basis, when there is insufficient data to measure the stocks' status, or when it is not feasible for fishermen to distinguish individual stocks among their catch. Most groundfish species managed in a stock complex are data-poor stocks without full stock assessments. All of the ACLs for stock complexes are less than or equal to the summed ABC contributions of each component stock in each complex as described in the following paragraphs. Generally, default harvest control rules are based on stock status. According to the framework in the PCGFMP, when the species composition of a stock complex is revised, the default harvest control rule will still be based on status of the stocks that remain in the complex.
When a stock has been declared overfished, a rebuilding plan must be developed and the stock must be managed in accordance with the rebuilding plan (
New for the 2017-2018 biennium, the Council proposed the creation of an emergency buffer. The buffer is specific amounts of yield that are deducted from the ACLs for canary rockfish, darkblotched rockfish, and POP, to account for unforeseen catch events. The buffer approach is described below in “Deductions from the ACLs.” This new management measure would set the fishery harvest guideline, the catch amount from which the allocations are based, on the amount after the buffer is subtracted from the ACL. The result is an amount of yield for these three species that is unallocated at the start of the year, but is held in reserve as a buffer, and can be distributed to fisheries in need after an unforeseen catch event occurs inseason.
Darkblotched rockfish was declared overfished in 2000. From 2011 through 2016 the darkblotched rockfish rebuilding plan has been based on an annual SPR harvest rate of 64.9 percent with a target year to rebuild the stock to B
The Council considered two alternative harvest control rules. The first was 406 mt and 409 mt in 2017-2018, which are the ACLs that result from applying the default harvest control rule of an SPR harvest rate of 64.9 percent. This is the same harvest control rule that was applied in 2016. The default harvest control rule results in an ACL higher than the 2016 ACL of 356 mt due to the more optimistic stock assessment results. Because the Pacific whiting fisheries have been constrained by the catch of darkblotched rockfish in recent years, the Pacific whiting sectors are expected to be constrained under this alternative. The at-sea Pacific whiting fleets have been managed with an allocation for darkblotched rockfish for several years, such that attainment of that allocation results in automatic closure of the fishery, and have taken extensive measures to keep incidental catch rates low. The shorebased Pacific whiting fleets have been managed with individual fishing quota (IFQ) for darkblotched rockfish for several years, and have also made efforts to keep incidental catch low. Despite this, unexpected darkblotched rockfish catch events, where several tons of darkblotched rockfish have been incidentally taken in single hauls, have continued to occur in the Pacific whiting fishery. As the darkblotched rockfish stock rebuilds, avoiding such events is increasingly more difficult. With 406-409 mt ACLs there is a higher likelihood that such an event would result in the closure of one or more of the at-sea fishery coops or a shorebased vessel reaching its vessel limit and be forced to cease fishing in the IFQ fishery.
The second ACL alternative was 641 mt and 653 mt in 2017 and 2018, respectively, and results from applying the default harvest control rule for healthy stocks (setting the ACL equal to the ABC) for calculating the 2017-2018 ACLs for darkblotched rockfish because the stock is anticipated to be rebuilt by 2016. This harvest control rule results in higher ACLs of 641 mt and 653 mt in 2017 and 2018, respectively. The higher ACL alternative may provide additional opportunities for some sectors of the fishery. It is less likely that Pacific whiting sectors would be closed before harvesting their Pacific whiting allocations under this alternative. Setting the ACL equal to the ABC, darkblotched rockfish is still projected to remain healthy (depletion above 40 percent) over the next ten years. The Council recommended applying the default harvest control rule for healthy stocks for calculating the 2017-2018 ACLs for darkblotched rockfish: setting the ACL equal to the ABC. Under this harvest control rule, setting the ACL equal to the ABC, darkblotched rockfish is projected to remain healthy (depletion above 40 percent) over the
Though the 2015 assessment indicates that the stock will be rebuilt by the start of 2016 regardless of the harvest control rule chosen for 2017-2018 and beyond, the Council chose not to modify the T
This harvest control rule meets the requirements to rebuild as quickly as possible, taking into account the needs of fishing communities and other relevant factors, as the stock is estimated to already be rebuilt. This is 10 years ahead of the T
POP was declared overfished in 1999. Since 2007, the Council has recommended ACLs for POP based on an SPR harvest rate of 86.4 percent. The rebuilding analysis for POP was last updated in the 2013-2014 biennial process based on the 2011 stock assessment and rebuilding analysis. The detailed description and rationale for the current rebuilding plan parameters, an SPR harvest rate of 86.4 percent and a T
The 2011 rebuilding analysis projected ACLs for 2017-2018 under the default harvest control rule. However, that rebuilding analysis assumed that mortality of POP from 2011 and beyond would be equal to the ACL each year. Harvest of POP has been well below the ACL in recent years. Therefore, the 2011 rebuilding analysis for POP was updated using 2011-2014 actual catches, resulting in updated projected ACLs for 2017-2018. The updated ACLs for 2017-2018 were slightly higher than the 2017-2018 ACLs in the original 2011 rebuilding plan because actual removals were lower than those assumed in the original 2011 rebuilding analysis.
The 2017-2018 ACLs, after applying the default harvest control rule (
The Council considered this range of POP ACL alternatives to examine the effects of varying POP mortality on the “needs of fishing communities” and the POP rebuilding trajectory. All of the alternatives would maintain the SPR harvest rate as the default harvest control rule in 2019 and beyond, and consider varying the level of harvest in 2017 and 2018 under different harvest control rules. Generally, larger POP ACL alternatives would allow targeting opportunities on midwater non-whiting trawl fisheries and harvest of available Pacific whiting. POP is a slow growing rockfish species that is primarily taken in the trawl fisheries. Generally, lower POP ACL alternatives would reduce flexibility of trawl vessels to fish deeper when targeting Pacific whiting and non-whiting species on slope fishing grounds north of 40°10′ N. lat. POP has been one of the limiting factors for harvest opportunities of Pacific whiting in recent years. At the June 2016 meeting, the Council considered updated fishery information regarding harvest of POP in at-sea Pacific whiting fisheries and requests from industry for higher amounts of POP to be made available to their sectors to allow continued harvest of available Pacific whiting. Low rebuilding ACLs, rigidity in the allocation scheme, and unpredictable and sudden large incidents of POP bycatch in the Pacific whiting fisheries have resulted in POP limiting access to Pacific whiting, whose harvest benefits coastal communities.
The Council recommended a temporary revision to the rebuilding strategy for POP, with a constant catch ACL of 281 mt in 2017 and 2018, returning to an SPR harvest rate of 86.4 percent in 2019 and beyond. This is an increase of 105-110 mt from the ACLs under the default harvest control rule. The T
As described in the sections above regarding OFLs and ABCs, big skate is proposed to be considered “in the fishery,” and no longer considered an ecosystem component species. The stock will be managed with species-specific harvest specifications. The ACL is based on the default harvest control rule for healthy stocks.
Blackgill rockfish south is in the Minor Slope Rockfish South complex and contributes to the harvest specifications of that complex in 2017 and 2018. Blackgill rockfish will have a harvest guideline each year that is equal to its ACL contribution to the complex. No changes to the species composition of Minor Slope Rockfish South allocations are proposed at this time. The Council took final action on Amendment 26 to the PCGFMP which would make changes to management of blackgill rockfish. However, this amendment has not been implemented at this time and therefore this rule continues to manage blackgill as part of the Minor Slope South complex. If a future action considers changes to the species composition of the Minor Slope Rockfish South complex and allocations for blackgill rockfish, those changes would be implemented in that rule and are not discussed further here.
New management measures being proposed for the 2017-2018 biennial cycle would work in combination with current management measures to control fishing. This management structure should ensure that the catch of overfished groundfish species does not exceed the rebuilding ACLs while allowing harvest of healthier groundfish stocks to occur to the extent possible. Routine management measures are used to modify fishing behavior during the fishing year. Routine management measures for the commercial fisheries include trip and cumulative landing limits, time/area closures, size limits, and gear restrictions. Routine management measures for the recreational fisheries include bag limits, size limits, gear restrictions, fish dressing requirements, and time/area closures. The groundfish fishery is managed with a variety of other regulatory requirements that are not routinely adjusted, many of which are not changed through this rulemaking, and are found at 50 CFR part 660, subparts C through G. The regulations at 50 CFR part 660, subparts C through G, include, but are not limited to, long-term harvest allocations, recordkeeping and reporting requirements, monitoring requirements, license limitation programs, and essential fish habitat (EFH) protection measures. The routine management measures, specified at 50 CFR 660.60(c), in combination with the entire collection of groundfish regulations, are used to manage the Pacific Coast groundfish fishery during the biennium to achieve harvest guidelines, quotas, or allocations, that result from the harvest specifications identified in this proposed rule, while protecting overfished and depleted stocks.
In addition to changes to routine management measures, this section describes biennial fishery allocations and set-asides, and new management measures proposed for 2017-2018 including: creation of a new off-the-top deduction for canary rockfish, POP, and darkblotched rockfish to address unforeseen catch events (the buffer), classification of big skate in the PCGFMP, flatfish retention during seasonal depth closures in Oregon, a new inseason process for California recreational and commercial fisheries, and petrale sole and starry flounder retention in the California recreational fishery.
The management measures being proposed reflect the Council's recommendations from its June 2016 meeting, as transmitted to NMFS. At its June 2016 meeting, the Council recommended the creation a buffer for canary rockfish, POP, and darkblotched rockfish, that would be included in the final rule for this action; therefore NMFS is specifically seeking public comment on that item.
This rule also proposes changes to recreational regulations in Washington and Oregon to allow flatfish retention during days open to Pacific halibut fishing. This would make groundfish regulations consistent with past modifications to the Council's Pacific Halibut Catch Sharing Plan.
Before allocations are made to groundfish fisheries, deductions are made from ACLs to set aside fish for certain types of activities, also called “off-the-top deductions.” The deductions from the ACL have been associated with four distinct sources of groundfish mortality. The sources of groundfish mortality accounted for are: harvest in Pacific Coast treaty Indian tribal fisheries; harvest in scientific research activities; harvest in non-groundfish fisheries; and harvest that occurs under exempted fishing permits (EFPs). For 2017-2018, a new category of deductions from the ACL is proposed to account for unforeseen catch events for three species (canary rockfish, POP, and darkblotched rockfish), also called the buffer. All the deductions from the ACL, including the proposed amount for unforeseen catch events, are described at § 660.55(b) and specified in the footnotes to Tables 1a and 2a to subpart C. Under current regulations, modifications to these amounts is permitted through routine inseason action. In order to keep the public informed about these changes, any movement of fish from the deductions from the ACL to other fisheries will be announced in the
At its June 2016 meeting the Council recommended the addition of a new off-the-top deduction to account for unforeseen catch events in any sector, also known as a buffer, and specifically established buffer amounts for canary rockfish, POP, and darkblotched rockfish.
Currently, off-the-top deductions may be distributed to any sector through routine inseason after the Council has made the appropriate considerations. It is NMFS's interpretation that the Council intended to apply the current inseason distribution procedures and Council considerations to the buffer amounts (
Therefore, this rule proposes that any buffer amounts would be available for distribution through routine inseason action and, when making any distribution decisions on the buffer through an inseason action, the Council would consider the existing allocation framework criteria and objectives to maintain or extend fishing and marketing opportunities as stated in the PCGFMP, while taking into account the best available fishery information on sector needs.
This means NMFS does not see a way to apportion the buffer prior to a fishery starting. It is anticipated that in that situation, sectors would use currently available inseason tools to prosecute their fishery.
For each of these three species, the buffer approach and the choice of ACLs are linked because the ACLs recommended by the Council in June 2016 and proposed in this rule are higher than the ACLs the Council preliminarily recommended at their April meeting. The increased ACLs are proposed to accommodate the buffer amounts. For canary and darkblotched the Council recommended ACLs based the default harvest control rule for healthy stocks, and for POP the Council recommended a constant catch ACL of 281 mt in 2017 and 2018. For a more detailed discussion of the ACLs for POP and darkblotched rockfish, see the “Proposed ACLs for 2017 and 2018” section above.
Under the buffer approach, for darkblotched rockfish and POP all sectors would receive lower allocations than if the entire ACL were allocated. For canary rockfish, the nontrawl allocation is not reduced with the buffer because the nontrawl allocation was held constant. In other words, there is potential foregone yield by most sectors (either through targeting or increased access to bycatch) by establishing the buffer. The forgone yield by implementing the buffer could be considered the price for addressing uncertainty in the assessment and projected catches while achieving conservation goals and objectives and providing stability in management of the fishery, as envisioned in the PCGFMP and under MSA. Overall, however, the forgone yield is expected to be inconsequential since historic ACL attainment for these species has been low. From 2011-2014, on average 42 percent of the canary ACLs were attained, 41 percent of the darkblotched ACLs, and 35 percent of the POP ACLs.
Another consideration for the buffer is the accumulation limits in the IFQ fishery. Accumulation limits in the IFQ program limit the amount of quota share (QS) that a person, individually or collectively, may own or control (
Relative to QP, in the Shorebased IFQ Program a limited amount of surplus QP in a vessel account may be carried over from one year to the next, and a deficit in a vessel account in one year may be covered with QP from a subsequent year, up to a carryover limit. QP made available to the Shorebased IFQ Program from the buffer amounts, will not count towards calculations for carryover, consistent with the current procedures of off-the-top deductions. The Pacific whiting final rule (77 FR 28497, May 15, 2012, comment 15) addressed this issue in the context of reapportionment of Pacific whiting to the Shorebased IFQ Program. Any release of additional QP resulting from deductions from the ACL is similar to reapportionment of Pacific whiting in that both may be added to the shorebased trawl allocation during the year but were not part of the annual allocation. Because reapportionment of Pacific whiting is not included in the calculation for the carryover limit in the Shorebased IFQ Program, and because release of additional QP is a similar provision, NMFS proposes that that release of additional QP resulting from redistribution of any buffer amounts would also not count toward the carryover limit. Current regulations at § 660.140(e)(5) state that these additional amounts do not count toward calculation of the carryover limit. No changes to the regulations at § 660.140(e)(5)(ii) regarding deficit carryover are proposed. Therefore, if a vessel has already opted out of the fishery, it would not have the option of covering its deficit with the additional QP that were released from the buffer. Also, current regulations at § 660.140(e)(5)(i) are not proposed to be
Two-year trawl and nontrawl allocations are decided during the biennial process for those species without long-term allocations or species where the long-term allocation is suspended because the species was declared overfished. For all species, except sablefish north of 36° N. lat., allocations for the trawl and nontrawl sectors are calculated from the fishery harvest guideline. The fishery harvest guideline is the tonnage that remains after subtracting from the ACL harvest in Tribal fisheries, scientific research activities, non-groundfish fisheries, some activities conducted under exempted fishing permits, and the yield to account for unforeseen catch events. The two-year allocations and recreational harvest guidelines are designed to accommodate anticipated mortality in each sector as well as to accommodate variability and uncertainty in those estimates of mortality. Allocations described below are specified in the harvest specification tables appended to 50 CFR part 660, subpart C.
The following are the Council's recommended allocations for bocaccio in 2017: Limited entry trawl, 302.4 mt; limited entry and open access non-nearshore fixed gears, 144.3 mt; limited entry and open access nearshore fixed gear, 1.8 mt; and California recreational 326.1 mt. The following are the Council's recommended allocations for bocaccio in 2018: Limited entry trawl, 283.3 mt; limited entry and open access non-nearshore fixed gears, 135.1 mt; Limited entry and open access nearshore fixed gear, 1.7 mt; California recreational 305.5 mt. These allocations are anticipated to accommodate estimates of mortality of bocaccio, by sector, in 2017-2018 and maintain a similar allocation scheme as in 2016.
Since the last biennium canary rockfish has been declared rebuilt and continues to be allocated biennially. The following are the Council's recommended allocations for canary rockfish in 2017: Shorebased IFQ Program, 1014.1 mt; at-sea sectors of the Pacific whiting fishery, 46 mt (catcher/processor (C/P), 16 mt; and mothership (MS), 30 mt); limited entry and open access non-nearshore fixed gears, 46.5 mt; limited entry and open access nearshore fixed gear, 100 mt; Washington recreational, 50 mt; Oregon recreational, 75 mt; and California recreational, 135 mt. The following are the Council's recommended allocations for canary rockfish in 2018: Shorebased IFQ Program, 1,014.1 mt; at-sea sectors of the Pacific whiting fishery, 46 mt (C/P, 16 mt; and MS, 30 mt); limited entry and open access non-nearshore fixed gears, 46.5 mt; limited entry and open access nearshore fixed gear, 100 mt; Washington recreational, 50 mt; Oregon recreational, 75 mt; and California recreational, 135 mt. These allocations are anticipated to accommodate estimates of mortality of canary rockfish, by sector, in 2017-2018 and address the newly rebuilt status.
For 2017-2018, the Council recommended setting a cowcod ACT at 4 mt, and having it function as a fishery harvest guideline similar to the 2015-2016 biennium; it is the amount that would be allocated across groundfish fisheries. The cowcod allocation is proposed to be 36 percent (1.4 mt) trawl and 64 percent (2.6 mt) nontrawl for 2017-2018. NMFS anticipates the proposed allocation structure will keep catch below the 2017-2018 cowcod ACTs without having to make changes to fishery management measures and maintains the same allocation scheme as in 2016.
Petrale sole was declared rebuilt since the last biennium and is an Amendment 21 allocated species. Therefore, this rule proposes allocations of 95 percent trawl and 5 percent nontrawl. For petrale sole, 2,745.3 mt is allocated to Shorebased IFQ Program and 144.8 mt is allocated to the nontrawl fishery in 2017. For 2018, 2,628.5 mt is allocated to the Shorebased IFQ Program and 138.6 mt is allocated to the nontrawl fishery.
The Council recommended that the fishery HG be divided into trawl and nontrawl allocations as follows: 1.10 mt to trawl and 13.1 mt to nontrawl in 2017; and 1.1 mt to trawl and 12.9 mt to nontrawl in 2018. The following are the Council's recommended HGs for yelloweye rockfish in 2017: Limited entry and open access non-nearshore fixed gears, 0.8; limited entry and open access nearshore fixed gear, 2.1; Washington recreational, 3.3; Oregon recreational 3 mt; and California recreational 3.9 mt. The following are the Council's recommended HGs for yelloweye rockfish in 2018: Limited entry trawl, 1.1 mt; limited entry and open access non-nearshore fixed gears, 0.7; limited entry and open access nearshore fixed gear, 2; Washington recreational, 3.3; Oregon recreational 3 mt; and California recreational 3.9 mt. These allocations are anticipated to accommodate estimates of mortality of yelloweye by sector in 2017-2018, and maintain the same allocation scheme that was in place for yelloweye rockfish in 2016.
Washington, Oregon, and California will have state-specific HGs for black rockfish in 2017-2018. This is a change from 2015-2016 where the Oregon-California federal fishery HG was combined. For 2017, the harvest guidelines are: Washington 287 mt, Oregon 526.4, California 333 mt. For 2018, the harvest guidelines are as follows: Washington 283 mt, Oregon 519.4 mt, and California 331 mt.
The Council recommended a two-year trawl and nontrawl HG for longnose skate of 90 percent to the trawl fishery and 10 percent to the nontrawl fishery. The allocation percentages reflect historical catch of longnose skate between the two sectors. This maintains the same allocation scheme that was in place for longnose skate in 2016. Therefore the 2017-2018 trawl allocations are 1,667.7 mt and 185.3 mt nontrawl.
California will continue to have a state-specific harvest guideline for blue/deacon rockfish. Amendment 27 would add deacon rockfish to the PCGFMP and this rule proposes to apply current regulations for blue rockfish to blue/deacon as recent information indicates that catch histories of deacon and blue rockfish are conflated since they were not distinguished until recently. The blue rockfish harvest guideline for the area south of 42° N. latitude is the sum of three components: (1) The assessed stock's contribution to the Minor Nearshore Rockfish complex ABC (south of 40°10′ N. lat.), (2) the contribution for the unassessed portion south of Point Conception, and (3) the contribution to the Nearshore Rockfish complex ABC for the area between 40°10′ N. lat. and 42° N. lat. For 2017 and 2018, this results in a 305 and 311 mt HG, respectively, for blue/deacon rockfish south of 42° N. lat.
Harvest specifications for Minor Nearshore Rockfish north of 40°10' N. lat. are increased from the 69 mt in
Although the Minor Nearshore Rockfish North ACL attainment has been high in recent years, reaching 100 percent in 2011, management measures have prevented the ACL from being exceeded. State nearshore management plans and policies mitigate the risk of overfishing. State HGs and a federal HG for Minor Nearshore Rockfish in the area between 40°10′ and 42° N. lat. under the proposed action will reduce the risk of exceeding the complex ACL.
Allocations for Minor Shelf Rockfish are recommended by the Council each biennial cycle. For Minor Shelf Rockfish north of 40°10′ N. lat., 1,183.1 mt (60.2 percent of the fishery harvest guideline) is allocated to the trawl fishery and 782.1 mt (39.8 percent of the fishery harvest guideline) is allocated to the nontrawl fishery for 2017. For Minor Shelf Rockfish south of 40°10′ N. lat., 192.2 mt (12.2 percent of the fishery harvest guideline) is allocated to the trawl fishery and 1,383.6 mt (87.8 percent of the fishery harvest guideline) is allocated to the nontrawl fishery for 2017. For 2018, the same percentages are applied resulting in allocations of 1,181.8 mt to the trawl fishery and 781.4 mt to the nontrawl fishery north of 40°10′ N. lat., and 192.37 mt to the trawl fishery and 1,384.4 mt to the nontrawl fishery south of 40°10′ N. lat. This maintains the same allocation percentages as were in place for the Minor Shelf Rockfish complexes since 2011.
Minor Slope Rockfish were allocated between the trawl and nontrawl fisheries in PCGFMP Amendment 21. This action applies those Amendment 21 allocation percentages to the updated 2017-2018 fishery harvest guidelines. Blackgill rockfish in California was assessed in 2011 and has continued to be managed within the Minor Slope Rockfish complex, but with a species-specific HG south of 40°10′ N. lat. beginning in 2013. For 2017-2018 the Council recommended a blackgill rockfish harvest guideline equal to the ABC contribution for the portion of the stock south of 40°10′ N. lat., reduced by the 40-10 adjustment because the stock is in the precautionary zone. South of 40°10′ N. lat., the blackgill rockfish harvest guideline is 120.2 mt in 2017 and 122.4 mt in 2018.
RCAs are large area closures intended to reduce the catch of a species or species complex by restricting fishing activity at specific depths. The boundaries for RCAs are defined by straight lines connecting a series of latitude and longitude coordinates that approximate depth contours. A set of coordinates define lines that approximate various depth contours. These sets of coordinates, or lines, in and of themselves, are not gear or fishery specific, but are used in combination to define an area. That area may then be described with fishing restrictions implemented for a specific gear and/or fishery.
For the 2017-2018 cycle, changes to refine selected coordinates are being proposed for: 30 fm, 40 fm, and 150 fm in California. The changes to the coordinates around Noon Day rock in California are proposed to address an area where the current RCA is not enforceable because it is too small. The other changes are proposed to more accurately define the depth contours.
In the non-whiting groundfish fishery, catch is sorted to species or species group in order to account for catch against the various harvest specifications and management measures that are specific to those species or species groups. Except for vessels participating in the Pacific whiting fishery (see § 660.130(d)(2)(ii) and (d)(3)), groundfish regulations require that species or species groups with a trip limit, size limit, scientific sorting designation, quota, harvest guideline, ACT, or ACL, be sorted (see § 660.12(a)(8)). Therefore, this rule proposes to modify the trawl sorting requirements so that big skate is required to be sorted coastwide by all trawl fisheries.
The new inseason process in California is described above in the “Amendment 27 to the PCGFMP” section.
The Council recommended several changes to trawl management measures for the 2017-2018 biennium. Generally, management measures in the trawl fishery apply to the portions of the limited entry trawl fishery described here. As stated above in the “Sorting Requirements Resulting from Big Skate Designation to “in the Fishery” ” section, sorting requirements are proposed. Other changes to management measures in the limited entry trawl fishery are described in the sections that follow.
For vessels fishing in the Shorebased IFQ Program, with either groundfish trawl gear or nontrawl gears, the following incidentally caught species are managed with trip limits: Minor nearshore rockfish north and south, black rockfish, cabezon (46°16′ to 40°10′ N. lat. and south of 40°10′ N. lat.), spiny dogfish, shortbelly rockfish, big skate, Pacific whiting, and the Other Fish complex. No changes to trip limits in the IFQ fishery are proposed for the start of the 2017-2018 biennium; however, changes to trip limits are considered a routine measure under § 660.60(c) and may be implemented or adjusted, if determined necessary, through inseason action. Proposed regulations clarify that midwater gear is allowed for vessels targeting non-whiting during the dates of the primary Pacific whiting fishery, and that midwater gear can be used in the RCA when targeting non-whiting.
Based on analysis of West Coast Groundfish Observer Data and vessel logbook data, the boundaries of the
For 2017-2018, the Council recommended modifying the trawl RCA in the area north of Cape Alava (48°10′ N. lat.). Specifically, the trawl RCA seaward boundary is proposed to be changed from 150 fm and 200 fm modified to 150 fm and the shoreward boundary will be changed from shore to 100 fm. The proposed RCA configuration will be consistent with the RCA currently south of Cape Alava to 45°46′ N. lat.
Management measures for the limited entry fixed gear (LEFG) and open access (OA) nontrawl fisheries tend to be similar because the majority of participants in both fisheries use hook-and-line gear. Management measures, including area restrictions and trip limits in these nontrawl fisheries, are generally designed to allow harvest of target species while keeping catch of overfished species low. For 2017-2018, changes to management measures include: Changes to sablefish trip limits based on changes to the sharing percentages between limited entry and open access, changes to trip limits for minor nearshore shelf, bocaccio, yellowtail rockfish, minor nearshore rockfish, canary rockfish, deeper nearshore rockfish, a change to the seaward boundary of the nontrawl RCA from 40°10′ N. lat. to 34°27′ N. lat., and a change to the shoreward boundary south of 34°27′ N. lat.
The nontrawl RCA applies to vessels that take, retain, possess, or land groundfish using nontrawl gears, unless they are incidental fisheries that are exempt from the nontrawl RCA (
The nontrawl RCA boundaries proposed for 2017-2018 are the same as those in place for the nontrawl fisheries in 2015-2016, except for the seaward boundary from 40°10′ N. lat. to 34°27′ N. lat., which is proposed to be shifted from 150 fm to 125 fm, and the shoreward boundary south of 34°27′ N. lat., which is proposed to be shifted from 60 fm to 75 fm. This management measure would affect nearshore and shelf rockfish species in California south of 40°10′ N. lat. Modifications to the shoreward RCA boundary will allow access to deeper nearshore species (blue, brown, copper, olive rockfishes) and shelf rockfish species (chilipepper, greenblotched, Mexican, vermilion). Modifications to the seaward RCA will allow access to shelf rockfish species and sablefish. These changes are expected to increase catch of chilipepper and other healthy shelf rockfish species by allowing access to depths in which they are more prevalent. The nontrawl fisheries are currently managed with cumulative trip limits, and any increases in catch are expected to remain within allowable harvest limits.
Trip limits proposed for the nontrawl fisheries in 2017-2018 are similar to those that applied to these fisheries since 2011. To help achieve, but not exceed, the allocations of sablefish in the limited entry fixed gear and open access fisheries, changes to trip limits are proposed. Changes are also proposed in the limited entry and open access fixed gear fisheries for yellowtail rockfish, Minor Shelf Rockfish between 40°10′ N. lat. and 34°27′ N. lat., canary rockfish, bocaccio south of 40°10′ N. lat., and Minor Nearshore Rockfish and black rockfish south of 40°10′ N. lat. Proposed 2015-2016 trip limits for these changes are specified in Table 2 (North), Table 2 (South) to subpart E and in Table 3 (North) and Table 3 (South) to subpart F.
Some limited entry fixed gear permits are endorsed to receive annual sablefish quota, or “tier limits,” and vessels registered with one, two, or up to three of these permits may participate in the primary sablefish fishery, described at § 660.231. Tier limits proposed for the limited entry fixed gear primary sablefish fleet are higher in 2017-2018, reflecting the higher sablefish harvest specifications. The proposed tier limits are as follows: Tier 1 at 51,947 lb (23,562 kg), Tier 2 at 23,612 lb (10,710 kg), and Tier 3 at 13,493 lb (6,120 kg). In 2018, Tier 1 at 54,179 lb (24,575 kg), Tier 2 at 24,627 lb (11,170 kg), and Tier 3 at 14,072 lb (6,382 kg).
This rule proposes establishing stock-specific yellowtail rockfish trip limits in both limited entry and open access fixed gear fisheries north of 40°10′ N. lat. by removing yellowtail rockfish from the combined trip limits for Minor Shelf Rockfish, shortbelly rockfish, and widow rockfish. NMFS is soliciting comments on this interpretation because, while the Council's yellowtail rockfish trip limit recommendation was clear, the removal of yellowtail rockfish from the combined trip limit was not explicit in the Council's discussion. This change is proposed because of the increase in and rebuilt status of widow rockfish (which co-occurs with yellowtail rockfish) and would increase the yellowtail rockfish trip limit from a combined limit with several other species of 200 lb/month to 500 lb/month, just for yellowtail rockfish.
Specifications for the complex are established for the area south of 40°10′ N. lat., however the changes proposed in this rule are only for the area between 40°10′ N. lat. and 34°27′ N. lat. This increase is intended to provide greater access to a small number of commercial vessels in this area. This rule proposes increases to trip limits in the open access fixed gear fisheries due to the projected low attainment of the species managed in this complex. The 2016 nontrawl allocation of 1,383 mt is unchanged from 2015.
This rule proposes to allow canary retention in both limited entry and open access fixed gear fisheries by establishing trip limits for the limited entry fishery at 300 lb/2 months and for the open access fishery at 150 lb/2 months. These trip limits are proposed
This rule proposes to remove bocaccio from the Minor Shelf Rockfish aggregate trip limits for limited entry and open access fixed gear between 40°10′ N. lat. and 34°27′ N. lat. and establish stock-specific trip limits for bocaccio to reduce discarding as the stock continues to rebuild and encounters increase.
This rule proposes modifications to the existing Minor Nearshore Rockfish and black rockfish trip limits for limited entry and open access fixed gear fisheries and modifications to the area split for deeper nearshore rockfish. For deeper nearshore rockfish, one trip limit is proposed for the entire area south of 40°10′ N. lat. These changes are proposed due to the rebuilt status of canary rockfish, which is caught in nearshore fishery, and the low attainment of the complex ACL, which has averaged 10 percent or less over the last decade.
This section describes the recreational fisheries management measures proposed for 2017-2018. Most of the changes to recreational management measures are modifications to existing measures. Changes to recreational management measures are discussed below for each state and include: (1) Modifications of recreational season structures, closed areas, and bag limits; (2) removal of the 1 canary rockfish sub-bag limit and 10 inch (25 cm) kelp greenling size restriction in Oregon; (3) creation of potential expansion areas for the Stonewall Bank YRCA in Oregon; (4) addition of a one canary rockfish sub-bag limit in Marine Areas 1 and 2 in Washington; (5) reduction of the lingcod closed area in Washington; (6) removal of prohibition on canary rockfish retention in California; and (7) changes to petrale sole and starry flounder management measures in California.
Recreational fisheries management measures are designed to limit catch of overfished species and provide fishing opportunity for anglers targeting nearshore groundfish species. Overfished species that are taken in recreational fisheries include bocaccio, cowcod, and yelloweye rockfish. Because sport fisheries are more concentrated in nearshore waters, the 2017-2018 recreational fishery management measures are intended to constrain catch of nearshore species such as Minor Nearshore Rockfish, black rockfish, blue rockfish, and cabezon. These protections are particularly important for fisheries off California, where the majority of West Coast recreational fishing occurs. Depth restrictions and groundfish conservation areas (GCAs) are the primary tools used to keep overfished species impacts under the prescribed harvest levels for the California recreational fishery.
Washington, Oregon, and California each proposed, and the Council recommended, different combinations of seasons, bag limits, area closures, and size limits, to best fit the requirements to rebuild overfished species found in their regions, and the needs and constraints of their particular recreational fisheries.
Recreational fisheries management measures for Washington, Oregon, and California in 2017-2018 are proposed to be similar to the recreational fishery management measures that were in place during 2015-2016. Recreational fisheries off Oregon, and Washington are limited by the need to reduce yelloweye rockfish impacts. Changes to recreational fishery management measures off Washington, Oregon, and California are in response to: Updated fishery and modeling information in a manner that allows increased harvest of underutilized healthy stocks while keeping impacts to overfished species within their rebuilding ACLs. The following sections describe the recreational management measures proposed in each state.
Off Washington, recreational fishing for groundfish and Pacific halibut, as proposed, will continue to be prohibited inside the North Coast Recreational YRCA, a C-shaped closed area off the northern Washington coast, the South Coast Recreational YRCA, and the Westport Offshore YRCA. Coordinates for YRCAs are defined at § 660.70. Similar to 2016, this proposed rule includes the Washington State lingcod recreational fishing closure area off Washington Marine Areas 1 and 2, a portion of which are closed to lingcod fishing, except on days that the Pacific halibut fishery is open. However, for 2017-2018, the southern boundary of this lingcod area closure would be shifted five miles north (from 46°28′ N. lat. to 46°33′ N. lat.) to allow additional access to deepwater lingcod areas without expected increases in yelloweye rockfish catches. The aggregate groundfish bag limits off Washington will continue to be 12 fish. The rockfish and lingcod sub-limits will be similar to 2015-2016 sub-limits. For rockfish, NMFS proposes a 10 rockfish sub-limit with no retention of canary or yelloweye rockfish except in Marine Areas 1 and 2 where there will be a one canary rockfish sub-limit (with a new option to expand and increase canary rockfish retention inseason). For lingcod, NMFS proposes a two lingcod sub-limit, with the lingcod minimum size of 22 inches (56 cm). NMFS proposes cabezon restrictions will remain as in 2016.
Changes to the Washington recreational fishery Marine Areas 1-4 for groundfish season dates are proposed for 2017-2018, shortening the season by five months. The recreational groundfish fishery would open the second Saturday in March, and close the third Saturday in October. This is not expected to result in significant changes because very little fishing effort occurs in Marine Areas 1-4 from October through February. The primary purpose of the change is to cap groundfish fishing effort at current levels, and minimize additional effort that could potentially develop in the future. Lingcod seasons are proposed to be the same dates as the recreational groundfish season described above for Marine Areas 1-3, and open April 15 through October 15 in Marine Area 4. The depth restrictions (
One change to the restrictions on groundfish retention during the Pacific halibut season is proposed for 2017-2018. This rule proposes to allow flatfish retention in the Columbia River area along with Pacific halibut when halibut are onboard. This change comes from a 2014 change to the Council's Pacific Halibut Catch Sharing Plan, and was inadvertently omitted from the 2015-2016 groundfish regulations. Starting in Washington Marine Area 1, when the nearshore incidental halibut fishery is open, taking, retaining, possessing or landing incidental Pacific halibut on groundfish trips are allowed only in the nearshore area on days not open to all-depth Pacific halibut fisheries in the area shoreward of the boundary line approximating the 30 fm (55 m) depth contour extending from Leadbetter Point, Washington, to the Washington-Oregon border, and from there, connecting to the boundary line approximating the 40 fm (73 m) depth contour in Oregon. The nearshore incidental Pacific halibut fishery will remain open Monday through Wednesday following the opening of the early season all-depth fishery, until the nearshore Pacific halibut allocation is taken.
Oregon recreational fisheries in 2017-2018 would operate under the same season structures and GCAs as 2015-2016. This rule also proposes to define, but not implement, two options for expansion of the Stonewall Bank YRCA, available for inseason implementation. Aggregate bag limits and size limits in Oregon recreational fisheries remain the same as in 2015-2016: Three lingcod per day, with a minimum size of 22 inches (56 cm); 25 flatfish per day, excluding Pacific halibut; and a marine fish aggregate bag limit of 10 fish per day, where cabezon have a minimum size of 16 inches (41 cm). However, the marine fish bag limit is proposed to be modified for 2017-2018, removing the kelp greenling size restriction and the one fish sub-bag limit for canary rockfish. The seasonal one fish sub-bag limit for cabezon was removed in 2015-2016 to allow ODFW increased flexibility for initiating inseason changes. Cabezon is proposed to have no sub-bag limit throughout 2017-2018.
One change to groundfish retention during the Pacific halibut season is proposed for 2017-2018. This rule proposes to add “other flatfish species” to the list of incidental species allowed to be landed with Pacific halibut. Taking, retaining, possessing or landing incidental halibut on groundfish trips will be allowed only in the Columbia River nearshore area on days not open to all-depth Pacific halibut fisheries in the area shoreward of the boundary line approximating the 30 fm (55 m) depth contour extending from Leadbetter Point, Washington to the Washington-Oregon border, and from there, connecting to the boundary line approximating the 40 fm (73 m) depth contour in Oregon. The nearshore incidental Pacific halibut fishery will continue to be open Monday through Wednesday following the opening of the early season all-depth fishery, until the nearshore Pacific halibut allocation is taken.
For 2017-2018, recreational fisheries off California will continue to be managed as five separate areas, to reduce complexity while retaining flexibility in minimizing impacts on overfished stocks. Season and area closures differ between California regions to better prevent incidental catch of overfished species according to where those species occur and where fishing effort is greatest, while providing as much fishing opportunity as possible.
Compared to the 2016 season structure, the Northern and Mendocino Management Areas would be extended by two and a half months, through December 31. Allowable fishing depths would be increased in the Northern Management Area from 20 fm to 30 fm during May 1 through October 31. Due to high yelloweye rockfish encounters in the Mendocino Management Area, the depth restriction will remain at 20 fathoms from May 1 through October 31. However, from November through December, the depth restriction would be eliminated in both the Northern and Mendocino Management Areas; fishing would be permissible at all depths. Allowable fishing depths would also be increased in the San Francisco and Central Management Areas by 10 fathoms to 40 and 50 fathoms, respectively. Due to projected cowcod impacts, the season structure in the Southern Management Area would remain the same as in 2016. Similarly, the California scorpionfish season will remain the same as in 2016 (
Size, bag, and sub-bag limits would remain the same as 2016 except for black rockfish, bocaccio, canary rockfish, and lingcod. To keep within allowable limits, the black rockfish sub-bag limit would be reduced from five to three fish within the 10 fish aggregate RCG complex bag limit. For bocaccio, the sub-bag limit of three fish within the 10 fish aggregate RCG complex bag limit would be eliminated to reduce discarding; anglers would be able to retain up to 10 bocaccio. For canary rockfish, due to newly rebuilt status, retention would be allowed with a sub-bag limit of one fish within the 10 fish aggregate RCG complex bag limit. Finally, for lingcod, the bag limit would be reduced from three fish to two fish.
As described above in the “Amendment 27 to the PCGFMP” section, this rule proposes a new inseason process for fisheries that occur in the waters off California and for which there are California-specific federal harvest limits. This new system would allow NMFS to take inseason action for black, canary, and yelloweye rockfish, outside of a Council meeting. This would be similar to the current inseason process, except that it will allow for action to be taken during the summer months when the majority of catch accrues and absent Council action.
This rule proposes to remove petrale sole and starry flounder from the recreational season and depth restrictions; anglers could retain petrale sole and starry flounder year round, without depth constraint. Petrale sole and starry flounder are commonly encountered while anglers are pursuing other species which have different seasons and/or allowable depth (
Tribes implement management measures for Tribal fisheries both separately and cooperatively with those management measures that are described in the Federal regulations. The Tribes may adjust their Tribal fishery management measures, inseason, to stay within the overall harvest targets and estimated impacts to overfished species. Trip limits are the primary management measure that the Tribes specify in Federal regulations at § 660.50, subpart C. Continued from previous cycles, the Tribes proposed trip limit management in Tribal fisheries during 2017-2018 for several species, including several rockfish species and species groups. For rockfish species, Tribal regulations will continue to require full retention of all overfished rockfish species and marketable non-overfished rockfish species. No changes to trip limits are proposed for the Tribal fisheries from those that were in place in 2016. Proposed sablefish Tribal set-asides would be set at 10 percent of the Monterey through Vancouver area ACL minus 1.5 percent (reduced from 1.6 percent in 2016) to account for estimated discard mortality. The percentage reduction is based on a sablefish discard model output that can vary with changes in size of discarded fish. Widow rockfish are proposed to be managed by Tribal regulation to stay within the annual 440,000 lb (200 mt) Tribal catch limit. Trip limits for Dover sole, English sole, and other flatfish and arrowtooth flounder will be established through Tribal regulation only. Trip limits are proposed to be adjusted inseason to stay within the overall harvest targets and overfished species limits. This proposal would be a change from the 2016 limits of 110,000 lbs per two months for Dover sole, English sole and other flatfish, and 150,000 lbs per two months for arrowtooth flounder.
Pursuant to section 304 (b)(1)(A) of the Magnuson-Stevens Act, the NMFS Assistant Administrator has determined that this proposed rule and Amendment 27 to the PCGFMP are consistent with the Pacific Coast Groundfish Fishery Management Plan, other provisions of the Magnuson-Stevens Act, and other applicable law, subject to further consideration after public comment. In making its final determination, NMFS will take into account the complete record, including the data, views, and comments received during the comment period.
NMFS prepared an EA for this action and Amendment 27 that discusses the impact on the environment as a result of some of the components of this rule. The full suite of alternatives analyzed by the Council can be found on the Council's Web site at
An initial regulatory flexibility analysis (IRFA) was prepared, as required by section 603 of the Regulatory Flexibility Act (RFA) (5 U.S.C. 603). The IRFA describes the economic impact this proposed rule, if adopted, would have on small entities. A description of the action, why it is being considered, and the legal basis for this action is contained in the
The RFA (5 U.S.C. 601
A small
For
For the purposes of this rulemaking, a
When an agency proposes regulations, the RFA requires the agency to prepare and make available for public comment an IRFA that describes the impact on small businesses, non-profit enterprises, local governments, and other small entities. The IRFA is to aid the agency in considering all reasonable regulatory alternatives that would minimize the economic impact on affected small entities.
This proposed rule will regulate businesses that participate in the groundfish fishery. This rule directly affects limited entry fixed gear permit holders, trawl quota share (QS) holders and Pacific whiting catch history endorsed permit holders (which include shorebased whiting processors), tribal vessels, charterboat vessels, and open access vessels. QS holders are directly affected as their QS are affected by the ACLs. Vessels that fish under the trawl rationalization program receive their quota pounds from the QS holders, and thus are indirectly affected. Similarly, MS processors are indirectly affected as they receive the fish they process from limited entry permits that are endorsed with Pacific whiting catch history assignments.
To determine the number of small entities potentially affected by this rule, NMFS reviewed analyses of fish ticket data and limited entry permit data, information on charterboat, tribal, and open access fleets, available cost-earnings data developed by NWFSC, and responses associated with the permitting process for the Trawl Rationalization Program where applicants were asked if they considered themselves a small business based on SBA definitions. This rule will regulate businesses that harvest groundfish.
There were 355 active Commercial Passenger Fishing Vessels (charter) engaged in groundfish fishing in California in 2014. In 2014, an estimated 189 charter boats targeted groundfish in Oregon and Washington. All 544 of these vessels and associated small businesses are likely to be impacted by changes in recreational harvest levels for groundfish.
With limited access to data for all the affiliated business operations for vessels and buyers, particularly in the open
Open access vessels are not federally permitted so counts based on landings can provide an estimate of the affected. The DEIS Analysis for the 2013-14 Pacific Groundfish Harvest Specifications and Management Measures contained the following assessment, which is deemed as containing reasonable estimates for this rule, as these fisheries have not changed significantly in recent years. In 2011, 682 directed open access vessels fished while 284 incidental open access vessels fished for a total of 966 vessels. Over the 2005-2010 period, 1,583 different directed open access vessels fished, and 837 different incidental open access vessels fished, for a total of 2,420 different vessels. The four tribal fleets sum to a total of 54 longline vessels, 5 Pacific whiting trawlers, and 5 non-whiting trawlers, for an overall total of 64 vessels. Available information on average revenue per vessel suggests that all the entities in these groups can be considered small.
It is expected that a total of 873 catcher vessels (CVs), 227 buyer, 9 C/P and 6 MS entities will be impacted by this rule, for a total of 1,115, if commercial groundfish participation in 2017-2018 follows similar patterns to the last full year data are available for (2015), and counting only those vessels and buyers who had at least $1,000 worth of groundfish sales or purchases in 2015.
Revenues reported from 2015 obtained from the Pacific Fisheries Information Network (PacFIN); those from 2014 obtained from 2016 Economic Data Collection Reports.
As part of the permitting process for the trawl rationalization program or for participating in nontrawl limited entry permit fisheries, applicants were asked if they considered themselves a small business. NMFS reviewed the ownership and affiliation relationships of QS permit holders, vessel account holders, catcher processor permits, MS processing, and first receiver/shore processor permits. As of August 1, 2016, Dock Street Brokers has West Coast limited entry trawl endorsed permits for sale for $60,000 for a 46.1' permit, and two 43' West Coast longline permits for $135,000-$140,000. QS may be valued anywhere from tens of thousands to millions of dollars, depending on the species and amount owned, although not enough sales have occurred yet to be able to confidently estimate their value.
If permit ownership in 2017-2018 follows similar patterns to the last full year (data are available for 2015), it is expected that a total of 312 permit owning entities will be impacted by this rule. An estimated 222 of these entities own both permits and vessels, and 16 of the first receiver permit holding companies actually received groundfish, and are thus included in the table above.
Accounting for joint vessel and permit ownership in the limited entry fisheries to the extent possible, an estimated 1,189 commercial entities and 544 charter entities will be impacted by this rule; 16 of these entities are considered large, and the remaining 1,717 are small. As some of these entities are likely owned by the same parent companies,
There are no reporting and recordkeeping requirements associated with this action. There are no relevant Federal rules that may duplicate, overlap, or conflict with this action.
There are no significant alternatives to the proposed rule that accomplish the stated objectives of applicable statutes and that minimize any of the significant economic impact of the proposed rule on small entities.
A summary of the three measures that were analyzed but were excluded from the preferred alternative, and rationale for excluding them in the preferred alternative, are summarized below.
The most recent assessment of starry flounder does not contain an OFL or ABC projection beyond 2016. At the 2015 mop-up Stock Assessment Review (STAR) Panel, it was recommended that 2016 harvest specifications be carried forward for 2017 and 2018, and starry flounder be changed from a Category 2 to a Category 3 stock. The STAR panel questioned whether starry flounder should continue to be managed as a stand-alone stock or would be better included in the Other Flatfish complex.
The proposal to manage starry flounder in the Other Flatfish complex turned out to be more complicated than anticipated, due to a mismatch between the Amendment 21 allocations of starry flounder and the Other Flatfish complex. The Other Flatfish complex is allocated 90 percent to trawl and 10 percent to nontrawl, while starry flounder is allocated 50 percent to trawl and nontrawl.
Annual catches of starry flounder in 2012-2014 were 1-2 percent of the ACL, therefore there would be little risk that the mortality would exceed the stock-specific harvest specifications whether it is managed in a complex or with stock-specific harvest specifications. The Council rejected the proposal to manage starry flounder within the Other Flatfish complex since there were no conservation issues with status quo management. Further, initial scoping of the measure indicated there would be a high workload to reconfigure allocations and QS.
During discussions, California Department of Fish and Wildlife (CDFW) mentioned that some anglers would like the opportunity to retain starry flounder year-round, while current regulations do not provide for such an allowance. In 2016, starry flounder is restricted to the same months and depths as the groundfish season; however, species in the Other Flatfish complex are allowed to be targeted and retained year round. If starry flounder were included in the Other Flatfish complex, they would then be allowed to be targeted and retained year round in the California recreational fishery. In order to facilitate year round starry flounder fishing, the Council added starry flounder to the new management measure analysis for allowing petrale sole year round and all depths in the California recreational fishery.
This management measure would allow limited transfer of canary rockfish, darkblotched rockfish, POP, and widow rockfish quota pounds from the shorebased IFQ sector to MS Coops. The measure is intended to reduce the risk of the mothership sector not attaining their whiting allocation, based on the incidental catch of these species. The Council excluded the measure from the preferred alternative based on the complexities of the analysis, implementation challenges, and other matters raised by NMFS. Additionally, the Council is considering a measure outside of the harvest specifications and management measures process that proposes to change the Amendment 21 allocations and management (from quota to set-asides) for darkblotched rockfish and POP for both the MS and C/P sectors (75 FR 78344, December 15, 2010).
Nine new area closures in California were analyzed to mitigate increases in overfished species impacts, which may occur as a result of the proposed 2017-2018 California recreational season structures. The proposed season structures allow access to deeper depths than what has been allowed in nearly a decade. As such, there is uncertainty in angler behavior and the model projections for overfished species. If catch was tracking higher than anticipated, the overfished species hotspot closures could be implemented to reduce catch.
The Council excluded the overfished species hotspot closures from the preferred alternative based on changes in outreach, inseason tracking and management, current fishery performance, and other matters raised by CDFW. The Council decision to exclude this measure was also related to the management measure that would grant NMFS authority to change routine management measures in the recreational and commercial fisheries based upon attainment or projected attainment of a Federal harvest limit for black rockfish, canary rockfish, and yelloweye rockfish. That is, the ability to control catch inseason would increase with the ability to take action outside a Council meeting. As such, the hotspot closures may no longer be needed.
The Regulatory Flexibility Act (RFA) requires Federal agencies to conduct an analysis of the impact of the proposed rule on small entities. The IRFA that NMFS prepared (and noted above) estimates that 1,717 charter small entities are potentially impacted by this proposed rule and concludes that this action is not anticipated to have a substantial or significant economic impact on those small entities. We are requesting comments on this conclusion.
NMFS issued Biological Opinions under the Endangered Species Act (ESA) (16 U.S.C. 1531
NMFS issued a Supplemental Biological Opinion on March 11, 2006,
NMFS has reinitiated section 7 consultation on the PCGFMP with respect to its effects on listed salmonids. In the event the consultation identifies either reasonable and prudent alternatives to address jeopardy concerns or reasonable and prudent measures to minimize incidental take, NMFS would exercise necessary authorities, in coordination to the extent possible with the Council, to put such additional alternatives or measures into place.
On December 7, 2012, NMFS completed a biological opinion concluding that the groundfish fishery is not likely to jeopardize non-salmonid marine species including listed eulachon, green sturgeon, humpback whales, Steller sea lions, and leatherback sea turtles. The opinion also concludes that the fishery is not likely to adversely modify critical habitat for green sturgeon and leatherback sea turtles. An analysis included in the same document as the opinion concludes that the fishery is not likely to adversely affect green sea turtles, olive ridley sea turtles, loggerhead sea turtles, sei whales, North Pacific right whales, blue whales, fin whales, sperm whales, Southern Resident killer whales, Guadalupe fur seals, or the critical habitat for Steller sea lions.
At the Council's June 2015 meeting, new estimates of eulachon take from fishing activity under the PCGFMP indicated that the incidental take statement in the 2012 biological opinion was exceeded in 2011 and 2013. The increased bycatch may be due to increased eulachon abundance. In light of the new fishery and abundance information, NMFS has reinitiated consultation on eulachon. In the event the consultation identifies either reasonable and prudent alternatives to address jeopardy concerns, or reasonable and prudent measures to minimize incidental take, NMFS would coordinate with the Council to put additional alternatives or measures into place, as required.
On November 21, 2012, the U.S. Fish and Wildlife Service (FWS) issued a biological opinion concluding that the groundfish fishery will not jeopardize the continued existence of the short-tailed albatross. The FWS also concurred that the fishery is not likely to adversely affect the marbled murrelet, California least tern, southern sea otter, bull trout, or bull trout critical habitat. NMFS reinitiated section 7 consultation on the Pacific Coast Groundfish FMP with respect to its effects on short-tailed albatross. In accordance with sections 7(a)(2) and 7(d) of the ESA, NMFS determines that this action will not jeopardize listed species, would not adversely modify any designated critical habitat, and will not result in any irreversible or irretrievable commitment of resources that would have the effect of foreclosing the formulation or implementation of any reasonable and prudent alternative measures.
This proposed rule would not alter the effects on marine mammals over what has already been considered for the fishery. West Coast pot fisheries for sablefish are considered Category II fisheries under the MMPA's List of Fisheries, indicating occasional interactions. All other West Coast groundfish fisheries, including the trawl fishery, are considered Category III fisheries under the MMPA, indicating a remote likelihood of or no known serious injuries or mortalities to marine mammals. On February 27, 2012, NMFS published notice that the incidental taking of Steller sea lions in the West Coast groundfish fisheries is addressed in NMFS' December 29, 2010 Negligible Impact Determination (NID), and this fishery has been added to the list of fisheries authorized to take Steller sea lions (77 FR 11493, February 27, 2012). NMFS is currently working on the process leading to any necessary authorization of incidental taking under MMPA section 101(a)(5)(E) (16 U.S.C. 1371(a)(5)(E)).
Pursuant to Executive Order 13175, this proposed rule was developed after meaningful consultation and collaboration with tribal officials from the area covered by the PCGFMP. Under the Magnuson-Stevens Act at 16 U.S.C. 1852(b)(5), one of the voting members of the Pacific Council must be a representative of an Indian tribe with federally recognized fishing rights from the area of the Council's jurisdiction. In addition, regulations implementing the PCGFMP establish a procedure by which the tribes with treaty fishing rights in the area covered by the PCGFMP request new allocations or regulations specific to the tribes, in writing, before the first of the two meetings at which the Council considers groundfish management measures. The regulations at 50 CFR 660.324(d) further state, “the Secretary will develop tribal allocations and regulations under this paragraph in consultation with the affected tribe(s) and, insofar as possible, with tribal consensus.” The tribal management measures in this proposed rule have been developed following these procedures. The tribal representative on the Council made a motion to adopt the non-whiting tribal management measures, which was passed by the Council. Those management measures, which were developed and proposed by the tribes, are included in this proposed rule.
This proposed rule has been determined to be not significant for purposes of Executive Order 12866.
Fisheries, Fishing, Reporting and recordkeeping requirements.
For the reasons set out in the preamble, 50 CFR part 660 is proposed to be amended as follows:
16 U.S.C. 1801
(7) * * *
(i) * * *
(A)
(B) * * *
(
For each overfished groundfish stock with an approved rebuilding plan, this section contains the standards to be used to establish annual or biennial ACLs, specifically the target date for rebuilding the stock to its MSY level and the harvest control rule to be used to rebuild the stock. The harvest control rule may be expressed as a “Spawning Potential Ratio” or “SPR” harvest rate.
(a)
(b)
(c)
(d)
(e)
(f) * * *
(2) * * *
(ii) The tribal allocation is 604 mt in 2017 and 630 mt in 2018 per year. This allocation is, for each year, 10 percent of the Monterey through Vancouver area (North of 36° N. lat.) ACL. The tribal allocation is reduced by 1.5 percent for estimated discard mortality.
(3)
(9)
(g)
(1)
(2)
(3)
(ii)
(iii)
(4)
(5)
(6)
(7)
(b)
(c) * * *
(1) * * *
(i)
(3) * * *
(ii)
(4)
(g)
(1) 44°41.76′ N. lat.; 124°30.02′ W. long.;
(2) 44°41.73′ N. lat.; 124°21.60′ W. long.;
(3) 44°25.25′ N. lat.; 124°16.94′ W. long.;
(4) 44°25.29′ N. lat.; 124°30.14′ W. long.;
(5) 44°41.76′ N. lat.; 124°30.02′ W. long.; and connecting back to 44°41.76′ N. lat.; 124°30.02′ W. long.
(h)
(1) 44°38.54′ N. lat.; 124°27.41′ W. long.;
(2) 44°38.54′ N. lat.; 124°23.86′ W. long.;
(3) 44°27.13′ N. lat.; 124°21.50′ W. long.;
(4) 44°27.13′ N. lat.; 124°26.89′ W. long.;
(5) 44°31.30′ N. lat.; 124°28.35′ W. long.; and connecting back to 44°38.54′ N. lat.; 124°27.41′ W. long.
(e) * * *
(140) 39°37.50′ N. lat., 123°49.20′ W. long.;
(144) 39°13.00′ N. lat., 123°47.65′ W. long.;
(145) 39°11.06′ N. lat., 123°47.16′ W. long.;
(146) 39°10.35′ N. lat., 123°46.75′ W. long.;
(168) 37°39.85.′ N. lat., 122°49.90′ W. long.;
(k) * * *
(120) 38°30.57′ N. lat., 123°18.60′ W. long.;
(128) 37°48.22′ N. lat., 123°10.62′ W. long.;
(129) 37°47.53′ N. lat., 123°11.54′ W. long.;
(a) * * *
(107) 37°45.57′ N. lat., 123°9.46′ W. long.;
(h) * * *
(248) 36°47.60′ N. lat., 121°58.88′ W. long.;
(249) 36°48.24′ N. lat., 121°51.40′ W. long.;
(250) 36°45.84′ N. lat., 121°57.21′ W. long.;
(251) 36°45.77′ N. lat., 121°57.61′ W. long.;
(d) * * *
(1) * * *
(i)
(d) * * *
(1) * * *
(ii) * * *
(D) For the trawl fishery, NMFS will issue QP based on the following shorebased trawl allocations:
(e) * * *
(4) * * *
(i)
(c) * * *
(2) * * *
(i)
(b) * * * *
(3) * * *
(i) A vessel participating in the primary season will be constrained by the sablefish cumulative limit associated with each of the permits registered for use with that vessel. During the primary season, each vessel authorized to fish in that season under paragraph (a) of this section may take, retain, possess, and land sablefish, up to the cumulative limits for each of the permits registered for use with that vessel (
(c) * * *
(2) * * *
(i)
(c) * * *
(1)
(i) * * *
(D) * * *
(
(ii)
(iv) * * *
(A) Between the U.S./Canada border and 48°10′ N. lat. (Cape Alava) (Washington Marine Area 4), recreational fishing for lingcod is open, for 2017 and 2018, from April 16 through October 15. Lingcod may be no smaller than 22 inches (61 cm) total length.
(B) Between 48°10′ N. lat. (Cape Alava) and 46°16′ N. lat. (Columbia River) (Washington Marine Areas 1-3), recreational fishing for lingcod is open for 2017 from March 11 through October 21, and for 2018 from March 10 through October 20. Lingcod may be no smaller than 22 inches (56 cm) total length.
(2) * * *
(i) * * *
(A)
(B)
(iii) * * *
(A)
(D)
(3)
(i) * * *
(A)
(
(
(
(
(
(ii) * * *
(A) * * *
(
(
(
(
(B)
(iii) * * *
(A) * * *
(
(
(
(
(
(B)
(iv)
(v) * * *
(A) * * *
(
| 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 |