| Page Range | 86555-86904 | |
| FR Document |
| Page and Subject | |
|---|---|
| 81 FR 86714 - Sunshine Act Meeting | |
| 81 FR 86730 - Agency Information Collection Activities; Submission for OMB Review; Revision of Confidentiality Pledges Under the Confidential Information Protection and Statistical Efficiency Act | |
| 81 FR 86697 - Initiation of Five-Year (“Sunset”) Reviews | |
| 81 FR 86730 - Sunshine Act Meeting | |
| 81 FR 86775 - Advisory Committee on Transportation Equity Meeting Notice | |
| 81 FR 86749 - Temporary Emergency Committee of the Board of Governors; Sunshine Act Meeting | |
| 81 FR 86563 - Privacy Act Regulations | |
| 81 FR 86715 - Change in Bank Control Notices; Acquisitions of Shares of a Bank or Bank Holding Company | |
| 81 FR 86714 - Formations of, Acquisitions by, and Mergers of Bank Holding Companies | |
| 81 FR 86571 - Temporary Exports to Mexico Under License Exception TMP | |
| 81 FR 86766 - Meeting of Advisory Committee on International Communications and Information Policy | |
| 81 FR 86765 - Notice of Meeting of the International Telecommunication Advisory Committee and Preparations for Upcoming International Telecommunications Meetings | |
| 81 FR 86768 - Agency Information Collection Activities: Requests for Comments; Clearance of Renewed Approval of Information Collection: Mitsubishi MU-2B Series Airplane Special Training, Experience, and Operating Procedures | |
| 81 FR 86770 - Agency Information Collection Activities: Requests for Comments; Clearance of Renewed Approval of Information Collection: Aviation Medical Examiners Program | |
| 81 FR 86769 - Agency Information Collection Activities: Requests for Comments; Clearance of Renewed Approval of Information Collection: Reduction of Fuel Tank Flammability on Transport Category Airplanes | |
| 81 FR 86768 - Applicability of National Environmental Policy Act (NEPA) to Federal Aviation Administration (FAA) Review of Airport Wildlife Hazard Management Plans | |
| 81 FR 86769 - Agency Information Collection Activities: Requests for Comments; Clearance of Renewed Approval of Information Collection: Qualification, Service, and Use of Crewmembers and Aircraft Dispatchers | |
| 81 FR 86770 - Petition for Exemption; Summary of Petition Received; Western Oklahoma State College | |
| 81 FR 86579 - Muscodor albus Strain SA-13 and the Volatiles Produced on Rehydration; Exemption From the Requirement of a Tolerance | |
| 81 FR 86711 - Comment Period Extended: General Permit Under the Federal Indian Country Minor NSR Program | |
| 81 FR 86712 - Information Collection Request Submitted to OMB for Review and Approval; Comment Request; Notice of Supplemental Distribution of a Registered Pesticide Product | |
| 81 FR 86694 - Foreign-Trade Zone (FTZ) 279-Terrebonne Parish, Louisiana; Authorization of Production Activity; Thoma-Sea Marine Constructors, L.L.C. (Shipbuilding); Houma and Lockport, Louisiana | |
| 81 FR 86710 - Clean Air Act Operating Permit Program; Action on Petition for Objection to State Operating Permit for Appleton Coated LLC | |
| 81 FR 86713 - New Chemicals Review Program Under the Amended Toxic Substances Control Act; Notice of Public Meeting and Opportunity for Public Comment | |
| 81 FR 86705 - Advanced Scientific Computing Advisory Committee | |
| 81 FR 86766 - Projects Rescinded for Consumptive Uses of Water | |
| 81 FR 86767 - Projects Approved for Consumptive Uses of Water | |
| 81 FR 86715 - Proposed Data Collection Submitted for Public Comment and Recommendations | |
| 81 FR 86581 - Quizalofop Ethyl; Pesticide Tolerances | |
| 81 FR 86724 - Notice of Federal Competitive Coal Lease Sale, Greens Hollow Tract, Utah (Coal Lease Application UTU-84102) | |
| 81 FR 86717 - National Vaccine Injury Compensation Program; List of Petitions Received | |
| 81 FR 86720 - Notice of Single-Award Deviation From Competition Requirements for the National Technical Resource Center for the Newborn Hearing Screening and Intervention Program at Utah State University-Grant Number U52MC04391 | |
| 81 FR 86732 - Tennessee Valley Authority; Browns Ferry Nuclear Plant, Units 1, 2, and 3 | |
| 81 FR 86771 - Application of Cargo Preference Requirements to the Federal Ship Financing Program | |
| 81 FR 86691 - Notice of Public Meeting of the Wisconsin Advisory Committee for a Meeting To Begin Discussion of a Draft Report Resulting From the Committee's Study of Hate Crime in the State | |
| 81 FR 86691 - Notice of Public Meeting of the Illinois Advisory Committee for a Meeting To Discuss Preparations for a Public Hearing on Civil Rights and Voter Participation in the State | |
| 81 FR 86693 - Submission for OMB Review; Comment Request | |
| 81 FR 86701 - Correction to Notice of Initiation of Five-Year Sunset Review | |
| 81 FR 86703 - Antidumping or Countervailing Duty Order, Finding, or Suspended Investigation; Advance Notification of Sunset Reviews | |
| 81 FR 86694 - Antidumping or Countervailing Duty Order, Finding, or Suspended Investigation; Opportunity To Request Administrative Review | |
| 81 FR 86701 - Certain Pasta From Turkey: Final Rescission of Antidumping Duty New Shipper Review; 2014-2015 | |
| 81 FR 86701 - Steel Concrete Reinforcing Bar From the Republic of Turkey: Postponement of Preliminary Determination in Countervailing Duty Investigation | |
| 81 FR 86687 - Fisheries of the Northeastern United States; Atlantic Deep-Sea Red Crab Fishery; 2017-2019 Atlantic Deep-Sea Red Crab Specifications | |
| 81 FR 86692 - Submission for OMB Review; Comment Request | |
| 81 FR 86579 - Drawbridge Operation Regulation; New Jersey Intracoastal Waterway (NJICW), Point Pleasant Canal, Point Pleasant, NJ | |
| 81 FR 86706 - Commission Information Collection Activities (FERC-725V); Comment Request; Extension | |
| 81 FR 86707 - WBI Energy Transmission, Inc.; Notice of Intent To Prepare an Environmental Assessment for the Planned Valley Expansion Project and Request for Comments on Environmental Issues | |
| 81 FR 86710 - Notice of Intent To File License Application, Filing of Pre-Application Document, and Approving Use of the Traditional Licensing Process | |
| 81 FR 86706 - William B. Ruger, Jr., 169 Sunapee Street, LLC; Notice of Transfer of Exemption | |
| 81 FR 86704 - Agency Information Collection Activities; Submission to the Office of Management and Budget for Review and Approval; Comment Request; Grants to Charter Management Organizations for Replication and Expansion of High-Quality Charter Schools Program | |
| 81 FR 86703 - Submission for OMB Review; Proposed Information Collection; Comment Request; Limited Access Death Master File Systems Safeguards Attestation Forms | |
| 81 FR 86704 - Record of Decision for the Trinity Parkway From IH-35/SH-183 to US-175/SH-310 Environmental Impact Statement, Dallas County, TX | |
| 81 FR 86765 - Nominations for Lead Authors or Review Editors on the First Special Report To Be Undertaken by the Intergovernmental Panel on Climate Change During the Sixth Assessment Report (AR6) Cycle | |
| 81 FR 86689 - Helena-Lewis and Clark National Forest, Montana; Helena-Lewis and Clark National Forest Plan Revision | |
| 81 FR 86709 - Clear Lake Cogeneration Limited Partnership; Notice of Petition for Temporary Waiver | |
| 81 FR 86709 - Combined Notice of Filings #1 | |
| 81 FR 86722 - Agency Information Collection Activities: Submission to OMB for Review and Approval; Public Comment Request; The Division of Independent Review Grant Reviewer Recruitment Form | |
| 81 FR 86721 - Agency Information Collection Activities: Submission to OMB for Review and Approval; Public Comment Request; Scholarships for Disadvantaged Students Application | |
| 81 FR 86723 - Endangered Species; Receipt of Applications for Permit | |
| 81 FR 86764 - North Carolina Disaster Number NC-00086 | |
| 81 FR 86764 - Kansas Disaster Number KS-00098 | |
| 81 FR 86760 - Self-Regulatory Organizations; NYSE Arca, Inc.; Order Approving a Proposed Rule Change Relating To Listing and Trading of Shares of the Virtus Enhanced U.S. Equity ETF Under Commentary .01 to NYSE Arca Equities Rule 5.2(j)(3) | |
| 81 FR 86764 - Surrender of License of Small Business Investment Company | |
| 81 FR 86762 - Self-Regulatory Organizations; Financial Industry Regulatory Authority, Inc.; Notice of Filing and Immediate Effectiveness of a Proposed Rule Change To Extend the Tier Size Pilot of FINRA Rule 6433 (Minimum Quotation Size Requirements for OTC Equity Securities) | |
| 81 FR 86750 - Self-Regulatory Organizations; NYSE MKT LLC; Notice of Filing of Proposed Rule Change Allowing the Exchange To Trade Pursuant to Unlisted Trading Privileges for Any NMS Stock Listed On Another National Securities Exchange; Establishing Rules for the Trading Pursuant to UTP of Exchange Traded Products and Adopting New Equity Trading Rules Relating to Trading Halts of Securities Traded Pursuant to UTP on the Pillar Platform | |
| 81 FR 86759 - Self-Regulatory Organizations; The NASDAQ Stock Market LLC; Notice of Designation of a Longer Period for Commission Action on a Proposed Rule Change To Amend the Continued Listing Requirements for Exchange-Traded Products | |
| 81 FR 86749 - Self-Regulatory Organizations; NYSE Arca, Inc.; Notice of Designation of a Longer Period for Commission Action on Proceedings To Determine Whether To Approve or Disapprove a Proposed Rule Change Relating to the Listing and Trading of Shares of BlackRock Government Collateral Pledge Unit Under NYSE Arca Equities Rule 8.600 | |
| 81 FR 86764 - Senior Executive Service: Performance Review Board Members | |
| 81 FR 86699 - 1,1,1,2-Tetrafluoroethane (R-134a) From the People's Republic of China; Amended Preliminary Affirmative Determination of Sales at Less-Than-Fair Value | |
| 81 FR 86664 - Air Plan Approval and Designation of Areas; KY; Redesignation of the Campbell County, 2010 1-Hour Sulfur Dioxide Nonattainment Area to Attainment | |
| 81 FR 86575 - FOIA Improvement Act; Rules of General Application | |
| 81 FR 86573 - Regulations Implementing the FOIA Improvement Act of 2016 and Clarifying the FOIA Regulations | |
| 81 FR 86902 - Federal Employees Health Benefits Program: Removal of Ineligible Individuals From Existing Enrollments | |
| 81 FR 86898 - Removal of Eligible Family Members From Existing Self and Family Enrollments | |
| 81 FR 86561 - Prevailing Rate Systems; Redefinition of Certain Appropriated Fund Federal Wage System Wage Areas | |
| 81 FR 86555 - Recruitment, Selection, and Placement (General) and Suitability | |
| 81 FR 86577 - Supplemental Information Regarding the Final Rule Imposing the Fifth Special Measure Against FBME Bank, Ltd. | |
| 81 FR 86673 - Process for Department of Veterans Affairs (VA) Physicians To Be Added to the National Registry of Certified Medical Examiners | |
| 81 FR 86662 - Approval of California Air Plan Revisions, Yolo-Solano Air Quality Management District | |
| 81 FR 86633 - Proposed Amendment of VOR Federal Airways; Eastern United States | |
| 81 FR 86570 - Amendment of Class C Airspace; El Paso International Airport, TX | |
| 81 FR 86643 - Group Registration of Photographs | |
| 81 FR 86656 - Supplementary Registration | |
| 81 FR 86634 - Group Registration of Contributions to Periodicals | |
| 81 FR 86567 - Airworthiness Directives; Rolls-Royce plc Turbofan Engines | |
| 81 FR 86627 - Airworthiness Directives; ATR-GIE Avions de Transport Régional Airplanes | |
| 81 FR 86771 - Notice of Opportunity for Public Comment on Disposal of 2.96 Acres of Airport Land at Laconia Municipal Airport in Gilford, NH | |
| 81 FR 86614 - Supplemental Nutrition Assistance Program: Student Eligibility, Convicted Felons, Lottery and Gambling, and State Verification Provisions of the Agricultural Act of 2014 | |
| 81 FR 86725 - Cut-to-Length Carbon-Quality Steel Plate From India, Indonesia, and Korea; Institution of Five-Year Reviews | |
| 81 FR 86728 - Stainless Steel Wire Rod From India; Institution of a Five-Year Review | |
| 81 FR 86774 - Requested Administrative Waiver of the Coastwise Trade Laws: Vessel CRACKER JACK; Invitation for Public Comments | |
| 81 FR 86586 - Review of Foreign Ownership Policies for Broadcast, Common Carrier and Aeronautical Radio Licensees | |
| 81 FR 86684 - Federal Motor Vehicle Safety Standards | |
| 81 FR 86630 - Airworthiness Directives; Rolls-Royce plc Turbofan Engines | |
| 81 FR 86778 - Protection of Stratospheric Ozone: New Listings of Substitutes; Changes of Listing Status; and Reinterpretation of Unacceptability for Closed Cell Foam Products Under the Significant New Alternatives Policy Program; and Revision of Clean Air Act Section 608 Venting Prohibition for Propane |
Food and Nutrition Service
Forest Service
Census Bureau
Foreign-Trade Zones Board
Industry and Security Bureau
International Trade Administration
National Oceanic and Atmospheric Administration
National Technical Information Service
Engineers Corps
Federal Energy Regulatory Commission
Centers for Disease Control and Prevention
Health Resources and Services Administration
Coast Guard
Fish and Wildlife Service
Land Management Bureau
Foreign Claims Settlement Commission
Copyright Office, Library of Congress
Federal Aviation Administration
Federal Motor Carrier Safety Administration
Maritime Administration
National Highway Traffic Safety Administration
Financial Crimes Enforcement Network
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.
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U.S. Office of Personnel Management.
Final rule.
The U.S. Office of Personnel Management (OPM) is issuing a final rule revising its regulations pertaining to when, during the hiring process, a hiring agency can request information typically collected during a background investigation from an applicant for Federal employment. OPM is making this change to promote compliance with Merit System Principles as well as the goals of the Federal Interagency Reentry Council and the President's Memorandum of January 31, 2014, “Enhancing Safeguards to Prevent the Undue Denial of Federal Employment Opportunities to the Unemployed and Those Facing Financial Difficulty Through No Fault of Their Own.” In addition, the final rule will help agencies comply with the President's Memorandum of April 29, 2016, “Promoting Rehabilitation and Reintegration of Formerly Incarcerated Individuals.” The intended effect of this rule is to encourage more individuals with the requisite knowledge, skills, and ability to apply for Federal positions by making it more clear that the Government provides a fair opportunity to compete for Federal employment to applicants from all segments of society, including those with prior criminal histories or who have experienced financial difficulty through no fault of their own.
Mr. Mike Gilmore by telephone on (202) 606-2429, by fax at (202) 606-4430, by TTY at (202) 418-3134, or by email at
On May 2, 2016, OPM issued a proposed rule at 81 FR 26173, to amend 5 CFR parts 330 and 731. Specifically, OPM proposed revisions to its regulations that would prohibit a hiring agency from making specific inquiries concerning an applicant's criminal or adverse credit background of the sort asked on the Optional Form (OF) 306, “Declaration for Federal Employment” in its “Background Information” section, or in other forms used to determine suitability or conduct background investigations for Federal employment, until the hiring agency has made a conditional offer of employment to the applicant. The proposed rule also allows agencies to request from OPM an exception to collect background information earlier in the hiring process. OPM recognizes there are legitimate, job/position-related reasons why a hiring agency may need to disqualify candidates with significant issues (including criminal history) from particular types of positions they are seeking to fill or to determine suitability at an earlier stage in the employment process. OPM received a total of 25 sets of comments: 17 from individuals, three from federal agencies, two from professional organizations, one from a trade association, one from a coalition of civic advocacy groups, and one from a private corporation. OPM's responses to the comments are discussed below.
Several individuals provided general comments opposing the proposed rule (two of these comments were not specific). These comments are as follows:
One individual commented that Federal agencies should always consider an applicant's criminal background, and that all job announcements should advise anyone with a conviction record not to apply. A second commenter likewise stated that all resumes for Federal employment be “unblemished” by criminal history. OPM is not adopting these suggestions.
While OPM agrees that Federal agencies must consider an applicant's criminal background as part of the suitability determination required for positions covered by part 731 of this chapter, agencies should not prohibit the consideration of applications from persons with conviction records during the selection process itself. Moreover, in most cases, the separate suitability determination can and should occur after the selection process and a conditional offer have been made, thereby separating criminal history as an aspect of the suitability determination from the factors that are relevant at the time of the initial assessment process. This aligns actual requirements with what we believe to be the predominant current practice, so that they better comport with the Merit System Principle stating that selection should be based solely on knowledge, skill, and ability, 5 U.S.C. 2301, and thus will encourage more individuals with the requisite knowledge, skills, and ability to apply for Federal positions.
There are some positions for which Federal statute bars the employment of persons convicted of certain offenses. There may also be circumstances where a clean criminal history record must itself be one of the qualifications for a particular position, in light of the duties to be performed, and, therefore, becomes part of the examination for testing applicants for appointment in the competitive service that the President (and, in turn, through presidential redelegation, OPM) is entitled to prescribe. 5 U.S.C. 3301, 3302, 3304; E.O. 10577, as amended. Where criminal history-based disqualifications have a disparate
One commenter stated that some applicants should be eliminated from consideration at the start of the hiring process based on the severity of their criminal offense, the nature of the offense vis-a-vis the duties of the position being filled, and whether the position being filled requires a security clearance. OPM agrees that certain positions may require inquiries into applicants' criminal or adverse credit history to be conducted at the start of the hiring process, and the proposed rule allows agencies to request an exception from OPM to accommodate such circumstances. But OPM cannot agree that it is appropriate, as a general rule, to eliminate applicants from consideration based upon their criminal history, before the assessment process has even occurred. The purpose of this rule is to defer the suitability process, where criminal history must and will be considered as part of an overall assessment of character and conduct, until after the assessment of relative knowledge, skills, and abilities that leads to selection of the best-qualified candidate and the conditional offer of employment. The suitability rules expressly provide for the nature of the position and the nature and seriousness of the offense to be taken into account as additional considerations during the suitability process. See 5 CFR 731.202(c). Permitting agencies to consider criminal history information in isolation, outside of the suitability process, could result in an initial selection process not exclusively based upon each candidate's qualifications and relative level of knowledge, skills, and ability with respect to the position. And it might result in non-selection without the procedural protections that a final suitability action provides, which is not ideal. Accordingly, OPM rejects this comment, in part.
A coalition representing criminal justice reform groups and civil and human rights advocates strongly supported the proposed rules, stating that when inquiries into criminal history are deferred until the conditional offer of employment, there is more clarity for the agency and the job applicant concerning the reason for a hiring decision based on a background check, and less opportunity for bias in the hiring process.
A professional association cast its general support for the proposed changes, noting that requesting criminal history information on the OF-306, Declaration for Federal Employment, only after a conditional offer of employment has been extended constituted “a sensible compromise” between promoting fair hiring practices and adhering to the suitability requirements pertaining to Federal employment. This organization also supported the proposal to allow OPM to grant limited exceptions to these rules on a position-by-positon basis. We note that OPM would characterize what it is doing not as a “compromise,” but rather as separating more clearly the process for assessing relative knowledge, skills, and abilities from the process for determining suitability for appointment to a position in a position covered by part 731 of this chapter.
Two individuals also provided comments in general support of the proposed rule.
Three Federal agency commenters, one professional association, one trade association, and four members of the general public commented that the proposed rule would waste government resources, as well as applicants' time, because the hiring agency must begin the employment process but later may have to rescind a conditional offer of employment upon a determination that the applicant is ineligible for federal employment on the basis of suitability, security, facility access, or qualifications criteria. Some of these commenters noted that this could result in further delays because checks would then have to be performed on remaining candidates, or because other candidates would seek employment elsewhere due to the length of the hiring process. Some of these commenters expressed general concern that delaying applicant background screening could lengthen an already-lengthy Federal hiring process, and could have adverse effects on certain applicants with criminal histories by requiring them to proceed all the way through the application process before learning of their disqualification, and by giving them an unrealistic expectation of their prospects as candidates. In related comments, one individual stated that the proposal would make the federal hiring process more complex and cumbersome.
One of the commenters from a Federal agency had calculated that over 10 percent of its law enforcement applicants who go through its pre-employment screening process are ultimately removed from consideration based on factors such as criminal history, delinquent debt, susceptibility to coercion, illegal use of drugs, and immigration violations, so that deferring the screening process would result in a significant unnecessary expenditure of agency time and resources in examination and qualifications assessment. The agency noted that these expenditures are significant because of its unique, agency- and position-related requirements, including the agency's significant volume of vacancies and applicants; its pre-employment polygraph and medical examination requirements; its law enforcement and national security mission; and its need for its employees to credibly testify in criminal proceedings. Another agency commenter emphasized that the nature, seriousness, recency, and job-relatedness of certain criminal violations would almost certainly be disqualifying for certain positions under OPM's suitability regulations, making deferral of an unfavorable decision especially unfair. The agency cited specific criminal conduct that would render an applicant unsuitable for firefighter, educator, child care worker, motor vehicle operator, or financial/budget positions.
OPM acknowledges there may be instances in which an agency must rescind a job offer based on an applicant's criminal or adverse credit history, and then select another candidate, which could conceivably require that the agency screen and consider additional candidates in certain circumstances. But the commenters present no empirical evidence that changing the timing of background screening will have a general impact on time-to-hire, on the cost of background screening once it occurs, or on the efficiency of the Federal hiring process generally. As noted in the Notice of Proposed Rulemaking (81 FR at 26173), many agencies already wait until the later
OPM does agree there may be limited circumstances or positions for which it is appropriate for a hiring agency to collect information about applicants' criminal or adverse credit history earlier in the hiring process, rather than at the point at which a conditional offer of employment is made to an applicant. The proposed rule allows for agencies to request an exception from OPM to accommodate such circumstances.
With respect to these commenters' concerns about fairness to applicants, the intent of the proposed rule is to conform regulatory requirements to what we believe is the predominant agency practice and thus better serve the broader public policy ideal of providing applicants from all segments of society, including those with prior criminal histories, a fair opportunity to compete for Federal employment. Deferring consideration of this information to the stage at which suitability is adjudicated separates examining and assessment process from suitability, thereby encouraging applicants with criminal history to join the competition for vacant positions. It also means that the agency defers collection of criminal history information until the stage at which the agency is in a position to undertake a suitability determination, which makes the final decision reviewable and provides certain procedural protections.
Two individuals commented that the proposed rule may have adverse national security implications because it could result in convicted felons having access to sensitive information. A third individual opposed the proposed rule and questioned the wisdom of hiring ex-offenders who may then have access to employees' personal information and to sensitive taxpayer records. OPM disagrees, noting that the proposed rule is not eliminating the need for, nor mitigating the thoroughness of, background investigations and appropriate related adjudicative processes for applicants for Federal jobs. The proposed rule simply impacts when during the hiring process inquiries into an applicant's criminal or adverse credit history can begin.
Another individual commented that delaying preliminary background screening could also delay the commencement of the full suitability background investigation required before appointment (or to finalize a contingent appointment) in the competitive service or the national security background investigation required to adjudicate eligibility for access to classified information. It is true that it could, in some cases, defer the commencement of the full investigation, but we believe, based upon earlier discussion with agencies, that most agencies already wait until the end of the selection process to commence those investigations. The proposed rule does not, in fact, change the current standard under 736.201(c) that a personnel background investigation may commence no later than the 14th day after placement, but that if the investigation is for a national security-sensitive position, it must both commence and be completed prior to appointment unless one of the waiver or exception conditions described in 5 CFR 1400.202 applies. The proposed rule is fully consistent with the requirement in E.O. 12968 of Aug. 4, 1995, governing investigations for eligibility for access to classified information, which provides that “[a]pplicants . . . required to provide relevant information pertaining to their background and character for use in investigating and adjudicating their eligibility for access” are those who have “received an authorized conditional offer of employment for a position that requires access to classified information.” E.O. 12968, 3 CFR, 1995 Comp., p. 391, secs. 1.1(b), 3.2(a),
One commenter mistakenly believes the proposed rule will weaken background checks, and thus poses a threat to the security of Federal employees, the American people, and U.S. government assets and secrets. The proposed rule does not, in any way, change the need to collect background information after the conditional job offer has been made and to evaluate any known issues prior to appointment (or after an appointment that is contingent upon a favorable adjudication). Similarly, it does not impact the integrity or thoroughness of the background investigation process. The proposed rule only affects the point at which an agency may collect information about an applicant's criminal or adverse credit history.
Another individual believes the proposed rule will give the perception that the Federal government is establishing a hiring preference for ex-convicts or using Federal jobs as a relief-work or program for ex-convicts, which could demoralize the Government's workforce and discourage talented applicants from applying. This comment does not pertain to the merits of the rule but rather, expresses a concern that the rule will be misperceived to the detriment of the Federal hiring process. OPM believes that this concern is speculative. The proposed rule does not provide a hiring or selection priority for ex-convicts, nor does it allow individuals to be appointed who should be adjudicated unsuitable for Federal employment. Similarly, it has no bearing on whether an individual requires eligibility for access to classified information, and, if so, should be deemed eligible under the adjudicative guidelines for such decisions. The rule simply addresses at which point during the
Three commenters supported deferring the collection of applicants' criminal history information until later in the hiring process, but proposed alternative approaches that they believed would achieve a better balance between fairness versus timeliness, and efficiency. A commenter from a Federal agency suggested the rule be modified to allow agencies to administer the OF-306 when an employee is determined to be within reach for selection. Another commenter from a Federal agency suggested that the rule be modified to allow agencies to administer the OF-306 at the time of scheduling an interview,
A professional organization commented that the process by which agencies may seek exceptions to collect information earlier in the process about applicants' criminal or credit history (on a case-by-case basis) could result in additional delays. OPM will provide further guidance after the publication of this final rule, but notes that an agency will not have to wait until it has a vacant position to request an exception. If there is a position or group of positions within the agency for which there is a legitimate need to collect information earlier in the process, the hiring agency may request an exception at any time. Once an agency receives an exception from OPM to collect background information from applicants for a particular position or group of positions earlier in the hiring process, the agency will not be required to request an exception subsequently, or each time, the position is being filled thereafter.
Another professional organization suggested that OPM make clear in the final rule that exceptions from the proposed changes must be requested prior to the posting of any vacancy announcement to which it will apply. Of course if an agency requests an exception on the ground that it is necessary to ask for certain background information as an aspect of determining whether a particular applicant is
This organization suggested OPM modify 5 CFR 330.1300 by including specific conditions under which OPM may grant an exception to these provisions. OPM is not adopting this suggestion. OPM is not yet in a position to anticipate all of the circumstances that could warrant an exception, and wishes to gain experience with the regulation, and explore further the sorts of situations agencies may bring to its attention, before it limits its discretion to a list of specific conditions. Therefore we prefer, at least for now, to provide examples of the types of factors OPM will consider in determining whether to grant an exception.
The same organization also suggested that the final rule include a provision requiring agencies which are granted an exception to provide notice of the exception in their job announcements for positions for which the exception was granted. OPM agrees that agencies which receive exceptions should provide notice of the exception in their job announcements. Among other things, an agency that receives an exception in order to use background information as an aspect of assessing qualifications will, of necessity, need to disclose the qualifications and how they will be assessed as part of the job opportunity announcement. We do not believe a requirement in the final rule is necessary; OPM will require notice in its approval letters granting such exceptions.
One commenter from an agency and one individual suggested that OPM, in the final rule, specifically exempt from these provisions positions with law enforcement and national security duties. We see no reason why an agency filling a position that is national security sensitive cannot defer the collection of background information until after a putative selection, based upon relative degree of knowledge, skills, and abilities, has been made. Many agencies already do this. Moreover, even as to law enforcement positions, OPM is not adopting this suggestion. Because specific duties and agency requirements may differ, we prefer to rely on the mechanism for exceptions described in the proposed rule which allows agencies to request an exception for specific positions to collect background information pertaining to an applicant's criminal or adverse credit history earlier in the hiring process.
A coalition representing criminal justice reform groups and civil and human rights advocates recommended that OPM permit no exception allowing agencies to collect information about applicants' criminal or adverse credit history prior to a conditional offer of employment. OPM is not adopting this suggestion. OPM leaves open the possibility that for certain positions there may be valid, job and position-related reasons why an agency may seek to disqualify applicants with significant criminal or adverse credit history backgrounds early in the process (such as law enforcement positions requiring the eventual appointee to be in a position to testify in legal proceedings). For these reasons OPM is retaining the exception provision.
The coalition commented that, in the event the exception provision is retained in the final rule, OPM should place the burden of proof on agencies seeking exceptions, should adjudicate requests under a rigorous standard of proof, and should give the public the opportunity to respond in opposition to an agency's request for exception. OPM does not adopt this suggestion. Currently, there are no limitations on the point at which agencies may initiate the collection of background information. The decision to impose the restriction is a policy decision, not a legal requirement. Accordingly, we do not believe that a uniform burden and standard of proof or a public notice-and-comment process is necessary or would assist us in our decision-making process, and it would be likely to unnecessarily delay the hiring process. The manner in which OPM grants exceptions must be flexible.
One agency commented that asking applicants whether they have been fired from a job, as is asked on the OF-306, in connection with competitive hiring is a valid question and that restricting employers from doing so before making a selection hinders the employer from fully evaluating applicants and choosing the best candidate. Another agency commented that it needs to use the OF-306 prior to a conditional offer of employment because it is not just a background screening form, but is also used to collect important applicant information related to an applicant's citizenship, Selective Service registration status, military service and type of discharge, and relatives. This information is needed to ensure that candidates meet legal requirements for appointment in competitive hiring. OPM agrees that inquiries into an applicant's prior employment may have a bearing on his or her fitness for the job and points out that the proposed rule does not restrict agencies from collecting information about an applicant's prior employment prior to making a selection. The context of the proposed rule is information of the sort asked on the OF-306's `Background Information' section specific to an applicant's criminal or adverse credit history. These provisions also do not prevent a hiring agency from collecting information about prior work history earlier in the hiring process. OPM has
OPM notes in this regard that agencies are not required to sponsor or conduct separate information collections subject to Office of Management and Budget (OMB) clearance in order to ask these kinds of questions to applicants as part of the competitive Civil Service hiring process. Under OMB's regulations implementing the Paperwork Reduction Act (PRA), “[e]xaminations designed to test the aptitude, abilities, or knowledge of the persons tested and the collection of information for identification or classification in connection with such examinations” do not constitute information collections subject to the PRA's requirements.
One individual asked whether the proposed rule was “politically motivated” for an electoral purpose. It was not. The origins of the proposed rule began several years ago. OPM proposed this rule to better harmonize the the requirements concerning the timing and objectives of the merit selection process and the suitability function.
One professional organization supports the proposal to include these rules under 5 CFR part 731 to ensure that any non-selections based on information from the OF-306 are appealable to the Merit Systems Protection Board (MSPB) under 5 CFR part 731.501. It appears the commenter may have misinterpreted the proposed rule. Only suitability actions as defined in 5 CFR part 731.203 (cancellation of eligibility, removal, cancellation of reinstatement rights, and debarment) are appealable to the MSPB. Nonselection is not appealable, as stated in 5 CFR 302.406(g) and 731.203(b).
The same organization recommended that OPM codify in the final rules the mitigating factors described in section 2(b)(i-iii) of the Presidential memorandum titled, “Promoting Rehabilitation and Reintegration of Formerly Incarcerated Individuals” (81 FR 26993, 26995). OPM is not adopting this suggestion because these criteria pertain to occupational licensure, not to whether an individual is suitable for Federal employment. The purpose of the proposed rule is to affect at what point in the hiring process an agency may make inquiries into an applicant's background, not to impact the criteria used to determine an applicant's suitability for employment. However, we note that separate sections of this Memorandum are relevant to this rule. Section 1 formally reconstitutes the Federal Interagency Reentry Council as a Presidentially-established Council; section 1(a)(xvii) formalizes OPM's membership; and section 2(a) directs that “Agencies making suitability determinations for Federal employment shall review their procedures for evaluating an applicant's criminal records to ensure compliance with 5 CFR part 731 and any related, binding guidance issued by the Office of Personnel Management, with the aim of evaluating each individual's character and conduct.” OPM expects that this rule will assist agencies in complying with the President's mandate.
This organization also asked that OPM amend its suitability regulations to require an agency to include a record of any exception granted by OPM, permitting it to conduct suitability screening prior to a conditional offer of employment, as part of the “materials relied upon” in charging an individual. OPM does not accept this recommendation, because the timing of a suitability inquiry is unrelated to the charges brought against an applicant, appointee, or employee in a proposed suitability action.
A coalition representing criminal justice reform groups and civil and human rights advocates recommended that OPM implement a centralized means of collecting data on the impact of the proposed rule by documenting the number of conditional offers and final hiring decisions of persons with prior convictions. The coalition believes this data would help maintain the integrity of the background check process and also help with oversight. OPM is not adopting this suggestion as part of the rulemaking but will oversee agencies' compliance with the rule, as part of the merit system audit and compliance process under Civil Service Rules V and X.
The coalition also suggested the proposed rules should apply to positions filled in the excepted service. OPM notes these provisions do apply to certain positions in the excepted service. OPM is not accepting this recommendation as to all excepted service positions, but notes that under the current suitability regulations at 5 CFR 731.101(b), the definition of “
For other positions in the excepted service, OPM generally lacks the authority to prescribe qualification, fitness, or suitability standards or to regulate the timing of employer inquiries. For those positions excepted from the competitive service by Acts of Congress, hiring procedures and standards for making qualification or fitness determinations may be prescribed by statute. Where the statute is silent, or where the exception from the competitive service is made by the President (or by OPM under presidential delegation), Civil Service Rule VI, § 6.3(b) states that “[t]o the extent permitted by law and the provisions of this part, appointments and position changes in the excepted service shall be made in accordance with such regulations and practices as the head of the agency concerned finds necessary.” See 5 CFR 6.3(b) (codifying this section of the Rule). Agency heads have the discretion to decide whether or not to establish criteria for making fitness determinations and determine whether their standards are equivalent to suitability standards established by OPM (but must consider OPM guidance when exercising this discretion).
The coalition notes, in support of its comment, that under Civil Service Rule VI, § 6.3(a), “OPM, in its discretion, may by regulation prescribe conditions under which excepted positions may be filled in the same manner as competitive positions are filled and conditions under which persons so appointed may acquire a competitive status in accordance with the Civil Service Rules and Regulations.” The coalition cites this provision as “clear authority” for OPM to impose identical hiring requirements on the excepted service. However, the cited provision is not authority for OPM to
The coalition suggested that OPM include language in the final rule that requires agencies to comply with title VII of the Civil Rights Act of 1964, and Equal Employment Opportunity Commission (EEOC) guidelines pertaining to the use of conviction records in hiring decisions, including an individualized assessment of applicants' criminal history. OPM is not adopting this suggestion because these rules only pertain to the timing of inquiries into an applicant's criminal or adverse credit history, not to the selection process for
One agency and a coalition representing criminal justice reform groups and civil and human rights advocates suggested OPM also make changes to the OF-306 to facilitate the rule's implementation. OPM is not addressing these comments at this time because the OF-306 and other investigative questionnaires are not promulgated through rulemaking, but through the separate PRA process. The comments may be resubmitted when the information collections are up for renewal under the PRA.
One individual suggested that OPM remove the requirement to provide a Social Security number (SSN) on the OF-306. OPM is not adopting this suggestion because it is beyond the scope of the proposed rule, which pertains to when during the hiring process an agency may collect information about an applicant's criminal or adverse credit history.
A private company commented that the proposed rule will inadvertently deter private sector employers from taking advantage of the Work Opportunity Tax Credit (WOTC), which is designed to encourage private employers to hire people with criminal histories, among others. This company requests that OPM clarify in the final rule that private employers can use the WOTC credit without violating these provisions. This comment is beyond the scope of the proposed regulations, which only pertain to Federal employment. OPM suggests private companies consult the Internal Revenue Service for information concerning the WOTC.
The same company suggested that OPM make clear in the final rule that these provisions only pertain to Federal employment. OPM is not adopting this suggestion because we do not believe such clarification is necessary. By statute and under the Civil Service Rules, OPM's jurisdiction in these matters is limited to Federal employment.
One organization similarly expressed concern that the proposed rule may persuade state and local governments to enact regulatory or contractual measures which, in turn, impose burdensome requirements on private investigative and security firms. The comment is not accompanied by a specific recommendation related to the rulemaking, and is speculative, so there is no basis for OPM to consider the comment.
A coalition representing criminal justice reform groups and civil and human rights advocates recommended that OPM also extend these rules to its contractors. OPM cannot adopt this suggestion as part of the rulemaking, which pertains only to competitive Federal hiring, not contracting.
One individual asked whether there is evidence that “many” agencies administer the Optional Form (OF) 306, “Declaration for Federal Employment” prior to the point at which a tentative job offer is made. OPM stated in the Supplementary Information section of the proposed rule that to the contrary “many agencies already . . . wait until the later stages of the hiring process to collect this kind of information.” (81 FR at 26173.) This assertion is based upon the results of a survey we conducted on this matter. This survey was developed and issued to all Chief Human Capital Officers Act agencies. Eighteen (18) agencies/sub-agencies responded to the survey. The comment was not accompanied by a recommendation related to the rulemaking, so there is no basis to consider the comment.
Two commenters opposed the proposed rule in the mistaken belief that the rule's purpose was to improve employment opportunities for individuals who had become criminals “through no fault of their own.” The commenters were apparently confused by a citation, in the proposed rule's Supplementary Information (81 FR at 26174), to a Presidential Memorandum, “Enhancing Safeguards to Prevent the Undue Denial of Federal Employment Opportunities to the Unemployed and Those Facing Financial Difficulty Through No Fault of Their Own (79 FR 7045). OPM cited the memorandum as a basis to defer the collection of certain applicant employment or credit information until the later stages of the hiring process, not for the reasons the commenters suggested. Because the comments were based on a faulty premise, OPM did not consider them.
One commenter asked that OPM revise the proposed rule to improve the formula for cost-of-living allowances for annuities. The comment was outside the scope of the proposal and was not considered.
The Office of Management and Budget has reviewed this rule in accordance with E.O. 13563 and 12866.
I certify that these regulations will not have a significant economic impact on a substantial number of small entities because the regulations pertain only to Federal agencies and employees.
This regulation will not have substantial direct effects on the States, on the relationship between the National Government and the States, or on distribution of power and responsibilities among the various levels of government. Therefore, in accordance with Executive Order 13132, it is determined that this rule does not have sufficient federalism implications to warrant preparation of a Federalism Assessment.
This regulation meets the applicable standard set forth in section 3(a) and (b)(2) of Executive Order 12988.
This rule will not result in the expenditure by State, local or tribal governments of more than $100 million annually. Thus, no written assessment of unfunded mandates is required.
This action pertains to agency management, personnel and organization and does not substantially affect the rights or obligations of non-agency parties and, accordingly, is not a “rule” as that term is used by the Congressional Review Act (Subtitle E of the Small Business Regulatory Enforcement Fairness Act of 1996 (SBREFA)). Therefore, the reporting requirement of 5 U.S.C. 801 does not apply.
This final regulatory action will not impose any additional reporting or recordkeeping requirements under the Paperwork Reduction Act.
Armed forces reserves, District of Columbia, Government employees.
Administrative practices and procedures, Government employees.
Accordingly, OPM is amending 5 CFR parts 330 and 731 as follows:
5 U.S.C. 1104, 1302, 3301, 3302, 3304, and 3330; E.O. 10577, 3 CFR, 1954-58 Comp., p. 218; Section 330.103 also issued under 5 U.S.C. 3327; Subpart B also issued under 5 U.S.C. 3315 and 8151; Section 330.401 also issued under 5 U.S.C. 3310; Subparts F and G also issued under Presidential Memorandum on Career Transition Assistance for Federal Employees, September 12, 1995; Subpart G also issued under 5 U.S.C. 8337(h) and 8456(b).
A hiring agency may not make specific inquiries concerning an applicant's criminal or credit background of the sort asked on the OF-306 or other forms used to conduct suitability investigations for Federal employment (
However, in certain situations, agencies may have a business need to obtain information about the background of applicants earlier in the hiring process to determine if they meet the qualifications requirements or are suitable for the position being filled. If so, agencies must request an exception from the Office of Personnel Management in order to determine an applicant's ability to meet qualifications or suitability for Federal employment prior to making a conditional offer of employment to the applicant(s). OPM will grant exceptions only when the agency demonstrates specific job-related reasons why the agency needs to evaluate an applicant's criminal or adverse credit history earlier in the process or consider the disqualification of candidates with criminal backgrounds or other conduct issues from particular types of positions. OPM will consider such factors as, but not limited to, the nature of the position being filled and whether a clean criminal history record would be essential to the ability to perform one of the duties of the position effectively. OPM may also consider positions for which the expense of completing the examination makes it appropriate to adjudicate suitability at the outset of the process (
5 U.S.C. 1302, 3301, 7301; E.O. 10577, 3 CFR 1954-1958 Comp., p. 218, as amended; E.O. 13467, 3 CFR 2009 Comp., p. 198; E.O. 13488, 3 CFR 2010 Comp., p. 189; 5 CFR parts 1, 2 and 5.
(d)(1) A hiring agency may not make specific inquiries concerning an applicant's criminal or credit background of the sort asked on the OF-306 or other forms used to conduct suitability investigations for Federal employment (
(2) OPM reserves the right to undertake a determination of suitability based upon evidence of falsification or fraud relating to an examination or appointment at any point when information giving rise to such a charge is discovered. OPM must be informed in all cases where there is evidence of material, intentional false statements, or deception or fraud in examination or appointment, and OPM will take a suitability action where warranted.
U.S. Office of Personnel Management.
Final rule.
The U.S. Office of Personnel Management (OPM) is issuing a final rule to redefine the geographic boundaries of several appropriated fund Federal Wage System (FWS) wage areas for pay-setting purposes. Based on reviews of Metropolitan Statistical Area (MSA) boundaries in a number of wage areas, OPM is redefining the following wage areas: Salinas-Monterey, CA; San Francisco, CA; New London, CT; Central and Western Massachusetts; Cincinnati, OH: Dayton, OH, Southeastern Washington-Eastern Oregon; and Spokane, WA.
Madeline Gonzalez, by telephone at (202) 606-2858 or by email at
On June 24, 2016, OPM issued a proposed rule (81 FR 41255) to redefine the following counties:
• San Benito County, CA, from the Salinas-Monterey, CA, area of application to the San Francisco, CA, area of application;
• Windham County, CT, from the New London, CT, area of application to the Central and Western Massachusetts area of application;
• Union County, IN; from the Dayton, OH, area of application to the Cincinnati, OH, area of application;
• Columbia County, WA, from the Spokane area of application to the Southeastern Washington-Eastern Oregon area of application.
The Federal Prevailing Rate Advisory Committee, the national labor-management committee responsible for
The 30-day comment period ended on July 25, 2016. OPM received one comment in support of the proposal and one comment requesting OPM consider moving another county in the State of California, Mendocino County, CA, from the Rest of U.S. (RUS) General Schedule (GS) locality pay area to the San Jose-San Francisco-Oakland, CA GS locality pay area. GS and FWS pay areas are administered under different regulations. The comment is therefore beyond the scope of the proposed rule.
I certify that these regulations will not have a significant economic impact on a substantial number of small entities because they will affect only Federal agencies and employees.
Administrative practice and procedure, Freedom of information, Government employees, Reporting and recordkeeping requirements, Wages.
Accordingly, OPM is amending 5 CFR part 532 as follows:
5 U.S.C. 5343, 5346; § 532.707 also issued under 5 U.S.C. 552.
Council of the Inspectors General on Integrity and Efficiency.
Final rule.
The Council of the Inspectors General on Integrity and Efficiency (CIGIE) is issuing this final rule to establish its procedures relating to access, maintenance, disclosure, and amendment of records that are in a CIGIE system of records under the Privacy Act of 1974 (Privacy Act). This final rule also establishes rules of conduct for CIGIE personnel who have responsibilities under the Privacy Act.
This final rule is effective January 3, 2017.
Atticus J. Reaser, General Counsel, CIGIE, (202) 292-2600.
CIGIE published a proposed rule in the
CIGIE is making one technical citation format change. The citation to “the Inspector General Act of 1978, Public Law 95-452, 92 Stat. 1101 (codified as amended at 5 U.S.C. app)” reflected in the proposed rule is being changed in this final rule to “the Inspector General Act of 1978, as amended, 5 U.S.C. app.” This is a technical modification and does not reflect a substantive change. There were no other modifications made to the proposed rule. For the reasons set forth herein and in the preamble to the proposed rule, CIGIE is publishing this final rule.
In promulgating this rule, CIGIE has adhered to the regulatory philosophy and the applicable principles of regulation set forth in section 1 of Executive Order 12866, Regulatory Planning and Review. The Office of Management and Budget (OMB) has determined that this rule is not “significant” under Executive Order 12866.
These regulations will not have a significant economic impact on a substantial number of small entities. Therefore, a regulatory flexibility analysis as provided by the Regulatory Flexibility Act, as amended, is not required.
These regulations impose no additional reporting and recordkeeping requirements. Therefore, clearance by OMB is not required.
This rule does not have Federalism implications, as set forth in Executive Order 13132. 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.
Information, Privacy, Privacy Act, Records.
For the reasons set forth in the preamble, CIGIE adds part 9801 to title 5 of the Code of Federal Regulations as follows:
Section 11 of the Inspector General Act of 1978, as amended, 5 U.S.C. app.; 5 U.S.C. 301, 552a; 31 U.S.C. 9701.
This part contains the regulations of the Council of the Inspectors General on Integrity and Efficiency (CIGIE) implementing the Privacy Act of 1974, 5 U.S.C. 552a. This part sets forth the basic responsibilities of CIGIE with regard to CIGIE's compliance with the requirements of the Privacy Act and offers guidance to members of the public who wish to exercise any of the rights established by the Privacy Act with regard to records maintained by CIGIE. These regulations should be read in conjunction with the Privacy Act, which explains in more detail individuals' rights.
(a)
(b)
(c)
(a) For purposes of this part the terms
(b)
(c)
(d)
(e)
(f)
(g)
(h)
An individual seeking to determine if a specific CIGIE system of records contains a record pertaining to the individual must follow the procedures set forth for access to records in § 9801.201(a), (b)(1) and (2), (c), and (d). A request to determine if an individual is the subject of a record will ordinarily be responded to within 10 days, except when CIGIE determines otherwise, in which case the request will be acknowledged within 10 days and the individual will be informed of the reasons for the delay and an estimated date by which a response will be issued.
CIGIE will inform its employees involved in the design, development, operation, or maintenance of any system of records, or in maintaining any record, of the provisions of the Privacy Act, including the Act's civil liability and criminal penalty provisions. Unless otherwise permitted by law, an employee of CIGIE shall:
(a) Collect from individuals only the information that is relevant and necessary to discharge the responsibilities of CIGIE;
(b) Collect information about an individual directly from that individual whenever practicable when the information may result in adverse determinations about an individual's rights, benefits, and privileges under Federal programs;
(c) Inform each individual from whom information is collected of:
(1) The legal authority to collect the information and whether providing it is mandatory or voluntary;
(2) The principal purpose for which CIGIE intends to use the information;
(3) The routine uses CIGIE may make of the information; and
(4) The effects on the individual, if any, of not providing the information;
(d) Maintain no system of record without public notice and notify appropriate CIGIE officials of the existence or development of any system of records that is not the subject of a current or planned public notice;
(e) Maintain all records that are used by CIGIE in making any determination about an individual with such accuracy, relevance, timeliness, and completeness as is reasonably necessary to ensure fairness to the individual in the determination;
(f) Except as to disclosures made to an agency or made under the Freedom of Information Act, 5 U.S.C. 552 (FOIA), make reasonable efforts, prior to disseminating any record about an individual, to ensure that the record is accurate, relevant, timely, and complete;
(g) Maintain no record describing how an individual exercises his or her First Amendment rights, unless it is expressly authorized by statute or by the individual about whom the record is maintained, or is pertinent to and within the scope of an authorized law enforcement activity;
(h) When required by the Privacy Act, maintain an accounting in the specified form of all disclosures of records by CIGIE to persons, organizations, or agencies;
(i) Maintain and use records with care to prevent the unauthorized or inadvertent disclosure of a record to anyone. No record contained in a CIGIE system of record shall be disclosed to another person, or to another agency outside CIGIE, except pursuant to a written request by, or with the prior written consent of, the individual to whom the record pertains, unless the disclosure is otherwise authorized by the Privacy Act; and
(j) Notify the appropriate CIGIE official of any record that contains information that the Privacy Act does not permit CIGIE to maintain.
(a)
(b)
(1) Whether providing social security numbers is mandatory or voluntary;
(2) The statutory or regulatory authority that authorizes the collection of social security numbers; and
(3) The uses that will be made of the numbers.
Nothing in this part shall be construed to entitle any person, as of right, to any service or to the disclosure of any record to which such person is not entitled under the Privacy Act.
(a)
(b)
(2) If the written inquiry does not refer to a specific system of records, it must describe the records that are sought in enough detail to enable CIGIE personnel to locate the system of records containing them with a reasonable amount of effort.
(3) The request should state whether the requester wants a copy of the record or wants to examine the record in person.
(c)
(d)
(1) The identity of the individual who is the subject of the record, by stating the name, current address, date and place of birth, and, at the requester's option, the social security number of the individual;
(2) The requester's identity, as required in paragraph (c) of this section;
(3) That the requester is the parent or guardian of that individual, which may be established by providing a copy of the individual's birth certificate showing the requester's parentage or by providing a court order establishing the requester's guardianship; and
(4) That the requester is acting on behalf of that individual in making the request.
A request for access will ordinarily be responded to within 10 days, except when CIGIE determines otherwise, in which case the request will be acknowledged within 10 days and the requester will be informed of the reasons for the delay and an estimated date by which a response will be issued. A response to a request for access should include the following:
(a) A statement that there is a record or records as requested or a statement that there is not a record in the system of records;
(b) The method of access (if a copy of all the records requested is not provided with the response);
(c) The amount of any fees to be charged for copies of records under § 9801.207, if applicable;
(d) The name and title of the official responsible for the response; and
(e) If the request is denied in whole or in part, or no record is found in the system, a statement of the reasons for the denial, or a statement that no record has been found, and notice of the procedures for appealing the denial or no record finding.
(a)
(i) Examination in person in a designated office during the hours specified by CIGIE; or
(ii) Providing copies of the records.
(2) When a requester has not indicated whether he wants a copy of the record or wants to examine the record in person, CIGIE may choose the means of granting access. However, the means chosen should not unduly impede the requester's right of access. A requester may elect to receive a copy of the records after having examined them.
(b)
(c)
(d)
In the event CIGIE receives a request pursuant to § 9801.201 for access to medical records (including psychological records) whose disclosure CIGIE determines would be harmful to the individual to whom they relate, it may refuse to disclose the records directly to the requester but shall transmit them to a physician designated by the requester.
(a)
(b)
(a)
(b)
(c)
(a)
(1) The search and review time expended by CIGIE to produce a record;
(2) The first copy of the records provided; and
(3) CIGIE making the records available to be personally reviewed by the requester.
(b)
(1) If the total fee for additional copies amounts to more than $25.00, the requester will be notified of the fee amount. Except as specified in paragraph (b)(2) of this section, upon requester's written agreement to pay the assessed fees, CIGIE will provide the additional copies without prepayment of such fees (
(2) An advance payment before additional copies of the records are made will be required if:
(i) CIGIE determines that the total fee to be assessed under this section exceeds $250.00. When such a determination is made, the requester will be notified of the determination and will be required to submit an advance payment of an amount up to the total fee. The amount of the advanced payment will be at the sole discretion of CIGIE and will be based, in part, on whether requester has a history of prompt payment of Privacy Act fees. If the required advanced payment is an amount less than the total fee, requester will be required to submit a written agreement to pay any fees not paid in advance; or
(ii) The requester has previously failed to pay a previously assessed Privacy Act fee in a timely fashion (
(c)
(d)
(a)
(b)
(1) Disclosures for which accountings are not required to be kept, including disclosures that are made to officers and employees of CIGIE and disclosures that are made under the FOIA. For purposes of this part, officers and employees of CIGIE includes, in part, CIGIE's membership, as addressed in section 11 of the Inspector General Act, when such members are acting in their capacity as CIGIE members;
(2) Disclosures made to law enforcement agencies for authorized law enforcement activities in response to written requests from those law enforcement agencies specifying the law enforcement activities for which the disclosures are sought; or
(3) Disclosures made from law enforcement systems of records that have been exempted from accounting requirements.
(a)
(b)
(1) The name of the system of records and a brief description of the record proposed for amendment. In the event the request to amend the record is the result of the requester having gained access to the record in accordance with the provisions concerning access to records as set forth in subpart B of this part, copies of previous correspondence between the requester and CIGIE will serve in lieu of a separate description of the record.
(2) The exact portion of the record the requester seeks to have amended should be indicated clearly. If possible, proposed alternative language should be set forth, or, at a minimum, the reasons why the requester believes the record is not accurate, relevant, timely, or complete should be set forth with enough particularity to permit CIGIE to not only to understand the requester's basis for the request, but also to make an appropriate amendment to the record.
(c)
(d)
(a)
(b)
(1) If CIGIE grants the request, the appropriate system manager will amend the record(s) and provide a copy of the amended record(s) to the requester. To the extent an accounting of disclosure has been maintained, the system manager shall advise all previous recipients of the record that an amendment has been made and give the substance of the amendment. Where practicable, the system manager shall send a copy of the amended record to previous recipients.
(2) If CIGIE denies the request in whole or in part, the reasons for the denial will be stated in the response letter. In addition, the response letter will state:
(i) The name and address of the official with whom an appeal of the denial may be lodged; and
(ii) A description of any other procedures which may be required of the requester in order to process the appeal.
(a)
(b)
(a)
(b)
(1) To amend the record(s); and
(2) To notify previous recipients of the record(s) for which there is an accounting of disclosure that the record(s) have been amended.
(c)
(1) Obtain judicial review of the decision in accordance with the terms of the Privacy Act at 5 U.S.C. 552a(g); and
(2) File a statement setting forth their reasons for disagreeing with the decision.
(d)
(e)
Requesters may seek assistance in preparing a request to amend a record or an appeal of an initial adverse determination, or to learn further of the provisions for judicial review, by contacting CIGIE's Privacy Officer by email at
Federal Aviation Administration (FAA), DOT.
Final rule.
We are adopting a new airworthiness directive (AD) for all
This AD becomes effective January 5, 2017.
For service information identified in this final rule, contact Rolls-Royce plc, Corporate Communications, P.O. Box 31, Derby, England, DE24 8BJ; phone: 011-44-1332-242424; fax: 011-44-1332-249936; email:
You may examine the AD docket on the Internet at
Wego Wang, Aerospace Engineer, Engine Certification Office, FAA, Engine & Propeller Directorate, 1200 District Avenue, Burlington, MA 01803; phone: 781-238-7134; fax: 781-238-7199; email:
We issued a notice of proposed rulemaking (NPRM) to amend 14 CFR part 39 by adding an AD that would apply to the specified products. The NPRM was published in the
Inspection of in-service Rolls-Royce RB211 Trent 800 engines has identified cracking and/or material release from the upper bifurcation fairing. This fairing hardware mates to the aeroplane thrust reverser upper bifurcation forward fire seal. Both sets of hardware create the engine firewall to isolate the engine compartment fire zone, which is a firewall feature of the aeroplane type design. Damage (missing materials and holes/openings) to the upper bifurcation fairing creates a breach of the engine fire wall, which may decrease the effectiveness of the engine fire detection and suppression systems due to excess fan air entering the engine compartment fire zone. This could delay or prevent the fire detection and suppression system from functioning properly, and can result in an increased risk of prolonged burning, potentially allowing a fire to reach unprotected areas of the engine, strut and wing.
You may obtain further information by examining the MCAI in the AD docket on the Internet at
We gave the public the opportunity to participate in developing this AD. We considered the comment received.
American Airlines, Inc. (AAL) requested that paragraph (e)(3)(ii) in this AD be revised to eliminate the references to Aircraft Maintenance Manual (AMM) Task 70-20-02 and to OMat 632. AAL indicated that AMM 70-20-02 requires the use of OMat 653 and TAM (PSM-5) TST panels for testing fluorescent penetrants for contamination and effectiveness. AAL noted that the Overhaul Material Manual (OMat 6) allows the use of any products specified in the SAE-AMS-2644 Qualified Product List Group 1A2 as an alternative to OMat 653.
We disagree. Paragraph (e)(3)(ii) in this AD refers to AMM Task 70-20-02 and OMat 632 as guidance that operators may use when performing fluorescent penetrant inspection. This AD does not require that AMM TASK 70-20-02 or OMat 632 be followed when performing fluorescent penetrant inspection. We did not change this AD.
We reviewed the relevant data, considered the comment received, and determined that air safety and the public interest require adopting this AD as proposed except for minor editorial changes. We have determined that these minor changes:
• Are consistent with the intent that was proposed in the NPRM for correcting the unsafe condition; and
• Do not add any additional burden upon the public than was already proposed in the NPRM.
RR has issued Alert Non-Modification Service Bulletin (NMSB) RB.211-72-AJ165, dated March 31, 2016. The NMSB describes procedures for inspecting and, if necessary, repairing or replacing the engine upper bifurcation fairing.
We estimate that this AD affects 125 engines installed on airplanes of U.S. registry.
We estimate the following costs to comply with this AD:
We estimate the following costs to do any necessary replacements that would be required based on the results of the proposed inspection. We estimate that 5 engines will need this repair and 5 engines will need this replacement:
Title 49 of the United States Code specifies the FAA's authority to issue rules on aviation safety. Subtitle I, section 106, describes the authority of the FAA Administrator. “Subtitle VII: Aviation Programs,” describes in more detail the scope of the Agency's authority.
We are issuing this rulemaking under the authority described in “Subtitle VII, Part A, Subpart III, Section 44701: General requirements.” Under that section, Congress charges the FAA with promoting safe flight of civil aircraft in air commerce by prescribing regulations for practices, methods, and procedures the Administrator finds necessary for safety in air commerce. This regulation is within the scope of that authority because it addresses an unsafe condition that is likely to exist or develop on products identified in this rulemaking action.
We determined that this AD will not have federalism implications under Executive Order 13132. This AD will not have a substantial direct effect on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government.
For the reasons discussed above, I certify this AD:
(1) Is not a “significant regulatory action” under Executive Order 12866,
(2) Is not a “significant rule” under the DOT Regulatory Policies and Procedures (44 FR 11034, February 26, 1979),
(3) Will not affect intrastate aviation in Alaska to the extent that it justifies making a regulatory distinction, and
(4) Will not have a significant economic impact, positive or negative, on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.
Air transportation, Aircraft, Aviation safety, Incorporation by reference, Safety.
Accordingly, under the authority delegated to me by the Administrator, the FAA amends 14 CFR part 39 as follows:
49 U.S.C. 106(g), 40113, 44701.
This AD becomes effective January 5, 2017.
None.
This AD applies to Rolls-Royce plc (RR) RB211-Trent 875-17, RB211-Trent 877-17, RB211-Trent 884-17, RB211-Trent 884B-17, RB211-Trent 892-17, RB211-Trent 892B-17, and RB211-Trent 895-17 turbofan engines.
This AD was prompted by a report of cracking and material release from an engine upper bifurcation fairing. We are issuing this AD to prevent failure of the engine fire protection system, engine fire, and damage to the airplane.
Comply with this AD within the compliance times specified, unless already done.
(1) Within 7,500 engine flight hours (FHs) time since new, or since last inspection, or within 150 flight cycles (FCs) after the effective date of this AD, whichever occurs later, inspect the engine upper bifurcation fairing for cracks or missing material. Use paragraph (e)(3) of this AD to perform the inspections.
(2) Repeat the inspection required by this AD within every 7,500 engine FHs time since last inspection.
(3) Inspect the engine upper bifurcation fairing as follows. Refer to Figure 1 of RR Alert Non-Modification Service Bulletin (NMSB) RB.211-72-AJ165, dated March 31, 2016, for guidance on upper bifurcation fairing inspection locations.
(i) Visually inspect upper bifurcation fairing seal face 22, seal support 23, and zone A for any cracks or material loss on the right side.
(A) If fairing seal face 22 is found to have released material, repair or replace the fairing before further flight.
(B) If there is a single crack found on fairing seal face 22, shorter than 6 mm, repair or replace the fairing within 100 engine flight cycles, or at the next shop visit, whichever occurs sooner.
(C) If there is a single crack, longer than 6 mm, found on fairing seal face 22, repair or replace the fairing within 15 engine FCs or at the next shop visit, whichever occurs sooner.
(D) If there are two or more cracks found on fairing seal face 22, replace the fairing within 15 engine FCs or at next shop visit, whichever occurs sooner.
(E) If there is any cracking or material loss found on seal support 23, replace the fairing within 15 engine FCs or at next shop visit, whichever occurs sooner.
(ii) If the visual inspection required by paragraph (e)(3)(i) of this AD does not detect any crack, fluorescent penetrant inspect zone A. Refer to AMM TASK 70-20-02, Water Washable Fluorescent Penetrant Inspection (Maintenance Process 213), or OMat 632, high sensitivity fluorescent penetrant inspection, for guidance on fluorescent penetrant inspection.
(A) If a crack shorter than 6 mm is detected, repair or replace the fairing within 100 engine FCs, or at the next shop visit, whichever occurs sooner.
(B) If a crack longer than 6 mm is detected, repair or replace the fairing within 15 engine FCs or at the next shop visit, whichever occurs sooner.
For the purpose of this AD, a “shop visit” is defined as induction of an engine into the shop for maintenance involving the separation of pairs of major mating engine flanges, except that the separation of engine flanges solely for the purposes of transportation without subsequent engine maintenance does not constitute an engine shop visit.
The Manager, Engine Certification Office, FAA, may approve AMOCs for this AD. Use the procedures found in 14 CFR 39.19 to make your request. You may email your request to:
(1) For more information about this AD, contact Wego Wang, Aerospace Engineer, Engine Certification Office, FAA, Engine & Propeller Directorate, 1200 District Avenue, Burlington, MA 01803; phone: 781-238-7134; fax: 781-238-7199; email:
(2) Refer to MCAI European Aviation Safety Agency AD 2016-0084, dated April 28, 2016, for more information. You may examine the MCAI in the AD docket on the Internet at
(3) RR Alert NMSB RB.211-72-AJ165, dated March 31, 2016, which is not incorporated by reference in this AD, can be obtained from RR, using the contact information in paragraph (h)(4) of this AD.
(4) For service information identified in this AD, contact Rolls-Royce plc, Corporate Communications, P.O. Box 31, Derby, England, DE24 8BJ; phone: 011-44-1332-242424; fax: 011-44-1332-249936; email:
(5) You may view this service information at the FAA, Engine & Propeller Directorate, 1200 District Avenue, Burlington, MA. For information on the availability of this material at the FAA, call 781-238-7125.
None.
Federal Aviation Administration (FAA), DOT.
Final rule.
This action amends Class C airspace at El Paso International Airport, El Paso, TX, by removing a cutout from the Class C airspace area that excludes the airspace within a 2-mile radius of West Texas Airport and the airspace beyond an 8-mile arc from the El Paso International Airport beginning at the 115° bearing from the airport clockwise to the Rio Grande River. Additionally, this rule removes West Texas Airport from the Class C airspace description as the airport is closed, and amends the El Paso International Airport geographic coordinates to coincide with the FAA's aeronautical database. The FAA is taking this action to enable more efficient operations at El Paso International Airport.
Effective date 0901 UTC, February 2, 2017. The Director of the Federal Register approves this incorporation by reference action under Title 1, Code of Federal Regulations, part 51, subject to the annual revision of FAA Order 7400.11 and publication of conforming amendments.
FAA Order 7400.11A, Airspace Designations and Reporting Points, and subsequent amendments can be viewed online at
FAA Order 7400.11, Airspace Designations and Reporting Points, is published yearly and effective on September 15.
Colby Abbott, Airspace Policy Group, Office of Airspace Services, Federal Aviation Administration, 800 Independence Avenue SW., Washington, DC 20591; telephone: (202) 267-8783.
The FAA's authority to issue rules regarding aviation safety is found in Title 49 of the United States Code. Subtitle I, Section 106 describes the authority of the FAA Administrator. Subtitle VII, Aviation Programs, describes in more detail the scope of the agency's authority. This rulemaking is promulgated under the authority described in Subtitle VII, Part A, Subpart I, Section 40103. Under that section, the FAA is charged with prescribing regulations to assign the use of the airspace necessary to ensure the safety of aircraft and the efficient use of airspace. This regulation is within the scope of that authority as it amends the El Paso, TX, Class C airspace area to preserve the safe and efficient flow of air traffic in the El Paso, TX, area.
On August 17, 2016, the FAA published in the
This document amends FAA Order 7400.11A, Airspace Designations and Reporting Points, dated August 3, 2016, and effective September 15, 2016. FAA Order 7400.11A is publicly available as listed in the
The FAA is amending Title 14, Code of Federal Regulations (14 CFR) part 71 by modifying the El Paso International Airport, El Paso, TX, Class C airspace area. This action removes the cutout and reduced perimeter boundary arc that excludes the airspace extending upward from 5,200 feet MSL to and including 8,000 feet MSL within a 2-mile radius of the West Texas Airport, and the airspace beyond an 8-mile arc from the El Paso International Airport beginning at the 115° bearing from the airport clockwise to the Rio Grande River. Since West Texas Airport (renamed Horizon Airport in 2004) is permanently closed and the property sold for non-aviation uses, the purpose for the exclusions no longer exists. Thus, the FAA is removing the words “. . . that airspace beyond an 8-mile arc from the El Paso International Airport beginning at the 115° bearing from the airport clockwise to the Rio Grande River, and that airspace within a 2-mile radius of the West Texas Airport, and . . .” from the regulatory text. The West Texas Airport name and geographic coordinate references are also removed from the Class C airspace description.
Additionally, this action amends the exclusion language pertaining to the Class C airspace extending upward from 5,200 feet MSL to and including 8,000 feet MSL from “. . . that airspace within Mexico, and that airspace west of long 106°27′02″ W.” to “. . . that airspace west of long. 106°27′02″ W., and that airspace within Mexico.” This change is editorial for format and clarity to standardize the exclusion information associated with the Class C airspace surface area and shelf.
Lastly, this action updates the El Paso International Airport geographic coordinates to reflect the current airport reference point information in the
Class C airspace areas are published in paragraph 4000 of FAA Order 7400.11A, dated August 3, 2016, and effective September 15, 2016, which is incorporated by reference in 14 CFR 71.1. The Class C airspace area modification in this document will be published subsequently in the Order.
The FAA has determined that this regulation only involves an established body of technical regulations for which frequent and routine amendments are necessary to keep them operationally current. It, therefore: (1) Is not a “significant regulatory action” under Executive Order 12866; (2) is not a “significant rule” under Department of Transportation (DOT) Regulatory Policies and Procedures (44 FR 11034; February 26, 1979); and (3) does not warrant preparation of a regulatory evaluation as the anticipated impact is so minimal. Since this is a routine matter that will only affect air traffic procedures and air navigation, it is certified that this rule, when promulgated, will not have a significant economic impact on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.
The FAA has determined that this action of modifying the El Paso International Airport, El Paso, TX, Class C airspace area by removing a cutout from the Class C airspace area that excludes the airspace within a 2-mile radius of West Texas Airport (now closed) and the airspace beyond an 8-mile arc from the El Paso International Airport beginning at the 115° bearing from the airport clockwise to the Rio Grande River, removing the West Texas Airport and geographic coordinate references from the Class C airspace description, and amending the El Paso International Airport geographic coordinates to reflect the current airport reference point information contained in the FAA's aeronautical database qualifies for categorical exclusion under the National Environmental Policy Act and its implementing regulations at 40 CFR part 1500, and in accordance with FAA Order 1050.1F.
Airspace, Incorporation by reference, Navigation (air).
In consideration of the foregoing, the Federal Aviation Administration amends 14 CFR part 71 as follows:
49 U.S.C. 106(f), 106(g); 40103, 40113, 40120; E.O. 10854, 24 FR 9565, 3 CFR, 1959-1963 Comp., p. 389.
That airspace extending upward from the surface to and including 8,000 feet MSL within a 5-mile radius of the El Paso International Airport, excluding that airspace west of long. 106°27′02″ W., and that airspace within Mexico; and that airspace extending upward from 5,200 feet MSL to and including 8,000 feet MSL within a 10-mile radius of the El Paso International Airport, excluding that airspace west of long. 106°27′02″ W., and that airspace within Mexico.
Bureau of Industry and Security, Commerce.
Final rule.
This final rule aligns the time limit of License Exception Temporary Imports, Exports, Reexports, and Transfers (in-country) (TMP), which authorizes, among other things, certain temporary exports to Mexico, with the time limit of Mexico's Decree for the Promotion of Manufacturing, Maquiladora and Export Services (IMMEX) program. Currently, TMP allows for the temporary export and reexport of various items subject to the Export Administration Regulations (EAR), as long as the items are returned no later than one year after export, reexport, or transfer if not consumed or destroyed during the period of authorized use. Other than a four-year period for certain personal protective equipment, the one-year limit extends to all items shipped under license exception TMP. However, the one-year period does not align with the time constraints of Mexico's IMMEX program, which allows imports of items for manufacturing operations on a time limit that may exceed 18 months. This rule amends TMP to complement the timeline of the IMMEX program. Under this amendment, items temporarily exported or reexported under license exception TMP and imported under the provisions of the IMMEX program would be authorized to remain in Mexico for up to four years from the date of export or reexport.
Regulatory Policy Division, Office of Exporter Services, Bureau of Industry and Security, by telephone (202) 482-2440 or email:
Mexico's Decree for the Promotion of Manufacturing, Maquiladora and Export Services, known as IMMEX, is a platform used by U.S. and foreign manufacturers to lower production costs by temporarily importing production materials into Mexico. Created in 2006, IMMEX is the product of the merger of
Under IMMEX, the length of time that imports may remain in Mexico is commodity dependent, with some items allowed to remain in-country for 18 months or more. These time allotments are greater than the time limits for License Exception Temporary Imports, Exports, Reexports, and Transfers (in-country) (TMP) allowed under § 740.9(a)(14) of the EAR. With few exceptions, items exported under TMP, if not consumed or destroyed during the authorized use abroad, must be returned to the United States one year after the date of export. The discrepancy between the time periods of IMMEX and TMP reduces the efficacy of both policies, thereby hindering the shipment of items subject to the EAR to and from Mexico.
U.S. companies that produce items subject to the EAR and ship those items to Mexico under IMMEX have notified the Bureau of Industry and Security of this discrepancy and have requested that BIS amend the EAR to increase compatibility with IMMEX. Considering the strength of Mexico's export control regime, as exemplified by its accession as a member to the Wassenaar Arrangement, the Australia Group, and the Nuclear Suppliers Group, BIS published the proposed rule 81 FR 57505 on August 23, 2016 (known hereafter as the August 23 rule) proposing to amend § 740.9(a) to account for IMMEX's time limit. For the purpose of simplicity, BIS did not propose to match the various time periods instituted by IMMEX. Instead, the rule proposed to revise § 740.9(a)(8) to allow temporary exports and reexports to remain in Mexico for up to four years, which accommodates the maximum available time that temporarily imported items may remain in Mexico under IMMEX and is in parallel with the validity period of BIS's licenses. Additionally, the August 23 rule proposed to revise introductory paragraph § 740.9(a)(14) to include a reference to § 740.9(a)(8) as an exception to the one-year time limit of TMP. BIS received only one comment regarding the rule, in which the user expressed support for the potential change in the regulations. Because BIS received only one comment, which was positive, regarding the August 23 rule, this final rule implements the proposed rule without change.
Although the Export Administration Act of 1979, as amended, expired on August 20, 2001, the President, through Executive Order 13222 of August 17, 2001, 3 CFR, 2001 Comp., p. 783 (2002), as amended by Executive Order 13637 of March 8, 2013, 78 FR 16129 (March 13, 2013), and as extended by the Notice of August 4, 2016, 81 FR 52585 (August 4, 2016), has continued the EAR in effect under the International Emergency Economic Powers Act. BIS continues to carry out the provisions of the Export Administration Act, as appropriate and to the extent permitted by law, pursuant to Executive Order 13222.
1. Executive Orders 13563 and 12866 direct agencies to assess all costs and benefits of available regulatory alternatives and, if regulation is necessary, to select regulatory approaches that maximize net benefits (including potential economic, environmental, public health and safety effects, distributive impacts, and equity). Executive Order 13563 emphasizes the importance of quantifying both costs and benefits, of reducing costs, of harmonizing rules, and of promoting flexibility. This rule has been determined to be not significant for the purposes of Executive Order 12866.
2. Notwithstanding any other provision of law, no person is required to respond to, nor is subject to a penalty for failure to comply with, a collection of information, subject to the requirements of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501
3. This rule does not contain policies with Federalism implications as that term is defined in Executive Order 13132.
4. The Regulatory Flexibility Act (RFA), as amended by the Small Business Regulatory Enforcement Fairness Act of 1996 (SBREFA), 5 U.S.C. 601
The Bureau of Industry and Security (BIS) does not collect data on the size of entities that apply for and are issued export licenses. Although BIS is unable to estimate the exact number of small entities that would be affected by this rule, it acknowledges that this rule would affect some unknown number.
BIS believes that this final rule will not have a significant economic impact because exporters are already using other provisions of the EAR to participate in IMMEX. Currently, exporters participating in IMMEX are using TMP for exports of a one-year duration. If the item is to remain in Mexico longer than one year, exporters are required to either use another license exception or apply for a license that will address a specific time limit. This final rule merely extends the eligibility period for TMP to four years to complement the lengthy IMMEX time limit which could be 18 months or more, depending on circumstances. Extending the time limit of TMP to four years provides exporters flexibility in complying with the EAR and allows them to take fuller advantage of the privileges granted by IMMEX. While such a provision should reduce the paperwork burden to exporters, BIS does not believe increasing the time limit will lead to a significant increase in exports to Mexico. Rather, this final rule is consistent with the principle of the EAR in easing the unnecessary regulatory burden to exporters.
Administrative practice and procedure, Exports, Reporting and recordkeeping requirements.
Accordingly, 15 CFR part 740 of the EAR (15 CFR parts 730-774) is amended as follows:
50 U.S.C. 4601
(a) * * *
(8)
(14)
Federal Energy Regulatory Commission, Department of Energy.
Final rule.
On June 30, 2016, President Obama signed the Freedom of Information Act Improvement Act of 2016. The Act requires agencies to revise their regulations within 180 days to account for the new statutory mandates. After undertaking a review of Commission regulations in accordance with Section 3 of the Act, the Commission is revising its FOIA regulations to incorporate the statutory mandates. Additionally, this rule updates the delegation regulations with respect to determinations made by the General Counsel in response to FOIA administrative appeals.
This rule will become effective January 3, 2017.
Christopher MacFarlane, Office of the General Counsel, 888 First Street NE., Washington, DC 20426, (202) 502-6761,
1. On June 30, 2016, President Obama signed the Freedom of Information Act (FOIA) Improvement Act of 2016 (FOIA Improvement Act or the Act).
2. Section 3 of the Act requires agencies to revise their regulations to account for the new statutory mandates. The Act provides that agencies must revise their rules within 180 days to incorporate the statutory changes. Accordingly, the Commission is revising its regulations to implement the FOIA Improvement Act. Consistent with the FOIA administrative appeal provisions in section 388.110, the Commission also is clarifying under section 375.309 that the General Counsel or a designee may issue final determinations on administrative FOIA appeals.
3. After undertaking a review of Commission regulations in accordance with Section 3 of the Act, the Commission is revising its FOIA regulations in 18 CFR 388.106-388.10, as follows.
4. The FOIA administrative appeal provisions in section 388.110 provide that a FOIA administrative appeal must be directed to the General Counsel for determination, and that the General Counsel or the General Counsel's designee will make a determination on that appeal within the statutory timeframe.
5. The FOIA Improvement Act requires agencies to “make available for public inspection in an electronic format” records that have been released and “that have been requested 3 or more times.” Section 388.106 concerns Commission records available in the public reference room at the
6. The FOIA Improvement Act provides that the deliberative process privilege no longer exempts a document that is 25 years or older. Section 388.107 describes material that is exempt from public disclosure under the Commission's regulations, and a provision in that section describes material that would traditionally fall under the protection of deliberative process privilege. The Commission is revising section 338.107(e) to reflect the 25 year limitation on material that would otherwise be exempt under the deliberative process privilege.
7. The FOIA Improvement Act requires agencies to codify the Department of Justice's foreseeable harm standard. Under that standard, agencies “shall withhold information” under the FOIA “only if the agency reasonably foresees that disclosure would harm an interest protected by an exemption” or “disclosure is prohibited by law.” The standard does not require the release of material “that is otherwise prohibited from disclosure by law, or otherwise exempted from disclosure under [Exemption] 3.” The Act also directs agencies to make reasonable efforts to segregate and release nonexempt material. Consistent with Section 3 of the Act, the Commission revises section 388.108 to codify these practices.
8. The Act directs agencies to waive processing fees, under certain unusual circumstances, where the agency's response was delayed.
9. The FOIA Improvement Act also provides changes to administrative appeals and provides mandatory language that must go in initial response letters. The Act requires that all determination letters must notify the requester that they can seek assistance from the FOIA Public Liaison. Each adverse FOIA determination letter must notify the requester of the option to seek dispute resolution services from Office of Government Information Services (OGIS).
10. The Act also directs Agencies to extend the timeframe to file an administrative appeal from 45 days to at least 90 days. Additionally, the Act mandates that agencies advise requesters that they may seek the assistance of OGIS when the agency extends the response time by ten or more days for unusual circumstances. The Commission will take these steps and revises section 388.110 of its regulations to codify this practice.
11. Office of Management and Budget (OMB) regulations require OMB to approve certain information collection requirements imposed by agency rule.
12. The Commission is required to prepare an Environmental Assessment or an Environmental Impact Statement for any action that may have a significant adverse effect on the human environment.
13. The Regulatory Flexibility Act of 1980 (RFA)
14. In addition to publishing the full text of this document in the
15. From the Commission's Home Page on the Internet, this information is available on eLibrary. The full text of this document is available on eLibrary in PDF and Microsoft Word format for viewing, printing, and/or downloading. To access this document in eLibrary, type the docket number excluding the last three digits of this document in the docket number field.
16. User assistance is available for eLibrary and the Commission's Web site during normal business hours from FERC Online Support at (202) 502-6652 (toll free at 1-866-208-3676) or email at
17. The Commission is issuing this rule as a Final Rule without a period for public comment. Under 5 U.S.C. 553(b)(3)(A), notice and comment procedures are unnecessary for “interpretative rules, general statements of policy, or rules of agency organization, procedure, or practice . . .” This rule merely makes modification to existing procedures as directed by statute. The rule will not significantly affect regulated entities or the general public.
18. These regulations are effective January 3, 2017.
Authority delegations (Government agencies), Seals and insignia, Sunshine Act.
Confidential business information, Freedom of information.
By the Commission.
In consideration of the foregoing, the Commission amends parts 375 and 388, Chapter I, Title 18, Code of Federal Regulations, as follows:
5 U.S.C. 551-557; 15 U.S.C. 717-717w, 3301-3432; 16 U.S.C. 791-825r, 2601-2645; 42 U.S.C. 7101-7352.
(h) [Reserved]
(i) Deny or grant, in whole or in part, an appeal of a Freedom of Information Act determination by the Director of the Office of External Affairs.
5 U.S.C. 301-305, 551, 552 (as amended), 553-557; 42 U.S.C. 7101-7352.
(b) * * *
(24) Records that have been requested three or more times and determined eligible for public disclosure will be made publicly available on the Commission's Web site or through other electronic means.
(e) Interagency or intraagency memoranda or letters which would not be available by law to a party other than an agency in litigation with the agency, except that the deliberative process privilege shall not exempt any record 25 years or older.
Reference Room (FOIA requests).
(c) * * *
(4) The Director will consider whether partial disclosure of information is possible whenever it is determined that a document is exempt and will take reasonable steps to segregate and release nonexempt information.
(5) The Director will only withhold information where it is reasonably foreseeable that disclosure would harm an interest protected by an exemption or disclosure is prohibited by law or otherwise exempted from disclosure under FOIA Exemption 3.
(f) The Commission will not charge search fees (or duplication fees for requesters with preferred fee status) where, after extending the time limit for unusual circumstances, as described in § 388.110, the Director does not provide a timely determination.
(1) If there are unusual circumstances, as described in § 388.110, and there are more than 5,000 responsive pages to the request, the Commission may charge search fees (or, for requesters in preferred fee status, may charge duplication fees) where the requester received timely written notice and the Commission has discussed with the requester via written mail, electronic mail, or telephone (or made not less than 3 good-faith attempts to do so) how the requester could effectively limit the scope of the request; or
(2) If a court determines that exceptional circumstances exist, the Commission's failure to comply with a time limit will be excused for the length of time provided by the court order.
(a)(1) Determination letters shall indicate that a requester may seek assistance from the FOIA Public Liaison. A person whose request for records, request for fee waiver, or request for expedited processing is denied in whole or in part may seek dispute resolution services from the Office of Government Information Services, or may appeal the determination to the General Counsel or General Counsel's designee within 90 days of the determination.
(2) Appeals filed pursuant to this section must be in writing, addressed to the General Counsel of the Commission, and clearly marked “Freedom of Information Act Appeal.” Such an appeal received by the Commission not addressed and marked as indicated in this paragraph will be so addressed and marked by Commission personnel as soon as it is properly identified and then will be forwarded to the General Counsel. Appeals taken pursuant to this paragraph will be considered to be received upon actual receipt by the General Counsel.
(3) The General Counsel or the General Counsel's designee will make a determination with respect to any appeal within 20 working days after the receipt of such appeal. An appeal of the denial of expedited processing will be considered as expeditiously as possible within the 20 working day period. If, on appeal, the denial of the request for records, fee reduction, or expedited processing is upheld in whole or in part, the General Counsel or the General Counsel's designee will notify the person making the appeal of the provisions for judicial review of that determination.
(b) * * *
(5) Whenever the Commission extends the time limit, pursuant to paragraph (b)(1) of this section, by more than ten additional working days, the written notice will notify the requester of the right to seek dispute resolution services from the Office of Government Information Services.
United States International Trade Commission.
Final rule.
The United States International Trade Commission (“Commission”) issues a final rule amending its Rules of Practice and Procedure concerning rules of general application to reflect amendments to the Freedom of Information Act (“FOIA”) made by the FOIA Improvement Act of 2016 (“Improvement Act”). Among other things, the Improvement Act requires the Commission to amend its FOIA regulations to extend the deadline for administrative appeals for FOIA decisions, to add information on dispute resolution services, and to amend the
This regulation is effective January 3, 2017.
Lisa R. Barton, Secretary, telephone (202) 205-2000 or Brian R. Battles, Esquire, Office of the General Counsel, United States International Trade Commission, telephone (202) 708-4737. Hearing-impaired individuals are advised that information on this matter can be obtained by contacting the Commission's TDD terminal at 202-205-1810. General information concerning the Commission may also be obtained by accessing its Web site at
The preamble below is designed to assist readers in understanding these amendments to the Commission's Rules of Practice and Procedure.
Section 335 of the Tariff Act of 1930 (19 U.S.C. 1335) authorizes the Commission to adopt such reasonable procedures, rules, and regulations as it deems necessary to carry out its functions and duties.
This rulemaking amends the Commission's existing Rules of Practice and Procedure and reflects changes to the FOIA by the Improvement Act. The Improvement Act addresses a range of procedural issues. Among other things, it requires that agencies establish a minimum of 90 days for requesters to file an administrative appeal and that they provide dispute resolution services at various times throughout the FOIA process. The Improvement Act also updates how fees are charged.
The United States International Trade Commission amends 19 CFR part 201 as follows:
• By amending § 201.18:
○ To change the appeals deadline from sixty days to ninety days;
○ To indicate that the Commission's FOIA Public Liaison is available to offer dispute resolution services and to provide contact information for the Commission's FOIA Public Liaison and the Office of Government Information Services.
• By amending § 201.20, to add new paragraphs (c)(5), (c)(6), and (c)(7) to provide additional limitations on the fees charged by the Commission.
The Commission ordinarily promulgates amendments to the Code of Federal Regulations in accordance with the notice-and-comment rulemaking procedure in section 553 of the Administrative Procedure Act (APA) (5 U.S.C. 553). That procedure entails publication of notice of proposed rulemaking in the
In this instance, however, the Commission has determined that the notice and public comment procedure is unnecessary. Section 553(b)(3)(B) of the APA authorizes agencies to dispense with notice and comment procedures for rules when the agency finds that there is “good cause” in concluding that those procedures are “impracticable, unnecessary, or contrary to the public interest.” Under this section, an agency, upon finding good cause, may issue a final rule without seeking comment prior to the rulemaking. The proposed amendments are required by statute, do not involve Commission discretion, and provide additional protections to the public. Given these factors, the Commission finds good cause to conclude that the notice and public comment procedure are unnecessary.
The Commission has determined that these rules do not meet the criteria described in section 3(f) of Executive Order 12866 (58 FR 51735, October 4, 1993) and thus do not constitute a “significant regulatory action” for purposes of the Executive Order.
The Regulatory Flexibility Act (5 U.S.C. 601
These rules do not contain federalism implications warranting the preparation of a federalism summary impact statement pursuant to Executive Order 13132 (64 FR 43255, August 4, 1999).
No actions are necessary under title II of the Unfunded Mandates Reform Act of 1995, Pubic Law 104-4 (2 U.S.C. 1531-1538) because the rules will not result in the expenditure by state, local, and tribal governments, in the aggregate, or by the private sector, of $100,000,000 or more in any one year (adjusted annually for inflation), and will not significantly or uniquely affect small governments.
These rules are not “major rules” as defined by section 251 of the Small Business Regulatory Enforcement Fairness Act of 1996 (5 U.S.C. 801
These rules are not subject to section 3504(h) of the Paperwork Reduction Act (44 U.S.C. 3501
Administrative practice and procedure, Claims, Classified information, Confidential business information, Freedom of information, Privacy, Reporting and recordkeeping requirements.
As stated in the preamble, part 201 of chapter II, title 19 of the Code of Federal Regulations is amended as follows:
19 U.S.C. 1335; 19 U.S.C. 2482, unless otherwise noted.
(b) An appeal from a denial of a request must be received within ninety days of the date of the letter of denial and shall be made to the Commission and addressed to the Chairman, United States International Trade Commission, 500 E Street SW., Washington, DC 20436. Any such appeal shall be in writing, and shall indicate clearly in the appeal, and if the appeal is in paper form on the envelope, that it is a “Freedom of Information Act Appeal.” An appeal may be made either in paper form, or electronically by contacting the Commission at
(f) A response to an appeal will advise the requester that the Commission's FOIA Public Liaison officer and the Office of Government Information Services both offer mediation services to resolve disputes between FOIA requesters and Federal agencies as a non-exclusive alternative to litigation. The requester may contact the Commission's FOIA Public Liaison officer by telephone (202-205-2595) or email (
(c) * * *
(5) The Commission will not charge fees if it fails to comply with any time limit under the FOIA or these regulations, and if it has not timely notified the requester, in writing, that an unusual circumstance exists. If an unusual circumstance exists, and timely written notice is given to the requester, the Commission will have an additional 10 working days to respond to the request before fees are automatically waived under this paragraph.
(6) If the Commission determines that unusual circumstances apply and that more than 5,000 pages are necessary to respond to a request, it may charge fees if it has provided a timely written notice to the requester and discusses with the requester via mail, Email, or telephone how the requester could effectively limit the scope of the request (or make at least three good faith attempts to do so).
(7) If a court has determined that exceptional circumstances exist, a failure to comply with time limits imposed by these regulations or FOIA shall be excused for the length of time provided by court order.
By order of the Commission.
Financial Crimes Enforcement Network (“FinCEN”).
Supplement to final rule.
In its September 20, 2016 order, the U.S. District Court for the District of Columbia remanded to FinCEN the final rule imposing a prohibition on covered financial institutions from opening or maintaining correspondent accounts for, or on behalf of, FBME Bank, Ltd. In its memorandum opinion accompanying that order, the Court stated that the agency had not responded meaningfully to FBME's comments regarding the agency's treatment of aggregate Suspicious Activity Report (SAR) data. The Court found that those comments challenged FinCEN's interpretation of SAR data on at least four distinct grounds. In this supplement to the final rule, FinCEN provides further explanation addressing FBME's comments.
December 1, 2016.
The FinCEN Resource Center at (800) 767-2825 or
In its September 20, 2016 order, the U.S. District Court for the District of Columbia remanded to FinCEN the final rule imposing a prohibition on covered financial institutions from opening or maintaining correspondent accounts for, or on behalf of, FBME Bank, Ltd. (FBME). In its memorandum opinion accompanying that order, the Court stated that the agency had not responded meaningfully to FBME's comments regarding the agency's treatment of aggregate SAR data. In this supplement to the final rule, FinCEN notes that FBME's comments regarding FinCEN's use of SARs in the rulemaking process reflect a misunderstanding of SARs generally and how FinCEN analyzed and used SARs in this rulemaking.
As an initial matter, FBME overstates the centrality of the use of SARs in FinCEN's determination that FBME is of primary money laundering concern. As reflected in the agency's Notice of Finding (NOF), Final Rule, and Administrative Record, far from being the only evidence that informed FinCEN's determination that FBME is of primary money laundering concern, the agency's analysis of SARs simply affirmed FinCEN's concern surrounding FBME's involvement in money laundering that was informed by other information in the Administrative Record. For instance, as detailed in the NOF, this information included: (1) An FBME customer's receipt of a deposit of hundreds of thousands of dollars from a financier for Lebanese Hezbollah; (2) providing financial services to a financial advisor for a major transnational organized crime figure; (3) FBME's facilitation of funds transfers to an FBME account involved in fraud against a U.S. person, with the FBME customer operating the alleged fraud scheme later being indicted in the United States District Court for the Northern District of Ohio; and (4) FBME's facilitation of U.S. sanctions evasion through its extensive customer base of shell companies, including at least one FBME customer that was a front company for a U.S.-sanctioned Syrian entity, the Scientific Studies and Research Center, which used its FBME account to process transactions through the U.S. financial system.
Set forth below are summaries of FBME's four arguments in its comments surrounding FinCEN's interpretation of SARs and the agency's responses.
1. FBME argues that SARs are so over-inclusive—“sweeping in [so many] transactions that are perfectly legitimate”—that “categorically” viewing SARs as indicative of illicit transactions is “invalid and improper.”
In its January 26, 2016 comments, FBME asserted that:
To paint FBME as posing a significant threat to U.S. and other financial institutions, FinCEN relies on limited and misleading statistical data regarding “suspicious wire transfers” as well as biased reports from financial institutions seeking to offload responsibility for their own actions. During the hearing before Judge Cooper, FinCEN revealed that the statistical data relied upon in the NOF was based on SARs. But such reliance is categorically invalid and improper. To begin, we know of no instance, prior to this proceeding, in which FinCEN has equated any particular SARs data or rate as indicative of a problem under Section 311 [of the USA PATRIOT Act]. Nor is such use valid. To the contrary, it ignores the purpose of a SAR, which involves a designedly low threshold for the sake of erring on the side of over-inclusion—sweeping in transactions that are perfectly legitimate, simply to ensure there is scrutiny of them to ensure against any issue. It is spurious in this light to take a SAR or any number of them as evidencing the illegitimacy of any transaction or set thereof—not to mention as evidence that a particular bank is one of “primary money laundering concern” under Section 311.
Contrary to FBME's assumptions, FinCEN analyzed the SARs as qualitative evidence of activity conducted by FBME that reflected one of FinCEN's primary concerns about FBME—specifically, a “[s]ignificant [v]olume” of “[o]bscured [t]ransactions” as indicated in part by the size and number of “[w]ire transfers related to suspected shell company activities.” NOF, 79 FR at 42640. While FinCEN recognizes that actual wrongdoing does not necessarily underlie the suspicious activity described in any particular SAR, many of the SARs relating to FBME described typical indicators of shell company activity. As FinCEN has explained, it is particularly concerned, among other things, by the lack of
Moreover, with respect to FBME's claim that SARs are over-inclusive, based on FinCEN's extensive experience with SAR filings and the other illicit conduct at FBME detailed in the NOF, Final Rule, and Administrative Record, FinCEN assesses it more likely that the SARs understate the size and frequency of shell company and other suspicious activity conducted by FBME. The SARs include only the information that financial institutions identified and reported to FinCEN; they do not necessarily reflect all suspicious transactions engaged in by FBME. FinCEN assesses that such is the case here given FinCEN's determination that FBME has sought to evade anti-money laundering (AML) regulations, has ignored the Central Bank of Cyprus' AML directives, and that following the issuance of the NOF, FBME employees took various measures to obscure information, all of which may have undermined the ability of U.S. financial institutions to detect and report all of FBME's suspicious activity.
2. FBME argues that while the absolute dollar amounts of transactions tagged as “suspicious” might appear high on the surface, they represented a small proportion of FBME's overall transactions.
FBME notes that while the NOF highlighted “at least 4,500 suspicious wire transfers through U.S. correspondent accounts that totaled at least $875 million between November 2006 and March 2013,” that figure represented, according to FBME, “only 0.55% of the total amount of transfers and 0.81% of the [U.S. dollar] amount of transfers conducted by FBME during this period.”
FinCEN considered the volume of suspicious transactions in absolute terms—not whether such money laundering was a greater percentage of FBME's activities than that suggested in FBME's comments. FBME's comment incorrectly assumes that FinCEN's focus in the NOF was, or should have been, based upon a percentage of suspicious activity by FBME's customers. To the contrary, FinCEN made clear it was concerned by the substantial volume of all suspicious activity at the bank, including the suspicious activity reported in SARs and that described in other sources available to the agency and included in the Administrative Record. The overall amount of such activity informed FinCEN's evaluation of the “extent to which” FBME has been “used to facilitate or promote money laundering”
3. FBME criticizes FinCEN for “fail[ing] to consider alternative bases for the increase in SARs involving FBME * * * between April 2013 and April 2014,” particularly the “Cypriot financial crisis and attendant controls.”
FinCEN recognizes that suspicious activity and reports of such activity could be influenced by a number of factors, including financial developments within a country or internationally, but FinCEN views this scenario as inapplicable in this case. SARs typically deal with suspicious activity by individuals and entities conducting transactions, not systemic issues involving debt defaults and liquidity challenges by financial institutions. FinCEN did not rely on any suggestion that the number of SAR filings involving FBME increased during the Cypriot financial crisis as compared to past periods in the analysis. In addition, FinCEN finds no reason to assume that any renewed focus on Cypriot financial controls would decrease rather than increase the credibility of SAR filings as to FBME, let alone decrease the credibility of those filings to such an extent as to undermine its finding of a substantial volume of shell company activity at FBME. Finally, the NOF highlighted suspected shell company activities accounting for hundreds of millions of dollars between 2006-2014;
4. FBME faults FinCEN for failing to provide either a “point of comparison between FBME and other * * * banks that [the agency] considers similarly situated but less deserving of suspicion given their SAR statistics,” or “any baseline for the SARs statistics it considers standard or acceptable for an international bank like FBME.”
Again, FBME misunderstands the role that SARs played in FinCEN's analysis, incorrectly assuming that the analysis necessarily depended on a relative comparison to other banks. FBME appears to assume that SAR filings, or the absolute number and size of suspicious transactions described in such filings, are not in themselves relevant, but instead that only
In addition, as noted in the NOF and Final Rule, FinCEN concluded that FBME has sought to evade AML regulations, has ignored the Central Bank of Cyprus' AML directives, and that following the issuance of the NOF, FBME employees took various measures to obscure information. These facts distinguish FBME from other Cypriot banks and may have undermined the ability of U.S. financial institutions to detect all of FBME's suspicious activity,
More broadly, FinCEN notes that setting a benchmark as FBME suggests could simply set a target for banks or customers wishing to evade money laundering controls. Instead, the agency reviews relevant information and determines whether all of that information, taken together, justifies action under Section 311. FinCEN is daily immersed in the global flow of financial intelligence, including SARs, and is tasked as a policy matter with identifying concerns within that intelligence stream. As discussed above, FinCEN assesses that the volume of shell company activity reflected in the Administrative Record, including SARs filed on FBME, is substantial.
Coast Guard, DHS.
Notice of deviation from drawbridge regulation.
The Coast Guard has issued a temporary deviation from the operating schedule that governs the S.R. 88/Veterans Memorial Bridge across the NJICW (Point Pleasant Canal), mile 3.0, at Point Pleasant, NJ. The deviation is necessary to facilitate and complete urgent bridge maintenance. This deviation allows the bridge to remain in the closed-to-navigation position.
The deviation is effective 9 p.m. on Wednesday, December 7, 2016 to 6 a.m. on Thursday, December 8, 2016.
The docket for this deviation, [USCG-2016-1015] is available at
If you have questions on this temporary deviation, call or email Mr. Michael Thorogood, Bridge Administration Branch Fifth District, Coast Guard, telephone 757-398-6557, email
The New Jersey Department of Transportation, who owns the S.R. 88/Veterans Memorial Bridge, has requested a temporary deviation from the current operating schedule is set out in 33 CFR 117.5, to facilitate replacement of a defective coupling and floating shaft of the bridge.
Under this temporary deviation, the bridge will be in the closed-to-navigation position at 9 p.m. December 7, 2016 to 6 a.m. December 8, 2016. The bridge is a vertical lift bridge and has a vertical clearance in the closed-to-navigation position of 31 feet above mean high water.
The Point Pleasant Canal is used by a variety of vessels including, recreational vessels and tug and barge traffic. The Coast Guard has carefully considered the nature and volume of vessel traffic on the waterway in publishing this temporary deviation.
Vessels able to pass through the bridge in the closed-to-navigation position may do so at any time. The bridge will not be able to open for emergencies and there is no immediate alternative route for vessels to pass in the closed position. The Coast Guard will also inform the users of the waterway through our Local and Broadcast Notices to Mariners of the change in operating schedule for the bridge so that vessel operators can arrange their transits to minimize any impact caused by the temporary deviation.
In accordance with 33 CFR 117.35(e), the drawbridge must return to its regular operating schedule immediately at the end of the effective period of this temporary deviation. This deviation from the operating regulations is authorized under 33 CFR 117.35.
Environmental Protection Agency (EPA).
Final rule.
This regulation establishes an exemption from the requirement of a tolerance for residues of
This regulation is effective December 1, 2016. Objections and requests for hearings must be received on or before January 30, 2017, and must be filed in accordance with the instructions provided in 40 CFR part 178 (see also Unit I.C. of the
The docket for this action, identified by docket identification (ID) number EPA-HQ-OPP-2014-0919, is available at
Robert McNally, Biopesticides and Pollution Prevention Division (7511P), Office of Pesticide Programs, Environmental Protection Agency, 1200 Pennsylvania Ave. NW., Washington, DC 20460-0001; main telephone
You may be potentially affected by this action if you are an agricultural producer, food manufacturer, or pesticide manufacturer. The following list of North American Industrial Classification System (NAICS) codes is not intended to be exhaustive, but rather provides a guide to help readers determine whether this document applies to them. Potentially affected entities may include:
• Crop production (NAICS code 111).
• Animal production (NAICS code 112).
• Food manufacturing (NAICS code 311).
• Pesticide manufacturing (NAICS code 32532).
You may access a frequently updated electronic version of 40 CFR part 180 through the Government Printing Office's e-CFR site at
Under FFDCA section 408(g), 21 U.S.C. 346a(g), any person may file an objection to any aspect of this regulation and may also request a hearing on those objections. You must file your objection or request a hearing on this regulation in accordance with the instructions provided in 40 CFR part 178. To ensure proper receipt by EPA, you must identify docket ID number EPA-HQ-OPP-2014-0919 in the subject line on the first page of your submission. All objections and requests for a hearing must be in writing, and must be received by the Hearing Clerk on or before January 30, 2017. Addresses for mail and hand delivery of objections and hearing requests are provided in 40 CFR 178.25(b).
In addition to filing an objection or hearing request with the Hearing Clerk as described in 40 CFR part 178, please submit a copy of the filing (excluding any Confidential Business Information (CBI)) for inclusion in the public docket. Information not marked confidential pursuant to 40 CFR part 2 may be disclosed publicly by EPA without prior notice. Submit the non-CBI copy of your objection or hearing request, identified by docket ID number EPA-HQ-OPP-2014-0919, by one of the following methods:
•
•
•
In the
EPA revised the active ingredient name from “sterile grain inoculated with
Section 408(c)(2)(A)(i) of FFDCA allows EPA to establish an exemption from the requirement for a tolerance (the legal limit for a pesticide chemical residue in or on a food) only if EPA determines that the exemption is “safe.” Section 408(c)(2)(A)(ii) of FFDCA defines “safe” to mean that “there is a reasonable certainty that no harm will result from aggregate exposure to the pesticide chemical residue, including all anticipated dietary exposures and all other exposures for which there is reliable information.” This includes exposure through drinking water and in residential settings but does not include occupational exposure. Pursuant to FFDCA section 408(c)(2)(B), in establishing or maintaining in effect an exemption from the requirement of a tolerance, EPA must take into account the factors set forth in FFDCA section 408(b)(2)(C), which require EPA to give special consideration to exposure of infants and children to the pesticide chemical residue in establishing a tolerance or tolerance exemption and to “ensure that there is a reasonable certainty that no harm will result to infants and children from aggregate exposure to the pesticide chemical residue . . . .” Additionally, FFDCA section 408(b)(2)(D) requires that EPA consider “available information concerning the cumulative effects of “[a particular pesticide's]” . . . residues and other substances that have a common mechanism of toxicity.”
EPA evaluated the available toxicity and exposure data on
Based upon its evaluation, EPA concludes that
Based upon its evaluation, EPA concludes that there is a reasonable certainty that no harm will result to the U.S. population, including infants and children, from aggregate exposure to
An analytical method is not required for enforcement purposes because EPA is establishing an exemption from the requirement of a tolerance without any numerical limitation.
One modification has been made to the requested tolerance exemption. When MBI first submitted this petition in 2014, it described the pesticide chemical as “sterile grain inoculated with
This action establishes a tolerance exemption under FFDCA section 408(d) in response to a petition submitted to EPA. The Office of Management and Budget (OMB) has exempted these types of actions from review under Executive Order 12866, entitled “Regulatory Planning and Review” (58 FR 51735, October 4, 1993). Because this action has been exempted from review under Executive Order 12866, this action is not subject to Executive Order 13211, entitled “Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use” (66 FR 28355, May 22, 2001), or Executive Order 13045, entitled “Protection of Children from Environmental Health Risks and Safety Risks” (62 FR 19885, April 23, 1997). This action does not contain any information collections subject to OMB approval under the Paperwork Reduction Act (PRA), 44 U.S.C. 3501
Since tolerances and exemptions that are established on the basis of a petition under FFDCA section 408(d), such as the tolerance exemption in this action, do not require the issuance of a proposed rule, the requirements of the Regulatory Flexibility Act (RFA) (5 U.S.C. 601
This action directly regulates growers, food processors, food handlers, and food retailers, not States or tribes. As a result, this action does not alter the relationships or distribution of power and responsibilities established by Congress in the preemption provisions of FFDCA section 408(n)(4). As such, EPA has determined that this action will not have a substantial direct effect on States or tribal governments, on the relationship between the national government and the States or tribal governments, or on the distribution of power and responsibilities among the various levels of government or between the Federal Government and Indian tribes. Thus, EPA has determined that Executive Order 13132, entitled “Federalism” (64 FR 43255, August 10, 1999), and Executive Order 13175, entitled “Consultation and Coordination with Indian Tribal Governments” (65 FR 67249, November 9, 2000), do not apply to this action. In addition, this action does not impose any enforceable duty or contain any unfunded mandate as described under Title II of the Unfunded Mandates Reform Act (UMRA) (2 U.S.C. 1501
This action does not involve any technical standards that would require EPA's consideration of voluntary consensus standards pursuant to section 12(d) of the National Technology Transfer and Advancement Act (NTTAA) (15 U.S.C. 272 note).
Pursuant to the Congressional Review Act (5 U.S.C. 801
Environmental protection, Administrative practice and procedure, Agricultural commodities, Pesticides and pests, Reporting and recordkeeping requirements.
Therefore, 40 CFR chapter I is amended as follows:
21 U.S.C. 321(q), 346a and 371.
An exemption from the requirement of a tolerance is established for residues of
Environmental Protection Agency (EPA).
Final rule.
This regulation establishes tolerances for residues of quizalofop ethyl in or on crayfish and rice grain. Nissan Chemical Industries, Ltd. requested these tolerances under the Federal Food, Drug, and Cosmetic Act (FFDCA).
This regulation is effective December 1, 2016. Objections and requests for hearings must be received on or before January 30, 2017, and must be filed in accordance with the instructions provided in 40 CFR part 178 (see also Unit I.C. of the
The docket for this action, identified by docket identification (ID) number EPA-HQ-OPP-2015-0412, is available at
Michael Goodis, Registration Division (7505P), Office of Pesticide Programs, Environmental Protection Agency, 1200 Pennsylvania Ave. NW., Washington, DC 20460-0001; main telephone number: (703) 305-7090; email address:
You may be potentially affected by this action if you are an agricultural producer, food manufacturer, or pesticide manufacturer. The following list of North American Industrial Classification System (NAICS) codes is not intended to be exhaustive, but rather provides a guide to help readers determine whether this document applies to them. Potentially affected entities may include:
• Crop production (NAICS code 111).
• Animal production (NAICS code 112).
• Food manufacturing (NAICS code 311).
• Pesticide manufacturing (NAICS code 32532).
You may access a frequently updated electronic version of EPA's tolerance regulations at 40 CFR part 180 through the Government Printing Office's e-CFR site at
Under FFDCA section 408(g), 21 U.S.C. 346a, any person may file an objection to any aspect of this regulation and may also request a hearing on those objections. You must file your objection or request a hearing on this regulation in accordance with the instructions provided in 40 CFR part 178. To ensure proper receipt by EPA, you must identify docket ID number EPA-HQ-OPP-2015-0412 in the subject line on the first page of your submission. All objections and requests for a hearing must be in writing, and must be received by the Hearing Clerk on or before January 30, 2017. Addresses for mail and hand delivery of objections and hearing requests are provided in 40 CFR 178.25(b).
In addition to filing an objection or hearing request with the Hearing Clerk as described in 40 CFR part 178, please submit a copy of the filing (excluding any Confidential Business Information (CBI)) for inclusion in the public docket. Information not marked confidential pursuant to 40 CFR part 2 may be disclosed publicly by EPA without prior notice. Submit the non-CBI copy of your objection or hearing request, identified by docket ID number EPA-HQ-OPP-2015-0412, by one of the following methods:
•
•
•
Additional instructions on commenting or visiting the docket, along with more information about dockets generally, is available at
In the
Based upon review of the data supporting the petition, EPA changed the tolerance expression for rice grain and corrected the commodity definition for crayfish. The reasons for these changes are explained in Unit IV.C.
Section 408(b)(2)(A)(i) of FFDCA allows EPA to establish a tolerance (the legal limit for a pesticide chemical residue in or on a food) only if EPA determines that the tolerance is “safe.” Section 408(b)(2)(A)(ii) of FFDCA defines “safe” to mean that “there is a reasonable certainty that no harm will result from aggregate exposure to the pesticide chemical residue, including all anticipated dietary exposures and all other exposures for which there is reliable information.” This includes exposure through drinking water and in residential settings, but does not include occupational exposure. Section 408(b)(2)(C) of FFDCA requires EPA to give special consideration to exposure of infants and children to the pesticide chemical residue in establishing a tolerance and to “ensure that there is a reasonable certainty that no harm will result to infants and children from aggregate exposure to the pesticide chemical residue . . .”
Consistent with FFDCA section 408(b)(2)(D), and the factors specified in FFDCA section 408(b)(2)(D), EPA has reviewed the available scientific data and other relevant information in support of this action. EPA has sufficient data to assess the hazards of and to make a determination on aggregate exposure for quizalofop ethyl, including exposure resulting from the tolerances established by this action. EPA's assessment of exposures and risks associated with quizalofop ethyl follows.
EPA has evaluated the available toxicity data and considered its validity, completeness, and reliability as well as the relationship of the results of the studies to human risk. EPA has also considered available information concerning the variability of the sensitivities of major identifiable subgroups of consumers, including infants and children.
Quizalofop ethyl is a 50/50 racemic mixture of R- and S-enantiomers. Quizalofop-P-ethyl, the purified R-
Quizalofop ethyl has very low acute toxicity via the oral, dermal, and inhalation routes of exposure, is not an eye or skin irritant, and is not a skin sensitizer. There were no adverse effects observed in the oral toxicity studies that could be attributable to a single-dose exposure.
Repeated-dose toxicity studies indicate the liver as the target organ, as evidenced by increased liver weights and histopathological changes. Following oral administration, quizalofop ethyl is rapidly excreted via urine and feces. In the subchronic oral toxicity rat study, effects of decreased body weight gains, increased liver weight, and centrilobular liver cell enlargement were observed. In the subchronic oral toxicity dog study, an increased incidence of testicular atrophy was observed. In the combined chronic toxicity/carcinogenicity study in rats, an increased incidence of centrilobular liver cell enlargement was observed in both sexes and mild anemia in males.
No dermal toxicity effects were observed in the subchronic dermal toxicity rabbit study at up to the limit dose. Subchronic inhalation toxicity is assumed to be equivalent to oral toxicity. In the chronic oral toxicity dog study, no toxicity effects were observed at the highest dose tested (HDT).
In the rat and rabbit developmental toxicity studies, maternal effects including decreased body weight gains and food consumption were observed; no developmental effects were observed at up to the HDT. In the two-generation reproduction toxicity study in rats, maternal effects including decreased body weight and body weight gains were observed at the same dose level that resulted in prenatal and postnatal effects (decreased percentage of pups born alive and decreased pup weights).
Although tumors were observed in male and female mice after exposure to quizalofop, the overall evidence for carcinogenicity is weak, as discussed in supporting documents. Additionally, the point of departure used for establishing the chronic reference dose for quizalofop is significantly lower (30X) than the dose that induced tumors in male and female mice. EPA has determined that quantification of cancer risk using a non-linear approach would adequately account for all chronic toxicity, including carcinogenicity, which could result from exposure to quizalofop ethyl.
Quizalofop ethyl does not show evidence of neurotoxicity, based on no evidence of neurotoxicity or neuropathology in the available toxicology studies. There was also no evidence of adverse effects on the functional development of pups observed in the rat reproduction toxicity study. Quizalofop ethyl showed no evidence of immunotoxicity.
Specific information on the studies received and the nature of the adverse effects caused by quizalofop ethyl as well as the no-observed-adverse-effect-level (NOAEL) and the lowest-observed-adverse-effect-level (LOAEL) from the toxicity studies can be found at
Once a pesticide's toxicological profile is determined, EPA identifies toxicological points of departure (POD) and levels of concern to use in evaluating the risk posed by human exposure to the pesticide. For hazards that have a threshold below which there is no appreciable risk, the toxicological POD is used as the basis for derivation of reference values for risk assessment. PODs are developed based on a careful analysis of the doses in each toxicological study to determine the dose at which the NOAEL and the LOAEL are identified. Uncertainty/safety factors (UF) are used in conjunction with the POD to calculate a safe exposure level—generally referred to as a population-adjusted dose (PAD) or a reference dose (RfD)—and a safe margin of exposure (MOE). For non-threshold risks, the Agency assumes that any amount of exposure will lead to some degree of risk. Thus, the Agency estimates risk in terms of the probability of an occurrence of the adverse effect expected in a lifetime. For more information on the general principles EPA uses in risk characterization and a complete description of the risk assessment process, see
A summary of the toxicological endpoints for quizalofop ethyl used for human risk assessment is shown in Table 1 of this unit.
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ii.
iii.
iv.
2.
Based on the Modified Tier 1 Rice Model and Pesticide Root Zone Model Ground Water (PRZM GW) model, the estimated drinking water concentrations (EDWCs) of quizalofop ethyl for chronic exposures for non-cancer assessments are estimated to be 127 parts per billion (ppb) for surface water and 89 ppb for ground water.
Modeled estimates of drinking water concentrations were directly entered into the dietary exposure model. For chronic dietary risk assessment, the water concentration value of 127 ppb was used to assess the contribution to drinking water.
3.
4.
EPA has not found quizalofop ethyl to share a common mechanism of toxicity with any other substances, and quizalofop ethyl does not appear to produce a toxic metabolite produced by other substances. For the purposes of this tolerance action, therefore, EPA has assumed that quizalofop ethyl does not have a common mechanism of toxicity with other substances. For information regarding EPA's efforts to determine which chemicals have a common mechanism of toxicity and to evaluate the cumulative effects of such chemicals, see EPA's Web site at
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3.
i. The toxicity database for quizalofop ethyl is complete.
ii. There is no indication that quizalofop ethyl is a neurotoxic chemical and there is no need for a developmental neurotoxicity study or additional UFs to account for neurotoxicity.
iii. There is no qualitative or quantitative evidence that quizalofop ethyl results in increased susceptibility in
iv. There are no residual uncertainties identified in the exposure databases. The dietary food exposure assessments were performed based on 100 PCT and tolerance-level residues. EPA made conservative (protective) assumptions in the ground and surface water modeling used to assess exposure to quizalofop ethyl in drinking water. These assessments will not underestimate the exposure and risks posed by quizalofop ethyl.
EPA determines whether acute and chronic dietary pesticide exposures are safe by comparing aggregate exposure estimates to the acute PAD (aPAD) and chronic PAD (cPAD). For linear cancer risks, EPA calculates the lifetime probability of acquiring cancer given the estimated aggregate exposure. Short-, intermediate-, and chronic-term risks are evaluated by comparing the estimated aggregate food, water, and residential exposure to the appropriate PODs to ensure that an adequate MOE exists. Since there are no residential uses for quizalofop ethyl, the aggregate risk assessment only includes exposure estimates from dietary consumption of food and drinking water.
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Adequate enforcement methodologies (Modified Meth-147, liquid chromatography-mass spectrometry/mass spectrometry (LC-MS/MS) for plant commodities including rice; Modified BASF Method Number D1416 (LC-MS/MS) for crustaceans; and AMR-515-86, AMR-623-86, AMR-627-86, AMR-845-87, and AMR-846-87, all High Performance Liquid Chromotography (HPLC) methods using ultraviolet detection for livestock commodities) are available to enforce the tolerance expression.
The methods may be requested from: Chief, Analytical Chemistry Branch, Environmental Science Center, 701 Mapes Rd., Ft. Meade, MD 20755-5350; telephone number: (410) 305-2905; email address:
In making its tolerance decisions, EPA seeks to harmonize U.S. tolerances with international standards whenever possible, consistent with U.S. food safety standards and agricultural practices. EPA considers the international maximum residue limits (MRLs) established by the Codex Alimentarius Commission (Codex), as required by FFDCA section 408(b)(4). The Codex Alimentarius is a joint United Nations Food and Agriculture Organization/World Health Organization food standards program, and it is recognized as an international food safety standards-setting organization in trade agreements to which the United States is a party. EPA may establish a tolerance that is different from a Codex MRL; however, FFDCA section 408(b)(4) requires that EPA explain the reasons for departing from the Codex level. The Codex has not established a MRL for quizalofop ethyl.
EPA changed the proposed tolerance expression for rice grain from the detection of “quizalofop-P-ethyl and its acid metabolite quizalofop-P, and the S enantiomers of both the ester and the acid, all expressed as quizalofop-P-ethyl ester” to “quizalofop ethyl residues convertible to 2-methoxy-6-chloroquinoxaline, expressed as the stoichiometric equivalent of quizalofop ethyl” to match the expression of the other existing plant commodities since the same common moiety analytical method is used for enforcement. EPA also changed the proposed commodity name from “crayfish” to the correct definition of “fish-shellfish, crustacean”.
Therefore, tolerances are established for residues of quizalofop ethyl in or on fish-shellfish, crustacean at 0.04 ppm and rice, grain at 0.05 ppm.
This action establishes tolerances under FFDCA section 408(d) in response to a petition submitted to the Agency. The Office of Management and Budget (OMB) has exempted these types of actions from review under Executive Order 12866, entitled “Regulatory Planning and Review” (58 FR 51735, October 4, 1993). Because this action has been exempted from review under Executive Order 12866, this action is not subject to Executive Order 13211, entitled “Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use” (66 FR 28355, May 22, 2001) or Executive Order 13045, entitled “Protection of Children from Environmental Health Risks and Safety Risks” (62 FR 19885, April 23, 1997). This action does not contain any information collections subject to OMB approval under the Paperwork Reduction Act (PRA) (44 U.S.C. 3501
Since tolerances and exemptions that are established on the basis of a petition under FFDCA section 408(d), such as the tolerance in this final rule, do not require the issuance of a proposed rule, the requirements of the Regulatory Flexibility Act (RFA) (5 U.S.C. 601
This action directly regulates growers, food processors, food handlers, and food retailers, not States or tribes, nor does this action alter the relationships or distribution of power and responsibilities established by Congress in the preemption provisions of FFDCA section 408(n)(4). As such, the Agency has determined that this action will not have a substantial direct effect on States or tribal governments, on the relationship between the national government and the States or tribal governments, or on the distribution of power and responsibilities among the various levels of government or between the Federal Government and Indian tribes. Thus, the Agency has determined that Executive Order 13132, entitled “Federalism” (64 FR 43255, August 10, 1999) and Executive Order 13175, entitled “Consultation and Coordination with Indian Tribal Governments” (65 FR 67249, November 9, 2000) do not apply to this action. In addition, this action does not impose any enforceable duty or contain any unfunded mandate as described under Title II of the Unfunded Mandates Reform Act (UMRA)(2 U.S.C. 1501
This action does not involve any technical standards that would require Agency consideration of voluntary consensus standards pursuant to section 12(d) of the National Technology Transfer and Advancement Act (NTTAA)(15 U.S.C. 272 note).
Pursuant to the Congressional Review Act (5 U.S.C. 801
Environmental protection, Administrative practice and procedure, Agricultural commodities, Pesticides and pests, Reporting and recordkeeping requirements.
Therefore, 40 CFR chapter I is amended as follows:
21 U.S.C. 321(q), 346a and 371.
The additions read as follows:
(a) * * *
(1) * * *
(3) Tolerances are established for residues of the herbicide quizalofop-P-ethyl, including its metabolites and degradates, in or on the commodities in the following table. Compliance with the tolerance levels specified in the following table is to be determined by measuring quizalofop ethyl and quizalofop acid, expressed as the stoichiometric equivalent of quizalofop ethyl, in or on the commodity.
Federal Communications Commission.
Final rule.
In this Report and Order, the Federal Communications Commission (Commission) extends its streamlined foreign ownership rules and procedures that apply to common carrier and certain aeronautical licensees under Section 310(b)(4) of the Communications Act of 1934, as amended (the “Act”) to broadcast licensees, with certain modifications to tailor them to the broadcast context. The Commission also reforms the methodology used by both common carrier and broadcast licensees that are, or are controlled by, U.S. public companies to assess compliance with the 20 percent foreign ownership limit in Section 310(b)(3), and the 25 percent foreign ownership benchmark in Section 310(b)(4) of the Act, in order to reduce regulatory burdens on applicants and licensees. Finally, the Commission makes certain technical corrections and clarifications to its foreign ownership rules.
Effective January 30, 2017, except for the amendments to 47 CFR 1.5000 through 1.5004, 25.105, 73.1010 and 74.5 which will be effective upon approval of information collection requirements by the Office of Management and Budget (OMB). The Commission will publish a separate document in the
Federal Communications Commission, 445 12th Street SW., Washington, DC 20554. The Commission will seek comments from the Office of Management and Budget (OMB), other Federal agencies and the general public on the Paperwork Reduction Act (PRA) information collection requirements contained herein in a separate notice to be published in
Kimberly Cook or Francis Gutierrez, Telecommunications and Analysis Division, International Bureau, FCC, (202) 418-1480 or via email to
This is a summary of the Commission's Report and Order in GN Docket No. 15-236, FCC 16-128, adopted September 29, 2016 and released on September 30, 2016. The full text of the Report and Order is available for inspection and copying during normal business hours in the FCC Reference Center, 445 12th Street SW., Washington, DC 20554. The document also is available for download over the Internet at
1. The Report and Order modifies the foreign ownership filing and review process for broadcast licensees by extending the streamlined rules and procedures developed for foreign ownership reviews for common carrier and certain aeronautical licensees under Section 310(b)(4) of the Communications Act of 1934, as amended (the “Act”), to the broadcast context with certain limited exceptions.
2. The Commission believes these changes will facilitate investment from new sources of capital at a time of growing need for investment in this important sector of the nation's economy, while continuing to satisfy the requirements of Section 310 and the policies reflected in this Report and Order. The Commission also finds that adopting a standardized filing and review process for broadcast licensees' requests to exceed the 25 percent foreign ownership benchmark in Section 310(b)(4), as the Commission has done for common carrier licensees, will provide the broadcast sector with greater transparency and more predictability, and reduce regulatory burdens and costs. As is the case with common carrier licensees, this standardized filing and review process will provide a clearer path for foreign investment in broadcast licensees that is more consistent with the U.S. domestic investment process, while continuing to protect important interests related to national security, law enforcement, foreign policy, trade policy, and other public policy goals.
3. Section 310 of the Act requires the Commission to review foreign investment in radio station licensees.
4. Licensees may request Commission approval of their controlling U.S. parents' foreign ownership under Section 310(b)(4) by filing a petition for declaratory ruling.
5. This Report and Order modifies the foreign ownership filing and review process for broadcast licensees and the revised methodology broadcast and common carrier licensees that are, or are controlled by, U.S. public companies will use to determine and certify their compliance with the statutory foreign ownership limits. The Commission replaces the
6. The Commission adopts the
7. In addition, the Commission adopts its proposal that broadcast petitioners need to obtain specific approval only for foreign investors (
8. As indicated in the
9.
10. Consistent with the record, the Commission adopts its proposal to utilize the attribution rules and policies applicable to broadcasters to determine those U.S. and foreign interests that must be disclosed in Section 310(b)(4) petitions involving broadcast stations.
11. This approach provides regulatory certainty and ease of compliance while minimizing disruption to broadcasters. The attribution rules represent longstanding broadcast policy, and broadcasters are familiar with these rules, as they are used in the application and disclosure of multiple ownership, among other requirements. Broadcasters have also structured their organizations in reliance on the attribution standards. Applying the common carrier disclosure requirements to broadcasters would result in undue hardship without producing any discernable public interest benefits. Thus, the Commission does not believe that the public interest would be served by requiring broadcasters to conform to the foreign ownership rules regarding disclosable interests applicable to common carriers.
12.
13. Second, to the extent a broadcast licensee identifies a foreign entity that requires specific approval under Section 1.5001(i) of the new rules, the petition must include the information specified in Section 1.5001(j), including the name and citizenship of any individual or entity that holds, or would hold, directly and/or indirectly, through one or more intervening entities, an
14. Several commenters, at times, appeared to conflate the broadcast attribution criteria that the Commission proposed broadcast petitioners use for purposes of identifying their “disclosable U.S. and foreign interest holders” with the specific approval criteria that were proposed to extend to broadcast licensees. The broadcast attribution criteria, however, are not co-extensive with the specific approval requirements that apply to common carrier licensees. These specific approval requirements, as proposed, will apply to broadcast licensees under the new rules—with the limited exception allowing broadcast licensees to calculate whether a foreign investor requires specific approval using the
15.
16. The Commission will rely on the insulation criteria applicable to broadcast licensees rather than those applicable to common carriers. Broadcast entities are familiar with these criteria, and many broadcast interests have relied upon and have executed their organizational documents based on these insulation criteria. The Commission agrees with commenters that modifying these agreements would be difficult and costly, and is unable to identify any corresponding public interest benefits in requiring such modification. Therefore, the Commission finds that imposing common carrier insulation criteria on broadcasters for purposes of calculating foreign voting interests for Section 310(b) purposes would create an undue hardship. Ultimately, the Commission finds that consistency with its broadcast insulation rules and policies is appropriate in these circumstances.
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18. The Commission will, however, limit its foreign ownership rulings to common carrier and broadcast services, as applicable. Entities that have obtained a broadcast ruling may not use that ruling to cover an after-acquired common carrier—and vice versa. As observed in the
19.
20. The Commission will adopt the processes described in the
21. The Commission adopts a methodology for U.S. public companies to assess compliance with the foreign ownership limits in Sections 310(b)(3) and 310(b)(4) of the Act. The Commission adopts the approach proposed in the
22. The methodology will eliminate the need for publicly traded licensees and U.S. parent companies to attempt to conduct surveys or random samplings of their shares and apply presumptions about the citizenship of their unknown shareholders, based on the informal staff guidance routinely provided to applicants and licensees since the early 1970s. At the same time, the Commission finds that this methodology will allow publicly traded licensees and U.S. parent companies to identify those foreign interest holders likely to have
23. The difficulties associated with ascertaining the foreign ownership of U.S. public companies arise, in large part, out of the changing nature of stock ownership in the United States. As commenters note, most shares of publicly traded companies are now held in “street name” (
24.
25. The Commission finds record support for its conclusion that U.S. public companies should know the identity of shareholders that report their beneficial ownership, or other persons who may be identified in such report as holding a pecuniary interest, in the equity securities of the company pursuant to Section 13(d) of the Securities Exchange Act of 1934, as amended (the “Exchange Act”), and Exchange Act Rule 13d-1. In general, Exchange Act Rule 13d-1 requires a person or “group” that becomes, directly or indirectly, the “beneficial owner” of more than 5 percent of a class of equity securities registered under Section 12 of the Exchange Act to report the acquisition to the SEC.
26. The rules adopted today will require that licensees or their controlling U.S. parents that are eligible U.S. public companies within the meaning of the rules review the beneficial ownership reports, Schedules 13D and 13G, filed with the SEC, and monitor other widely available sources of information about institutional ownership of U.S. publicly traded equity securities, specifically, information derived from SEC Form 13F reports, as the Commission expects they do now in the ordinary course of business.
27. Qualified institutional investors may use an abbreviated “short-form” disclosure statement, known as Schedule 13G, pursuant to Exchange Act Rule 13d-1(b), to report their beneficial ownership in excess of 5 percent of a class of equity securities, including amounts in excess of 10 percent, to the SEC, when the institutional investor acquires its shares “in the ordinary course of [its] business and not with the purpose nor with the effect of changing or influencing the control of the issuer. . . .” Where an institutional investor's beneficial ownership exceeds 5 percent, but not 10 percent, of a class of equity securities in a given calendar year, the Schedule 13G need not be filed until 45 days after the end of the calendar year (and only then if the investor or “group” continues to own more than 5 percent at year end). Exchange Act Rule 13d-1(b) covers a broad range of institutional investors, such as registered brokers and dealers, banks, insurance companies, investment companies, investment advisers, employee benefit plans, and savings associations.
28. Both the Schedule 13D and 13G include citizenship information for the beneficial owner. In the case of a Schedule 13D that is filed by a general or limited partnership, syndicate or other group, which group could include a limited liability company, the schedule also requires,
29. In addition, licensees and controlling U.S. parents should assess the ownership of their publicly traded equity securities more broadly through additional sources of information; specifically, institutional equity ownership information about U.S. publicly traded companies which is available from a variety of entities, including, for example: (i) Internet-based news and other sources; and (ii) data gatherers that compile and distribute information and analysis about ownership of publicly traded equity securities for a fee. A considerable amount of such equity ownership information is based on the quarterly Form 13F reports that are required under Section 13(f) of the Exchange Act and the rules thereunder. Form 13F is required to be filed with the SEC within 45 days of the end of each calendar quarter by an institutional investment manager, including a foreign-organized manager, with investment discretion over an aggregate value of $100 million or more in U.S. exchange-traded equity securities. Such securities, referred to as “Section 13(f) securities,” generally are the common stock of issuers that are listed and traded on the primary U.S. stock exchanges.
30. A U.S. public company also can avail itself of certain other sources of reliable information about the ownership of its publicly traded stock, available in the ordinary course of business. First, U.S. public companies should know the ownership of the shares registered with the company and the shares held by officers and directors. Second, U.S. public companies should know the citizenship of at least some of the shareholders of the company's securities that are not publicly traded (
31. The methodology adopted in this Report and Order generally will not require U.S. public companies to identify
32. The Commission recognizes that SEC Schedules 13D and 13G provide limited information as to those persons or entities that hold the pecuniary interests associated with a public company's voting shares that are subject to reporting under Exchange Act Rule 13d-1.
33.
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35. When an issuer requests to be included in the SEG-100 program, DTC notifies its participating banks/brokers that they must apply SEG-100 procedures to future trades of stock. The issuer may provide specific instructions to DTC to forward to participating banks/brokers regarding how to determine citizenship of potential purchasers of the issuer's stock. DTC participants are obligated to make inquiries of their client account holders and to place the shares of such holders who are non-citizens in the DTC participant's segregated account. Such a process allows issuers, through their transfer agents, to monitor changes in foreign ownership levels and, if the threshold is exceeded, to notify DTC of the number of shares that must be transferred out of SEG-100 accounts.
36. While the Commission finds that participation in SEG-100 serves as a useful check on monitoring foreign ownership levels and may be used as a tool to prevent transactions that would render a licensee noncompliant with foreign ownership thresholds, the Commission is not persuaded that the SEG-100 program can be used as a standalone method for demonstrating compliance with Section 310(b). The Commission declines, in part, because there are many variables that might impact the effectiveness of the program in any given circumstance. For example, the instructions issuers provide DTC to guide DTC participants in making inquiries could have varying degrees of accuracy and detail. Furthermore, the effectiveness of the program would be impacted by the extent to which participants apply the guidelines in the instructions when making client inquiries to determine their citizenship. The Commission also hesitates to require U.S. public companies that are not currently participating in SEG-100 to enroll in the program. The Commission believes that relying on the methodology outlined above is a more uniform approach that can be implemented consistently. Nonetheless, the Commission recognizes that many companies, broadcasters in particular, participate in SEG-100 and have found its services useful for a range of purposes, including monitoring of compliance with foreign ownership restrictions. Thus, while the Commission will not permit participation in SEG-100 to serve as a standalone compliance methodology, it is not the Commission's intention to discourage the use of this program to the extent that companies find it valuable.
37. Based on the record and the Commission's experience with foreign ownership, the Commission provides the following guidance as to the criteria Section 310(b) licensees can use to determine the citizenship of their identifiable interest holders.
38. Under the new framework, Section 310(b) licensees must make a determination in the first instance as to whether an identifiable interest holder should be deemed “foreign.” The Commission finds that, for purposes of determining the citizenship of their directors, officers, and employees, U.S. public companies should obtain citizenship information through direct inquiry. If the company has other registered shareholders (other than directors, officers, employees), it should rely on publicly available information (if any), and/or attempt to query these interest holders directly to the extent citizenship is not included in the share registry.
39. The Commission also finds that companies are entitled to rely on publicly available information with respect to non-registered identifiable interest holders, including information gleaned from SEC filings that were used to identify the shareholder, other SEC filings made by the interest holder (
40. If the identifiable interest holder is itself a U.S. public company, some ownership information as to that
41. For purposes of classifying a U.S. public company's identifiable beneficial ownership (voting) interests and equity interests as “U.S.” or “foreign,” licensees should apply the following guidelines:
42. A licensee may classify beneficial ownership (voting) interests as “U.S.” where the licensee has established a reasonable basis for concluding that the beneficial owner and all individuals and entities in the beneficial owner's vertical chain of control are U.S. citizens and/or U.S.-organized entities that are ultimately controlled by U.S. citizens.
43. By contrast, where the beneficial owner is itself a foreign-organized entity, or where there is a foreign-organized entity in the beneficial owner's vertical chain of control, the licensee should classify the voting interest in the shares held by the beneficial owner as “foreign” even where the beneficial owner is ultimately controlled by U.S. citizens.
44. Where the licensee has identified more than one person as beneficially owning the same shares (
45. With respect to a U.S. public company's identifiable equity interests, the licensee may classify such equity interests as “U.S.” where the licensee has established a reasonable basis for concluding that the ultimate beneficiary or beneficiaries of the shares are U.S. citizens or U.S.-organized entities that are controlled by U.S. citizens.
46. There should be very few instances where a widely held, publicly traded licensee or U.S. parent will need to conduct an up-the-chain analysis under the revised methodology for identifying interests that will be subject to a citizenship determination. The relevant interests will be limited to those that are known or reasonably should be known to the public company in the ordinary course of business. Similarly, where a licensee has received a Section 310(b)(4) ruling and is monitoring its foreign ownership to ensure compliance with the specific approval requirements in Rule 1.5004(a)(1), the licensee will not need to engage in an up-the-chain analysis of an identifiable interest holder's direct or indirect interest holders, except to the extent any such interest holder could be calculated as holding an equity or voting interest in the U.S. parent in an amount requiring specific approval.
47. The Commission declines, however, to allow the use of shareholder addresses to establish the citizenship of identifiable interest holders. The
48. The Commission finds that use of a shareholder's address of record is not, by itself, a reasonable measure to determine citizenship and is unnecessary where, as here, the number of citizenship inquiries will be limited and other sources of information, including direct inquiries, should be available to the public company.
49. The new rules provide U.S. public companies the flexibility to use relevant and publicly available information for purposes of determining the citizenship of their identifiable interest holders. To the extent the public company cannot obtain some of the information, the company should make direct inquiries with its identifiable interest holders to inform the company's citizenship analysis. The Commission encourages licensees and their controlling U.S. parents to keep the Commission apprised of the extent to which direct inquiries of beneficial owners are, or are not, productive. This will allow the Commission to gauge the effectiveness of the new rules and to adjust this approach as licensees implement the rules in practice.
50. Finally, the
51. As discussed above, the Commission finds that only those interests that are known or reasonably should be known to a U.S. public company in the ordinary course of business need to be included for purposes of calculating the company's aggregate levels of foreign ownership under Section 310(b). Thus, for purposes of calculating aggregate levels of foreign ownership under Section 310(b), a licensee that is, or is controlled by, an eligible U.S. public company will base its foreign ownership calculations on the public company's known or reasonably should be known foreign equity and voting interests as specified above. The licensee will then aggregate the public company's known or reasonably should be known foreign voting interests and separately aggregate its known or reasonably should be known foreign equity interests. If the public company's known or reasonably should be known foreign voting interests
52. As an example of how the methodology would work, assume that a licensee's controlling U.S. parent is an eligible U.S. public company. The publicly traded U.S. parent has one class of stock consisting of 100 total outstanding shares of common voting stock. The licensee (and/or the U.S. parent on its behalf) has exercised the required due diligence in following the above-described methodology for identifying and determining the citizenship of the U.S. parent's known or reasonably should be known interest holders. The U.S. public company has identified one foreign shareholder that owns 6 shares (
53. The extrapolation approach supported by several commenters would assume that the percentage of unknown equity and voting interests that are foreign is the same as the percentage of known equity and voting interests that are foreign. The Commission finds it unnecessary to apply any presumed percentage of foreign ownership to the unidentifiable shareholders of a U.S. public company in light of the Commission's finding that small, unknown interest holders, as a general rule, do not have the ability or pose a realistic potential to exert influence of control over such company.
54. The Commission also asked whether the public interest would be served by permitting a U.S. public company to have up to an aggregate less than 50 percent (or some higher level) non-controlling foreign investment, even with individual investments that may be required to be reported under the Exchange Act Rule 13d-1, without individual review and approval. The Commission declines to do so in this Report and Order. The Commission's actions in this Report and Order provide a more carefully tailored approach that addresses the commenters' concerns in a way that is consistent with the Commission's statutory obligations. The Commission intends to monitor how the rules respond to the needs and concerns of interested parties, and may review these issues again at a later date once the effectiveness of the new rules is evaluated and assessed.
55. Finally, the Commission declines to adopt 21st Century Fox's suggestion that the Commission permit broadcast licensees to determine compliance with the foreign voting prong of Section 310(b)(4) by counting shares of stock actually voted, rather than voting shares
56. The Commission concludes that monitoring is a reasonable approach to ensure compliance with the statute and individual foreign ownership rulings. As discussed in below, the Commission formalizes the current equitable practice of recognizing a licensee's good faith efforts to comply with the Section 310(b) requirements, the terms and conditions of a licensee's Section 310(b)(4) ruling, and the Commission's rules.
57.
58. This approach is consistent with Commission practice and precedent. In the
59. The Commission reiterates that licensees, their controlling parent companies, and other entities in the licensee's vertical ownership chain may choose, but are not required, to place restrictions in their bylaws or other organizational documents to enable the licensee to ensure continued compliance with the terms of its ruling. Finally, the Commission encourages broadcast and common carrier licensees to observe the specific monitoring
60.
61. Discussed below are certain limited situations relevant to the Commission's new rules and consistent with existing Commission practice, where a broadcast or common carrier licensee may file a petition for declaratory ruling in the exercise of its required due diligence to remedy its inadvertent non-compliance with the foreign ownership benchmark in Section 310(b)(4) or the terms and conditions of the company's existing Section 310(b)(4) ruling with reasonable assurance that the Commission will not take enforcement action. In providing the following clarifications, the Commission formalizes in the limited context of U.S. public company compliance with Section 310(b) what has been the equitable practice of the Commission in recognizing a licensee's good faith efforts to comply with the Section 310(b) statutory requirements, the terms and conditions of a licensee's Section 310(b)(4) ruling, and the Commission's rules.
62. Where a licensee's controlling U.S. parent is an eligible U.S. public company, the licensee may file a remedial petition for declaratory ruling under Section 310(b)(4) seeking approval of the U.S. parent's above-benchmark, aggregate foreign ownership interests or approval of any particular foreign equity and/or voting interests that require specific approval under the licensee's existing Section 310(b)(4) ruling. Alternatively, the U.S. parent has the option to remedy the non-compliance by, for example, redeeming the foreign interest(s) that rendered the licensee non-compliant with Section 310(b)(4) or the licensee's existing Section 310(b)(4) ruling. In either case, the Commission does not, as a general rule, expect to take enforcement action related to the non-compliance provided that: (1) The licensee notifies the relevant Bureau by letter no later than 10 days after learning of the investment(s) that rendered the licensee non-compliant and specifies in the letter that it will file a petition for declaratory ruling or, alternatively, take remedial action to come into compliance within 30 days of the date it learned of the non-compliant foreign interest(s); and (2) the licensee demonstrates in its petition for declaratory ruling (or in a letter notifying the relevant Bureau that the non-compliance has been timely remedied) that the licensee's non-compliance with the Section 310(b)(4)
63. Where the licensee has opted to file a Section 310(b)(4) petition, the Commission will not require that the licensee's U.S. parent redeem the non-compliant foreign interest(s) or take other action to remedy the non-compliance during the pendency of its petition. If the Commission ultimately declines to approve the petition, however, the licensee must have a mechanism available to come into compliance with Section 310(b)(4) or the terms of its existing ruling, as relevant, within 30 days following the Commission's decision. The Commission reserves the right to require immediate remedial action by the licensee where the Commission finds in a particular case that the public interest requires such action—for example, where the Commission finds, after consultation with the relevant Executive Branch agencies, that the foreign interest presents national security or other significant concerns that require immediate mitigation.
64. The Commission also clarifies that a publicly traded
65. The Commission does not expect the Commission to take enforcement action related to a licensee's non-compliance with the statutory foreign ownership limits or the terms of a licensee's existing foreign ownership ruling where the Commission finds that the broadcast or common carrier licensee has satisfied the burden of demonstrating that: (1) The licensee exercised due diligence in monitoring its foreign ownership or the foreign ownership of its controlling U.S. parent, as relevant, including whether there are stock redemption provisions in the licensee's or controlling U.S. parent's corporate charter and/or other provisions to promptly remedy foreign ownership violations; and (2) enforcement action by the Commission is not warranted because the licensee's non-compliance with the statutory foreign ownership limits or the terms of the licensee's existing foreign ownership ruling was due solely to circumstances beyond the licensee's control that were not reasonably foreseeable to or known by the licensee with the exercise of the requisite diligence. By avoiding the implications of changes in citizenship of the unidentifiable shareholders of a U.S. public company, the Commission's new rules will substantially reduce the risk that such a situation will occur.
66. The Commission does not in this Report and Order change Commission policy requiring all licensees, including those who use this methodology, to obtain Commission approval before their aggregate direct or indirect foreign ownership exceeds the relevant statutory limits in Section 310(b)(3) or 310(b)(4). All licensees have an affirmative duty to monitor their foreign equity and voting interests. All licensees must calculate these interests in accordance with the Commission's foreign ownership rules and policies. Further, all licensees must otherwise ensure continuing compliance with the provisions of Section 310(b) of the Act.
67. The Commission affirms its tentative finding in the
68. However, a privately held entity may use the methodology adopted in this Report and Order that is applicable to U.S. publicly traded companies,
69. As required by Sections 310(b)(3) and 310(b)(4), the Commission assesses whether more than 20 percent of the capital stock of the licensee or whether more than 25 percent of the capital stock of the licensee's direct or indirect controlling U.S. parent is owned of record or voted by aliens or their representatives or by a foreign government or representative thereof or by any corporation organized under the laws of a foreign country. The Commission has long held that any equity or voting interest held by an individual other than a U.S. citizen or by a foreign government or an entity organized under the laws of a foreign government must be counted in the application of the statutory limits. The list of cognizable interests includes nearly all forms of equity and voting interests held in the licensee and its controlling U.S. parent. Specifically, in applying the statutory foreign ownership limits, the Commission has interpreted the term “capital stock,” as it applies to non-corporate entities, to encompass the many alternative means by which equity and voting interests are held in these entities, including partnership interests, policyholders of mutual insurance companies, church members, union members, and beneficiaries of irrevocable trusts.
70. The Commission has long recognized the difficulty licensees or their controlling U.S. parents face in
71. The provisions that became Section 310(b)(3) and 310(b)(4) in their current form were enacted as part of the Communications Act of 1934. The Radio Act of 1927 had included a version of what is now Section 310(b)(3)—which applies to interests held in the licensee—but not to holding companies. During the Senate hearings, the President of International Telephone & Telegraph Corporation identified the challenges associated with “practical compliance” with such a requirement for a public company. He noted that “no corporation is ever in a position to know who are the real owners of its stock.” As he explained, “All it knows is who are registered as such on its transfer books.” Thus, the language of the bill then before the committee, which covered all shares “owned” or voted by foreign investors, was in his view “totally impractical in its present form.”
72. Senator Dill, the Chairman of the committee and floor manager of what became the Act, suggested as a solution that the words “as of record” be added to the bill. While he recognized that this would not directly address the problem of “ownership of record . . . in one place and the beneficial and real ownership . . . in an entirely different place,” he responded: “I do not know any other way.” He rejected the alternative of “set[ting] up a secret service system to follow down every ownership of stock.” Following this discussion, the bill was amended to change the word “owned”—in what has become Section 310(b)(3) and also in what has become Section 310(b)(4)—to the phrase “owned of record.”
73. The Commission's methodology is consistent with the recognition by Congress, even as early as 1934, of these practical difficulties in ascertaining the ownership of the shares of U.S. public companies. While at that time only about 10 percent of shares were held on behalf of another person, as noted above it is estimated that at least 85 percent of shares are held in this way today. Thus, as commenters have noted, the owner of record for most shares may be (or be holding on behalf of) an intermediary bank or broker for the ultimate beneficiary. The Commission's methodology requires the licensee to exercise due diligence, including but not limited to review and necessary follow-up based on SEC filings, to ascertain the ultimate ownership and citizenship of its shares. But Congress did not intend for public companies to “set up a secret service system to follow down every ownership of stock,” and the Commission does not require them to do so. The Commission thereby gives reasonable meaning to the terms of the Act, and avoid unreasonable consequences. Indeed, the Commission has previously recognized that in calculating compliance with the Section 310(b) limits, licensees must “take reasonable steps” to ensure such compliance. In the past, for public companies such steps have included periodic surveys and random sampling of shareholders, but the Commission has also permitted public companies to use other methods. The Commission's overarching principle has been, and continues to be, that a public company should include foreign ownership information “that [it] has reason to know.” Based on the record of this proceeding demonstrating the impracticabilities of using surveys and random sampling to identify foreign ownership when an estimated 85 percent of shares are now held of record on behalf of other persons, the Commission believes that its methodology, which includes a due diligence standard, is a reasonable one that is consistent with its prior guidance.
74. In any event, as a separate and independent basis for adopting the process described in this Report and Order for demonstrating compliance with Section 310(b)(4), Section 310(b)(4) provides the Commission discretion to allow foreign ownership of a licensee's direct or indirect controlling U.S. parent to exceed 25 percent unless the Commission finds that such ownership is inconsistent with the public interest. The
75. The disclosure requirements of Section 13(d) of the Exchange Act informed the Commission's decision, in the
76. Based on the Commission's understanding of the realities of today's marketplace for the equity securities of public companies and its experience in assessing foreign ownership of common carrier licensees, the Commission acknowledges that smaller, unknown interest holders that hold 5 percent or less of a U.S. public company's outstanding shares or qualified institutional investors that hold interests of 10 percent or less are tracked somewhat less directly, based largely on information obtained from Form 13F reports that are filed quarterly with the SEC by certain institutional investment managers. Such institutional ownership information about U.S. publicly traded equities is available from various sources, and typically is monitored in the ordinary course of business by a company whose stock trades publicly on U.S. securities exchanges.
77. The Commission also recognizes and find that interests that are not known to a U.S. public company (generally because they are not subject to reporting requirements under the U.S. federal securities laws and the regulations thereunder), and that the public company cannot reasonably be expected to know in the ordinary course of business, are not contrary to the public interest in the absence of countervailing evidence and do not need to be included for purposes of calculating a licensee's aggregate levels of foreign ownership under Section 310(b). However, the Commission remains concerned that voting and non-voting equity investors that are known to a public company may have the ability in a particular case to exert influence over the affairs of the company.
78. The Commission believes that the public interest benefits of disregarding such smaller foreign interests that cannot be identified consistent with the methodology herein outweigh any potential costs of doing so and will allow companies to focus their efforts on ascertaining the citizenship of those foreign interests that may present a realistic potential to influence or control the company, rather than on those interests that are not influential. In addition, the methodology will provide certainty and consistency in implementation of the statute, while reducing the burdens associated with a public company's ascertainment of its foreign equity and voting interests. Commenters have stated that this will, in turn, promote public company financing that has access to foreign investment, and may encourage reciprocal trade benefits.
79. The Commission adopts corrections and clarifications to the rules. First, in Section 1.5001 of the final rules, which lists the required contents of petitions for declaratory ruling, the Commission adopts its proposal to include a cross-reference to Section 1.5000(c), which imposes the requirement that each applicant, licensee, or spectrum lessee filing a Section 310(b) petition for declaratory ruling certify to the information contained in the petition in accordance with the provisions of Section 1.16 of the Commission's rules.
80. Second, the Commission adopts its proposal to include two Notes in Section 1.5001(i) of the rules to clarify that certain foreign interests of 5 percent or less may require specific approval in circumstances where there is direct or indirect foreign investment in the U.S. parent in the form of uninsulated partnership interests or uninsulated interests held by members of an LLC. Many limited partners and LLC members hold small equity interests in their respective companies with control of these companies residing in the general partner or managing member, respectively. However, for purposes of identifying foreign interests that require specific approval (and for determining a common carrier licensee's disclosable U.S. and foreign interest holders), uninsulated partners and uninsulated LLC members are deemed to hold the same
81. Third, the Commission sought comment on whether Commission precedent supports the inclusion of additional permissible voting or consent rights in the list of investor protections where the rights do not, in themselves, result in a limited partnership or LLC interest being deemed uninsulated within Section 1.5003 of the proposed rules. The Commission similarly requested comment on the inclusion of additional permissible minority shareholder protections in Section 1.5001(i)(5) of the proposed rules. Because no comments were received, the Commission declines to adopt additional permissible voting or consent rights, or additional permissible minority shareholder protections in this proceeding.
82. Finally, the Commission corrects two cross-references, and makes additional clarifying changes as identified in the
83. Consistent with the process adopted in the
84. In this Report and Order, the Commission adopts a tailored application of the existing rules for review of foreign ownership of common carrier licensees to foreign ownership of broadcast licensees. The Commission also reforms the methodology used by common carrier and broadcast licensees that are, or are controlled by, U.S. public companies to assess compliance with the foreign ownership limits in Sections 310(b)(3) and 310(b)(4) of the Act. As discussed above, the Commission determines that these actions are in the public interest and will continue to protect important interests related to national security, law enforcement, foreign policy, and trade policy, while reducing regulatory burdens and costs, providing greater transparency and predictability, and facilitating investment in U.S. broadcast and telecommunications infrastructure.
85. As required by the Regulatory Flexibility Act (RFA), an Initial Regulatory Flexibility Certification was incorporated into the
86. This Report and Order contains new or modified information collection requirements subject to the Paperwork Reduction Act of 1995 (PRA), Public Law 104-13. The requirements will be submitted to the Office of Management and Budget (OMB) for review under Section 3507(d) of the PRA. OMB, the general public, and other Federal agencies will be invited to comment on the new or modified information collection requirements contained in this proceeding. In addition, pursuant to the Small Business Paperwork Relief Act of 2002, Public Law 107-198,
87. In this Report and Order, the Commission extends the streamlined rules and procedures developed for foreign ownership reviews for common carrier and certain aeronautical licensees under Section 310(b)(4) of the Act to the broadcast context. The Commission also reforms the methodology used by common carrier and broadcast licensees that are, or are controlled by, U.S. public companies to assess compliance with the foreign ownership limits in Sections 310(b)(3) and 310(b)(4) of the Act. The Commission has assessed the effects of the new rules on small business concerns. The Commission finds that the streamlined rules and procedures adopted here will minimize the information collection burden on licensees subject to 310(b), including small businesses.
88. The Commission will include a copy of this Report and Order in a report to be sent to Congress and the Government Accountability Office pursuant to the Congressional Review Act.
89. In this Report and Order, the Commission modifies the foreign ownership filing and review process for broadcast licensees by extending the streamlined rules and procedures developed for foreign ownership reviews for common carrier and certain aeronautical licensees under Section 310(b)(4) of the Act to the broadcast context with certain limited exceptions. Recognizing the difficulty U.S. public companies face in ascertaining their foreign ownership, the Commission also reforms the methodology used by common carrier and broadcast licensees that are, or are controlled by U.S. public companies to assess compliance with the foreign ownership limits in Sections 310(b)(3) and 310(b)(4) of the Act, respectively. In particular, the reformed methodology provides a framework for a publicly traded licensee or controlling U.S. parent to ascertain its foreign ownership using information that is “known or reasonably should be known” to the company in the ordinary course of business, thereby eliminating the need for costly shareholder surveys.
90. The new rules are designed to provide the industry with greater transparency and reduce to the extent possible the regulatory costs and burdens that our current foreign ownership policies and procedures impose on broadcast, wireless common carrier and aeronautical applicants, licensees, and spectrum lessees. In particular, as is the case with common carrier licensees, the new standardized filing and review process will provide a clearer path for foreign investment in broadcast licensees that is more consistent with the U.S. domestic investment process, while continuing to protect important interests related to national security, law enforcement, foreign policy, and trade policy.
91. The Commission estimates that the rule changes will facilitate the filing of Section 310(b)(4) petitions for declaratory ruling by broadcast licensees while reducing the time and expense associated with such filings. For example, U.S. parent companies of broadcast licensees that seek Commission approval to exceed the 25 percent foreign ownership benchmark in Section 310(b)(4) will be allowed to include in their petitions requests for specific approval of only those foreign investors that hold or would hold a direct or indirect equity and/or voting interest in the U.S. parent that exceeds 5 percent (or exceeds 10 percent in certain circumstances), or a controlling interest in the U.S. parent. As another example, the new rules will allow the U.S. parent to request specific approval for any non-controlling foreign investors named in the Section 310(b)(4) petition to increase their direct or indirect equity and/or voting interests in the U.S. parent at any time after issuance of the Section 310(b)(4) ruling, up to and
92. The Commission requested comment on measures the Commission can take to reduce the costs and burdens associated with licensees' efforts to ensure that they remain in compliance with the statutory foreign ownership requirements. Although it did not receive comments specifically addressing the costs and burdens on small business concerns, the Commission has recognized in the past that the current requirements impose significant costs and burdens. Similarly, by extending the streamlined rules and procedures developed for foreign ownership reviews for common carrier to broadcast, the new rules will reduce the costs and burdens of broadcast licensees. Also, the methodology we adopt will facilitate compliance with the statutory foreign ownership limits and the filing of petitions for declaratory ruling by publicly-traded licensees while reducing the time and expense associated with such filings.
93. Overall, the new rules will reduce costs and burdens currently imposed on licensees, including those licensees that are small entities, and streamline and accelerate the foreign ownership review process, while continuing to ensure that the Commission has the information it needs to carry out our statutory obligations. Moreover, the new rules will improve regulatory flexibility for broadcast and common carrier licensees for purposes of compliance with Section 310(b)(3) and 310(b)(4) of the Act and provide an incentive for enhanced investment in U.S. broadcast and telecommunications infrastructure. Therefore, the Commission certifies that the rules adopted in this Report and Order will not have a significant economic impact on a substantial number of small entities.
94. Accordingly,
95.
96.
97.
98.
99.
Communications common carriers, Radio, Reporting and recordkeeping requirements, Satellites, Telecommunications.
For the reasons discussed in the preamble, the Federal Communications Commission amends 47 CFR parts 1, 25, 73 and 74 as follows:
15 U.S.C. 79,
The rules in this subpart establish the requirements and conditions for obtaining the Commission's prior approval of foreign ownership in broadcast, common carrier, aeronautical en route, and aeronautical fixed radio station licensees and common carrier spectrum lessees that would exceed the 25 percent benchmark in section 310(b)(4) of the Act. These rules also establish the requirements and conditions for obtaining the Commission's prior approval of foreign ownership in common carrier (but not broadcast, aeronautical en route or aeronautical fixed) radio station licensees and spectrum lessees that would exceed the 20 percent limit in
(a)(1) A broadcast, common carrier, aeronautical en route or aeronautical fixed radio station licensee or common carrier spectrum lessee shall file a petition for declaratory ruling to obtain Commission approval under section 310(b)(4) of the Act, and obtain such approval, before the aggregate foreign ownership of any controlling, U.S.-organized parent company exceeds, directly and/or indirectly, 25 percent of the U.S. parent's equity interests and/or 25 percent of its voting interests. An applicant for a broadcast, common carrier, aeronautical en route or aeronautical fixed radio station license or common carrier spectrum leasing arrangement shall file the petition for declaratory ruling required by this paragraph at the same time that it files its application.
(2) A common carrier radio station licensee or spectrum lessee shall file a petition for declaratory ruling to obtain approval under the Commission's section 310(b)(3) forbearance approach, and obtain such approval, before aggregate foreign ownership, held through one or more intervening U.S.-organized entities that hold non-controlling equity and/or voting interests in the licensee, along with any foreign interests held directly in the licensee or spectrum lessee, exceeds 20 percent of its equity interests and/or 20 percent of its voting interests. An applicant for a common carrier radio station license or spectrum leasing arrangement shall file the petition for declaratory ruling required by this paragraph at the same time that it files its application. Foreign interests held directly in a licensee or spectrum lessee, or other than through U.S.-organized entities that hold non-controlling equity and/or voting interests in the licensee or spectrum lessee, shall not be permitted to exceed 20 percent.
Paragraph (a)(1) of this section implements the Commission's foreign ownership policies under section 310(b)(4) of the Act, 47 U.S.C. 310(b)(4), for broadcast, common carrier, aeronautical en route, and aeronautical fixed radio station licensees and common carrier spectrum lessees. It applies to foreign equity and/or voting interests that are held, or would be held, directly and/or indirectly in a U.S.-organized entity that itself directly or indirectly controls a broadcast, common carrier, aeronautical en route, or aeronautical fixed radio station licensee or common carrier spectrum lessee. A foreign individual or entity that seeks to hold a controlling interest in such a licensee or spectrum lessee must hold its controlling interest indirectly, in a U.S.-organized entity that itself directly or indirectly controls the licensee or spectrum lessee. Such controlling interests are subject to section 310(b)(4) and the requirements of paragraph (a)(1) of this section. The Commission assesses foreign ownership interests subject to section 310(b)(4) separately from foreign ownership interests subject to section 310(b)(3).
Paragraph (a)(2) of this section implements the Commission's section 310(b)(3) forbearance approach adopted in the First Report and Order in IB Docket No. 11-133, FCC 12-93 (released Aug. 17, 2012), 77 FR 50628 (Aug. 22, 2012). The section 310(b)(3) forbearance approach applies only to foreign equity and voting interests that are held, or would be held, in a common carrier licensee or spectrum lessee through one or more intervening U.S.-organized entities that do not control the licensee or spectrum lessee. Foreign equity and/or voting interests that are held, or would be held, directly in a licensee or spectrum lessee, or indirectly other than through an intervening U.S.-organized entity, are not subject to the Commission's section 310(b)(3) forbearance approach and shall not be permitted to exceed the 20 percent limit in section 310(b)(3) of the Act, 47 U.S.C. 310(b)(3). The Commission's forbearance approach does not apply to broadcast, aeronautical en route or aeronautical fixed radio station licenses.
U.S.-organized Corporation A is preparing an application to acquire a common carrier radio license by assignment from another licensee. U.S.-organized Corporation A is wholly owned and controlled by U.S.-organized Corporation B. U.S.-organized Corporation B is 51 percent owned and controlled by U.S.-organized Corporation C, which is, in turn, wholly owned and controlled by foreign-organized Corporation D. The remaining non-controlling 49 percent equity and voting interests in U.S.-organized Corporation B are held by U.S.-organized Corporation X, which is, in turn, wholly owned and controlled by U.S. citizens. Paragraph (a)(1) of this section requires that U.S.-organized Corporation A file a petition for declaratory ruling to obtain Commission approval of the 51 percent foreign ownership of its controlling, U.S.-organized parent, Corporation B, by foreign-organized Corporation D, which exceeds the 25 percent benchmark in section 310(b)(4) of the Act for both equity interests and voting interests. Corporation A is also required to identify and request specific approval in its petition for any foreign individual or entity, or “group,” as defined in paragraph (d) of this section, that holds directly and/or indirectly more than 5 percent of Corporation B's total outstanding capital stock (equity) and/or voting stock, or a controlling interest in Corporation B, unless the foreign investment is exempt under § 1.5001(i)(3).
U.S.-organized Corporation A is preparing an application to acquire a common carrier radio license by assignment from another licensee. U.S.-organized Corporation A is 51 percent owned and controlled by U.S.-organized Corporation B, which is, in turn, wholly owned and controlled by U.S. citizens. The remaining non-controlling 49 percent equity and voting interests in U.S.-organized Corporation A are held by U.S.-organized Corporation X, which is, in turn, wholly owned and controlled by foreign-organized Corporation Y. Paragraph (a)(2) of this section requires that U.S.-organized Corporation A file a petition for declaratory ruling to obtain Commission approval of the non-controlling 49 percent foreign ownership of U.S.-organized Corporation A by foreign-organized Corporation Y through U.S.-organized Corporation X, which exceeds the 20 percent limit in section 310(b)(3) of the Act for both equity interests and voting interests. U.S.-organized Corporation A is also required to identify and request specific approval in its petition for any foreign individual or entity, or “group,” as defined in paragraph (d) of this section, that holds an equity and/or voting interest in foreign-organized Corporation Y that, when multiplied by 49 percent, would exceed 5 percent of U.S.-organized Corporation A's equity and/or voting interests, unless the foreign investment is exempt under § 1.5001(i)(3).
U.S.-organized Corporation A is preparing an application to acquire a common carrier radio license by assignment from another licensee. U.S.-organized Corporation A is 51 percent owned and controlled by U.S.-organized Corporation B, which is, in turn, wholly owned and controlled by foreign-organized Corporation C. The remaining non-controlling 49 percent equity and voting interests in U.S.-organized Corporation A are held by U.S.-organized Corporation X, which is, in turn, wholly owned and controlled by foreign-organized Corporation Y. Paragraphs (a)(1) and (a)(2) of this section require that U.S.-organized Corporation A file a petition for declaratory ruling to obtain Commission approval of foreign-organized Corporation C's 100 percent ownership interest in U.S.-organized parent, Corporation B, and of foreign-organized Corporation Y's non-controlling, 49 percent foreign ownership interest in U.S.-organized Corporation A through U.S-organized Corporation X, which exceed the 25 percent benchmark and 20 percent limit in sections 310(b)(4) and 310(b)(3) of the Act, respectively, for both equity interests and voting interests. U.S-organized Corporation A's petition also must identify and request specific approval for ownership interests held by any foreign individual, entity, or “group,” as defined in paragraph (d) of this section, to the extent required by § 1.5001(i).
(b) Except for petitions involving broadcast stations only, the petition for declaratory ruling required by paragraph (a) of this section shall be filed electronically through the International Bureau Filing System (IBFS) or any successor system thereto. For information on filing a petition through IBFS, see part 1, subpart Y and the IBFS homepage at
(c)(1) Each applicant, licensee, or spectrum lessee filing a petition for declaratory ruling required by paragraph (a) of this section shall certify to the information contained in the petition in accordance with the provisions of § 1.16 and the requirements of this paragraph. The certification shall include a statement that the applicant, licensee and/or spectrum lessee has calculated the ownership interests disclosed in its petition based upon its review of the Commission's rules and that the interests disclosed satisfy each of the pertinent standards and criteria set forth in the rules.
(2) Multiple applicants and/or licensees shall file jointly the petition for declaratory ruling required by paragraph (a) of this section where the entities are under common control and contemporaneously hold, or are contemporaneously filing applications for, broadcast, common carrier licenses, common carrier spectrum leasing arrangements, or aeronautical en route or aeronautical fixed radio station licenses. Where joint petitioners have different responses to the information required by § 1.5001, such information should be set out separately for each joint petitioner, except as otherwise permitted in § 1.5001(h)(2).
(i) Each joint petitioner shall certify to the information contained in the petition in accordance with the provisions of § 1.16 with respect to the information that is pertinent to that petitioner. Alternatively, the controlling parent of the joint petitioners may certify to the information contained in the petition.
(ii) Where the petition is being filed in connection with an application for consent to transfer control of licenses or spectrum leasing arrangements, the transferee or its ultimate controlling parent may file the petition on behalf of the licensees or spectrum lessees that would be acquired as a result of the proposed transfer of control and certify to the information contained in the petition.
(3) Multiple applicants and licensees shall not be permitted to file a petition for declaratory ruling jointly unless they are under common control.
(d) The following definitions shall apply to this section and §§ 1.5001 through 1.5004.
(1)
(2)
(3)
(4)
(5)
(6)
(7)
(8)
(9)
(10)
(11)
(12)
(e)(1) This section sets forth the methodology applicable to broadcast, common carrier, aeronautical en route, and aeronautical fixed radio station licensees and common carrier spectrum lessees that are, or are directly or indirectly controlled by, an eligible U.S. public company for purposes of monitoring the licensee's or spectrum lessee's compliance with the foreign ownership limits set forth in sections 310(b)(3) and 310(b)(4) of the Act and with the terms and conditions of a licensee's or spectrum lessee's foreign ownership ruling issued pursuant to paragraph (a)(1) or (2) of this section. For purposes of this section:
(i) An “eligible U.S. public company” is a company that is organized in the United States; whose stock is traded on a stock exchange in the United States; and that has issued a class of equity securities for which beneficial ownership reporting is required by security holders and other beneficial owners under sections 13(d) or 13(g) of the Securities Exchange Act of 1934, as amended, 15 U.S.C. 78a
(ii) A “beneficial owner” of a security refers to any person who, directly or indirectly, through any contract, arrangement, understanding, relationship, or otherwise has or shares voting power, which includes the power to vote, or to direct the voting of, such security; and
(iii) An “equity interest holder” refers to any person or entity that has the right
(2) An eligible U.S. public company shall use information that is known or reasonably should be known by the company in the ordinary course of business, as described in this paragraph, to identify the beneficial owners and equity interest holders of its voting and non-voting stock:
(i) Information recorded in the company's share register;
(ii) Information as to shares held by officers, directors, and employees;
(iii) Information reported to the Securities and Exchange Commission (SEC) in Schedule 13D (17 CFR 240.13d-101) and in Schedule 13G (17 CFR 240.13d-102), including amendments filed by or on behalf of a reporting person, and company-specific information derived from SEC Form 13F (17 CFR 249.325);
(iv) Information as to beneficial owners of shares required to be identified in a company's annual reports (or proxy statements) and quarterly reports;
(v) Information as to the identify and citizenship of a beneficial owner and/or equity interest holder where such information is actually known to the public company as a result of shareholder litigation, financing transactions, and proxies voted at annual or other meetings; and
(vi) Information as to the identity and citizenship of a beneficial owner and/or equity interest holder where such information is actually known to the company by whatever source.
(3) An eligible U.S. public company shall use information that is known or reasonably should be known by the company in the ordinary course of business to determine the citizenship of the beneficial owners and equity interest holders, identified pursuant to paragraph (e)(2) of this section, including information recorded in the company's shareholder register, information required to be disclosed pursuant to rules of the Securities and Exchange Commission, other information that is publicly available to the company, and information received by the company through direct inquiries with the beneficial owners and equity interest holders where the company determines that direct inquiries are necessary to its compliance efforts.
(4) A licensee or spectrum lessee that is, or is directly or indirectly controlled by, an eligible U.S. public company, shall exercise due diligence in identifying and determining the citizenship of such public company's beneficial owners and equity interest holders.
(5) To calculate aggregate levels of foreign ownership, a licensee or spectrum lessee that is, or is directly or indirectly controlled by, an eligible U.S. public company, shall base its foreign ownership calculations on such public company's known or reasonably should be known foreign equity and voting interests as described in paragraphs (e)(2) and (3) of this section. The licensee shall aggregate the public company's known or reasonably should be known foreign voting interests and separately aggregate the public company's known or reasonably should be known foreign equity interests. If the public company's known or reasonably should be known foreign voting interests
Assume that a licensee's controlling U.S. parent is an eligible U.S. public company. The publicly traded U.S. parent has one class of stock consisting of 100 total outstanding shares of common voting stock. The licensee (and/or the U.S. parent on its behalf) has exercised the required due diligence in following the above-described methodology for identifying and determining the citizenship of the U.S. parent's “known or reasonably should be known” interest holders and has identified one foreign shareholder that owns 6 shares (
The petition for declaratory ruling required by § 1.5000(a)(1) and/or (2) shall contain the following information:
(a) With respect to each petitioning applicant or licensee, provide its name; FCC Registration Number (FRN); mailing address; place of organization; telephone number; facsimile number (if available); electronic mail address (if available); type of business organization (
(b) If the petitioning applicant or licensee is represented by a third party (
(c)(1) For each named licensee, list the type(s) of radio service authorized (
(2) If the petition is filed in connection with an application for a radio station license or a spectrum leasing arrangement, or an application to acquire a license or spectrum leasing arrangement by assignment or transfer of control, specify for each named applicant:
(i) The File No(s). of the associated application(s), if available at the time the petition is filed; otherwise, specify the anticipated filing date for each application; and
(ii) The type(s) of radio services covered by each application (
(d) With respect to each petitioner, include a statement as to whether the petitioner is requesting a declaratory ruling under § 1.5000(a)(1) and/or (2).
(e)
(1)
(2)
(3) Where no individual or entity holds, or would hold,
(4)(i) Where a named U.S. parent, applicant, or licensee is organized as a corporation, provide the name of any individual or entity that holds, or would hold, 10 percent or more of the outstanding capital stock and/or voting stock, or a controlling interest.
(ii) Where a named U.S. parent, applicant, or licensee is organized as a general partnership, provide the names of the partnership's constituent general partners.
(iii) Where a named U.S. parent, applicant, or licensee is organized as a limited partnership or limited liability partnership, provide the name(s) of the general partner(s) (in the case of a limited partnership), any uninsulated partner, regardless of its equity interest, and any insulated partner with an equity interest in the partnership of at least 10 percent (calculated according to the percentage of the partner's capital contribution). With respect to each named partner (other than a named general partner), the petitioner shall state whether the partnership interest is insulated or uninsulated, based on the insulation criteria specified in § 1.5003.
(iv) Where a named U.S. parent, applicant, or licensee is organized as a limited liability company, provide the name(s) of each uninsulated member, regardless of its equity interest, any insulated member with an equity interest of at least 10 percent (calculated according to the percentage of its capital contribution), and any non-equity manager(s). With respect to each named member, the petitioner shall state whether the interest is insulated or uninsulated, based on the insulation criteria specified in § 1.5003, and whether the member is a manager.
The Commission presumes that a general partner of a general partnership or limited partnership has a controlling (100 percent) voting interest in the partnership. A general partner shall in all cases be deemed to hold an uninsulated interest in the partnership.
(f)
(1)
(2)
(3) Where no individual or entity holds, or would hold,
The Commission presumes that a general partner of a general partnership or limited partnership has a controlling interest in the partnership. A general partner shall in all cases be deemed to hold an uninsulated interest in the partnership.
(g)(1)
(2)
(h)(1)
(2)
(i) For common carrier, aeronautical en route, and aeronautical fixed radio station applicants and licensees, the direct and indirect ownership (equity and voting) interests held by the individual(s) and/or entity(ies) named in response to paragraphs (e) and (f) of this section; or
(ii) For broadcast station applicants and licensees, the attributable interest holders named in response to paragraphs (e) and (f) of this section. Each such individual or entity shall be depicted in the ownership diagram and all controlling interests labeled as such. Where the petition includes multiple petitioners, the ownership of all petitioners may be depicted in a single ownership diagram or in multiple diagrams.
(i)
(1) Each petitioning broadcast, common carrier or aeronautical radio station applicant or licensee filing under § 1.5000(a)(1) shall identify and request specific approval for any foreign individual, entity, or group of such individuals or entities that holds, or would hold, directly and/or indirectly, more than 5 percent of the equity and/or voting interests, or a controlling interest, in the petitioner's controlling U.S. parent unless the foreign investment is exempt under paragraph (i)(3) of this section. Equity and voting interests held
Solely for the purpose of identifying foreign interests that require specific approval under this paragraph (i), broadcast station applicants and licensees filing petitions under § 1.5000(a)(1) should calculate equity and voting interests in accordance with the principles set forth in §§ 1.5002 and 1.5003 and
(2) Each petitioning common carrier radio station applicant or licensee filing under § 1.5000(a)(2) shall identify and request specific approval for any foreign individual, entity, or group of such individuals or entities that holds, or would hold, directly, and/or indirectly through one or more intervening U.S.-organized entities that do not control the applicant or licensee, more than 5 percent of the equity and/or voting interests in the applicant or licensee unless the foreign investment is exempt under paragraph (i)(3) of this section. Equity and voting interests held
Certain foreign interests of 5 percent or less may require specific approval under paragraphs (i)(1) and (2).
Two or more individuals or entities will be treated as a “group” when they have agreed to act together for the purpose of acquiring, holding, voting, or disposing of their equity and/or voting interests in the licensee and/or controlling U.S. parent of the licensee or in any intermediate company(ies) through which any of the individuals or entities holds its interests in the licensee and/or controlling U.S. parent of the licensee.
(3) A foreign investment is exempt from the specific approval requirements of paragraphs (i)(1) and (2) of this section where:
(i) The foreign individual or entity holds, or would hold, directly and/or indirectly, no more than 10 percent of the equity and/or voting interests of the U.S. parent (for petitions filed under § 1.5000(a)(1)) or the petitioning applicant or licensee (for petitions filed under § 1.5000(a)(2));
(ii) The foreign individual or entity does not hold, and would not hold, a controlling interest in the petitioner or any controlling parent company, does not plan or intend to change or influence control of the petitioner or any controlling parent company, does not possess or develop any such purpose, and does not take any action having such purpose or effect. The Commission will presume, in the absence of evidence to the contrary, that the following interests satisfy this criterion for exemption from the specific approval requirements in paragraphs (i)(1) and (2) of this section:
(A) Where the petitioning applicant or licensee, controlling U.S. parent, or entity holding a direct or indirect equity and/or voting interest in the applicant/licensee or U.S. parent is a “public company,” as defined in § 1.5000(d)(9),
Common carrier applicant (“Applicant”) is preparing a petition for declaratory ruling to request Commission approval for foreign ownership of its controlling, U.S.-organized parent (“U.S. Parent”) to exceed the 25 percent benchmark in section 310(b)(4) of the Act. Applicant does not currently hold any FCC licenses. Shares of U.S. Parent trade publicly on the New York Stock Exchange. Based on a review of its shareholder records, U.S. Parent has determined that its aggregate foreign ownership on any given day may exceed an aggregate 25 percent, including a 6 percent common stock interest held by a foreign-organized mutual fund (“Foreign Fund”). U.S. Parent has confirmed that Foreign Fund is not currently required to report its interest pursuant to Exchange Act Rule 13d-1(a) and instead is eligible to report its interest pursuant to Exchange Act Rule 13d-1(b). U.S. Parent also has confirmed that Foreign Fund does not hold any other interests in U.S. Parent's equity securities, whether of a class of voting or non-voting securities. Applicant may, but is not required to, request specific approval of Foreign Fund's 6 percent interest in U.S. Parent.
Where an institutional investor holds voting, equity securities that are subject to reporting under Exchange Act Rule 13d-1, 17 CFR 240.13d-1, or a substantially comparable foreign law or regulation, in addition to equity securities that are not subject to such reporting, the investor's total capital stock interests may be aggregated and treated as exempt from the 5 percent specific approval requirement in paragraphs (i)(1) and (2) of this section so long as the aggregate amount of the institutional investor's holdings does not exceed 10 percent of the company's total capital stock or voting rights and the investor is eligible to certify under Exchange Act Rule 13d-1(b), 17 CFR 240.13d-1(b), or a substantially comparable foreign law or regulation that it has acquired its capital stock interests in the ordinary course of business and not with the purpose nor with the effect of changing or influencing the control of the company. In calculating foreign equity and voting interests, the Commission does not consider convertible interests such as options, warrants and convertible debentures until converted, unless specifically requested by the petitioner,
(B) Where the petitioning applicant or licensee, controlling U.S. parent, or entity holding a direct and/or indirect equity and/or voting interest in the applicant/licensee or U.S. parent is a “privately held” corporation, as defined in § 1.5000(d)(8),
(C) Where the petitioning applicant or licensee, controlling U.S. parent, or entity holding a direct and/or indirect equity and/or voting interest in the licensee or U.S. parent is “privately held,” as defined in § 1.5000(d)(8), and is organized as a limited partnership, limited liability company (“LLC”), or limited liability partnership (“LLP”),
For purposes of identifying foreign interests that require specific approval, where the petitioning applicant, licensee, or controlling U.S. parent
For purposes of identifying foreign interests that require specific approval, where interests are held
(4) A petitioner may, but is not required to, request specific approval for any other foreign individual or entity that holds, or would hold, a direct and/or indirect equity and/or voting interest in the controlling U.S. parent (for petitions filed under § 1.5000(a)(1)) or in the petitioning applicant or licensee (for petitions filed under § 1.5000(a)(2)).
(5) The minority shareholder protections referenced in paragraph (i)(3)(ii)(B) of this section consist of the following rights:
(i) The power to prevent the sale or pledge of all or substantially all of the assets of the corporation or a voluntary filing for bankruptcy or liquidation;
(ii) The power to prevent the corporation from entering into contracts with majority shareholders or their affiliates;
(iii) The power to prevent the corporation from guaranteeing the obligations of majority shareholders or their affiliates;
(iv) The power to purchase an additional interest in the corporation to prevent the dilution of the shareholder's
(v) The power to prevent the change of existing legal rights or preferences of the shareholders, as provided in the charter, by-laws or other operative governance documents;
(vi) The power to prevent the amendment of the charter, by-laws or other operative governance documents of the company with respect to the matters described in paragraph (i)(5)(i) through (v) of this section.
(6) The Commission reserves the right to consider, on a case-by-case basis, whether voting or consent rights over matters other than those listed in paragraph (i)(5) of this section shall be considered permissible minority shareholder protections in a particular case.
(j) For each foreign individual or entity named in response to paragraph (i) of this section, provide the following information:
(1) In the case of an individual, his or her citizenship and principal business(es);
(2) In the case of a business organization:
(i) Its place of organization, type of business organization (
(ii)(A) For common carrier, aeronautical en route, and aeronautical fixed radio station applicants and licensees, the name of any individual or entity that holds, or would hold, directly and/or indirectly, through one or more intervening entities, 10 percent or more of the equity interests and/or voting interests, or a controlling interest, in the foreign entity for which the petitioner requests specific approval. Specify for each such interest holder, his or her citizenship (for individuals) or place of legal organization (for entities). Equity interests and voting interests held indirectly shall be calculated in accordance with the principles set forth in § 1.5002.
(B) For broadcast applicants and licensees, the name of any individual or entity that holds, or would hold, directly and/or indirectly, through one or more intervening entities, an attributable interest in the foreign entity for which the petitioner requests specific approval. Specify for each such interest holder, his or her citizenship (for individuals) or place of legal organization (for entities). Attributable interests shall be calculated in accordance with the principles set forth in the Notes to § 73.3555 of this chapter.
(iii)(A) For common carrier, aeronautical en route, and aeronautical fixed radio station applicants and licensees, where no individual or entity holds, or would hold, directly and/or indirectly, 10 percent or more of the equity interests and/or voting interests, or a controlling interest, the petition shall specify that no individual or entity holds, or would hold, directly and/or indirectly, 10 percent or more of the equity interests and/or voting interests, or a controlling interest, in the foreign entity for which the petitioner requests specific approval.
(B) For broadcast applicants and licensees, where no individual or entity holds, or would hold, directly and/or indirectly, an attributable interest in the foreign entity, the petition shall specify that no individual or entity holds, or would hold, directly and/or indirectly, an attributable interest in the foreign entity for which the petitioner requests specific approval.
(k)
(1)
(2)
(l) Each applicant, licensee, or spectrum lessee filing a petition for declaratory ruling shall certify to the information contained in the petition in accordance with the provisions of § 1.16 and the requirements of § 1.5000(c)(1).
(a) The criteria specified in this section shall be used for purposes of calculating indirect equity and voting interests under § 1.5001.
(b)(1)
Assume that a foreign individual holds a non-controlling 30 percent equity and voting interest in U.S.-organized Corporation A which, in turn, holds a non-controlling 40 percent equity and voting interest in U.S.-organized Parent Corporation B. The foreign individual's equity interest in U.S.-organized Parent Corporation B would be calculated by multiplying the foreign individual's equity interest in U.S.-organized Corporation A by that entity's equity interest in U.S.-organized Parent Corporation B. The foreign individual's equity interest in U.S.-organized Parent Corporation B would be calculated as 12 percent (30% × 40% = 12%). The result would be the same even if U.S.-organized Corporation A held a
(2)
(i) Voting interests that are held through one or more intervening corporations shall be calculated by successive multiplication of the voting percentages for each link in the vertical ownership chain, except that wherever the voting interest for any link in the chain is equal to or exceeds 50 percent or represents actual control, it shall be
Assume that a foreign individual holds a non-controlling 30 percent equity and voting interest in U.S.-organized Corporation A which, in turn, holds a
(ii) Voting interests that are held through one or more intervening partnerships shall be calculated depending upon whether the individual or entity holds a general partnership interest, an uninsulated partnership interest, or an insulated partnership interest as specified in paragraphs (b)(2)(ii)(A) and (B) of this section.
(A)
(B)
The Commission presumes that a general partner of a general partnership or limited partnership has a controlling interest in the partnership. A general partner shall in all cases be deemed to hold an uninsulated interest in the partnership.
(iii) Voting interests that are held through one or more intervening limited liability companies shall be calculated depending upon whether the individual or entity is a non-member manager, an uninsulated member or an insulated member as specified in paragraphs (b)(2)(iii)(A) and (B) of this section.
(A)
(B)
(a) A limited partner of a limited partnership and a partner of a limited liability partnership shall be treated as uninsulated within the meaning of § 1.5002(b)(2)(ii)(A) unless the partner is prohibited by the limited partnership agreement, limited liability partnership agreement, or other operative agreement from, and in fact is not engaged in, active involvement in the management or operation of the partnership and only the usual and customary investor protections are contained in the partnership agreement or other operative agreement. These criteria apply to any relevant limited partnership or limited liability partnership, whether it is the licensee, a controlling U.S.-organized parent, or any partnership situated above them in the vertical chain of ownership. Notwithstanding the foregoing, the insulation of limited partnership and limited liability partnership interests for broadcast applicants and licensees
(b) A member of a limited liability company shall be treated as uninsulated for purposes of § 1.5002(b)(2)(iii)(A) unless the member is prohibited by the limited liability company agreement from, and in fact is not engaged in, active involvement in the management or operation of the company and only the usual and customary investor protections are contained in the agreement. These criteria apply to any relevant limited liability company, whether it is the licensee, a controlling U.S.-organized parent, or any limited liability company situated above them in the vertical chain of ownership. Notwithstanding the foregoing, the insulation of limited liability company interests for broadcast applicants and licensees
(c) The usual and customary investor protections referred to in paragraphs (a) and (b) of this section shall consist of:
(1) The power to prevent the sale or pledge of all or substantially all of the assets of the limited partnership, limited liability partnership, or limited liability company or a voluntary filing for bankruptcy or liquidation;
(2) The power to prevent the limited partnership, limited liability partnership, or limited liability company from entering into contracts with majority investors or their affiliates;
(3) The power to prevent the limited partnership, limited liability partnership, or limited liability company from guaranteeing the obligations of majority investors or their affiliates;
(4) The power to purchase an additional interest in the limited partnership, limited liability partnership, or limited liability company to prevent the dilution of the partner's or member's
(5) The power to prevent the change of existing legal rights or preferences of the partners, members, or managers as provided in the limited partnership agreement, limited liability partnership agreement, or limited liability company agreement, or other operative agreement;
(6) The power to vote on the removal of a general partner, managing partner, managing member, or other manager in situations where such individual or entity is subject to bankruptcy, insolvency, reorganization, or other proceedings relating to the relief of debtors; adjudicated insane or incompetent by a court of competent jurisdiction (in the case of a natural person); convicted of a felony; or otherwise removed for cause, as determined by an independent party;
(7) The power to prevent the amendment of the limited partnership agreement, limited liability partnership agreement, or limited liability company agreement, or other organizational documents of the partnership or limited liability company with respect to the matters described in paragraph (c)(1) through (c)(6) of this section.
(d) The Commission reserves the right to consider, on a case-by-case basis, whether voting or consent rights over matters other than those listed in
Foreign ownership rulings issued pursuant to §§ 1.5000 through 1.5004 shall be subject to the following terms and conditions, except as otherwise specified in a particular ruling:
(a)(1)
(2)
Licensees have an obligation to monitor and stay ahead of changes in foreign ownership of their controlling U.S.-organized parent companies (for rulings issued pursuant to § 1.5000(a)(1)) and/or in the licensee itself (for rulings issued pursuant to § 1.5000(a)(2)), to ensure that the licensee obtains Commission approval before a change in foreign ownership renders the licensee out of compliance with the terms and conditions of its declaratory ruling(s) or the Commission's rules. Licensees, their controlling parent companies, and other entities in the licensee's vertical ownership chain may need to place restrictions in their bylaws or other organizational documents to enable the licensee to ensure compliance with the terms and conditions of its declaratory ruling(s) and the Commission's rules.
U.S. Corp. files an application for a common carrier license. U.S. Corp. is wholly owned and controlled by U.S. Parent, which is a newly formed, privately held Delaware Corporation in which no single shareholder has
As required by the rules, U.S. Corp. files a section 310(b)(4) petition concurrently with its application. The petition identifies and requests specific approval for the ownership interests held in U.S. Parent by Foreign Entity A and its sole shareholder (5 percent equity and 20 percent voting interest); Foreign Entity B and its sole shareholder (10 percent equity and 20 percent voting interest), Foreign Entity C (20 percent equity and 20 percent voting interest), and Foreign Entity D (21 percent equity and 20 percent voting interest) and its fund manager (20 percent voting interest). The Commission's ruling specifically approves these foreign interests. The ruling also provides that, on a going-forward basis, U.S. Parent may be 100 percent owned in the aggregate, directly and/or indirectly, by other foreign investors, subject to the requirement that U.S. Corp. seek and obtain Commission approval before any previously unapproved foreign investor acquires more than 5 percent of U.S. Parent's equity and/or voting interests, or a controlling interest, with the exception of any foreign investor that acquires an equity and/or voting interest of ten percent or less,
In this case, foreign entities F, G, and H would each be considered a previously unapproved foreign investor (along with any new foreign investors). However, prior approval for F, G and H would only apply to an increase of F's interest above 5 percent (because the ten percent exemption under § 1.5001(i)(3) does not apply to F) or to an increase of G's or H's interest above 10 percent (because G and H do qualify for this exemption). U.S. Corp. would also need Commission approval before Foreign Entity D appoints a new fund manager that is a non-U.S. citizen and before Foreign Entities A, B, C, or D increase their respective equity and/or voting interests in U.S. Parent, unless the petition previously sought and obtained Commission approval for such increases (up to non-controlling 49.99 percent interests). (
Assume that the following three U.S.-organized entities hold non-controlling equity and voting interests in common carrier Licensee, which is a privately held corporation organized in Delaware: U.S. corporation A (30 percent); U.S. corporation B (30 percent); and U.S. corporation C (40 percent). Licensee's shareholders are wholly owned by foreign individuals X, Y, and Z, respectively. Licensee has received a declaratory ruling under § 1.5000(a)(2) specifically approving the 30 percent foreign ownership interests held in Licensee by each of X and Y (through U.S. corporation A and U.S. corporation B, respectively) and the 40 percent foreign ownership interest held in Licensee by Z (through U.S. corporation C). On a going-forward basis, Licensee may be 100 percent owned in the aggregate by X, Y, Z, and other foreign investors holding interests in Licensee indirectly, through U.S.-organized entities that do not control Licensee, subject
(b)
(1) The subsidiary or affiliate of a licensee named in a foreign ownership ruling issued under § 1.5000(a)(1) may rely on that ruling for purposes of filing its own application for an initial broadcast, common carrier or aeronautical license or spectrum leasing arrangement, or an application to acquire such license or spectrum leasing arrangement by assignment or transfer of control
(2) The subsidiary or affiliate of a licensee named in a foreign ownership ruling issued under § 1.5000(a)(2) may rely on that ruling for purposes of filing its own application for an initial common carrier radio station license or spectrum leasing arrangement, or an application to acquire such license or spectrum leasing arrangement by assignment or transfer of control
(3) The certifications required by paragraphs (b)(1) and (2) of this section shall also include the citation(s) of the relevant ruling(s) (
(c)
(2) Where a previously unapproved foreign-organized entity is inserted into the vertical ownership chain of a licensee, or its controlling U.S.-organized parent, without prior Commission approval pursuant to paragraph (c)(1) of this section, the licensee shall file a letter to the attention of the Chief, International Bureau, within 30 days after the insertion of the new, foreign-organized entity. The letter must include the name of the new, foreign-organized entity and a certification by the licensee that the entity complies with the 100 percent common ownership and control requirement in paragraph (c)(1) of this section. The letter must also reference the licensee's foreign ownership ruling(s) by IBFS File No. and FCC Record citation, if available. This letter notification need not be filed if the ownership change is instead the subject of a
For broadcast stations, in order to insert a previously unapproved foreign-organized entity that is under 100 percent common ownership and control with the foreign investor approved in the ruling into the vertical ownership chain of the licensee's controlling U.S.-organized parent, as described in paragraph (c)(1) of this section, the licensee must always file a
(3) Nothing in this section is intended to affect any requirements for prior approval under 47 U.S.C. 310(d) or conditions for forbearance from the requirements of 47 U.S.C. 310(d) pursuant to 47 U.S.C. 160.
Licensee of a common carrier license receives a foreign ownership ruling under § 1.5000(a)(1) that authorizes its controlling, U.S.-organized parent (“U.S. Parent A”) to be wholly owned and controlled by a foreign-organized company (“Foreign Company”). Foreign Company is minority owned (20 percent) by U.S.-organized Corporation B, with the remaining 80 percent controlling interest held by Foreign Citizen C. After issuance of the ruling, Foreign Company forms a wholly-owned, foreign-organized subsidiary (“Foreign Subsidiary”) to hold all of Foreign Company's shares in U.S. Parent A. There are no other changes in the direct or indirect foreign ownership of U.S. Parent A. The insertion of Foreign Subsidiary into the vertical ownership chain between Foreign Company and U.S. Parent A would not require prior Commission approval, except for any approval otherwise required pursuant to section 310(d) of the Communications Act and not exempt therefrom as a
An applicant for a common carrier license receives a foreign ownership ruling under § 1.5000(a)(2) that authorizes a foreign-organized company (“Foreign Company”) to hold a non-controlling 44 percent equity and voting interest in the applicant through Foreign Company's wholly-owned, U.S.-organized subsidiary, U.S. Corporation A, which holds the non-controlling 44 percent interest directly in the applicant. The remaining 56 percent of the applicant's equity and voting interests are held by its controlling U.S.-organized parent, which has no foreign ownership. After issuance of the ruling, Foreign Company forms a wholly-owned, foreign-organized subsidiary to hold all of Foreign Company's shares in U.S. Corporation A. There are no other changes in the direct or indirect foreign ownership of U.S. Corporation A. The insertion of the foreign-organized subsidiary into the vertical ownership chain between Foreign Company and U.S. Corporation A would not require prior Commission approval.
(d)
Where a licensee has received a foreign ownership ruling under § 1.5000(a)(2) and the ruling specifically authorizes a named, foreign investor to hold a non-controlling interest directly in the licensee (subject to the 20 percent aggregate limit on direct foreign investment), the ruling shall permit the insertion of new, foreign-organized companies in the vertical ownership chain of the approved foreign investor without prior Commission approval
Licensee receives a foreign ownership ruling under § 1.5000(a)(1) that authorizes a foreign-organized company (“Foreign Company”) to hold a non-controlling 30 percent equity and voting interest in Licensee's controlling, U.S.-organized parent (“U.S. Parent A”). The remaining 70 percent equity and voting interests in U.S. Parent A are held by U.S.-organized entities which have no foreign ownership. After issuance of the ruling, Foreign Company forms a wholly-owned, foreign-organized subsidiary (“Foreign Subsidiary”) to hold all of Foreign Company's shares in U.S. Parent A. There are no other changes in the direct or indirect foreign ownership of U.S. Parent A. The insertion of Foreign Subsidiary into the vertical ownership chain between Foreign Company and U.S. Parent A would not require prior Commission approval.
Licensee receives a foreign ownership ruling under § 1.5000(a)(2) that authorizes a foreign-organized entity (“Foreign Company”) to hold approximately 24 percent of Licensee's equity and voting interests, through Foreign Company's non-controlling 48 percent equity and voting interest in a U.S.-organized entity, U.S. Corporation A, which holds a non-controlling 49 percent equity and voting interest directly in Licensee. (A U.S. citizen holds the remaining 52 percent equity and voting interests in U.S. Corporation A, and the remaining 51 percent equity and voting interests in Licensee are held by its U.S.-organized parent, which has no foreign ownership. After issuance of the ruling, Foreign Company forms a wholly-owned, foreign-organized subsidiary (“Foreign Subsidiary”) to hold all of Foreign Company's shares in U.S. Corporation A. There are no other changes in the direct or indirect foreign ownership of U.S. Corporation A. The insertion of Foreign Subsidiary into the vertical ownership chain between Foreign Company and U.S. Corporation A would not require prior Commission approval.
(2) Where a previously unapproved foreign-organized entity is inserted into the vertical ownership chain of a licensee, or its controlling U.S.-organized parent, without prior Commission approval pursuant to paragraph (d)(1) of this section, the licensee shall file a letter to the attention of the Chief, International Bureau, within 30 days after the insertion of the new, foreign-organized entity; or in the case of a broadcast licensee, the licensee shall file a letter to the attention of the Chief, Media Bureau, within 30 days after the insertion of the new, foreign-organized entity. The letter must include the name of the new, foreign-organized entity and a certification by the licensee that the entity complies with the 100 percent common ownership and control requirement in paragraph (d)(1) of this section. The letter must also reference the licensee's foreign ownership ruling(s) by IBFS File No. and FCC Record citation, if available; or, if a broadcast licensee, the letter must reference the licensee's foreign ownership ruling(s) by CDBS File No., Docket No., call sign(s), facility identification number(s), and FCC Record citation, if available. This letter notification need not be filed if the ownership change is instead the subject of a
(e)
(f)
(2) Any individual or entity that, directly or indirectly, creates or uses a trust, proxy, power of attorney, or any other contract, arrangement, or device with the purpose or effect of divesting itself, or preventing the vesting, of an equity interest or voting interest in the licensee, or in a controlling U.S. parent company, as part of a plan or scheme to evade the application of the Commission's rules or policies under section 310(b) shall be subject to enforcement action by the Commission, including an order requiring divestiture of the investor's direct and/or indirect interests in such entities.
(3) Where the controlling U.S. parent of a broadcast, common carrier, aeronautical en route, or aeronautical fixed radio station licensee or common carrier spectrum lessee is an eligible U.S. public company within the meaning of § 1.5000(e), the licensee may file a remedial petition for declaratory ruling under § 1.5000(a)(1) seeking approval of particular foreign equity and/or voting interests that are non-compliant with the licensee's foreign ownership ruling or the Commission's rules relating to foreign ownership; or, alternatively, the licensee may remedy the non-compliance by, for example, redeeming the foreign interest(s) that rendered the licensee non-compliant with the licensee's existing foreign ownership ruling. In either case, the Commission does not expect to take enforcement action related to the non-compliance subject to the requirements specified in paragraphs (f)(3)(i) and (ii) of this section and except as otherwise provided in paragraph (f)(3)(iii) of this section.
(i) The licensee shall notify the relevant Bureau by letter no later than 10 days after learning of the investment(s) that rendered the licensee non-compliant with its foreign ownership ruling or the Commission's rules relating to foreign ownership and specify in the letter that it will file a petition for declaratory ruling under § 1.5000(a)(1) or, alternatively, take remedial action to come into compliance within 30 days of the date
(ii) The licensee shall demonstrate in its petition for declaratory ruling (or in a letter notifying the relevant Bureau that the non-compliance has been timely remedied) that the licensee's non-compliance with the terms of the licensee's existing foreign ownership ruling or the foreign ownership rules was due solely to circumstances beyond the licensee's control that were not reasonably foreseeable to or known by the licensee with the exercise of the required due diligence.
(iii) Where the licensee has opted to file a petition for declaratory ruling under § 1.5000(a)(1), the Commission will not require that the licensee's U.S. parent redeem the non-compliant foreign interest(s) or take other action to remedy the non-compliance during the pendency of the licensee's petition. If the Commission ultimately declines to approve the petition, however, the licensee must have a mechanism available to come into compliance with the terms of its existing ruling within 30 days following the Commission's decision. The Commission reserves the right to require immediate remedial action by the licensee where the Commission finds in a particular case that the public interest requires such action—for example, where, after consultation with the relevant Executive Branch agencies, the Commission finds that the non-compliant foreign interest presents national security or other significant concerns that require immediate mitigation.
(4) Where a publicly traded common carrier licensee is an eligible U.S. public company within the meaning of § 1.5000(e), the licensee may file a remedial petition for declaratory ruling under § 1.5000(a)(2) seeking approval of particular foreign equity and/or voting interests that are non-compliant with the licensee's foreign ownership ruling or the Commission's rules relating to foreign ownership; or, alternatively, the licensee may remedy the non-compliance by, for example, redeeming the foreign interest(s) that rendered the licensee non-compliant with the licensee's existing foreign ownership ruling. In either case, the Commission does not, as a general rule, expect to take enforcement action related to the non-compliance subject to the requirements specified in paragraphs (f)(3)(i) and (f)(3)(ii) of this section and except as otherwise provided in paragraph (f)(3)(iii) of this section.
For purposes of this paragraph, the provisions in paragraphs (f)(3)(i) through (f)(3)(iii) that refer to petitions for declaratory ruling under § 1.5000(a)(1) shall be read as referring to petitions for declaratory ruling under § 1.5000(a)(2).
Interprets or applies 47 U.S.C. 154, 301, 302, 303, 307, 309, 310, 319, 332, 605, and 721. unless otherwise noted.
The rules that establish the requirements and conditions for obtaining the Commission's prior approval of foreign ownership in common carrier licensees that would exceed the 20 percent limit in section 310(b)(3) of the Communications Act (47 U.S.C. 310(b)(3)) and/or the 25 percent benchmark in section 310(b)(4) of the Act (47 U.S.C. 310(b)(4)) are set forth in §§ 1.5000 through 1.5004 of this chapter.
47 U.S.C. 154, 303, 309, 310, 334, 336, and 339.
(a) * * *
(9) Subpart T, “Foreign Ownership of Broadcast, Common Carrier, Aeronautical En Route, and Aeronautical Fixed Radio Station Licensees”. (§§ 1.5000 to 1.5004).
(10) Part 1, Subpart W of this chapter, “FCC Registration Number”. (§§ 1.8001-1.8005).
47 U.S.C. 154, 302a, 303, 307, 309, 310, 336 and 554.
(a) * * *
(8) Subpart T, “Foreign Ownership of Broadcast, Common Carrier, Aeronautical En Route, and Aeronautical Fixed Radio Station Licensees”. (§§ 1.5000 to 1.5004).
(9) Part 1, Subpart W of the chapter, “FCC Registration Number”. (§§ 1.8001-1.8005).
Food and Nutrition Service (FNS), USDA.
Proposed rule.
The proposed action would implement four sections of the Agricultural Act of 2014, (2014 Farm Bill), affecting eligibility, benefits, and program administration requirements for the Supplemental Nutrition Assistance Program (SNAP). Section 4007 clarifies that participants in a SNAP Employment & Training (E&T) program are eligible for benefits if they are enrolled or participate in specific programs that will assist SNAP recipients in obtaining the skills needed for the current job market. Section 4008 prohibits anyone convicted of Federal aggravated sexual abuse, murder, sexual exploitation and abuse of children, sexual assault, or similar State laws, and who are also not in compliance with the terms of their sentence or parole or are a fleeing felon, from receiving SNAP benefits. Section 4009 prohibits households containing a member with substantial lottery and gambling winnings from receiving SNAP benefits, until the household meets the allowable financial resources and income eligibility requirements of the program. Section 4009 also provides that State SNAP agencies are required, to the maximum extent practicable, to establish cooperative agreements with gaming entities in the State to identify SNAP recipients with substantial winnings. Section 4015 requires all State agencies to have a system in place to verify income, eligibility and immigration status.
Written comments must be received on or before January 30, 2017 to be assured of consideration.
The Food and Nutrition Service, USDA, invites interested persons to submit written comments on this proposed rule. Comments may be submitted in writing by one of the following methods:
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All written comments submitted in response to this proposed rule will be included in the record and made available to the public. Please be advised that the substance of comments and the identity of individuals or entities submitting the comments will be subject to public disclosure. FNS will make written comments publicly available online at
Sasha Gersten-Paal, Branch Chief, Certification Policy Branch, Program Development Division, Food and Nutrition Service, 3101 Park Center Drive, Alexandria, Virginia 22302, 703-305-2507.
Students enrolled at least half-time in an institution of higher education are ineligible to participate in SNAP under section 6(e)(3)(B) of the Food and Nutrition Act of 2008 (the Act), as amended, and 7 CFR 273.5(a). There are several exemptions to this prohibition, one of which is for students assigned to or placed in an institution of higher education under a SNAP E&T program.
Section 4007 of the 2014 Farm Bill (Public Law 113-79) amends Section 6(e)(3)(B) of the Act by providing additional detail as to what SNAP E&T-assigned education programs and/or courses satisfy the exemption for higher education under a SNAP E&T program. In particular, section 4007 provides that the exemption is limited to those who are enrolled in a course or program of study that is part of a program of career and technical education (as defined in Section 3 of the Carl D. Perkins Career and Technical Education Act of 2006) (the Perkins Act) that may be completed in not more than 4 years at an institution of higher education (as defined in section 102 of the Higher Education Act of 1965), or enrolled in courses for remedial education, basic adult education, literacy, or English as a second language.
Currently, individuals enrolled at least half-time in an institution of higher education are not eligible for SNAP benefits unless the individual meets at least one of the exemption criteria under 7 CFR 273.5(b), including section 273.5(b)(11)(ii), which exempts individuals assigned to an E&T program under section 273.7. The E&T exception to the student rule, as described at section 273.7(e)(1)(vi), includes educational programs or activities to improve basic skills or otherwise improve employability including educational programs determined by the State agency to expand the job search abilities or employability of those subject to the program. The State must establish a link between the education and job-readiness.
The Department of Agriculture (the Department) is proposing to revise section 273.5(b)(11)(ii) to incorporate section 4007's modifications to the eligibility requirements for students who are participating in an E&T education component. The additional language would essentially track the language in Section 4007. Criteria contained at section 273.7(e)(1)(vi) are also proposed to be revised to include courses or programs of study that are part of a program of career and technical education (as defined in section 3 of the Perkins Act). Other criteria contained at section 273.7(e)(1)(vi) would remain unchanged. For example, individuals participating in remedial courses, basic adult education, literacy instruction or English as a second language would also continue to qualify for the student exemption. The purpose of this exemption is to connect participants to
Section 3 of the Perkins Act provides a general definition of the term “career and technical education.” The Department understands that States have some discretion to determine what courses meet that general definition. That is, while all States have adopted the basic definition, they also have State-specific criteria as well. For example, States may choose to include more rigorous requirements or specific courses, among other individually-tailored standards. The Department also notes that the program does not have to be receiving Perkins funding, it would just need to meet the general definition. For these reasons, the Department believes that State agencies are in the best position to determine what courses or programs of study are parts of a program that meets the definition of career and technical education under the Perkins Act for SNAP as well. The Department is interested in receiving comments on following this approach.
Section 4007 provides that the course or program of study may be completed in not more than four years. The Department notes that many students pursuing four-year degrees are unable to finish in that time. Therefore, the Department is proposing that students participating in qualifying courses or programs of study that are designed to be completed in up to four years, but actually take longer than four years to complete, satisfy the new requirement.
Thirty-four States offered education components through their E&T programs in FY 2015. These States would need to evaluate whether those components meet the student eligibility criteria proposed in this rule. However, the Department believes that the cost implications of this proposed rule for those States are minimal and the provisions do not materially alter the rights and obligations of SNAP recipients because there would continue to be work requirement exemptions for students enrolled more than half-time in an institution of higher education under section 273.7(b)(viii).
Section 4008 of the 2014 Farm Bill added new section 6(r)(1) to the Act to prohibit anyone convicted of certain sexual crimes, child abuse, and murder who are also not in compliance with the terms of their sentence, or who are fleeing felons or parole or probation violators as described in section 6(k) of the Act, from receiving SNAP benefits. The listed offenses in section 4008 include the following: (i) Aggravated sexual abuse under section 2241 of Title 18, United States Code, (ii) murder under section 1111 of Title 18, United States Code, (iii) sexual exploitation and other abuse of children under chapter 110 of Title 18, United States Code, (iv) a Federal or State offense involving sexual assault, as defined in section 40002(a) of the Violence Against Women Act of 1994 (42 U.S.C. 13925(a)), or (v) an offense under State law determined by the United States Attorney General to be substantially similar to the offenses in (i) through (iii) above.
Section 4008 also imposes a new requirement that individuals applying for SNAP benefits must attest whether the applicant, or any other member of the household, was convicted of any of the listed Federal offenses or substantially similar State offenses. The provisions in section 4008 do not apply to convictions for conduct occurring on or before the date of enactment of the 2014 Farm Bill, February 7, 2014.
Section 4008 also provides that although those disqualified from receiving SNAP benefits under this provision are not SNAP-eligible members of the household, their income and resources are to be considered in determining the eligibility and value of the benefits for the rest of the household.
The Department is proposing to revise the regulations at section 273.11 by adding a new subsection (section 273.11(s)) to include the language contained in section 4008. The regulatory provision would essentially track the language in the statute, and would specify that the provision would not apply to convictions for conduct occurring on or before February 7, 2014. Fleeing felons and probation or parole violators covered in section 273.11(n) are also cited in proposed section 273.11(s) as ineligible for SNAP benefits.
The Department notes that before passage of the 2014 Farm Bill, section 6(k) of the Act, (reflected at section 273.11(n)), already prohibited certain fleeing felons and probation and parole violators from receiving SNAP benefits. The Department published a proposed rule, Clarification of Eligibility of Fleeing Felons (76 FR 51907), on August 19, 2011, and the final rule (80 FR 54410) on September 10, 2015, to implement section 4112 of the Food, Conservation, and Energy Act of 2008, Public Law 110-246, which required the Secretary of Agriculture to define the terms “fleeing” and “actively seeking.”
Section 4008 does not affect the existing prohibition that precludes fleeing felons and probation or parole violators from obtaining SNAP benefits under section 6(k) of the Act. The proposed § 273.11(s) would extend SNAP ineligibility to those individuals with convictions for Federal or State offenses as described in section 4008 who are also out of compliance with the terms of their sentence. The intent of the proposed subsection(s) is not to exclude individuals who have been convicted of such a crime but who have complied with the terms of their sentence, probation or parole.
This regulatory provision would apply to adults and to minors convicted as adults. It would not apply to minors who are under 18 unless they are convicted as adults. The Department understands that under Federal Law, juvenile offenses are penalized through “juvenile delinquencies” or “juvenile adjudications” rather than convictions and sentences, and that States have similar distinctions. Therefore, the Department believes that Congress did not intend to include such individuals in the prohibition.
Relatedly, section 273.2(j)(2)(vii) lists households that must never be considered categorically eligible for SNAP benefits. Section 273.2(j)(2)(vii)(D) already prohibits a household from being categorically eligible if any member of the household is ineligible under § 273.11(m) by virtue of a conviction for a drug-related felony. In this rule, the Department proposes to revise section 273.2(j)(2)(vii)(D) to add convicted felons under section 273.11(s) and fleeing felons and probation or parole violators under section 273.11(n) to this subsection. This prohibition from categorical eligibility would apply to households containing individuals disqualified as a result of having certain convictions and not being in compliance with the sentence as provided in proposed section 273.11(s). It also would apply to households containing a fleeing felon or individual violating parole or probation, a prohibition which was inadvertently not
State agencies are reminded that Privacy Act restrictions and confidentiality provisions found at section 11(e)(8) of the Act remain intact for individuals who would be covered by this proposed rule. A request for information about a SNAP recipient or applicant by law enforcement officials must be made during the proper exercise of an official duty. Information about potential convicted felons covered by section 4008 of the 2014 Farm Bill whether it is alleged that they have been convicted for Federal or State crimes listed in section 4008 and are violating their sentences, or who are fleeing felons or parole or probation violators, must not be released to other persons such as bounty hunters, who are not official law enforcement representatives of a Federal or State entity.
State agencies would be required to establish clear and consistent standards for determining whether an individual is not in compliance with the terms of his or her sentence. Those standards must not be arbitrary or capricious. Standards for determining whether someone is a fleeing felon or probation or parole violator are addressed in the final rule titled Clarification of Eligibility of Fleeing Felons (80 FR 54410) published on September 10, 2015.
Section 4008 gives the United States Attorney General the authority to determine what statutory crimes and sentences convictions are substantially similar under State law. The U.S. Department of Justice (DOJ) may establish guidelines for determining which State offenses are substantially similar to the Federal offenses listed in section 4008. More information on the matter is forthcoming, through either regulations or guidance from DOJ.
Section 4008 also requires every person applying for SNAP benefits to attest whether the individual, or any member of the household of the individual, has been convicted for a crime covered by this section. The Department proposes to add the attestation requirement to the regulations at new paragraph section 273.2(o). In addition to the language contained in section 4008 regarding attestation, the Department also proposes to incorporate other specific standards and procedures for the attestation into the regulation. Although State agencies do have some discretion with the attestation requirement, basic standards will help ensure consistency across State agencies. Those standards are proposed as follows below.
Specifically, the individual applying for benefits would be responsible for attesting whether he or she, or any other household member, has been convicted as an adult of the crimes in section 4008. As part of that attestation, the Department would also require that the household attest as to whether any convicted member is complying with the terms of the sentence. The Department does not believe it is feasible for each individual member of the household to attest. If the SNAP household uses an authorized representative, the authorized representative would complete the attestation. State agencies would be required to update their application process to include the attestation requirement. It may be done in writing, verbally, or both, provided that the attestation is legally binding in the State. States could accomplish this by, for example, adding the attestation to the application for benefits, or by updating their interview process to include the attestation. The Department expects that the attestation would take place during the interview process, and anticipates that most attestations will be in writing. If an applicant is not present in person to hand in an application along with the attestation, the Department prefers that the State agency accept a written as opposed to verbal attestation and not require individuals to come into the office solely for the purpose of completing an attestation. To do otherwise could place an undue burden on the household and have a negative effect on program access. The attestation would be documented in the case file. Whatever procedure a State chooses to implement would need to be reasonable and consistent for all households applying for SNAP benefits, and would need to be part of certification and recertification procedures. The Department believes this discretion provides State agencies the flexibility to determine a standard that best suits their needs and administrative structures, while still supporting uniformity and legal enforceability.
The State agency would be required to verify any attestation that no member of the household has been convicted as an adult of the crimes in this section if its veracity is questionable. The State agency would have the discretion to determine what makes an attestation questionable. In the event an attestation is questionable, the State agency would have to evaluate each case separately, using a reasonable standard established by the State to ensure consistency for all cases, and document the case file accordingly. At a minimum, the Department expects that State agencies would verify each element of the attestation—that the individual has been convicted of a crime listed in section 4008, and that the individual is not in compliance with the terms of their sentence.
The Department is also proposing that the State agency must verify when the household attests that there is a disqualified felon not in compliance with the sentence to avoid any unnecessary confusion on the part of the household. That is, if a SNAP applicant attests to being a convicted felon not in compliance with the sentence, or attests that another member of the household is a convicted felon not in compliance with the sentence, the State agency would be responsible for verifying the disqualified felon status of the individual. The Department believes the State agency is in a better position than applicants to understand the specific requirements of the attestation and to obtain appropriate verification. Also, an applicant who attests for other members of the household may not have all of the information or a clear understanding of the situation involving that household member, and the State agency would be able to more reliably confirm felon status and whether the individual is complying with the sentence. The State agency would need to establish a reasonable standard to ensure consistency for all cases, and document the case file accordingly, in order to properly conduct this verification. The Department proposes to codify this requirement at section 273.2(f)(5)(i). The Department reminds State agencies that under section 273.2(f)(3) they have the option to implement mandatory verification where appropriate.
Section 4009 of the Farm Bill directs the Department to institute new regulations regarding the receipt of substantial lottery or gambling winnings among SNAP households. It provides that any household that receives substantial lottery or gambling winnings, as determined by the Secretary, must lose eligibility for benefits immediately upon receipt of winnings. It also requires that those households remain ineligible until they again meet the allowable financial resources and income eligibility requirements of the Act. Section 4009 also requires the Secretary to set standards for each State agency to establish agreements, to the maximum extent practicable, with entities
Section 4009 requires that households that have received substantial lottery or gambling winnings shall immediately lose eligibility for SNAP benefits, and gives the Secretary authority to define what amount constitutes substantial winnings. In order to implement section 4009, the Department is proposing a new 7 CFR 273.11(r) to codify the disqualification and definition. Substantial lottery or gambling winnings would be defined as a cash prize won in a single game equal to or greater than $25,000 before taxes or other amounts are withheld. If multiple individuals shared in the purchase of a ticket, hand, or similar bet, then only the portion of the winnings allocated to the member of the SNAP household would be counted toward the eligibility determination. Non-cash prizes are not included in the definition of substantial winnings.
FNS based its definition of substantial winnings on the amount that would cause a significant lifestyle change for a majority of SNAP households. Small amounts of winnings that would be quickly spent by a household for common expenses like paying down debt, making car repairs, saving for an apartment security deposit, or buying long put-off necessities would not meet the definition of substantial. One way to understand substantial winnings that would result in a significant lifestyle change is an amount that would push a household's income above the SNAP gross income limits for a household of three considered annually for a given fiscal year. Gross income limits for a household of three would be used to set the threshold because the average SNAP household size is between two and three.
In fiscal year 2017, the gross monthly income limit for a household of three is $2,184. This value multiplied by 12 and rounded to the nearest five thousand equals $25,000. FNS proposes rounding to the nearest $5000 to allow for ease in administration and communication with gaming entities and SNAP recipients. Every new fiscal year the threshold would be re-calculated using the new value for the gross monthly income limit for a household of three for that fiscal year rounded to the nearest five thousand dollars. FNS would provide the adjusted threshold amount to State agencies along with the SNAP income and resource limits each year. FNS asks for comments on this proposed definition of substantial winnings.
All households certified to receive SNAP benefits would be subject to this rule. If a member of a SNAP household wins a substantial amount, the entire SNAP household would lose eligibility for the program. Section 4009 requires that households disqualified by this provision shall remain ineligible for SNAP until that household meets the allowable financial resources and income eligibility requirements under subsections (c), (d), (e), (f), (g), (i), (k), (l), (m) and (n) of section 5 of the Act.
The Department proposes to add a new section 272.17 to codify the requirement in section 4009 by setting standards for States' establishment of cooperative agreements with entities responsible for the regulation or sponsorship of gaming in the State, in order to identify individuals with substantial winnings, as defined by this rule, within their State. Gaming entities would be those entities responsible for the regulation or sponsorship of gaming in the State. Examples include, but are not limited to, State lotteries, casinos, race tracks that permit wagering, off-track betting facilities, State gambling oversight boards, and other entities that regulate gambling in public or private organizations in the State or on Tribal lands. Gaming entities that do not pay-out cash winnings equal to or greater than the substantial amount defined above would not be subject to this rule.
State agencies will not be required to establish cooperative agreements with gaming entities within their State if all gaming activities are deemed illegal by State and Federal law. However, if a State agency becomes aware of a member of a SNAP household receiving benefits within their State who wins substantial lottery or gambling winnings, as defined by this rule, either within or outside their State, then the State agency would be required to enforce this rule for that individual and the individual's household even if gambling is illegal in the State where the household is receiving benefits.
Gaming entities that enter into cooperative agreements with State agencies to identify SNAP recipients with substantial winnings would be responsible for meeting the terms of these agreements. The cooperative agreements would solely allow for the gaming entities to transmit information to State agencies; State agencies would be prohibited from sharing any information about SNAP households with gaming entities. Gaming entities would not be authorized to use data matches to receive or view information on SNAP households. In addition, section 4009 does not require gaming entities to withhold winnings of a substantial amount, as defined by this rule, from a winner. The Department anticipates gaming entities would only share information with the State agency on individuals who win an amount equal to or greater than a substantial amount, as defined by this rule. The State agency would only use the information obtained through the data matches with gaming entities to identify individuals with substantial winnings, as defined by this rule.
The Department anticipates that a cooperative agreement established between the State agency and a gaming entity would specify that the gaming entity, either directly or through a third party, will share information about individuals with substantial winnings, as defined by this rule, over an agreed upon time period with the State agency. As contained in proposed section 273.17(b), at a minimum these agreements would need to specify the type of information to be shared by the gaming entity, the procedures used to share information, the frequency of sharing information, and the job titles of individuals who would have access to the data. Cooperative agreements should also include safeguards limiting release or disclosure of personally identifiable information to parties outside those included in the agreement.
Because the types of lottery and gambling activities allowed within a State, and the administration and oversight of these games, vary from State to State, State agencies would have discretion in determining which types of games and gaming entities will be subject to this rule; however, the Department expects State agencies to include as many gaming entities in their implementation of this rule as is practicable. State agencies should make a good faith effort to enter into cooperative agreements with entities within their State responsible for the regulation or sponsorship of gaming. If a State agency and a gaming entity cannot come to an agreement after the State agency makes a good faith effort, then the State agency need not continue to pursue an agreement with that gaming entity at that time.
State agencies have some discretion to determine how often matches are made to identify winners. FNS expects State agencies to perform matches as frequently as is feasibly possible to identify SNAP recipients with substantial winnings, as defined in this rule. However, at a minimum, matches would be conducted when a recipient
SNAP recipients would be required to self-report substantial winnings, as defined in this rule, to the State agency administering the household's benefits within 10 days of collecting the winnings regardless of the State where the winnings were won, in accordance with the 10 day reporting timeframes outlined in section 273.12(a)(2). SNAP recipients would be required to report substantial winnings, as defined in this rule, from State lotteries and other gaming entities both in the State where they receive benefits and in other States, as well as any substantial winnings from multi-state lotteries. If a State agency learns through self-reporting that a SNAP recipient received substantial winnings, as defined by this rule, the State agency must act immediately by closing the entire household's case. Before closing a household's case, the State agency may verify information about self-reported substantial winnings, as defined in this rule, if the information is questionable. The Department proposes to codify the reporting requirements surrounding this disqualification at new section 273.12(a)(1)(viii) and section 273.12(a)(5)(vi)(B)(5). The Department also proposes to add to section 273.12(a)(5)(iii)(E) the requirement that households report when a member of the household wins substantial lottery or gambling winnings in accordance with new section 273.11(r).
State agencies must inform SNAP households upon certification that, should any member of the household win substantial lottery or gambling winnings, as defined in this rule, they must contact the State agency within 10 days to reassess their eligibility for SNAP. Section 4009 only applies to eligibility determinations of enrolled SNAP households, not households who are applying to receive benefits. As a result it would not be necessary to include a question on the initial SNAP application asking applicants if anyone in the household has ever won substantial winnings. However, it is at the discretion of the State agency to determine whether to include a question on the SNAP periodic report or recertification forms asking if anyone in the recipient household has won substantial lottery or gambling winnings, as defined by this rule, since the time of the household's most recent certification. In making this decision States should consider the potential increase in response burden for SNAP households relative to the number of households likely to report substantial winnings.
The Department notes that its rule, Supplemental Nutrition Assistance Program (SNAP): Eligibility, Certification, and Employment and Training Provisions of the Food, Conservation and Energy Act of 2008, is currently in the process to be published as a final rule. That rule also references sections of section 273.12. Assuming that final rule is published by the time this rule is in the final rule process, the Department may be required to re-designate paragraph citations accordingly.
Data received through cooperative agreements with gaming entities may come from a wide variety of gaming entities (
If a State agency identifies a SNAP recipient who has received substantial winnings, as defined by this rule, before the recipient reports the collection of winnings, the State would need to verify that information, if it is not considered verified upon receipt. Procedures established in new section 272.17(c) require that if a household is found to have received, during their certification period, substantial winnings, as defined in this rule, prior to any action to terminate the household's benefits, the State agency shall provide the household notice, in accordance with the provisions on notices of adverse action appearing in section 273.13. For households that are found to have received substantial winnings at the time of their case's recertification, the State agency shall provide these households with a notice of denial, in accordance with section 273.10(g)(2). The State agency shall also establish claims as appropriate.
The Department recognizes that some States will consider information received through data matches verified upon receipt, whereas other States will need to pursue verification regardless of how the State has chosen to act on changes. Upon receipt of a positive data match, all States would need to take immediate action to either to pursue verification, as needed, and close the case, if appropriate, regardless of whether the State has chosen to act on all changes or to act only on certain changes.
Section 4009 does not require SNAP applicants to be screened for eligibility based on past lottery or gambling winnings. The only exception would be applicant households containing a member who was previously disqualified for substantial winnings, as defined by this rule, since section 4009 requires that such households remain ineligible until they meet the income and eligibility requirements in the Act detailed in sections 273.8 and 273.9.. The eligibility determinations for these households at the time of re-application would need to be based on the requirements in sections 273.8 and 273.9. To identify members of applicant households previously disqualified for substantial winnings, as defined in this rule, SNAP eligibility workers could conduct a search of past case records or question the household during the interview. The Department feels that including a question on the SNAP application about past disqualification for substantial winnings, as defined in this rule, will unnecessarily burden the vast majority of SNAP applicants not subject to this rule. Other methods, such as those noted above, may be more effective in obtaining the necessary information without adding burden to all SNAP applicants.
Section 4015 of the 2014 Farm Bill amends section 11(p) of the Act by providing that a State agency must use an immigration status verification system established under section 1137
The Department proposes to amend the regulations at 7 CFR 273.2(f)(1)(ii) to largely reflect the statutory language in section 4015 by requiring States to use an immigration status verification system established under section 1137 of the SSA (42 U.S.C. 1320b-7) when verifying immigration status of SNAP applicants.
Section 1137(d)(3) of the SSA (42 U.S.C. 1320b-7(d)(3)) requires verification of immigration status “through an automated or other system” designated by the Immigration and Naturalization Service (INS) for use by the States. INS ceased to exist as a result of the Homeland Security Act of 2002, P.L. 107-296, on March 1, 2003, and its functions were transferred from the Department of Justice to the newly-created Department of Homeland Security (DHS). Three agencies were established within DHS—including the U.S. Citizenship and Immigration Services (USCIS).
USCIS administers the Systematic Alien Verification for Entitlements (SAVE) Program to help Federal, State and local agencies authorized to use the service to verify the immigration status of public benefits applicants. SAVE is an inter-governmental web-based service that provides timely immigration status information, thereby allowing those user agencies to ensure that they are issuing public benefits only to individuals entitled to receive them.
USCIS has confirmed with the Department that there are only two ways a SNAP State agency can verify immigration status with USCIS. Both ways are through the SAVE system—either through an electronic search or a manual G-845 paper form search (there is also a G-845 Supplement form if the State agency would like to request more detailed information on immigration status, citizenship and sponsorship). USCIS offers no other options for a SNAP State agency to verify immigration status, and either method would satisfy the immigration verification requirements of section 4015. Typically, the manual search is available after an initial electronic search if additional verification is needed. Whether using the electronic search or manual G-845 forms search, the State agency must sign a memorandum of agreement with USCIS to conduct the verification.
Current SNAP regulations at section 273.2(f)(1)(ii) require that States verify the immigration status of non-citizens who apply for SNAP, but do not mandate the use of SAVE to do so. As Section 4015 now mandates that all States use an immigration status verification system established under Section 1137 of the SSA, in effect, it now requires the use of SAVE to verify immigration status. Therefore, the Department is proposing to revise references to SAVE throughout §§ 272 and 273 to reflect this new mandatory requirement.
Since SAVE is administered by another Federal agency that could change the name or other details of the service, the Department proposes to revise section 273.2(f)(1)(ii) to reflect the broader language of section 4015 in the event USCIS makes any changes to that system. Provisions regarding the optional use of SAVE to verify the validity of documents are available at sections 272.11(a) and 273.2(f)(10) and are proposed to be updated only to reflect the new mandatory requirement that the system be one established under section 1137 of the SSA. Other provisions contained at section 272.11 involve necessary logistical steps for the use of SAVE, such as establishing agreements with INS (now USCIS), and administrative requirements such as use of the data, and are unaffected by this proposed rule. Similarly, other requirements at section 273.2(f)(10), regarding procedures in verifying the validity of documents provided by alien applicants, are unaffected by this proposed rule.
All 53 State agencies (including the District of Columbia, Guam and the Virgin Islands) have indicated to FNS that they currently use the SAVE database, so the Department does not believe the requirement will have a big impact on most States. Because SAVE is the system used by USCIS for immigration status verification, State SNAP agencies' use of SAVE would satisfy the immigration verification requirement in section 4015. Ensuring that all States use an immigration status verification system established under section 1137 of the SSA helps ensure State agencies follow consistent standards in verifying immigration status. The Department may require the State agency to provide written confirmation from USCIS that the system used by the State is an immigration status verification system established under section 1137 of the SSA.
Although section 4015 does not specifically require State agencies to use the electronic SAVE search, USCIS has indicated its preference for the electronic search over the paper-based G-845 SAVE search. This is because the electronic SAVE search is faster and more efficient. The Department also understands that an electronic SAVE search is more cost effective per search than the paper-based process. For these reasons, the Department encourages State agencies to use an electronic before a manual SAVE search.
As a related matter, the Department is taking this opportunity to propose an update of the terminology used in the current regulations for the Federal agency that handles immigration status issues. Current SNAP regulations refer to the Department of Justice (DOJ) Immigration and Naturalization Service (INS) as the entity responsible for fulfilling Federal immigration functions. As previously noted, INS no longer exists and USCIS now oversees lawful immigration to the United States and naturalization of new American citizens, including the management of SAVE. The Department proposes to update references from INS to USCIS throughout sections 271, 272 and 273 accordingly.
To further clarify existing requirements, this proposed rule would more explicitly include in the regulatory text the requirement that State agencies must verify the immigration status of all non-citizens applying for SNAP benefits. Although an applicant must provide documentation of his or her status when applying for benefits, such as a green card, doing so does not negate the State agency's responsibility to verify that status with DHS. This is essential because SNAP eligibility workers do not have the expertise to confirm the validity of those documents. Such confirmation must come from the Federal agency charged with overseeing immigration status issues—DHS' USCIS. This clarification is proposed at sections 273.2(f)(1)(ii) and (f)(10).
Finally, the Department reminds commenters that section 5(i) of the Act and section 273.4(c)(4) of the regulations require that the income and resources of sponsors be deemed to sponsored non-citizens when they apply for SNAP (with exceptions for particular vulnerable populations as listed at section 273.4(c)(3)). Sponsored non-citizens applying for SNAP are required to provide information and documentation about their sponsor's income and resources. The Department understands that SAVE search results
Section 4015 also requires States to use an income and eligibility verification system established under Section 1137 of the SSA in accordance with standards set by the Secretary. Standards for IEVS already exist at section 272.8(a)(1), section 273.2(b)(2) and section 273.2(f)(9). Except for updating these provisions to remove the optional use of IEVS, the Department proposes to maintain current requirements without change. States would need to maintain a system that ensures compliance with the applicant verification standards in section 273.2(f). Those standards contain procedures on, for example, items requiring mandatory verification and verification when questionable, describes sources of verification, among other standards.
Executive Orders 12866 and 13563 direct agencies to assess all costs and benefits of available regulatory alternatives and, if regulation is necessary, to select regulatory approaches that maximize net benefits (including potential economic, environmental, public health and safety effects, distributive impacts, and equity). Executive Order 13563 emphasizes the importance of quantifying both costs and benefits, of reducing costs, of harmonizing rules, and of promoting flexibility.
This proposed rule has been determined to be not significant and was not reviewed by the Office of Management and Budget (OMB) in conformance with Executive Order 12866.
This rule has been designated as not significant by the Office of Management and Budget, therefore, no Regulatory Impact Analysis is required.
The Regulatory Flexibility Act (5 U.S.C. 601-612) requires Agencies to analyze the impact of rulemaking on small entities and consider alternatives that would minimize any significant impacts on a substantial number of small entities. Pursuant to that review, it has been certified that this rule would not have a significant impact on a substantial number of small entities. While there may be some burden/impact on State agencies and small entities involved in the gaming industries, the impact is not significant as the burden would be on State agencies to ensure appropriate cooperative agreements are entered into.
Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), Public Law 104-4, establishes requirements for Federal agencies to assess the effects of their regulatory actions on State, local and Tribal governments and the private sector. Under section 202 of the UMRA, the Department generally must prepare a written statement, including a cost benefit analysis, for proposed and final rules with “Federal mandates” that may result in expenditures by State, local or Tribal governments, in the aggregate, or the private sector, of $146 million or more (when adjusted for inflation; GDP deflator source: Table 1.1.9 at
SNAP is listed in the Catalog of Federal Domestic Assistance Programs under 10.551. For the reasons set forth in the final rule in 7 CFR part 3015, subpart V, and related Notice (48 FR 29115, June 24, 1983), this program is included in the scope of Executive Order 12372 which requires intergovernmental consultation with State and local officials.
Executive Order 13132 requires Federal agencies to consider the impact of their regulatory actions on State and local governments. Where such actions have federalism implications, agencies are directed to provide a statement for inclusion in the preamble to the regulations describing the agency's considerations in terms of the three categories called for under Section (6)(b)(2)(B) of Executive Order 13121. The Department has considered the impact of this rule on State and local governments and has determined that this rule does not have federalism implications. Therefore, under section 6(b) of the Executive Order, a federalism summary is not required.
This proposed rule has been reviewed under Executive Order 12988, Civil Justice Reform. This rule is intended to have preemptive effect with respect to any State or local laws, regulations or policies which conflict with its provisions or which would otherwise impede its full and timely implementation. This rule is not intended to have retroactive effect unless so specified in the Effective Dates section of the final rule. Prior to any judicial challenge to the provisions of the final rule, all applicable administrative procedures must be exhausted.
FNS has reviewed this proposed rule in accordance with USDA Regulation 4300-4, “Civil Rights Impact Analysis,” to identify any major civil rights impacts the rule might have on program participants on the basis of age, race, color, national origin, sex or disability. After a careful review of the rule's intent and provisions, FNS has determined that the changes to SNAP regulations in this proposed rule are driven by legislation and therefore required. The Department specifically prohibits the State and local government agencies that administer the program from engaging in discriminatory actions. Discrimination in any aspect of program administration is prohibited by SNAP regulations, the Food and Nutrition Act of 2008, the Age Discrimination Act of 1975, Section 504 of the Rehabilitation Act of 1973, the Americans with Disabilities Act of 1990 and Title VI of the Civil Rights Act of 1964. Where State agencies have options, and they choose to implement a certain provision, they must implement it in such a way that it complies with these
The Department participated in a May 21, 2014, Tribal Consultation on the lottery provision, during which the Department received no significant feedback or questions.
The Department maintains a public Web site that provides basic information on each program, including SNAP. Interested persons, including potential applicants, applicants, and participants can find information about these changes as well as State agency contact information, downloadable applications, and links to State agency Web sites and online applications.
Executive Order 13175 requires Federal agencies to consult and coordinate with Tribes on a government-to-government basis on policies that have Tribal implications, including regulations, legislative comments or proposed legislation, and other policy statements or actions that have substantial direct effects on one or more Indian Tribes, on the relationship between the Federal Government and Indian Tribes, or on the distribution of power and responsibilities between the Federal Government and Indian Tribes. The Department participated in a Tribal Consultation on the Lottery provisions of this rule. Tribal organizations with gaming facilities may be approached by the State(s) in which they are located to participate in the cooperative agreements to identify individuals with significant lottery or gambling winnings. The Department also notes that the regulatory changes proposed in this rule regarding students enrolled more than half-time and certain convicted felons will not have a greater substantial direct effect on tribal organizations than all other applicants applying for SNAP. We are unaware of any current Tribal laws that could be in conflict with the final rule.
The Paperwork Reduction Act of 1995 (44 U.S.C. Chap. 35; 5 CFR 1320) requires the Office of Management and Budget (OMB) approve all collections of information by a Federal agency before they can be implemented. Respondents are not required to respond to any collection of information unless it displays a current valid OMB control number. This rule proposes information collections that are subject to review and approval by the Office of Management and Budget; therefore, FNS is submitting for public comment the changes in the information collection
This is a new collection for proposed rule, Lottery and Gambling Winners in the Supplemental Nutrition Assistance Program, which would require States to make ineligible SNAP participants with substantial lottery or gambling winnings and establish cooperative agreements with gaming entities within their States to identify SNAP participants with substantial winnings. The provisions regarding students, felon disqualification and State eligibility verification systems in this proposed rule do not contain information collection requirements subject to approval by OMB under the Paperwork Reduction Act of 1994.
State agencies will be required to make minimal, one-time changes to their application process in order to comply with the provisions of the felon disqualification attestation requirement. Since State agencies are already required to verify the immigration status of non-citizens applying for the program, the impact of this provision is negligible. Other minimal burdens imposed on State agencies by this proposed rule are usual and customary within the course of their normal business activities. These changes are contingent upon OMB approval under the Paperwork Reduction Act of 1995. When the information collection requirements have been approved, FNS will publish a separate action in the
Comments on this information collection pursuant this proposed rule must be received on or before January 30, 2017.
Comments are invited on: (a) Whether the proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information shall have practical utility; (b) the accuracy of the agency's estimate of the burden of the proposed collection of information, including the validity of the methodology and assumptions that were used; (c) ways to enhance the quality, utility, and clarity of the information to be collected; and (d) ways to minimize the burden of the collection of information on those who are to respond, including use of appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology.
Comments may be sent to: Mary Rose Conroy, Food and Nutrition Service, U.S. Department of Agriculture, 3101 Park Center Drive, Room 810, Alexandria, VA 22302. Comments may also be submitted via fax to the attention of Mary Rose Conroy at 703-305-2803 or via email to
This rule does not require any recordkeeping burden. Reporting detail burden information is provided below.
The affected public for this collection is 53 State SNAP agencies, 53 State public agency gaming entities, and 159 private business gaming entities. It is estimated that each of the 53 State SNAP agencies will establish cooperative agreements once with one State public agency gaming entity within the State and 3 private business gaming entities within the State for a total of 212 annual responses which will take approximately 320 hours per response for a total of 67,840 annual burden hours. This one time activity includes time for the State SNAP agency to reach out to the State public agency gaming entities and private business gaming entities in the State, negotiate terms for sharing identifying information of winners, establish secure connections for sharing information, and to complete all necessary reviews of agreements by legal counsel and State leadership. Each of the 53 State public agency gaming entities will also incur a burden entering into cooperative agreements with their State SNAP agency, which will take approximately 320 hours per response for a total of 16,960 burden hours. This one time activity includes time for the State public agency gaming entity to negotiate terms for sharing identifying information of winners, establish secure connections for sharing information, and to complete all necessary reviews of agreements by legal counsel and State public agency gaming entity leadership. It is estimated that each of 159 affected private business gaming entities will establish cooperative agreements once with their respective State SNAP agency, which will take approximately 320 hours per response for a total of 50,880 annual burden hours. Our estimate assumes all 53 State SNAP agencies receiving SNAP funding will implement this rule despite large variations in gaming activities from State to State.
It is estimated that each of the 53 State SNAP agencies will create a data matching system once to match information on winners from State public agency gaming entities and private business gaming entities within the State with SNAP participation lists, which will take approximately 160 hours per response for a total of 8,480 annual burden hours. All State SNAP agencies currently make use of other computerized data matching systems (
Once the matching system is in place, for every year thereafter, the State public agency and private business gaming entities will have to enter information into the system for every individual who wins over the threshold for winnings. There is no national database of how many people win large amounts of money in State lotteries or through other gaming activities. For this estimate, it is assumed that each of the 53 State public agency gaming entities would have 200 individuals who win over the threshold in a given year for a total of 10,600 annual responses. It will
Once the matching system is in place, for every year thereafter, the matches between the winner list and SNAP participation list should occur automatically and with negligible cost. For this estimate, it is assumed that each of the 53 State SNAP agencies will positively match with the one State public agency and three private business gaming entities in their respective States an average of 35 records per year for a total annual response of approximately 1,855 SNAP participants nationally. Each of 53 State SNAP agencies will have to identify among the responses above those that are misidentified as SNAP participants because of a similar name, inaccurate reporting etc. FNS anticipates that each of the 53 State SNAP agencies will receive approximately 5 total annual records with misidentified participants for a total annual response of 265 records. It will take approximately 0.667 hours to identify these types of misidentifications for a total annual burden of 176.76 burden hours. Additionally, each of the 53 State SNAP agencies will have to follow-up with and disqualify SNAP participants discovered through the above matches to have actual substantial lottery or gambling winnings. FNS anticipates approximately 30 records annually per State SNAP agency will be households with actual substantial winnings and it will take approximately 1 hour of the State SNAP agency's time for this activity for a total of approximately 1590 annual burden hours.
Lottery or gambling winners who lose eligibility for SNAP will need to be re-evaluated according to normal program rules if they again decide to apply for SNAP benefits. In order to identify applicants who were previously disqualified due to substantial winnings, eligibility workers may conduct a routine search of past enrollment files at the time of application. In most cases, eligibility workers are already doing this search to identify other relevant information for the current household application, and as a result the cost is negligible.
There is no recordkeeping burden required for this information collection request.
The estimate of respondent cost is based on the burden estimates and utilizes the Department of Labor, Bureau of Labor Statistic, May 2015 National Occupational and Wage Statistics, Occupational Groups (11-1021), (11-9071), (43-4061), (43-4199), and (43-3041).
The total annual cost to respondents is $7,978,541.80. This includes $3,669,529.20 for Business and $4,309,012.60 for State Agencies. It is estimated that State SNAP agency mangers in the General and Operations Managers for Local Government occupation group (11-1021) in the 53 State SNAP agencies will spend a total of 67,840 hours to establish cooperative agreements with State public agency and private business gaming entities at a rate of $45.64 per hour for a total estimated cost of $3,096,217.60 for all respondents in the first year.
It is estimated that State public agency gaming entity managers in the General and Operations Managers for Local Government occupation group (11-1021) in the 53 State SNAP agencies will spend a total of 16,960 hours to establish cooperative agreements with State SNAP agencies at a rate of $45.64 per hour for a total estimated cost of $774,054.40 for all respondents in the first year.
It is estimated that State SNAP agency mangers in the General and Operations Managers for Local Government occupation group (11-1021) in the 53 State SNAP agencies will spend a total of 8480 hours to establish data matching systems with State public agency and private business gaming entities at a rate of $45.64 per hour for a total estimated cost of $387,027.20 for all respondents in the first year.
It is estimated that State SNAP agency eligibility workers in the Eligibility, Interviews, Government Programs occupation group (43-4061) in the 53 State SNAP agencies will spend a total of 176.76 hours to review matches for misidentified winners at a rate of $20.41 per hour for a total estimated cost of $3,607.57 for all respondents annually.
It is estimated that State SNAP agency eligibility workers in the Eligibility, Interviews, Government Programs occupation group (43-4061) in the 53 State SNAP agencies will spend a total of 1590 hours to follow-up with and disqualify correctly matched winners at a rate of $20.41 per hour for a total estimated cost of $32,451.90 for all respondents annually.
It is estimated that State public agency gaming entity staff in the Information and Record Clerks, All Other occupation group (43-4199) in the 53 State public agency gaming entities will spend a total of 848 hours to enter appropriate information into the data matching system with the State SNAP agency at a rate of $18.46 per hour for a total estimated cost of $15,654.08 for all respondents annually.
It is estimated that private gaming entity managers in the General and Operations Managers, Management in Companies and Enterprises occupation group (11-1021) in the 159 private business gaming entities will spend a total of 50,880 hours to establish cooperative agreements with State SNAP agencies at a rate of $71.79 per hour for a total estimated cost of $3,652,675.20 for all respondents in the first year.
It is estimated that private business gaming entity staff in the Gaming Cage Workers occupation group (43-3041) in the 159 private business gaming entities will spend a total of 1272 hours to enter appropriate information into the data matching system with the State SNAP agency at a rate of $13.25 per hour for a total estimated cost of $16,854 for all respondents annually.
The Department is committed to complying with the E-Government Act of 2002, to promote the use of the Internet and other information technologies to provide increased opportunities for citizen access to Government information and services, and for other purposes.
Food stamps, Grant programs—social programs, Reporting and recordkeeping requirements.
Alaska, Civil rights, Supplemental Nutrition Assistance Program, Grant programs—social programs, Penalties, Reporting and recordkeeping requirements.
Administrative practice and procedures, Aliens, Claims, Supplemental Nutrition Assistance Program, Fraud, Grant programs—social programs, Penalties, Reporting and recordkeeping requirements, Social Security, Students.
For the reasons set forth in the preamble, 7 CFR parts 271, 272 and 273 are proposed to be amended as follows:
7 U.S.C. 2011-2036.
The addition to read as follows:
(a) * * *
(1) State agencies shall maintain and use an income and eligibility verification system (IEVS), as specified in this section. * * *
(a) General. A State agency shall use an immigration status verification system established under Section 1137 of the Social Security Act (42 U.S.C. 1320b-7) to verify the eligible status of all aliens applying for SNAP benefits. USCIS maintains the Systematic Alien Verification for Entitlements (SAVE) Program to conduct such verification.
(a) General. Each State agency, to the maximum extent practicable, shall establish cooperative agreements with gaming entities within their State to identify members of certified households who have won substantial lottery or gambling winnings as defined in § 273.11(r).
(b) Cooperative Agreements. State agencies, to the maximum extent practicable, shall enter into cooperative agreements with the gaming entities responsible for the regulation or sponsorship of gaming in the State. Cooperative agreements should specify the type of information to be shared by the gaming entity, the procedures used to share information, the frequency of sharing information, and the job titles of individuals who will have access to the data. Cooperative agreements shall also include safeguards limiting release or disclosure of personally identifiable information of SNAP recipients who are the subject of data matches.
(c) Use of match data. States shall provide a system for:
(1) Comparing information obtained from gaming entities about individuals with substantial winnings with databases of currently certified households within the State;
(2) The reporting of instances where there is a match;
(3) If match information is not considered verified upon receipt, the verification of matches to determine their accuracy in accordance with § 273.2(f);
(4) If during a household's certification period, the household is found to have received substantial winnings, as defined in § 273.11(r), prior to any action to terminate the household's benefits, the State agency shall provide the household notice in accordance with the provisions on notices of adverse action appearing in § 273.13. For households that are found to have received substantial winnings at the time of the household's recertification, the State agency shall notify such households, in accordance with the provisions on notices of denial appearing in § 273.10(g)(2); and
(5) The establishment and collection of claims as appropriate.
(d) Frequency of data matches. The State agency shall perform data matches as frequently as is feasibly possible to identify SNAP recipients with substantial winnings, as defined in § 273.11(r); however, at a minimum the State agency shall conduct data matches when a household files a periodic report and at the time of the household's recertification.
(e) State Plan of Operations. The State agency shall include as an attachment to the annual State Plan of Operations, as required in accordance with § 272.2, the names of gaming entities with which the State agency has entered into cooperative agreements, the frequency of data matches with such entities, and if information is considered verified upon receipt.
The revisions and additions to read as follows:
(b) * * *
(2) * * * In using IEVS in accordance with paragraph (f)(9) of this section, it must notify all applicants for food stamp benefits at the time of application and at each recertification through a written statement on or provided with the application form that information available through IEVS will be requested, used and may be verified through collateral contact when discrepancies are found by the State agency, and that such information may affect the household's eligibility and level of benefits. * * *
(f) * * *
(1) * * *
(ii) * * *
(A) The State agency shall verify the eligible status of all aliens applying for SNAP benefits by using an immigration status verification system established under Section 1137 of the Social Security Act (42 U.S.C. 1320b-7). FNS may require State agencies to provide written confirmation from USCIS that the system used by the State is an immigration status verification system established under Section 1137 of the Social Security Act. * * *
(5) * * *
(i) * * * However, if a SNAP applicant's attestation regarding disqualified felon status described in § 273.2(o) is questionable, the State agency shall verify the attestation. The State agency shall verify the felon status when an applicant affirmatively attests that he or she or a member of their household is such a convicted felon and is not in compliance with the sentence. Each element of an affirmative attestation—that the individual has been convicted of a crime listed at § 273.11(s), and that the individual is not in compliance with the terms of their sentence—shall be verified. In conducting verifications of both questionable attestations and affirmative attestations under this paragraph the State agency shall establish reasonable, consistent standards, evaluate each case separately, and document the case file accordingly.
(9)
(ii) The State agency must access data through the IEVS in accordance with the disclosure safeguards and data exchange agreements required by part 272.
(10) Use of SAVE. Households are required to submit documentation for each alien applying for SNAP benefits in order for the State agency to verify their immigration statuses. State agencies shall verify the validity of such documents through an immigration status verification system established under Section 1137 of the Social Security Act (42 U.S.C. 1320b-7) in accordance with § 272.11 of this chapter. USCIS maintains the SAVE system to conduct this verification. When using SAVE to verify immigration status, State agencies shall use the following procedures:
(vi) State agencies may use information contained in SAVE search results to confirm whether a non-citizen has a sponsor who has signed a legally binding affidavit of support when evaluating the non-citizen's application for SNAP benefits in accordance with the deeming requirements described in § 273.4(c)(2).
(j) * * *
(2) * * *
(vii) * * *
(D) Any member of that household is ineligible under § 273.11(m) by virtue of a conviction for a drug-related felony, under § 273.11(n) for being a fleeing felon or a probation or parole violator, or under § 273.11(s) for having a conviction for certain crimes and not being in compliance with the sentence.
(o) Each State agency shall require the individual applying for SNAP benefits to attest to whether the individual or any other member of the household has been convicted of a crime as an adult as described in § 273.11(s) and whether any convicted member is complying with the terms of the sentence.
(1) The State agency shall update its application process, including certification and recertification procedures, to include the attestation requirement. It may be done in writing, verbally, or both, provided that the attestation is legally binding in the law of the State. Whatever procedure a State chooses to implement must be reasonable and consistent for all households applying for SNAP benefits.
(2) The State agency shall document this attestation in the case file.
(3) The State agency shall establish standards for determining what makes an attestation under this subsection questionable and for verifying a questionable attestation as described in § 273.2(f)(2).
(b) * * *
(11) * * *
(ii) An employment and training program under § 273.7, subject to the condition that the course or program of study, as determined by the State agency:
(A) is part of a program of career and technical education (as defined in section 3 of the Carl D. Perkins Career and Technical Education Act of 2006 (20 U.S.C. 2302) designed to be completed in not more than 4 years at an institution of higher education (as defined in section 102 of the Higher Education Act of 1965 (20 U.S.C. 2296); or
(B) is limited to remedial courses, basic adult education, literacy, or English as a second language.
(e) * * *
(1) * * *
(vi) Educational programs or activities to improve basic skills or otherwise improve employability including educational programs or activities determined by the State agency to expand the job search abilities or employability of those subject to the program.
(A) Allowable educational programs or activities may include, but are not limited to, courses or programs of study that are part of a program of career and technical education (as defined in section 3 of the Carl D. Perkins Act of 2006), high school or equivalent educational programs, remedial education programs to achieve a basic literacy level, and instructional programs in English as a second language.
(B) Only educational programs or activities that enhance the employability of the participants are allowable. A link between the education and job-readiness must be established for a component to be approved.
The revisions and additions to read as follows:
(c) * * *
(1) * * * The eligibility and benefit level of any remaining household members of a household containing individuals determined ineligible because of a disqualification for an intentional Program violation, a felony drug conviction, their fleeing felon status, noncompliance with a work requirement of § 273.7, imposition of a sanction while they were participating in a household disqualified because of failure to comply with workfare requirements, or certain convicted felons as provided at § 273.11(s) shall be determined as follows:
(r)
(1)
(2)
(ii) Adjustment. The value of substantial winnings shall be adjusted annually, as needed, by multiplying the gross monthly income limit for a
(s) Disqualification for certain convicted felons. An individual shall not be eligible for SNAP benefits if:
(1) The individual is convicted as an adult of:
(i) Aggravated sexual abuse under Section 2241 of Title 18, United States Code;
(ii) Murder under Section 1111 of Title 18, United States Code;
(iii) An offense under Chapter 110 of Title 18, United States Code;
(iv) A Federal or State offense involving sexual assault, as defined in 40002(a) of the Violence Against Women Act of 1994 (42 U.S.C. 13925(a)); or
(v) An offense under State law determined by the Attorney General to be substantially similar to an offense described in clause (i), (ii), or (iii) and
(2) The individual is not in compliance with the terms of the sentence of the individual or the restrictions under § 273.11(n).
(3) The disqualification contained in this subsection shall not apply to a conviction if the conviction is for conduct occurring on or before February 7, 2014.
The revisions to read as follows:
(a) * * *
(1) * * *
(viii) whenever a member of the household wins substantial lottery or gambling winnings in accord with § 273.11(r).
(4) * * *
(iv)
(5) * * *
(iii) * * *
(E) The periodic report form shall be the sole reporting requirement for any information that is required to be reported on the form, except that a household required to report less frequently than quarterly shall report:
(1) when the household monthly gross income exceeds the monthly gross income limit for its household size in accordance with paragraph (a)(5)(v) of this section;
(2) whenever able-bodied adults subject to the time limit of § 273.24 have their work hours fall below 20 hours per week, averaged monthly, and;
(3) whenever a member of the household wins substantial lottery or gambling winnings in accord with § 273.11(r).
(vi) * * *
(B) * * *
(1) The household has voluntarily requested that its case be closed in accordance with § 273.13(b)(12);
(2) The State agency has information about the household's circumstances considered verified upon receipt;
(3) A household member has been identified as a fleeing felon or probation or parole violator in accord with § 273.11(n);
(4) There has been a change in the household's PA grant, or GA grant in project areas where GA and food stamp cases are jointly processed in accord with § 273.2(j)(2); or
(5) The State agency has verified information (including information considered verified upon receipt) that a member of a SNAP household has won substantial lottery or gambling winnings in accordance with § 273.11(r).
Federal Aviation Administration (FAA), DOT.
Notice of proposed rulemaking (NPRM).
We propose to adopt a new airworthiness directive (AD) for certain ATR-GIE Avions de Transport Régional Model ATR42-500 and Model ATR72-102, -202, -212, and -212A airplanes. This proposed AD was prompted by reports of failure of emergency power supply units (EPSUs) in production and in service. This proposed AD would require an inspection to determine the part number and serial number of each EPSU, and replacement if necessary. We are proposing this AD to address the unsafe condition on these products.
We must receive comments on this proposed AD by January 17, 2017.
You may send comments, using the procedures found in 14 CFR 11.43 and 11.45, by any of the following methods:
•
•
•
•
For ATR service information identified in this NPRM, contact ATR—GIE Avions de Transport Régional, 1, Allée Pierre Nadot, 31712 Blagnac Cedex, France; telephone +33 (0) 5 62 21 62 21; fax +33 (0) 5 62 21 67 18; email
For COBHAM service information identified in this NPRM, contact COBHAM 174-178 Quai de Jemmapes, 75010, Paris, France; telephone +33 (0) 1 53 38 98 98; fax +33 (0) 1 42 00 67 83.
You may view this referenced service information at the FAA, Transport Airplane Directorate, 1601 Lind Avenue SW., Renton, WA. For information on the availability of this material at the FAA, call 425-227-1221.
You may examine the AD docket on the Internet at
Shahram Daneshmandi, Aerospace Engineer, International Branch, ANM-116, Transport Airplane Directorate,
We invite you to send any written relevant data, views, or arguments about this proposed AD. Send your comments to an address listed under the
We will post all comments we receive, without change, to http://www.regulations.gov, including any personal information you provide. We will also post a report summarizing each substantive verbal contact we receive about this proposed AD.
The European Aviation Safety Agency (EASA), which is the Technical Agent for the Member States of the European Union, has issued EASA AD 2016-0070, dated April 11, 2016; corrected April 12, 2016 (referred to after this as the Mandatory Continuing Airworthiness Information, or “the MCAI”); to correct an unsafe condition for certain ATR-GIE Avions de Transport Régional Model ATR42-500 and Model ATR72 -102, -202, -212, and -212A airplanes. The MCAI states:
Some failure cases have been reported of emergency power supply units (EPSU), Part Number (P/N) 301-3100 Amdt [Amendment] A, both on the production line and in service. The results of the technical investigations revealed that these failures could have been caused by a defective internal electronic component, which could affect the EPSU internal battery charge.
To address this potential unsafe condition, ATR issued Service Bulletin (SB) ATR42-33-0050 and SB ATR72-33-1043 to provide instructions to inspect EPSUs.
For the reason described above, this [EASA] AD requires identification and replacement of the affected EPSUs with serviceable units.
This [EASA] AD was republished to correct two typographical errors in paragraph (3) of the [EASA] AD and to specify the correct Revision (3) of the Cobham SB 301-3100-33-002.
You may examine the MCAI in the AD docket on the Internet at
ATR has issued Service Bulletin ATR42-33-0050, Revision 01, dated January 26, 2016; and ATR Service Bulletin ATR72-33-1043, Revision 01, dated January 26, 2016. This service information describes procedures for inspecting an EPSU to determine the part number, serial number, and amendment level, and replacing the EPSU. These documents are distinct since they apply to different airplane models.
Cobham has issued COBHAM Service Bulletin 301-3100-33-002, Revision 3, dated July 30, 2015, which describes procedures for modifying an EPSU by replacing the printed circuit board.
This service information is reasonably available because the interested parties have access to it through their normal course of business or by the means identified in the
This product has been approved by the aviation authority of another country, and is approved for operation in the United States. Pursuant to our bilateral agreement with the State of Design Authority, we have been notified of the unsafe condition described in the MCAI and service information referenced above. We are proposing this AD because we evaluated all pertinent information and determined an unsafe condition exists and is likely to exist or develop on other products of these same type designs.
We estimate that this proposed AD affects 11 airplanes of U.S. registry.
We estimate the following costs to comply with this proposed AD:
We estimate the following costs to do any necessary replacements that would be required based on the results of the proposed inspection. We have no way of determining the number of airplanes that might need these replacements:
According to the manufacturer, some of the costs of this proposed AD may be covered under warranty, thereby reducing the cost impact on affected individuals. We do not control warranty coverage for affected individuals. As a result, we have included all costs in our cost estimate.
Title 49 of the United States Code specifies the FAA's authority to issue rules on aviation safety. Subtitle I, section 106, describes the authority of the FAA Administrator. “Subtitle VII: Aviation Programs,” describes in more detail the scope of the Agency's authority.
We are issuing this rulemaking under the authority described in “Subtitle VII, Part A, Subpart III, Section 44701: General requirements.” Under that section, Congress charges the FAA with promoting safe flight of civil aircraft in air commerce by prescribing regulations for practices, methods, and procedures the Administrator finds necessary for
We determined that this proposed AD would not have federalism implications under Executive Order 13132. This proposed AD would not have a substantial direct effect on the States, on the relationship between the national Government and the States, or on the distribution of power and responsibilities among the various levels of government.
For the reasons discussed above, I certify this proposed regulation:
1. Is not a “significant regulatory action” under Executive Order 12866;
2. Is not a “significant rule” under the DOT Regulatory Policies and Procedures (44 FR 11034, February 26, 1979);
3. Will not affect intrastate aviation in Alaska; and
4. Will not have a significant economic impact, positive or negative, on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.
Air transportation, Aircraft, Aviation safety, Incorporation by reference, Safety.
Accordingly, under the authority delegated to me by the Administrator, the FAA proposes to amend 14 CFR part 39 as follows:
49 U.S.C. 106(g), 40113, 44701.
We must receive comments by January 17, 2017.
None.
This AD applies to the ATR-GIE Avions de Transport Régional airplanes, certificated in any category, identified in paragraphs (c)(1) and (c)(2) of this AD.
(1) Model ATR42-500 airplanes, all manufacturer serial numbers (MSNs), except those on which ATR Modification 6780 has been embodied in production.
(2) Model ATR72-102, -202, -212, and -212A airplanes, all MSNs on which ATR Model 3715 has been embodied in production, except those on which ATR Modification 6780 has been embodied in production.
Air Transport Association (ATA) of America Code 33, Lights.
This AD was prompted by reports of failure of emergency power supply units (EPSUs) in production and in service. We are issuing this AD to detect and correct defective internal electronic components, which could adversely affect the EPSU internal battery. This condition could result in a partial or total loss of emergency lighting, possibly affecting passenger evacuation during an emergency situation.
Comply with this AD within the compliance times specified, unless already done.
Within 12 months after the effective date of this AD, inspect each EPSU on the airplane to determine the part number and serial number. For any EPSU having part number (P/N) 301-3100 Amendment (Amdt) A and a serial number identified in figure 1 to paragraph (g) of this AD, and that does not have a control sticker marked with “SIL 301-3100-33-001”: Except as provided by paragraph (i) of this AD, before further flight, replace the EPSU with a serviceable unit, as specified in paragraph (h) of this AD, in accordance with the Accomplishment Instructions of ATR Service Bulletin ATR42-33-0050, Revision 01, dated January 26, 2016; or Service Bulletin ATR72-33-1043, Revision 01, dated January 26, 2016; as applicable. A review of airplane maintenance records may be done in lieu of inspection of the EPSUs on the airplane if the part number and serial number of each EPSU can be positively determined from that review.
For the purpose of this AD, a serviceable EPSU is one that meets the criteria in paragraph (h)(1), (h)(2), or (h)(3) of this AD.
(1) Has P/N 301-3100 Amdt A and a serial number that is not included figure 1 to paragraph (g) of this AD.
(2) Has P/N 301-3100 Amdt A, a serial number that is included in figure 1 to paragraph (g) of this AD, but has a control sticker marked with “SIL 301-3100-33-001.”
(3) Has P/N 301-3100 Amdt B, or later amendment.
In lieu of the replacement required by paragraph (g) of this AD, modification of an affected EPSU may be done in accordance with the Accomplishment Instructions of COBHAM Service Bulletin 301-3100-33-002, Revision 3, dated July 30, 2015.
As of the effective date of this AD, no person may install on any airplane any EPSU having P/N 301-3100 Amdt A and a serial number identified in figure 1 to paragraph (g) of this AD, unless it has a control sticker marked with “SIL 301-3100-33-001”.
This paragraph provides credit for actions required by paragraph (g) of this AD, if those actions were performed before the effective date of this AD using the service information identified in paragraph (k)(1) or (k)(2) of this AD, provided it can be determined that no EPSU having a serial number listed in figure 1 to paragraph (g) of this AD has been installed on that airplane since the actions in the applicable service bulletin were completed.
(1) ATR Service Bulletin ATR42-33-0050, dated December 11, 2015.
(2) ATR Service Bulletin ATR72-33-1043, dated December 11, 2015.
The following provisions also apply to this AD:
(1)
(2)
(1) Refer to Mandatory Continuing Airworthiness Information (MCAI) EASA AD 2016-0070, dated April 11, 2016; corrected April 12, 2016; for related information. This MCAI may be found in the AD docket on the Internet at
(2) For ATR service information identified in this AD, contact ATR-GIE Avions de Transport Régional, 1, Allée Pierre Nadot, 31712 Blagnac Cedex, France; telephone +33 (0) 5 62 21 62 21; fax +33 (0) 5 62 21 67 18; email
Federal Aviation Administration (FAA), DOT.
Notice of proposed rulemaking (NPRM).
We propose to supersede airworthiness directive (AD) 2015-17-19 that applies to all Rolls-Royce plc (RR) RB211 Trent 768-60, 772-60, and 772B-60 turbofan engines. AD 2015-17-19 requires inspection of the fan case low-pressure (LP) fuel tubes and associated clips and the fuel oil heat exchanger (FOHE) mounts and associated hardware. Since we issued AD 2015-17-19, fractures on the LP fuel return tube at mid-span locations were found with resulting fuel leaks. This proposed AD would require a modification, which terminates the repetitive inspections. We are proposing this AD to prevent failure of the fan case LP fuel tubes, which could lead to an in-flight shutdown, loss of thrust control, and damage to the airplane.
We must receive comments on this proposed AD by January 30, 2017.
You may send comments, using the procedures found in 14 CFR 11.43 and 11.45, by any of the following methods:
•
•
•
•
For service information identified in this NPRM, contact Rolls-Royce plc, Corporate Communications, P.O. Box 31, Derby, England, DE248BJ; phone:
You may examine the AD docket on the Internet at
Wego Wang, Aerospace Engineer, Engine Certification Office, FAA, Engine & Propeller Directorate, 1200 District Avenue, Burlington, MA 01803; phone: 781-238-7134; fax: 781-238-7199; email:
We invite you to send any written relevant data, views, or arguments about this proposed AD. Send your comments to an address listed under the
We will post all comments we receive, without change, to
On August 20, 2015, we issued AD 2015-17-19, Amendment 39-18252 (80 FR 55232, September 15, 2015), (“AD 2015-17-19”) for RR RB211 Trent 768-60, 772-60, and 772B-60 turbofan engines. AD 2015-17-19 requires inspection of the fan case LP fuel tubes and associated clips and the FOHE mounts and associated hardware. AD 2015-17-19 resulted from fuel leaks caused by damage to the fan case LP fuel tube. We issued AD 2015-17-19 to prevent failure of the fan case LP fuel tube, which could lead to an in-flight shutdown, loss of thrust control, and damage to the airplane.
Since we issued AD 2015-17-19, fractures on the LP fuel return tube at mid-span locations were found with resulting fuel leaks. Also since we issued AD 2015-17-19, the European Aviation Safety Agency (EASA) has issued AD 2016-0120, dated June 17, 2016, which supersedes EASA AD 2014-0243, Revision 1, dated December 10, 2014 and Correction, dated March 23, 2015.
RR has issued Alert Non-Modification Service Bulletin (NMSB) RB.211-73-AH522, Revision 4, dated January 18, 2016; Alert NMSB RB.211-73-AH837, Revision 1, dated November 6, 2015; and Alert Service Bulletin (ASB) RB.211-73-AJ366, Initial Issue and Supplement, dated May 3, 2016. Alert NMSB RB.211-73-AH522, Revision 4, dated January 18, 2016 describes procedures for inspecting and, if necessary, replacing worn rubber sections of the P-clip. Alert NMSB RB.211-73-AH837, Revision 1, dated November 6, 2015 describes procedures for inspecting and, if necessary, replacing the P-clip attaching bracket, supporting hardware, and low-pressure (LP) fuel tube.Alert SB RB.211-73-AJ366, Initial Issue and Supplement, dated May 3, 2016 describes procedures for modification of the routing of fuel, oil, and hydraulic tube assemblies. This service information is reasonably available because the interested parties have access to it through their normal course of business or by the means identified in the
RR has issued SB RB.211-73-F343, Revision 4, dated May 26, 2011. The service information describes procedures for replacing the fuel tube assemblies and supporting hardware.
We are proposing this AD because we evaluated all the relevant information and determined the unsafe condition described previously is likely to exist or develop in other products of these same type designs.
This proposed AD would retain the requirements of AD 2015-17-19, (80 FR 55232, September 15, 2015), except it would require a modification, which terminates the repetitive inspections. This proposed AD would add a mandatory terminating action to the repetitive inspections by incorporating ASB RB.211-73-AJ366, Initial Issue and Supplement, dated May 3, 2016.
We estimate that this proposed AD affects 108 engines installed on airplanes of U.S. registry. We also estimate that it would take about 6 hours per engine to perform the inspections in this proposed AD. The average labor rate is $85 per hour. We also estimate that 54 of the engines will fail the inspections required by this AD. Replacement parts cost about $4,031 per engine.
We also estimate that it would take about 50 hours per engine to modify each engine. The modification would cost about $150,000 per engine. Based on these figures, we estimate the cost of this proposed AD on U.S. operators to be $16,931,754.
Title 49 of the United States Code specifies the FAA's authority to issue rules on aviation safety. Subtitle I, Section 106, describes the authority of the FAA Administrator. Subtitle VII, Aviation Programs, describes in more detail the scope of the Agency's authority.
We are issuing this rulemaking under the authority described in Subtitle VII, Part A, Subpart III, Section 44701, “General requirements.” Under that section, Congress charges the FAA with promoting safe flight of civil aircraft in air commerce by prescribing regulations for practices, methods, and procedures the Administrator finds necessary for safety in air commerce. This regulation is within the scope of that authority because it addresses an unsafe condition that is likely to exist or develop on products identified in this rulemaking action.
We have determined that this proposed AD would not have federalism implications under Executive Order 13132. This proposed AD would not have a substantial direct effect on the States, on the relationship between the national Government and the States, or on the distribution of power and
For the reasons discussed above, I certify that the proposed regulation:
(1) Is not a “significant regulatory action” under Executive Order 12866,
(2) Is not a “significant rule” under the DOT Regulatory Policies and Procedures (44 FR 11034, February 26, 1979),
(3) Will not affect intrastate aviation in Alaska to the extent that it justifies making a regulatory distinction, and
(4) Will not have a significant economic impact, positive or negative, on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.
Air transportation, Aircraft, Aviation safety, Incorporation by reference, Safety.
Accordingly, under the authority delegated to me by the Administrator, the FAA proposes to amend 14 CFR part 39 as follows:
49 U.S.C. 106(g), 40113, 44701.
We must receive comments by January 30, 2017.
This AD supersedes AD 2015-17-19, Amendment 39-18252 (80 FR 55232, September 15, 2015).
This AD applies to all Rolls-Royce plc (RR) RB211 Trent 768-60, 772-60, and 772B-60 turbofan engines, if fitted with fuel tube, part number (P/N) FW53576, which was incorporated through RR production modification 73-F343 or which were modified in service in accordance with RR Service Bulletin (SB) RB.211-73-F343, Revision 4, dated May 26, 2011.
This AD was prompted by fractures found on the low-pressure (LP) fuel return tube at mid span locations with resulting fuel leaks. We are issuing this AD to prevent failure of the fan case LP fuel tube, which could lead to an in-flight engine shutdown, loss of thrust control, and damage to the airplane.
Comply with this AD within the compliance times specified, unless already done.
(1) Within 800 flight hours (FH) after October 20, 2015 (the effective date of AD 2015-17-19, Amendment 39-18252 (80 FR 55232, September 15, 2015)), or prior to further flight, whichever occurs later, and thereafter at intervals not to exceed 800 FH, inspect the clip at the uppermost fan case LP fuel tube clip position, CP4881, and support bracket, P/N FW26692. Use Accomplishment Instructions, paragraph 3.A, of RR Alert Non-Modification Service Bulletin (NMSB) RB.211-73-AH837, Revision 1, dated November 6, 2015, or paragraph 3.A. or 3.B. of RR Alert NMSB RB.211-73-AH522, Revision 4, dated January 18, 2016, to do the inspection.
(i) If the clip at the uppermost clip position, CP4881, fails inspection, before further flight, replace the clip with a part eligible for installation and inspect the fan case LP fuel tube, P/N FW53576, for fretting, and clips for cracks or failure, according to Accomplishment Instructions, paragraph 3.A. of RR Alert NMSB RB.211-73-AH837, Revision 1, dated November 6, 2015, or paragraph 3.A. or 3.B. of RR Alert NMSB RB.211-73-AH522, Revision 4, dated January 18, 2016.
(ii) If the support bracket, P/N FW26692, fails inspection, before further flight, replace the bracket with a part eligible for installation and inspect the fan case LP fuel tube, P/N FW53576, and clips for cracks or failure, according to Accomplishment Instructions, paragraph 3.A. of RR Alert NMSB RB.211-73-AH837, Revision 1, dated November 6, 2015, or paragraph 3.A. or 3.B. of RR Alert NMSB RB.211-73-AH522, Revision 4, dated January 18, 2016.
(2) Within 4,000 FH since new or 800 FH after October 20, 2015 (the effective date of AD 2015-17-19, Amendment 39-18252 (80 FR 55232, September 15, 2015)), or prior to further flight, whichever occurs later, and thereafter at intervals not to exceed 4,000 FH, inspect the fan case LP fuel tube, P/N FW53576, and clips, and the fuel oil heat exchanger (FOHE) mounts and hardware, for damage, wear, or fretting. Use paragraph 3.A. or 3.B., Accomplishment Instructions, of RR Alert NMSB RB.211-73-AH522, Revision 4, dated January 18, 2016, to do the inspection.
(i) If the fan case LP fuel tube, P/N FW53576, fails inspection, before further flight, replace the fuel tube and clips with parts eligible for installation.
(ii) If any FOHE mount or hardware shows signs of damage, wear, or fretting, before further flight, replace the damaged part with a part eligible for installation.
(3) At each shop visit after the effective date of this AD, inspect the fan case LP fuel tubes, P/Ns FW26589, FW36335, FW26587, FW53577, and FW53576, and clips, and the FOHE mounts and hardware, for damage, wear, or fretting. Use paragraphs 3.B.(1) and 3.B.(2) of RR Alert NMSB RB.211-73-AH522, Revision 4, dated January 18, 2016, to do the inspection.
(i) If any fan case LP fuel tube fails inspection, before further flight, replace the fuel tube and clips with parts eligible for installation.
(ii) If any FOHE mount or hardware shows signs of damage, wear, or fretting, before further flight, replace the damaged part with a part eligible for installation.
(4) If you replace any fan case LP fuel tube, clip, FOHE mount, or hardware as a result of the inspections in paragraphs (e)(1), (2), or (3) of this AD, you must still continue to perform the repetitive inspections specified in paragraphs (e)(1), (2), and (3) of this AD, until you comply with paragraph (e)(6) of this AD.
(5) No reports requested in any of the Alert NMSBs that are referenced in paragraphs (e)(1), (2), and (3) of this AD are required by this AD.
(6) During the next shop visit after the effective date of this AD, modify the engine in accordance with the Accomplishment Instructions, paragraphs (B) and (C), Section 3, of RR Alert Service Bulletin (ASB) RB.211-73-AJ366, Initial Issue and Supplement, dated May 3, 2016.
(7) After the effective date of this AD, do not install an M07 module, unless it is modified in accordance with the Accomplishment Instructions, paragraphs (B) and (C), Section 3, of RR ASB RB.211-73-AJ366, Initial Issue and Supplement, dated May 3, 2016.
If, before the effective date of this AD, you performed the inspections and corrective actions required by paragraph (e) of this AD using RR NMSB RB.211-73-G848, Revision 3, dated June 12, 2014; or RR Alert NMSB RB.211-73-AH837, Revision 1, dated November 6, 2015; or paragraph 3.A. or 3.B. of RR Alert NMSB RB.211-73-AH522, Revision 4, dated January 18, 2016; or any earlier version of those NMSBs, you met the inspection requirements in paragraph (e) of this AD.
Modification of an engine, as required by paragraph (e)(6) of this AD, constitutes terminating action for the repetitive inspections required by paragraphs (e)(1), (2), (3), and (4) of this AD.
For the purposes of this AD:
(1) An “engine shop visit” is the induction of an engine into the shop for maintenance involving the separation of pairs of major mating engine flanges, except that the separation of engine flanges solely for the purposes of transportation without subsequent engine maintenance is not an engine shop visit.
(2) The fan case LP fuel tubes and clips, and the FOHE mounts and hardware, are eligible for installation if they have passed the inspection requirements of paragraphs (e)(1), (2), and (3) of this AD.
The Manager, Engine Certification Office, FAA, may approve AMOCs to this AD. Use the procedures found in 14 CFR 39.19 to
(1) For more information about this AD, contact Wego Wang, Aerospace Engineer, Engine Certification Office, FAA, Engine & Propeller Directorate, 1200 District Avenue, Burlington, MA 01803; phone: 781-238-7134; fax: 781-238-7199; email:
(2) Refer to MCAI European Aviation Safety Agency (EASA) AD 2016-0120, dated June 17, 2016, which supersedes EASA AD 2014-0243, Revision 1, dated December 10, 2014 and Correction dated March 23, 2015, for more information. You may examine the MCAI in the AD docket on the Internet at
(3) Rolls-Royce plc has issued SB RB.211-73-F343, Revision 4, dated May 26, 2011; Alert NMSB RB.211-73-AH522, Revision 4, dated January 18, 2016; Alert NMSB RB.211-73-AH837, Revision 1, dated November 6, 2015; and ASB RB.211-73-AJ366, Initial Issue and Supplement, dated May 3, 2016. These service bulletins can be obtained from Rolls-Royce plc, using the contact information in paragraph (j)(4) of this AD.
(4) For service information identified in this AD, contact Rolls-Royce plc, Corporate Communications, P.O. Box 31, Derby, England, DE248BJ; phone: 011-44-1332-242424; fax: 011-44-1332-249936; email:
(5) You may view this service information at the FAA, Engine & Propeller Directorate, 1200 District Avenue, Burlington, MA. For information on the availability of this material at the FAA, call 781-238-7125.
Federal Aviation Administration (FAA), DOT.
Notice of proposed rulemaking (NPRM).
This action proposes to modify VOR Federal airways V-16, V-94 and V-124, in the eastern United States due to the planned decommissioning of the Jacks Creek, TN, VOR/DME navigation aid.
Comments must be received on or before January 17, 2017. The Director of the Federal Register approves this incorporation by reference action under title 1, Code of Federal Regulations, part 51, subject to the annual revision of FAA, Order 7400.11 and publication of conforming amendments.
Send comments on this proposal to the U.S. Department of Transportation, Docket Operations, 1200 New Jersey Avenue SE., West Building Ground Floor, Room W12-140, Washington, DC 20590; telephone: 1 (800) 647-5527 or (202) 366-9826. You must identify FAA Docket No. FAA-2016-9178 and Airspace Docket No. 16-ASO-12 at the beginning of your comments. You may also submit comments through the Internet at
FAA Order 7400.11A, Airspace Designations and Reporting Points, and subsequent amendments can be viewed online at
FAA Order 7400.11, Airspace Designations and Reporting Points, is published yearly and effective on September 15.
Paul Gallant, Airspace Policy Group, Office of Airspace Services, Federal Aviation Administration, 800 Independence Avenue SW., Washington, DC 20591; telephone: (202) 267-8783.
The FAA's authority to issue rules regarding aviation safety is found in Title 49 of the United States Code. Subtitle I, Section 106 describes the authority of the FAA Administrator. Subtitle VII, Aviation Programs, describes in more detail the scope of the agency's authority. This rulemaking is promulgated under the authority described in Subtitle VII, Part A, Subpart I, Section 40103. Under that section, the FAA is charged with prescribing regulations to assign the use of the airspace necessary to ensure the safety of aircraft and the efficient use of airspace. This regulation is within the scope of that authority as it would modify three air traffic service route structures in the eastern United States to maintain the efficient flow of air traffic.
Interested parties are invited to participate in this proposed rulemaking by submitting such written data, views, or arguments as they may desire. Comments that provide the factual basis supporting the views and suggestions presented are particularly helpful in developing reasoned regulatory decisions on the proposal. Comments are specifically invited on the overall regulatory, aeronautical, economic, environmental, and energy-related aspects of the proposal.
Communications should identify both docket numbers (FAA Docket No. FAA-2016-9178 and Airspace Docket No. 16-ASO-12) and be submitted in triplicate to the Docket Management Facility (see
Commenters wishing the FAA to acknowledge receipt of their comments on this action must submit with those comments a self-addressed, stamped postcard on which the following statement is made: “Comments to FAA Docket No. FAA-2016-9178 and Airspace Docket No. 16-ASO-12.” The postcard will be date/time stamped and returned to the commenter.
All communications received on or before the specified comment closing date will be considered before taking action on the proposed rule. The proposal contained in this action may be changed in light of comments received. All comments submitted will be available for examination in the public docket both before and after the comment closing date. A report summarizing each substantive public contact with FAA personnel concerned with this rulemaking will be filed in the docket.
An electronic copy of this document may be downloaded through the Internet at
You may review the public docket containing the proposal, any comments received and any final disposition in
This document proposes to amend FAA Order 7400.11A, Airspace Designations and Reporting Points, dated August 3, 2016 and effective September 15, 2016. FAA Order 7400.11A is publicly available as listed in the
The FAA is proposing an amendment to Title 14, Code of Federal Regulations (14 CFR) part 71 to modify the descriptions of VOR Federal airways V-16, V-94 and V-124, due to the planned decommissioning of the Jacks Creek, TN, VOR/DME. The proposed route changes are described below.
V-16: V-16 extends between Los Angeles, CA, and Boston, MA. The FAA proposes to modify that portion of the route that reads “. . . Marvell, AR; Holly Springs, MS; Jacks Creek, TN; Shelbyville, TN . . . .” To read as follows: “. . . Marvell, AR; to Holly Springs, MS. From Shelbyville, TN; . . . .” thus eliminating Jacks Creek, TN, from the route.
V-94: V-94 extends between Blythe, CA and Bowling Green, KY. The FAA proposes to terminate the route at Holly Springs, MS, thus eliminating the segments of the route from Holly Springs, MS, through Jacks Creek, TN, to Bowling Green, KY.
V-124: V-124 extends between Bonham, TX and Graham, TN. The FAA proposes to terminate the route at Gilmore, AR, thus eliminating the segments from Gilmore, AR, through Jacks Creek, TN, to Graham, TN.
Domestic VOR Federal airways are published in paragraph 6010(a) of FAA Order 7400.11A, dated August 3, 2016 and effective September 15, 2016, which is incorporated by reference in 14 CFR 71.1. The VOR Federal airways listed in this document would be subsequently published in the Order.
The FAA has determined that this proposed regulation only involves an established body of technical regulations for which frequent and routine amendments are necessary to keep them operationally current. It, therefore: (1) Is not a “significant regulatory action” under Executive Order 12866; (2) is not a “significant rule” under Department of Transportation (DOT) Regulatory Policies and Procedures (44 FR 11034; February 26, 1979); and (3) does not warrant preparation of a regulatory evaluation as the anticipated impact is so minimal. Since this is a routine matter that will only affect air traffic procedures and air navigation, it is certified that this proposed rule, when promulgated, will not have a significant economic impact on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.
This proposal will be subject to an environmental analysis in accordance with FAA Order 1050.1F, “Environmental Impacts: Policies and Procedures” prior to any FAA final regulatory action.
Airspace, Incorporation by reference, Navigation (air).
In consideration of the foregoing, the Federal Aviation Administration proposes to amend 14 CFR part 71 as follows:
49 U.S.C. 106(f), 106(g); 40103, 40113, 40120; E.O. 10854, 24 FR 9565, 3 CFR, 1959-1963 Comp., p. 389.
From Los Angeles, CA; Paradise, CA; Palm Springs, CA; Blythe, CA; Buckeye, AZ; Phoenix, AZ; INT Phoenix 155° and Stanfield, AZ, 105° radials; Tucson, AZ; San Simon, AZ; INT San Simon 119° and Columbus, NM, 277° radials; Columbus; El Paso, TX; Salt Flat, TX; Wink, TX; INT Wink 066° and Big Spring, TX, 260° radials; Big Spring; Abilene, TX; Bowie, TX; Bonham, TX; Paris, TX; Texarkana, AR; Pine Bluff, AR; Marvell, AR; to Holly Springs, MS. From Shelbyville, TN; Hinch Mountain, TN; Volunteer, TN; Holston Mountain, TN; Pulaski, VA; Roanoke, VA; Lynchburg, VA; Flat Rock, VA; Richmond, VA; INT Richmond 039° and Patuxent, MD, 228° radials; Patuxent; Smyrna, DE; Cedar Lake, NJ; Coyle, NJ; INT Coyle 036° and Kennedy, NY, 209° radials; Kennedy; INT Kennedy 040° and Calverton, NY 261° radials; Calverton; Norwich, CT; Boston, MA. The airspace within Mexico and the airspace below 2,000 feet MSL outside the United States is excluded. The airspace within Restricted Areas R-5002A, R-5002C, and R-5002D is excluded during their times of use. The airspace within Restricted Areas R-4005 and R-4006 is excluded.
From Blythe, CA, INT Blythe 094° and Gila Bend, AZ, 299° radials; Gila Bend; Stanfield, AZ; 55 miles, 74 miles, 95 MSL, San Simon, AZ; Deming, NM; Newman, TX; Salt Flat, TX; Wink, TX; Midland, TX; Tuscola, TX; Glen Rose, TX; Cedar Creek, TX: Gregg County, TX; Elm Grove, LA; Monroe, LA; Greenville, MS; to Holly Springs, MS.
From Bonham, TX, via Paris, TX; Hot Springs, AR; Little Rock, AR; to Gilmore, AR.
U.S. Copyright Office, Library of Congress.
Notice of proposed rulemaking.
The U.S. Copyright Office is proposing to amend the regulation governing the group registration option for contributions to periodicals to reflect certain upgrades that will soon be made to the electronic registration system. The proposed rule will require groups of contributions to be filed through the Office's electronic registration system. In addition, it will modify the deposit
Comments on the proposed rule must be made in writing and must be received in the U.S. Copyright Office no later than January 3, 2017.
For reasons of government efficiency, the Copyright Office is using the regulations.gov system for the submission and posting of public comments in this proceeding. All comments are therefore to be submitted electronically through regulations.gov. Specific instructions for submitting comments are available on the Copyright Office Web site at
Robert J. Kasunic, Associate Register of Copyrights and Director of Registration Policy and Practice, or Erik Bertin, Deputy Director of Registration Policy and Practice, by telephone at 202-707-8040.
When Congress enacted the Copyright Act of 1976, it authorized the Register of Copyrights (the “Register”) to issue regulations specifying the administrative classes of works for the purpose of seeking a registration, and the nature of the deposit required for each such class. In addition, Congress gave the Register the discretion to allow groups of related works to be registered with one application and one filing fee, a procedure known as “group registration.”
Without prejudice to the Register's general authority to create group registration options under section 408(c)(1) of the Copyright Act at the Register's discretion, Congress also specifically directed the Register, under section 408(c)(2), to issue regulations allowing works by the same individual author to be registered as a group, if those works were first published within a twelve-month period as contributions to periodicals (including newspapers).
As the legislative history explains, allowing “a number of related works to be registered together as a group represent[ed] a needed and important liberalization of the law.” H.R. Rep. No. 94-1476, at 154 (1976); S. Rep. No. 94-473, at 136 (1975). Congress recognized that requiring applicants to submit separate applications for certain types of works may be so burdensome and expensive that authors and copyright owners may forgo registration altogether, since copyright registration is not a prerequisite to copyright protection.
In 1978, the Office issued an interim rule that established a procedure for registering groups of contributions to periodicals.
The current regulation states that the applicant must complete and submit a paper application using Form TX, Form VA, or Form PA. It also states that the application “should be filed in the [administrative] class appropriate to the nature of authorship in the majority of the contributions.”
In all cases, the application must “contain the information required by the form and its accompanying instructions.”
Under the current regulations there is no limit on the number of contributions that may be registered with the GRCP option. The current regulations also provide that the applicant must submit the contributions in the precise form in which they were first published, and the copies must be submitted in a physical—rather than a digital—form.
When the Office established the group option for contributions to periodicals, the regulation stated that the applicant must submit “one copy of the entire issue of the periodical, or of the entire section in the case of a newspaper, in which each contribution was first published.”
Based on this experience, the Office amended the regulation in 2002 to allow applicants to submit their contributions in any of the following physical formats: (i) One copy of the entire issue of the periodical that contains the contribution; (ii) one copy of the entire section of a newspaper that contains the contribution; (iii) tear sheets or proof copies of the contribution; (iv) a photocopy of the contribution; (v) a photocopy of the entire page from the periodical that contains the contribution; (vi) the entire page from the periodical that contains the contribution, either cut or torn from the periodical; (vii) the contribution cut or torn from the periodical; (viii) photographs or photographic slides of the contribution, provided that the content of the contribution is clear and legible; or (ix) photographs or photographic slides of the entire page from the periodical that contains the contribution, provided that the content of the contribution is clear and legible.
The Office is proposing to amend the regulation that governs the group registration option for contributions to periodicals (the “Proposed Rule”). As explained in greater detail below, the Proposed Rule will make several notable changes to the Office's GRCP regulation. First, it will improve the efficiency of the GRCP option by requiring applicants to register their contributions through the Office's electronic registration system (instead of submitting a paper application). Second, it will modify the eligibility criteria for the GRCP option by providing a more specific definition of the term “periodical,” and by specifically requiring the contributions to be owned by the same copyright claimant. Third, it will require applicants to register their contributions either in Class TX or Class VA (but not Class PA), and to identify the date of publication for each contribution and the periodical where each contribution was first published. Fourth, it will modify the deposit requirements for this option by requiring applicants to submit a digital copy of each contribution and to upload these copies through the electronic registration system (instead of submitting a physical copy of each contribution).
The Proposed Rule also memorializes the Office's longstanding position regarding the scope of a registration for a group of contributions to periodicals. It also confirms that the Office may refuse to issue a group registration or may cancel a group registration if it determines that a party failed to comply with the requirements for that option.
Each of these proposals is discussed below.
Once this rule is finalized, it will be possible to register groups of contributions to periodicals through the Office's electronic registration system. The Office generally has allowed and encouraged applicants to register their works through this system since 2007. When the system was introduced, applicants could submit their works on an individual basis or as part of a collective work or an unpublished collection.
In February 2015 the Office completed a comprehensive analysis of its electronic registration system with input from technical experts and stakeholders. This analysis will support the Office's long-term goals of creating both a better interface and a better public record.
In the meantime, the Office has made some enhancements to the current system to benefit authors, the Office, and the public at large. Under the Proposed Rule, applicants will be required to use an online application specifically designed for GRCP as a condition for using this group option. Once the Proposed Rule goes into effect, the Office will no longer accept groups of contributions that are submitted with a paper application on Form TX, Form VA, Form PA, or Form GR/CP. In such cases the Office will ask the applicant to resubmit the claim using the online application, which may change the effective date of registration that is assigned to the claim. The Office invites comment on this proposal, including whether the Office should eliminate the paper applications for GRCP, phase them out after a specified period of time, or continue to offer them for applicants who prefer to use the paper-based system.
When completing the online application, applicants will be asked to provide the same information that is currently requested in Form TX, Form VA, and Form GR/CP. Consistent with Section 408(c)(2) of the statute, applicants will be required to provide the title and date of first publication for each contribution in the group, as well as the title of the periodical where each contribution was first published. If an applicant fails to provide this information, the application will not be accepted by the electronic system. In addition, applicants will be given an opportunity to provide the International Standard Serial Number (“ISSN”) that has been assigned to the periodical (if any), as well as the volume, number, issue date, and relevant page numbers (if any) for the particular issue where the contribution was first published. If the contributions were published as part of a continuing series of works by the same author, such as an advice column, an editorial column, a cartoon strip, or the like, the applicant will be given an opportunity to provide the title (if any) that may be used to identify the entire series of works.
The current regulation states that an applicant may register a group of contributions to periodicals in Class TX, VA, or PA by submitting the appropriate application for that class. 37 CFR 202.3(b)(8)(ii)(A) & n.3. The Proposed Rule, however, will allow applicants to register their claims only in Class TX or Class VA, and will eliminate the provision that allows a group of contributions to be registered in Class PA. The Office routinely registers contributions to periodicals in Class TX and Class VA, but has no institutional memory of having ever registered a claim in Class PA. Presumably, this is due to the fact that it would be extremely unusual for a musical work, a dramatic work, a choreographic work, a pantomime, a motion picture, or an audiovisual work to be first published as a contribution to a periodical.
The Proposed Rule states that applicants should register their claims in Class TX if a majority of the contributions predominantly consist of text, and should register their claims in Class VA if a majority of the contributions predominantly consist of photographs, illustrations, artwork, or other visual material. A similar provision appears in the current regulation; the Proposed Rule simply reiterates this requirement.
As discussed above, the current regulation also contains a limited exception to this rule, which is set forth in footnote 3 to the regulation.
When Congress enacted the Copyright Act of 1976 it contained a provision known as the “manufacturing clause,” which was set forth in Section 601 of the statute. Briefly stated, that provision prohibited the importation or distribution “of copies of a work consisting preponderantly of nondramatic literary material that is in the English language,” unless that material was “manufactured in the United States or Canada.” 17 U.S.C. 601 (1978) (repealed by Pub. L. 111-295, 4(a), 124 Stat. 3180 (2010)). Footnote 3 to the regulation that governs GRCP contains similar language. It states that “if any of the contributions consists preponderantly of nondramatic literary material that is in the English language, the basic application for the entire group should be submitted on Form TX.” 37 CFR 202.3(b)(8)(ii)(A) n.3. The reason for this limitation is that when the Office adopted the regulation in 1978, Form TX contained a space that asked the applicant to identify the country where the copies were printed. The Office used this information to determine whether the work was subject to the manufacturing clause. (The Office did not include this space on Form VA or Form PA, because as mentioned above, the manufacturing clause only applied to nondramatic literary works.)
The manufacturing clause expired in 1986, Congress removed that provision from the statute in 2010, and as a result, the Office no longer asks for “country of origin” information on Form TX. Public Law 97-215, 96 Stat. 178, 178-79 (1982); Public Law 111-295, 4(a), 124 Stat. 3180, 3180 (2010). Thus, footnote 3 to the current regulation no longer serves any purpose.
A supplementary registration is a special type of registration that may be used “to correct an error in a copyright registration or to amplify the information given in a registration,” including a registration for a group of related works. 17 U.S.C. 408(d). Specifically, it identifies an error or omission in an existing registration (referred to herein as a “basic registration”) and places the corrected information or additional information in the public record. The Office often refers to this type of registration as a “CA,” which stands for “correction and amplification.”
The Office is issuing a separate notice of proposed rulemaking (published elsewhere in this volume of the
The Office is inviting comment on this proposal, including whether the Office should eliminate the paper application for seeking a supplementary registration, phase out this option after a specified period of time, or continue to offer this option for applicants who prefer to use the paper-based system. Comments concerning this proposal should be submitted as part of the CA Rulemaking, and should not be submitted as part of this rulemaking on GRCP.
A substantial majority of the U.S. population has access to the internet,
Providing title and publication information with a paper application can be tedious and time consuming, especially when applicants submit dozens or even hundreds of contributions in a group registration. Examining these types of claims also imposes substantial burdens on the Office, because the cataloging information for each contribution must be copied from the application and typed into the Office's electronic system by hand. In some cases, examiners have spent an entire day processing a single claim, which has resulted in corresponding delays in issuing certificates of registration. Moreover, the increasing demand on the Office's limited resources has had an adverse effect on the examination of other types of works within the Literary and Visual Arts Divisions.
If an author does not have broadband at home, at the home of a relative, a friend, or a neighbor, or at her place of employment, there are other options for registering a group of contributions to periodicals. If the copyright owner has a tablet or laptop, she could complete and submit the online application at a coffee shop, a bookstore, or any other place where wi-fi or cellular service is available.
Congress gave the Office broad authority to establish the requirements for group registration options. 17 U.S.C. 408(c)(1). For the foregoing reasons, the Office believes that requiring applicants to submit an online application as a condition for seeking a registration for a group of contributions to periodicals is a reasonable trade-off for improving the overall efficiency of the group registration process. Nonetheless, the Office invites comment on this aspect of the Proposed Rule.
This section discusses the eligibility requirements for the group option for contributions to periodicals. Applicants that fail to satisfy these requirements will not be permitted to use this option.
The Proposed Rule improves the readability of the regulation by restating the eligibility requirements for this group option, including the requirements involving authorship, work made for hire, first publication, and notice. The changes in language are simply intended to clarify these requirements and do not represent a substantive change in policy.
The Proposed Rule provides a definition for the term “periodicals.” It states that a periodical is a collective work that is issued or intended to be issued on an established schedule in successive issues that are intended to be continued indefinitely. It recognizes that each issue of a periodical usually bears the same title, as well as numerical or chronological designations. It also provides examples of works that typically qualify as a periodical, such as newspapers, magazines, newsletters, journals, bulletins, annuals, the proceedings of societies, and other similar works. This definition has appeared in the
An applicant may be permitted to register articles, blog entries, artwork, photographs, or other contributions that were first published in an electronically printed (“ePrint”) publication if that publication fits within the regulatory definition of a “periodical.” Specifically, an ePrint publication may be considered a periodical for purposes of registration if it is fixed and distributed online or via email as a self-contained work, such as a digital version of a tangible newspaper, magazine, newsletter, or similar
By contrast, a Web site would not be considered a periodical under the Proposed Rule. Web sites are typically updated on a continual basis rather than an established schedule. The updates are not made in successive issues that can be recognized as discrete, self-contained collective works, and they do not contain numerical or chronological designations that distinguish one update from the next. For these reasons, an applicant could register a group of articles that were first published in the print or ePrint edition of a magazine. Likewise, an applicant could register a group of articles that were first published in a print or ePrint edition of a magazine and simultaneously published on the publisher's Web site. However, an applicant could not register a group of articles that were published solely on a Web site.
The Office is aware of the need for establishing new and updated practices for examining and registering complex or emerging areas of authorship. The Register's strategic plan calls for the Office to “[a]ssess special issues relating to registration and deposit protocols for emerging forms of digital dissemination of works across the spectrum of creative industries,” and to “[i]dentify and make appropriate changes to Office policy and procedures in response to . . . emerging business standards.” Strategic Plan 2016-2020 at 11. The rule proposed in this notice represents an interim improvement to the current electronic registration system, and is intended to provide a sound foundation for creating other registration options within the next five years.
The Proposed Rule confirms that the application must identify each contribution that is included in the group, including the date of publication for each contribution and the periodical in which it was first published. Although the statute expressly states that this requirement should be included in the regulation, it does not appear in the current rule. 17 U.S.C. 408(c)(2)(B). Instead, the regulation states that the application “shall contain the information required by the form and its accompanying instructions,” and in turn, the instructions for Form GR/CP state that this information should be included in the form. 37 CFR 202.3(b)(8)(ii)(A);
The Proposed Rule confirms that the copyright claimant for each contribution in the group must be the same person or organization. This is in addition to the requirement that the contributions must be created by the same individual, although the author and claimant may be different persons. As noted in Section II, this requirement has appeared in the instructions for Form GR/CP for some time, but it does not appear in the current regulation. The change is simply intended to reconcile the regulation with the Office's longstanding practices. The Office will continue to register contributions authored by an individual who transferred his or her copyrights to the copyright claimant, provided that the claimant owns all of the exclusive rights in those contributions and provided that the application contains an appropriate transfer statement explaining how the claimant obtained those rights.
The statute directs the Office to establish a procedure for registering a group of works by the same individual, but it does not specify the total number of works that may be included within each group. Although the statute requires the Register to establish a group registration procedure for contributions to periodicals that are “
Although the Office thus has the authority to limit the number of contributions that may be included within each group, it has decided not to impose any limits at this time. Once the Proposed Rule has been implemented, the Office will monitor these group registrations to determine if any restrictions may be warranted in the future.
In the meantime, the Office encourages authors to submit their contributions on a quarterly basis (
To register a group of contributions to periodicals under the Proposed Rule applicants must submit a complete copy of each contribution that is included in the group. This will ensure that the Office receives the entire content of each contribution for the purpose of examining, indexing, and documenting the claim.
Applicants may satisfy this requirement by submitting one copy of the entire issue of the periodical in which the contribution was first published. If the contribution was first published in a newspaper, applicants may satisfy this requirement by submitting one copy of the entire section of the newspaper in which the
Alternatively, applicants may satisfy this requirement by submitting one copy of each contribution in the precise form in which it was first published in the periodical. Specifically, applicants may submit a copy of the particular pages within the periodical where the contribution was first published. This provision essentially mirrors regulations that have been in place since 2002 and, as discussed, is necessary to ensure that authors can readily take advantage of the GRCP option.
The Register may, consistently with the statutory scheme, accept deposits other than “one copy of the entire issue of the periodical” and “the entire section in the case of a newspaper” for the GRCP option. 17 U.S.C. 408(c)(2)(A). As mentioned above, section 408(c) gives the Register broad authority to establish group registration options, and to define the nature of the deposit materials for such registrations.
In all cases applicants will be required to submit a digital copy of each contribution that is included in a group. Specifically, applicants will be required to submit electronic files in Portable Document Format (“PDF”) or other electronic format specifically approved by the Office. This requirement will apply regardless of whether an applicant submits a copy of an entire issue of a periodical, an entire section of a newspaper, or the specific pages from the periodicals where the contributions were first published.
Applicants will be required to upload the digital copies through the electronic registration system. When uploading the files, applicants will be strongly encouraged to save them in a .zip file and then upload the .zip file to the system. In all cases, the size of each uploaded file may not exceed 500 megabytes, although applicants may digitally compress the contributions to comply with this limitation.
Under the current regulation, applicants must submit a physical copy of each contribution, such as photographic prints, contact sheets, or slides; camera-ready proof copies; or pages or clippings cut or torn from a newspaper, magazine, or other publication. Under the Proposed Rule, the Office will no longer accept physical copies. Likewise, the Office will not accept digital copies that have been saved onto a disc, a flash drive, or other physical storage device that is delivered to the Office by mail, by courier, or by hand delivery. In all cases, applicants will be required to upload a digital copy of each contribution via the electronic registration system.
Requiring applicants to upload their digital copies to this system will increase the efficiency of the group registration process. Based on the Office's experience, electronic submissions take less time to process, they are easier to track, and they are less burdensome to store than physical copies. From the applicant's perspective, electronic submissions should be more convenient and less expensive than submitting digital copies on a physical storage device, and if the claim is approved, the applicant should receive a certificate of registration in a more timely manner.
Moving to electronic deposits may also provide copyright owners with certain legal benefits. When the Office registers a group of contributions to periodicals it assigns an effective date of registration to the claim. This determination is based on the date that the Office received the application, the filing fee, and the deposit. When an applicant uploads a digital copy to the electronic system, the Office typically receives the application, the filing fee, and the deposit on the same date. By contrast, when an applicant delivers a physical copy to the Office by mail, courier, or hand delivery, the deposit may not be received for days or even weeks after the date that the application and filing fee were submitted.
Requiring applicants to submit a scanned copy of their contributions in the precise form in which they were first published is consistent with the legislative history, which states that “[a]s a general rule the deposit of more than a tear sheet or similar fraction of a collective work is needed to identify the contribution properly and to show the form in which it was published.” H.R. Rep. No. 94-1476, at 153 (1976). It also serves an evidentiary purpose. It gives the examiner an opportunity to compare the deposit with the title, date of publication, issue number, page number, or other information that is set forth in the application (although in practice examiners do not conduct this type of analysis for every contribution in the group). If a particular contribution becomes involved in litigation, the deposit could be used to verify that the contribution was published in a particular periodical on a particular date.
Applicants who are unable to submit their contributions in the precise form in which they were first published may request special relief from the deposit requirements. 37 CFR 202.20(d). Likewise, applicants may request special relief if they are unable to submit a digital copy of their contributions or unable to upload them
Under the Proposed Rule, the applicant will be required to pay the same filing fee that is currently set forth in the Office's fee schedule, namely $85 per claim.
In 2012 the Office conducted a study pursuant to Section 708 of the Copyright Act, which authorizes the Register to establish, adjust, and recover fees for certain services that the Office provides to the public. After reviewing its costs, the Office decided to increase the filing fee for GRCP from $65 to $85, noting that these types of claims are “labor-intensive.”
Section 708(b) authorizes the Register to adjust the fees that the Office charges for certain services (including the fee for seeking a group registration), but before doing so the Register must conduct a study of the costs incurred by the Office for registering claims, recording documents, and providing other services. In conducting this study, the Register must consider the timing of any fee adjustments and the Office's authority to use the fees consistent with its budget. 17 U.S.C. 708(b)(1). Section 708(b) provides that the Register may adjust these fees no “more than necessary to cover the reasonable costs incurred by the Copyright Office for . . . [such services], plus a reasonable inflation adjustment to account for any estimated increase in costs.” 17 U.S.C. 708(b)(2). It also provides that the Office must submit the proposed fee schedule to Congress, and that the Office may implement the schedule 120 days thereafter unless Congress enacts a law stating that it does not approve the schedule. 17 U.S.C. 708(b)(5).
Once the Proposed Rule has been implemented, the Office will monitor the cost of processing GRCP claims to determine if future fee adjustments may be warranted. The Office will use this information in conducting its next fee study.
The Proposed Rule memorializes the Office's longstanding position regarding the scope of a registration for a group of contributions to periodicals.
When the Office issues a group registration it prepares one certificate of registration for the entire group and assigns one registration number to that certificate. The Proposed Rule clarifies that a registration for a group of contributions to periodicals covers each contribution in the group, and each contribution is registered as a separate “work.” This understanding is consistent with the statutory scheme. The legislative history makes clear that group registration was “a needed and important liberalization of the law [then] in effect,” which to that point had required “separate registrations where related works or parts of a work are published separately.” H.R. Rep. No. 94-1476, at 154 (1976). In particular, Congress noted that “the technical necessity for separate applications and fees has caused copyright owners to forego copyright altogether.”
For similar reasons, the Proposed Rule also clarifies that when a group of works are registered under GRCP, the group as a whole is not considered a compilation or a collective work. Instead, the group is merely an administrative classification created solely for the purpose of registering multiple contributions with one application and one filing fee.
Likewise, the Proposed Rule clarifies that the group is not considered a derivative work. When a group of contributions are combined together for the purpose of facilitating registration those works are not “recast, transformed, or adapted” in any way, and the group as a whole is not “a work based upon one or more preexisting works” because there is no copyrightable authorship in simply following the administrative requirements for GRCP. 17 U.S.C. 101 (definition of “derivative work”).
The Proposed Rule confirms that the Office may refuse to issue a group registration if it determines that the applicant failed to satisfy the requirements set forth in the statute or regulations.
The Proposed Rule confirms that the Office may cancel a group registration under § 201.7(c)(4) of the regulations if it determines, after the registration has issued, that the requirements for that option were not met. In such cases, the Office will send a written notice to the correspondent and claimant named in the registration at the addresses specified in the registration record. The Office will describe the defect in the registration and will inform the parties that the registration may be cancelled if they fail to resolve the defect in a timely manner.
In a related vein, the Proposed Rule makes some clarifying edits to the Office's cancellation regulation, section 201.7(c)(4). First, it makes clear, consistent with existing Copyright Office practice, that the regulation only provides representative examples of situations where the Office may cancel a registration (rather than an exhaustive list of situations where cancellation may be warranted). Second, the Proposed Rule also removes one of the examples from that list—namely section 201.7(c)(4)(ix), which states that the Office may cancel a registration for a work published after January 1, 1978 if it determines that “the only claimant given on the application was deceased on the date the application was certified.” This is inconsistent with current practices of the Copyright Office.
The Office recently conducted a comprehensive review of its internal policies in conjunction with the revision of the
The Proposed Rule will move the regulation that governs this group option from section 202.3(b)(8) to section 202.4(h).
In addition, the Proposed Rule will incorporate the definitions of “Class TX,” “Class VA,” and “works of the visual arts” that are set forth in section 202.3, and it will confirm that the application may be submitted by any of the parties listed in section 202.3(c)(1), namely (i) the author or copyright claimant of those works, (ii) the owner of any of the exclusive rights in those works, or (iii) a duly authorized agent of any author, claimant, or owner of exclusive rights.
The Proposed Rule will allow broader participation in the registration system, and increase the efficiency of the group registration process. The Office invites public comment on these proposed changes.
Copyright, General provisions.
Copyright, Preregistration and registration of claims to copyright.
For the reasons set forth in the preamble, the U.S. Copyright Office proposes amending 37 CFR parts 201 and 202, as follows:
17 U.S.C. 702.
(c) * * *
The addition to read as follows:
(c) * * *
(4) * * *
(xi) The requirements for registering a group of related works under section 408(c) of title 17 of the United States Code have not been met.
17 U.S.C. 408(f), 702.
The revisions to read as follows:
(b) * * *
(4) * * *
(ii) In the case of an application for registration made under paragraphs (b)(4) through (10) of this section or under § 202.4, the “year of creation,” “year of completion,” or “year in which creation of this work was completed” means the latest year in which the creation of any copyrightable element was completed.
(c) * * *
(2) * * *
(a) This section prescribes conditions for issuing a registration for a group of related works under section 408(c) of title 17 of the United States Code.
(b)
(c) [Reserved]
(d) [Reserved]
(e) [Reserved]
(f) [Reserved]
(g) [Reserved]
(h)
(1) All the contributions in the group must be created by the same individual.
(2) The copyright claimant must be the same person or organization for all the contributions.
(3) The contributions must not be works made for hire.
(4) Each work must be first published as a contribution to a periodical, and all the contributions must be first published within a twelve-month period (
(5) If any of the contributions were first published before March 1, 1989, those works must bear a separate copyright notice, the notice must contain the copyright owner's name (or an abbreviation by which the name can be recognized, or a generally known alternative designation for the owner), and the name that appears in each notice must be the same.
(6) The applicant must complete and submit the online application designated for a group of contributions to periodicals. The application must identify each contribution that is included in the group, including the date of publication for each contribution and the periodical in which it was first published. The application may be submitted by any of the parties listed in § 202.3(c)(1). The application should be filed in Class TX if a majority of the contributions predominantly consist of text, and the application should be filed in Class VA if a majority of the contributions predominantly consist of photographs, illustrations, artwork, or other works of the visual arts.
(7) The appropriate filing fee, as required by § 201.3(c) of this chapter, must be included with the application or charged to an active deposit account.
(8) The applicant must submit one copy of each contribution that is included in the group, either by submitting the entire issue of the periodical where the contribution was first published, the entire section of the newspaper where it was first published, or the specific page(s) from the periodical where the contribution was first published. The contributions must be contained in separate electronic files that comply with § 202.20(b)(2)(iii). The files must be submitted in Portable Document Format (PDF) or other electronic format approved by the Office, and they must be uploaded to the electronic registration system, preferably in a .zip file containing all the files. The file size for each uploaded file must not exceed 500 megabytes; the files may be compressed to comply with this requirement.
(i) [Reserved]
(j) [Reserved]
(k) [Reserved]
(l)
(m)
(n)
U.S. Copyright Office, Library of Congress.
Notice of proposed rulemaking.
The U.S. Copyright Office is proposing to update its regulations governing group registration options for photographers to encourage broader participation in the registration system, increase the efficiency of the registration process, and create a more robust record of the claim. First, the Office has created new online registration applications specifically designed for group registrations of published photographs and group registrations of unpublished photographs. The proposed rule would require applicants to use these online applications, in lieu of any existing paper application. Applicants will be allowed to include up to 750 photographs with each application. Second, the proposal would eliminate less-efficient forms of registering photographs that have been adopted over the years—namely, the pilot program permitting group registration of published photographs using the electronic application designed for registering a single work, and the option of registering a number of unpublished photographs as an “unpublished collection.” The pilot program for photographic databases will remain in effect. Third, the proposed rule will update the deposit requirement for group registrations of photographs and photographic databases by requiring applicants to submit their works in digital form.
Comments on the proposed rule must be made in writing and must be received in the U.S. Copyright Office no later than January 3, 2017.
For reasons of government efficiency, the Copyright Office is using the
Robert J. Kasunic, Associate Register of Copyrights and Director of Registration Policy and Practice, or Erik Bertin, Deputy Director of Registration Policy and Practice, at 202-707-8040.
The U.S. Copyright Office (the “Office”) is proposing to amend the regulation that
Last year the Office issued a notice of inquiry concerning the practical and legal challenges faced by photographers, graphic artists, and illustrators (referred to herein as the “Visual Works Inquiry”
The Office received 2,795 comments and 166 reply comments in response to the Visual Works Inquiry. The Office has not attempted to address these comments in this notice of proposed rulemaking.
When Congress enacted the Copyright Act, it authorized the Register of Copyrights (the “Register”) to specify by regulation the administrative classes of works for the purpose of seeking a registration and the nature of the deposit required for each such class. In addition, Congress gave the Register the discretion to allow groups of related works to be registered with one application and one filing fee, a procedure known as “group registration.”
As the legislative history explains, allowing “a number of related works to be registered together as a group represent[ed] a needed and important liberalization of the law.” H.R. Rep. No. 94-1476, at 154 (1976),
Congress cited “a group of photographs by one photographer” as an example of a “group of related works” that would be suitable for registration under section 408(c)(1).
Under the Copyright Office's existing regulations and registration practice, photographers have several options for registering groups or collections of photographs with one application and one filing fee. These options are summarized below.
After conducting an extensive rulemaking, the Office issued a regulation in 2001 that allows applicants to register a group of published photographs with one application and one filing fee.
An applicant may register a group of photographs under this procedure if all the photographs were taken by the same photographer and were published within the same calendar year, and if the copyright claimant for all the photographs is the same person or organization. 37 CFR 202.3(b)(10)(i)-(iii). If the photographs were created as works made for hire, the application must provide both the name of the photographer and the name of the photographer's employer or the party who specially ordered or commissioned the photographs (
As a general rule, the applicant must provide a precise date of publication for each photograph in the group (
Initially, all applicants were required to file their claims using a paper application submitted on Form VA. As discussed below in Section III.A.1, the Office has established a pilot program
In all cases, the applicant must submit one copy of each photograph that is included in the group, and all the photographs must be submitted in the same format.
In addition to the group option for published photographs, there are four other options for registering multiple photographs with the same application. These options are summarized below.
Since 1978 the Office has allowed applicants to register a number of unpublished works with one application and one filing fee if the works qualify as an “unpublished collection.” To qualify for this option, the works must be unpublished, the works must have at least one common author, the copyright claimant for each work and the collection as a whole must be the same person or organization, the works must be assembled in an orderly form, and the applicant must provide a single title identifying the collection as a whole.
In all cases, the applicant must submit one copy of each photograph that is included in the collection. The applicant may submit the photographs in digital form (
Without prejudice to the Register's general authority to create group registration options under Section 408(c)(2) at the Register's discretion, Congress also directed the Register to create a group option for works by the same individual author that were first published as a contribution to a periodical. 17 U.S.C. 408(c)(2). In response to this directive, the Office established a procedure known as the “group option for contributions to periodicals” or “GRCP.”
Under the current regulation, there is no limit on the number of photographs that may be registered under GRCP. The applicant must complete a paper application using Form VA and Form GR/CP.
In 1989, the Office created a procedure that allows database owners to register the updates and revisions to a database with one application and one filing fee. 37 CFR 202.3(b)(5); 54 FR 13177 (Mar. 31, 1989). The Office refers to this procedure as the “group database option.” In the late 1990s, some stock photography companies began using this option to register databases that contain large numbers of photographs. After consulting with representatives from the industry, the Office concluded that the database option could potentially be used to register a photographic database if certain requirements have been met. The Office noted this understanding in an earlier notice of proposed rulemaking that is discussed in Section III.A.1 below.
The requirements for the database option are extremely complex.
A registration for a photographic database covers the authorship involved in selecting, coordinating, and arranging the content of the database as a whole. It also may cover the individual photographs that are included within the database if the photographers transferred the exclusive rights in their respective works to the owner of the database, and if the selection, coordination, and/or arrangement of those photographs is sufficiently creative.
Applicants may register a number of photographs with one application and one filing fee if they are part of a collective work. The statute defines a collective work as “a work, such as a periodical issue, anthology, or encyclopedia, in which a number of contributions, constituting separate and independent works in themselves, are assembled into a collective whole.” 17 U.S.C. 101. A collective work may consist entirely of photographs, such as a book of photographs, an exhibition catalog, or a retrospective book that contains photographs taken by a particular photographer. A collective work also may combine photographs with other types of authorship, such as a calendar, textbook, coffee table book, or similar types of works.
Applicants may register a collective work with an online application or a paper application. The claim may include photographs taken by multiple photographers, but the applicant does not need to name each photographer in the application and there is no limit on the number of photographs that may be included within each claim. If the claim is approved, the registration will cover the authorship involved in selecting, coordinating, and arranging the content of the collective work as a whole. It also may cover the individual photographs that are included within the collective work if (i) the claimant owns the copyright in both the individual photographs and the collective work as a whole, and if (ii) the photographs have not previously been published or registered. Although a registration for a collective work may cover the individual photographs contained therein, this type of registration may limit the copyright owner's ability to seek certain remedies in an infringement action. This issue is discussed in more detail in Section III.G.4 below.
The Proposed Rule does several things. First, the Office is proposing to amend the regulation that governs the group option for published photographs to reflect certain technical upgrades that will be made to the electronic registration system. Second, the Office is proposing to create, for the first time, an equivalent group registration option for unpublished photographs. This new procedure will be known as the “group option for unpublished photographs” or “GRUPH,” and it will replace the option that currently allows photographers to register their works as an unpublished collection. These first two amendments will increase the efficiency of the registration process for both published and unpublished photographs alike by requiring applicants to submit their claims through the electronic registration system. In addition, GRUPH will foster early registration, thereby eliminating complex questions that arise when published and unpublished photographs are commingled.
Third, the Office is proposing to update the deposit requirements for the group options for published photographs and photographic databases by requiring applicants to submit a digital copy of each photograph that is included in the group, and a separate document containing a sequentially numbered list that provides the title and file name for each photograph in the group. Applicants may submit these items by uploading them through the electronic system or by sending them on a physical storage device. This same requirement will apply to the new group option for unpublished photographs.
Finally, the Proposed Rule will memorialize the Office's longstanding position regarding the scope of a group registration for photographs.
Each of these proposals is discussed below.
In February 2015 the Office completed a comprehensive analysis of its electronic registration system with input from technical experts and stakeholders. This analysis will support the Office's long-term goals of creating both a better interface and a better public record.
In the meantime, the Office has made some enhancements to the current electronic registration system that will benefit photographers, the Office, and the public at large. When the electronic registration system was introduced in 2007, it contained a “standard” application (referred to herein as the “standard online application”). Applicants could use this application to register a single work; they also could use this application to register a number of works as an unpublished collection or as part of a collective work.
Photographers soon expressed interest in using the electronic system, and beginning in 2010, some applicants began submitting large numbers of photographs with the standard online application. Although this application was not designed to handle group registrations, the Visual Arts Division processed some of these claims in cases where the application contained all the information required for a group claim. Based on this experience, the Office issued an interim regulation in 2011 that established a pilot program allowing applicants to register groups of published photographs and photographic databases with the standard online application.
The Office explained that, during the pilot, it would assess the desirability and feasibility of allowing applicants to submit groups of photographs through the electronic system on a permanent basis, and invited public comment on the issue. 76 FR 5106 (Jan. 28, 2011). The Professional Photographers of America (“PPA”) and other organizations that represent photographers supported the pilot program, predicting that the standard online application would require less time to complete than a paper application, and that applicants would receive their certificates in a more timely manner.
While the pilot program was well-intentioned, it has been extremely burdensome for both applicants and the Office. The standard online application was designed to handle claims involving one work or a limited number of works. Using the existing architecture to provide title and publication information for hundreds or even thousands of photographs is necessarily challenging for applicants who are unfamiliar with the system. Examining these types of claims also requires significantly more time. In some cases, registration specialists have spent an entire day processing a single claim, which has resulted in corresponding delays in issuing certificates of registration for such claims. Moreover, the increasing demand on the Office's limited resources has had an adverse effect on the examination of other types of works within the Visual Arts Division.
To address these concerns, the Office has decided to eliminate the pilot program for published photographs, and replace it with an online application specifically designed for groups of published photographs. (The pilot program for photographic databases will remain in effect for the time being, though as discussed in Sections D.2 and G.3, the deposit requirements for photographic databases will be modified in some respects.) In addition, the Office has created a new online application specifically designed for groups of unpublished photographs.
Under the Proposed Rule, applicants will be required to use the online application designated for GRPPH or GRUPH as a condition for using either of these group options. To facilitate this transition, the Office will contact each applicant that has participated in the pilot program for published photographs and will notify them that the pilot program will be replaced with a new procedure. The Office will provide instructions on how to complete the new applications on its Web site and in chapter 1100 of the
Once the Proposed Rule goes into effect, the Office will no longer accept groups of published photographs or groups of unpublished photographs that are submitted with a paper application on Form VA (either with or without Form GR/PPh/CON).
A supplementary registration is a special type of registration that may be used “to correct an error in a copyright registration or to amplify the information given in a registration,” including a registration for a group of related works. 17 U.S.C. 408(d). Specifically, it identifies an error or omission in an existing registration (referred to herein as a “basic registration”) and places the corrected information or additional information in the public record. The Office refers to this type of registration as a “CA,” which stands for “correction and amplification.”
The Office is issuing a separate notice of proposed rulemaking (published elsewhere in this volume of the
If the rules proposed in the CA Rulemaking and in this proceeding both go into effect, applicants will be required to file an online application in order to correct or amplify a basic registration for works registered under the GRPPH and GRUPH options. If an applicant attempts to use a paper application, the Office will ask the applicant to resubmit the claim using the online form. As discussed in Section III.C.1 below, if the basic registration encompasses more than 750 photographs, multiple applications may need to be submitted to correct or amplify that registration. Applicants will not need to contact the Visual Arts Division in order to correct or amplify a basic registration for a group of photographs registered under GRPPH or GRUPH.
This online-filing requirement will also apply when correcting or amplifying a basic registration for works registered under the pilot program for group registration option for photographic databases.
Comments concerning this proposal should be submitted as part of the CA Rulemaking, and should not be submitted as part of this rulemaking on group registration of photographs.
A substantial majority of the U.S. population has access to the internet,
As discussed above, the PPA and other organizations that represent photographers expressed support for online registration in a prior rulemaking. They stated that “only a tiny fraction of photographers (1% according to PPA member surveys)” register their works with the Office, in part, because the paper application takes too much time to complete. PPA,
If a photographer does not have broadband at home, at the home of a relative, friend, or neighbor, or at her place of employment, there are other options for registering large numbers of published or unpublished photographs. If the copyright owner has a tablet or laptop, she could complete and submit the online application at a coffee shop, a bookstore, or any other place where wi-fi or cellular service is available.
In the alternative, the photographer could hire an attorney to submit the application on her behalf, either by paying for the attorney's services or by obtaining
The Office's decision to offer a group option for photographers is entirely discretionary, and Congress gave the Office broad authority to set the requirements for these types of claims. 17 U.S.C. 408(c)(1). For the foregoing reasons, the Office believes that requiring applicants to submit an online application as a condition for seeking a group registration for a group of photographs is a reasonable trade-off for improving the overall efficiency of the group registration process. Nonetheless, the Office invites comment on this aspect of the Proposed Rule.
The filing fee for registering groups of published or unpublished photographs will be $55, which is the amount the Office currently charges for a group of published photographs submitted with an online application under the pilot program.
In 2012 the Office conducted a study pursuant to section 708 of the Copyright Act, which authorizes the Register to establish, adjust, and recover fees for certain services that the Office provides
Section 708(b) authorizes the Register to adjust the fees that the Office charges for certain services (including the fee for seeking a group registration), but before doing so the Register must conduct a study of the costs incurred by the Office for registering claims, recording documents, and providing other services. In conducting this study, the Register must consider the timing of any fee adjustments and the Office's authority to use the fees consistent with its budget. 17 U.S.C. 708(b)(1). Section 708(b) provides that the Register may adjust these fees no “more than that necessary to cover the reasonable costs incurred by the Copyright Office for . . . [such services], plus a reasonable inflation adjustment to account for any estimated increase in costs.” 17 U.S.C. 708(b)(2). It also provides that the Office must submit a proposed fee schedule to Congress and that the Office may implement the schedule 120 days thereafter (unless Congress enacts a law stating that it does not approve the schedule). 17 U.S.C. 708(b)(5).
Once the Proposed Rule has been implemented, the Office will monitor the cost of processing groups of published and unpublished photographs to determine if future fee adjustments may be warranted. The Office will use this information in conducting its next fee study.
This section discusses the eligibility requirements for the group option for published photographs and the group option for unpublished photographs. Applicants that fail to satisfy these requirements will not be permitted to use these options.
Among the key requirements of the Proposed Rule are that all the works in the group must be photographs, the group must contain no more than 750 photographs, and the applicant must specify the total number of photographs that are included in the group. These requirements must be satisfied, regardless of whether the applicant uses the group option for published or unpublished photographs.
This represents a change in policy. Under the current regulation, applicants may register a group of published photographs by submitting a paper application on Form VA and may use Form GR/PPh/CON to provide titles, publication dates, and other pertinent information for each photograph. Completing Form GR/PPh/CON is optional, although it does provide certain advantages.
The Office recognizes that photographers are prolific creators. A photographer may take dozens or even hundreds of copyrightable images in a single session and thousands of images over the course of a week, a month, or a year. The Office created a group option for photographs, in part, because it is unrealistic and cost-prohibitive to expect photographers to register all of their images on an individual basis. At the same time, the Office recognizes that an effective public record must provide sufficient information about each claim. Photographers who register their works in a timely manner may be entitled to claim statutory damages in an infringement action and the granularity of the public record is critical to that determination.
Given resource limitations and the modest filing fee for this group option, the Office must impose some limit on the total number of photographs that may be submitted under the group option for published photographs and the new option for unpublished photographs. Based on its experience with Form GR/PPh/CON, the Office has determined that a limit of 750 photographs strikes an appropriate balance between the interests of photographers and the administrative capabilities of the Office.
To ensure that applicants do not attempt to circumvent the 750-photograph limit the Office proposes to eliminate the pilot program that allows applicants to submit groups of published photographs with the standard online application.
For the same reason, the Office will no longer register a group of unpublished photographs as an unpublished collection. If an applicant submits more than 750 photographs or fails to use the online application designated for GRUPH, the Office will ask the applicant to resubmit the claim using the appropriate application and will ask the applicant to limit the number of photographs in the group.
The limit on the number of photographs, in turn, will affect the procedure for correcting or amplifying a basic registration for a group of published photographs. As noted in Section III.A.2, the rule proposed in the CA rulemaking will require applicants to file an online application in order to seek a supplementary registration for a group of photographs. If the basic registration covers 750 photographs or fewer, the applicant will be able to correct or amplify the registration record with a single supplementary registration submitted through the online system. But if the basic registration was issued before the Proposed Rule goes into effect, and if that registration covers more than 750 photographs, multiple supplementary registrations may be needed to correct or amplify the record for those works.
Another key requirement is that all the photographs in the group must be taken by the same photographer.
In all cases, the claim will be limited to “photographs” and that term will be added automatically to the application by the electronic system. The system will not accept claims in “digital editing,” “compilation,” or any other form of authorship other than “photographs.”
In all cases, the copyright claimant for each photograph must be the same person or organization.
Applicants will be allowed to register a group of photographs if the claimant obtained all the exclusive rights in those works through a transfer of ownership. Likewise, applicants will be allowed to register a group of photographs as works made for hire (i) if all the photographs are identified in the application as works made for hire, (ii) if all the photographs were created by the same individual for the same employer, and (iii) if the photographer and the employer are both listed in the name of author field (
For example, if an advertising agency acquired a group of photographs from a particular photographer through an assignment of copyright and acquired another group of photographs taken by the same photographer through a work made for hire agreement, the agency could register those photographs under GRPPH or GRUPH only by separating the photographs into two groups and submit a separate application for each group (
The group options for published and unpublished photographs are designed to be mutually exclusive of each other. Under the Proposed Rule, an applicant will be allowed to register a group of unpublished photographs if all the photographs are unpublished, and will be allowed to register a group of published photographs if all the photographs are published. Applicants will not be allowed to combine published and unpublished photographs in the same claim. In addition, in the case of published photographs, all the works must be published within the same nation and within the same calendar year (
To register a group of published or unpublished photographs, applicants will be required to provide a title for the group as a whole, and will be required to include this information in the online application itself. For example, the applicant may provide a title that identifies the photographer and the month/year that the photographs were created, such as “Jack Jackson's photos May through July 2016,” or one that identifies the subject matter of the photographs, such as “Tropical Images from Hawaii.”
In addition to this basic information about the group of photographs, applicants will be required to submit a separate document in Excel format (“.xls”), Portable Document Format (“PDF”), or other electronic format that may be specifically approved by the Office that contains a sequentially numbered
In addition, applicants will be encouraged—but not required—to provide title and publication information in the online application itself. The Office will provide instructions on its Web site that will explain how to copy this information from the numbered list into the appropriate fields in the online application.
Although applicants will not be required to provide title and publication information in the online application, there are certain advantages to doing so.
By contrast, if the applicant provides title and publication information in the numbered list, but does not include that information in the online application itself, the titles and publication dates will not appear on the certificate of registration or the Office's online database (although the Office will keep a copy of the numbered list in its files). In such cases, the Office will add an annotation to the record, such as “Regarding title: deposit contains complete list of titles that correspond to the individual photographs included in this group.”
In comments regarding the Office's pilot program for electronic registration of photographs, the PPA and other organizations stated that photographers struggle with the definition of “publication” and “the public,” and find it difficult to determine whether their works are published or unpublished, particularly when they are distributed in digital form. PPA,
The new group option for unpublished photographs will help mitigate this problem by encouraging early registration. The Office strongly encourages photographers to register their works before they are published (
In addition, the Office released a comprehensive revision of the
In the future, the Office intends to develop a portal on its Web site that will provide photographers with pertinent information on a wide range of copyright issues. In developing these resources it would be helpful to learn more about the specific methods that photographers use to distribute their works to their customers and the general public. The Office previously asked for written comments on this issue in the Visual Works Inquiry, and it welcomes additional input as part of this rulemaking.
The Proposed Rule will modify the deposit requirements for the group option for published photographs and the group option for photographic databases, and it will establish similar requirements for the new option for unpublished photographs. These requirements are summarized below.
Under the Proposed Rule, applicants will be required to submit a digital copy of each photograph that is included in a group of published photographs (GRPPH) or a group of unpublished photographs (GRUPH). Applicants will be required to submit each photograph in one of the following formats: JPEG, GIF, TIFF, or PCD. The Office will no longer accept physical copies, such as prints, contact sheets, slides, photocopies, videotapes, or clippings from a newspaper, magazine, or other publication. This should not impose a significant burden on photographers because it appears that the vast majority of them use digital cameras.
In addition, as noted above, applicants will be required to submit a separate document containing a sequentially numbered list that identifies the title and file name—and in the case of published photographs, the month and year of publication—for each photograph in the group. The Office will provide a template on its Web site that may be used to prepare this list. The title and file name for a particular photograph may be the same, and may consist solely of numbers, letters, and spaces that were automatically assigned by the camera or a unique identifier that has been assigned to the image by a third party, such as the PLUS Registry. As noted above, the file names specified in the list must match the corresponding file names in the deposit copy. However, the file name should not contain slashes or any other form of punctuation. Including punctuation marks in the file name (other than spaces) may cause a system error that may prevent the Office from viewing the photographs. The Office also discourages applicants from stating “Untitled,” “No Title,” or the like, because interested parties typically search for works by title and it may be impossible to locate a particular photograph unless a meaningful title has been provided.
The Office will use the list to examine and document the claim, particularly in cases where the applicant does not provide title or publication information in the online application itself. In addition, the Office may use the list to locate and retrieve the deposit in the event it is needed for litigation or other legitimate purposes. For these reasons, the titles and file names specified in the list must correspond to the titles and files names for the actual photographs that are included in the deposit. In this respect, the Proposed Rule builds upon a suggestion that the Digital Media
The list must be contained in an electronic file in Excel format (“.xls”), Portable Document Format (“PDF”), or other electronic format that may be specifically approved by the Office. The file name for the list must include the title of the group as a whole and the eleven-digit case number that is automatically assigned to the application by the electronic system (
Applicants will be required to submit the files containing the digital photographs together with the file that contains the sequentially numbered list of photographs. Applicants may upload these files through the electronic system. Alternatively, they may save them onto a physical storage device, such as a flash drive or a CD-R or DVD-R, and send it to the Office by mail, by courier, or by hand delivery together with the required shipping slip.
When submitting files through the electronic system, applicants will be strongly encouraged to save them in a .zip file and then upload the .zip file to the system. In all cases, the size of each uploaded file must not exceed 500 megabytes, although the applicant may digitally compress the photographs to comply with this limitation.
When submitting files on a flash drive or other storage device, applicants must send that device in the same package with the shipping slip that is generated by the electronic system. If the applicant fails to include the required shipping slip, the Office may be unable to connect the storage device with the appropriate application. In such cases, the applicant will be required to pay an additional fee to search for the deposit and connect it with the application. If the deposit cannot be located, the applicant will be required to resubmit the storage device, which may change the effective date of registration for the claim.
Packages that are delivered to the Office by mail or by courier will be irradiated to destroy possible contaminants, such as anthrax. This process may damage files stored on electronic media. To avoid this result, applicants will be strongly encouraged to send physical storage devices to the Office in boxes rather than envelopes. Additional information concerning the recommended procedure for delivering physical deposits by mail or by courier will be provided in the
The Proposed Rule will impose the same deposit requirements on a database that consists predominantly of photographs. Specifically, database owners will be required to submit a digital copy of each photograph that is included in the claim, and a separate document containing a sequentially numbered list that identifies the title and file name—and in the case of published photographs, the month and year of publication—for each photograph.
An application for a group registration may be filed at any time. However, a photograph must be registered in a timely manner to seek statutory damages and attorney's fees in an infringement action. Specifically, a copyright owner typically may seek these remedies if a photograph was registered (i) before the infringement commenced or (ii) within three months after the first publication of that work.
In the case of unpublished photographs, the Office strongly encourages photographers to register their works before sharing them with any other party. By doing so, photographers preserve the ability to seek statutory damages and attorney's fees in subsequent infringement disputes involving those works.
In the case of published photographs, the Office encourages photographers to submit their claims every three months (instead of filing on an annual or semi-annual basis), and in each case, to file the claim within three months after the earliest date of publication specified in the application. For example, if a photographer first published his or her photographs on June 1, 2016, it would be advisable to submit a complete application, deposit, and filing fee on or before September 1, 2016. By doing so, the photographer would preserve his or her ability to seek statutory damages and attorney's fees for any infringements that began after the effective date of registration (
The Proposed Rule memorializes the Office's longstanding position regarding the scope of a registration for a group of published photographs, and it confirms that the Office will take the same position regarding the group option for unpublished photographs.
When the Office issues a group registration, it prepares one certificate of registration for the entire group and assigns one registration number to that certificate. The Proposed Rule clarifies that a registration for a group of published or unpublished photographs covers each photograph in the group, and that each photograph is registered as a separate “work.” This understanding is consistent with the statutory scheme. The legislative history makes clear that group registration was “a needed and important liberalization of the law [then] in effect,” which to that point had required “separate registrations where related works or parts of a work are published separately.” H.R. Rep. No. 94-1476, at 154 (1976). In particular, Congress noted that “the technical necessity for separate applications and fees has caused copyright owners to forego copyright altogether.”
For similar reasons, the Proposed Rule also clarifies that when a group of photographs is registered under GRPPH or GRUPH, the group as a whole is not considered a compilation or a collective work under sections 101, 103(b), or 504(c)(1) of the Copyright Act. The group is merely an administrative classification created solely for the purpose of registering multiple photographs with one application and one filing fee. See 17 U.S.C. 408(c)(1) (“Th[e] administrative classification of works has no significance with respect to the subject matter of copyright or the exclusive rights provided by this title.”). Although an applicant may exercise some judgment in selecting the photographs that are included within a particular group, that decision does not necessarily constitute copyrightable authorship. Instead, the selection is based on the regulatory requirements for these group options, and any coordination or arrangement of the photographs is merely an administrative formality that facilitates the examination of the works.
Likewise, the Proposed Rule clarifies that the group is not considered a derivative work under sections 101, 103(b), or 504(c)(1) of the Copyright Act. When a group of photographs is compiled for the purpose of facilitating registration, those works are not “recast, transformed, or adapted” in any way, and the group as a whole is not “a work based upon one or more preexisting works” because there is no copyrightable authorship in simply following the administrative requirements for GRPPH or GRUPH. 17 U.S.C. 101 (definition of “derivative work”).
This section discusses the key differences between the options for registering a group of published or unpublished photographs as compared to the options for registering an unpublished collection, a group of contributions to periodicals, a photographic database, or a collective work.
The group option for unpublished photographs is intended to replace the option that currently allows an applicant to register a number of photographs as an unpublished collection. Once the Proposed Rule goes into effect, the Office will no longer accept an application to register photographs under § 202.3(b)(4)(i)(B) of the regulations, regardless of whether the photographs are submitted with a standard application or a paper application (although the Office will continue to accept applications to register other types of works under this provision).
As explained, the GRUPH option provides a more efficient mechanism for capturing information about photographs, and incorporating that information into the public record. Requiring applicants to use this option may also provide photographers with certain legal benefits.
When an applicant submits photographs via the unpublished collection option, and asserts a claim in both the individual photographs as well as the selection and arrangement of the collection as whole, the Office will register the claim as an unpublished collective work, rather than an unpublished collection. A collective work is—by definition—a form of compilation. 17 U.S.C. 101 (“The term `compilation' includes collective works.”). Section 504(c)(1) of the Copyright Act states that a copyright owner may be entitled to recover “an award of statutory damages for all infringements involved in [an infringement] action, with respect to any one work,” but “[f]or the purposes of this subsection, all the parts of a compilation . . . constitute one work.” 17 U.S.C. 504(c)(1). In other words, when a number of photographs are registered as an unpublished collective work, the copyright owner would be entitled to seek only one award of statutory damages in an infringement action, rather than a separate award for each photograph.
In contrast, as noted above in Section III.F, when a number of photographs are registered under the GRUPH option, each photograph is registered as a separate work. For purposes of registration, the group as a whole is not considered a collective work or compilation, and thus, the individual photographs within the group would not be subject to the limitation on statutory damages set forth in section 504(c)(1). Instead, a registration for a group of unpublished photographs is treated as a separate registration for each photograph that is included within the group.
The group option for published photographs is not intended to alter or replace the group option for contributions to periodicals. Photographers may continue to register their works as a group of published photographs or a group of contributions to periodicals, as long as they satisfy the relevant requirements for each option.
There are some notable differences between these registration options. While a group of published photographs may include no more than 750 images, there is no limit on the number of photographs that may be included within a group of contributions to periodicals. Moreover, a group of published photographs may include photographs that were published during the same calendar year, while a group of contributions to periodicals may include photographs that were published over a twelve-month period—even if that period extends from one calendar year to the next (
The Office generally encourages applicants to use GRPPH, in part, because the deposit requirements for published photographs are more flexible than the deposit requirements for GRCP. Regardless of whether the applicant uses GRPPH or GRCP, the registration will cover all the photographs that are included within the group.
As noted above, the Proposed Rule makes certain modifications to the deposit requirement for databases that predominantly consist of photographs. The Proposed Rule will not change any of the other requirements for these types
Although the Office will continue to accept these claims, the Office strongly encourages photographers, stock photography companies, database providers, and other interested parties to register their works with the group option for published or unpublished photographs—rather than the database option—for several reasons. Many photography Web sites and catalogs do not qualify as a database, and therefore, are not eligible for the group option for photographic databases. For purposes of registration, a database is defined “as a compilation of digital information comprised of data, information, abstracts, images, maps, music, sound recordings, video, other digitized material, or references to a particular subject or subjects. In all cases, the content of a database must be arranged in a systematic manner, and it must be accessed solely by means of an integrated information retrieval program or system with the following characteristics.”
Stock photography Web sites or catalogs that merely display photographs do not satisfy these requirements and therefore are not considered databases for the purpose of registration. In most cases, users may access all the content on a Web site or in a catalog by scrolling or browsing through the individual images or categories of related images.
Copyright owners also should consider the following issue before registering their photographs as part of a photographic database. As noted above in Section III.G.1, the Copyright Act states that a copyright owner may be entitled to recover “an award of statutory damages for all infringements involved in [an infringement] action, with respect to any one work,” but “[f]or the purposes of this subsection, all the parts of a compilation . . . constitute one work.” 17 U.S.C. 504(c)(1). A database is—by definition—a compilation.
By contrast, when a copyright owner registers a group of photographs under GRPPH or GRUPH, the registration covers each photograph in the group, but the group itself is not a compilation within the meaning of the Copyright Act. Therefore, any claim for infringement would not be subject to the limitation set forth in Section 504(c)(1) of the Copyright Act. For these reasons, the group options for published and unpublished photographs provide significant benefits, while avoiding the potential downside of registering a number of works as part of a photographic database.
The Proposed Rule will not change the requirements for registering a number of photographs as part of a collective work, such as a book of photographs, a travel guide, or the like. Applicants may continue to register these types of works with a standard application submitted through the electronic system or with a paper application submitted on Form VA.
Registration of photographs as part of a collective work differs in many respects from group registration of photographs. A registration for a collective work may include photographs taken by multiple photographers (even if the photographers are not explicitly named in the application), and there is no limit on the number of photographs that may be included within each claim. If the claim is approved, the registration will cover the authorship involved in selecting, coordinating, and/or arranging the content of the collective work as a whole. It also may cover the individual photographs that appear in the collective work if the claimant owns the copyright in those images and the collective work as a whole, and if the photographs have not been previously published or registered.
There are some drawbacks to registering photographs as a collective work. As discussed in Section III.G.1, a collective work is—by definition—a compilation. As such, these types of works are subject to the limitation set forth in section 504(c)(1) of the Copyright Act. When a number of photographs are registered as part of a collective work, the copyright owner may be entitled to receive only one award of statutory damages in an infringement action, even if the defendant infringed all the photographs that appear in that work (regardless of whether the collective work is published or unpublished). By contrast, when a group of photographs are registered under GRPPH or GRUPH, the copyright owner would not be subject to the collective-work limitation in section 504(c)(1). For this reason, photographers may wish to register their photographs under GRPPH or GRUPH, even if those works also may be eligible for registration as part of a collective work.
The Proposed Rule will move the regulation governing published photographs from § 202.3 to § 202.4.
In addition, the Proposed Rule incorporates the definitions of “claimant” and “Class VA” that are set forth in § 202.3, and it confirms that an application for a group of photographs may be submitted by any of the parties listed in § 202.3(c)(1), namely (i) the author or copyright claimant of those
The Proposed Rule will allow broader participation in the registration system by expanding the class of works that may be registered as a group, increase the efficiency of the registration process, and create a more robust record of the claim. The Office invites public comment on these proposed changes.
Copyright, General provisions.
Copyright, Preregistration and registration of claims to copyright.
For the reasons set forth in the preamble, the U.S. Copyright Office proposes amending 37 CFR parts 201 and 202, as follows:
17 U.S.C. 702.
The revisions and additions to read as follows:
(c) * * *
17 U.S.C. 408(f), 702.
The revisions to read as follows:
(b) * * *
(4) * * *
(ii) In the case of an application for registration made under paragraphs (b)(4) through (b)(10) of this section or under § 202.4, the “year of creation,” “year of completion,” or “year in which creation of this work was completed,” means the latest year in which the creation of any copyrightable element was completed.
(c) * * *
(2) * * *
(a) This section prescribes conditions for issuing a registration for a group of related works under section 408(c) of title 17 of the United States Code.
(b)
(c) [Reserved]
(d) [Reserved]
(e) [Reserved]
(f) [Reserved]
(g) [Reserved]
(h) [Reserved]
(i)
(1) All the works in the group must be photographs.
(2) The group must include no more than 750 photographs, and the application must specify the total number of photographs that are included in the group.
(3) All the photographs must be created by the same photographer.
(4) The copyright claimant for all the photographs must be the same person or organization.
(5) The photographs may be registered as works made for hire if all the photographs are identified in the application as such, if all the photographs were created by the same photographer for the same employer, and if the application identifies both the photographer and the employer in the name of author field (
(6) All the photographs must be unpublished.
(7) The applicant must provide a title for the group as a whole.
(8) The applicant must complete and submit the online application designated for a group of unpublished photographs. (The Office will not register a group of unpublished photographs as an unpublished collection under § 202.3(b)(4)(i)(B).) The application may be submitted by any of the parties listed in § 202.3(c)(1).
(9) The appropriate filing fee, as required by § 201.3(c) of this chapter, must be included with the application or charged to an active deposit account.
(10) The applicant must submit one copy of each photograph in one of the following formats: JPEG, GIF, TIFF, or PCD. The file name for a particular photograph may consist of letters, numbers, and spaces, but the file name should not contain any other form of punctuation. The photographs may be uploaded to the electronic registration system together with the required numbered list, preferably in a .zip file containing all the photographs. The file size for each uploaded file must not exceed 500 megabytes; the photographs may be compressed to comply with this requirement. Alternatively, the photographs and the required numbered list may be saved on a physical storage device, such as a flash drive, CD-R, or DVD-R, and delivered to the Copyright Office together with the required shipping slip generated by the electronic registration system.
(11) The applicant must submit a sequentially numbered list containing a title and file name for each photograph in the group (matching the corresponding file names for each photograph specified in paragraph (i)(10)). The title and file name for a particular photograph may be the same.
(j)
(1) All the works in the group must be photographs.
(2) The group must include no more than 750 photographs, and the application must specify the total number of photographs that are included in the group.
(3) All the photographs must be created by the same photographer.
(4) The copyright claimant for all the photographs must be the same person or organization.
(5) The photographs may be registered as works made for hire if all the photographs are identified in the application as such, if all the photographs were created by the same photographer for the same employer, and if the application identifies both the photographer and the employer in the name of author field (
(6) All the photographs must be published within the same nation and within the same calendar year, and the applicant must specify the earliest and latest date that the photographs were published during the year.
(7) The applicant must provide a title for the group as a whole.
(8) The applicant must complete and submit the online application designated for a group of published photographs. The application may be submitted by any of the parties listed in § 202.3(c)(1).
(9) The appropriate filing fee, as required by § 201.3(c) of this chapter, must be included with the application or charged to an active deposit account.
(10) The applicant must submit one copy of each photograph in one of the following formats: JPEG, GIF, TIFF, or PCD. The file name for a particular photograph may consist of letters, numbers, and spaces, but the file name should not contain any other form of punctuation. The photographs may be uploaded to the electronic registration system together with the required numbered list, preferably in a .zip file containing all the photographs. The file size for each uploaded file must not exceed 500 megabytes; the photographs may be compressed to comply with this requirement. Alternatively, the photographs and the required numbered list may be saved on a physical storage device, such as a flash drive, CD-R, or DVD-R, and delivered to the Copyright Office together with the required shipping slip generated by the electronic registration system.
(11) The applicant must submit a sequentially numbered list containing the title, file name, and month and year of publication for each photograph in the group (matching the corresponding file names for each photograph specified in paragraph (j)(10)). The title and file name for a particular photograph may be the same. The numbered list must be contained in an electronic file in Excel format (.xls), Portable Document Format (PDF), or other electronic format approved by the Office, and the file name for the list must contain the title of the group and the case number assigned to the application by the electronic registration system (
(k) [Reserved]
(l) [Reserved]
(m) [Reserved]
(n)
The revision to read as follows:
(c) * * *
(2) * * *
(vii) * * *
(D) * * *
U.S. Copyright Office, Library of Congress.
Notice of proposed rulemaking.
The U.S. Copyright Office is proposing to amend the regulation governing supplementary registration to reflect certain technical upgrades that will soon be made to the electronic
Comments on the proposed rule must be made in writing and must be received in the U.S. Copyright Office no later than January 3, 2017.
For reasons of government efficiency, the Copyright Office is using the regulations.gov system for the submission and posting of public comments in this proceeding. All comments are therefore to be submitted electronically through regulations.gov. Specific instructions for submitting comments are available on the Copyright Office Web site at
Robert J. Kasunic, Associate Register and Director of Registration Policy and Practice, by telephone at (202) 707-8040; or Erik Bertin, Deputy Director of Registration Policy and Practice, by telephone at 202-707-8040.
Section 408(d) of the Copyright Act authorizes the Register of Copyrights (the “Register”) to establish “formal procedures for the filing of an application for supplementary registration.” 17 U.S.C. 408(d). A supplementary registration is a special type of registration that may be used “to correct an error in a copyright registration or to amplify the information given in a registration.”
When the U.S. Copyright Office (the “Office”) issues a supplementary registration, it does not cancel or replace the basic registration or the registration number for that registration. Likewise, the Office does not change the information set forth in the basic registration or the public record for that registration. Instead, as specified by statute, the basic registration and the supplementary registration coexist with each other in the public record, and “the information contained in a supplementary registration augments but does not supersede that contained in the earlier registration.”
The Office is proposing to amend the regulation that governs the procedure for seeking a supplementary registration (the “Proposed Rule”). Under the Proposed Rule, in most cases, applicants will be required to file an online application in order to correct or amplify the information set forth in a basic registration.
The Office has allowed and encouraged applicants to register their works through the electronic registration system since 2007.
In the meantime, the Office has made some enhancements to the current system that will improve the versatility of the supplementary registration process. Under the Proposed Rule, applicants will be required to use the online registration system to file a supplementary registration for any types of works that are capable of being registered through the electronic system. This online filing requirement will thus apply to supplementary registrations for literary works (
Once the Proposed Rule goes into effect, applicants will not be allowed to submit a paper application on Form CA to correct or amplify the basic registration for any types of works that are capable of being registered through the electronic system. If the Office receives such a paper application, it will ask the applicant to resubmit the claim using the online application.
To correct or amplify the registration record for works that cannot be registered through the electronic system, applicants will be required to submit a paper application using Form CA.
A substantial majority of the U.S. population has access to the internet,
Paper applications are extremely burdensome for both applicants and the Office. Describing an error or omission in a basic registration can be tedious and time consuming, especially when the applicant needs to make a significant number of changes to the registration record. The Office routinely receives applications that are hundreds of pages long, such as when a stock photography company wants to add thousands of titles to the record for a photographic database. Examining these applications imposes tremendous burdens on the Office, because each correction or amplification must be copied from Form CA and entered into the record by hand. In some cases, registration specialists have spent several days on a single application. This increasing demand on the Office's limited resources causes delays in issuing supplementary registrations, and it prevents specialists from examining other types of claims thereby increasing the overall backlog within the Office.
If a copyright owner does not have broadband at home, at the home of a relative, friend, or neighbor, or at his place of employment, there are other options for submitting an application for supplementary registration. If the copyright owner has a tablet or laptop, he could complete and submit the online application at a coffee shop, a
In the alternative, the copyright owner could hire an attorney to submit the application on his behalf, either by paying for the attorney's services or by obtaining
For the foregoing reasons, the Office believes that requiring applicants to use the online application is a reasonable trade-off for improving the overall efficiency of the supplementary registration process. The Office invites comment on this proposal, including whether the Office should eliminate the paper application for seeking a supplementary registration, phase out this option after a specified period of time, or continue to offer this option for applicants who prefer to use the paper-based system.
Under the Proposed Rule, the applicant will be required to pay the same filing fee, regardless of whether the application is submitted through the electronic registration system or on Form CA. In addition, the applicant may be required to pay a fee to locate and obtain a copy of the basic registration that is referenced in the application. Each of these fees is discussed below.
In 2012 the Office conducted a study pursuant to section 708 of the Copyright Act, which authorizes the Register to establish, adjust, and recover fees for certain services that the Office provides to the public. After reviewing its costs, the Office decided to increase the filing fee for a supplementary registration from $100 to $130.
Section 708(b) authorizes the Register to adjust the fees that the Office charges for certain services (including the fee for seeking a supplementary registration), but before doing so the Register must conduct a study of the costs incurred by the Office for registering claims, recording documents, and providing other services. In conducting this study, the Register must consider the timing of any fee adjustments and the Office's authority to use the fees consistent with its budget. 17 U.S.C. 708(b)(1). Section 708(b) provides that the Register may adjust these fees no “more than necessary to cover the reasonable costs incurred by the Copyright Office for . . . [such services], plus a reasonable inflation adjustment to account for any estimated increase in costs.” 17 U.S.C. 708(b)(2). It also provides that the Office must submit a proposed fee schedule to Congress and that the Office may implement the schedule 120 days thereafter (unless Congress enacts a law stating that it does not approve the schedule). 17 U.S.C. 708(b)(5).
Once the Proposed Rule has been implemented, the Office will monitor the cost of processing supplementary claims to determine if future fee adjustments may be warranted or if the Office should charge a different fee for claims submitted through the electronic registration system and claims submitted on Form CA. The Office will use this information in conducting its next fee study.
When the Office receives an application for a supplementary registration, the registration specialist will compare the information set forth in the application with the information set forth in the basic registration. If the Office has made a digital copy of the certificate of registration, the specialist may be able to conduct his or her review without obtaining a physical copy of the certificate.
The Proposed Rule also updates examination practices in several areas, including, among other things, to reflect changes to the
The Proposed Rule updates a number of practices that are reflected in the
After further consideration, the Office has concluded that these cross-references should be included regardless of who has submitted the application for supplementary registration. This amendment will improve the accuracy and usefulness of the public record by making it easier to find supplementary registrations that may contain additional information pertaining to the basic registration (regardless of who submitted the application for supplementary registration). If an interested party wishes to identify the person who made the correction or amplification, that information can be obtained by reviewing the records for the supplementary registration.
One of the exceptions relates to supplementary registrations, stating that “[s]upplementary registrations may be made . . . to correct or amplify the information in a registration made under this section.”
The Proposed Rule addresses this issue by requiring applicants to sign a certification stating that they reviewed the certificate of registration for the basic registration before submitting the application for supplementary registration.
The Proposed Rule will improve the readability of the regulation by reorganizing or revising awkward provisions, and by adopting the appropriate format for providing cross-references within the Code of Federal Regulations (as recommended by the
The Proposed Rule will increase the efficiency of the supplementary registration process and create a more robust record of the claim. The Office invites public comment on these proposed changes.
Copyright, General provisions.
For the reasons set forth in the preamble, the Copyright Office proposes amending 37 CFR parts 201 and 202 as follows:
17 U.S.C. 702.
(c) * * *
(a)
(b)
(i) A copyright registration made under sections 408, 409, and 410 of title 17 of the United States Code;
(ii) A renewal registration made under section 304 of title 17 of the United States Code; or
(iii) A copyright registration or a renewal registration made under title 17 of the United States Code as it existed before January 1, 1978.
(2) A
(c)
(d)
(2) A
(3) An
(i) To supplement or clarify the information that was required by the application for the basic registration and should have been provided, such as the identity of a co-author or co-claimant, but was omitted at the time the basic registration was made; or
(ii) To reflect changes in facts, other than those relating to transfer, license, or ownership of rights in the work, that occurred since the basic registration was made.
(4) Supplementary registration is not appropriate:
(i) To reflect a change in ownership that occurred on or after the effective date of the basic registration or to reflect the division, allocation, licensing or transfer of rights in a work;
(ii) To correct errors in statements or notices on the copies of phonorecords of a work, or to reflect changes in the content of a work; or
(iii) To correct or amplify the information set forth in a basic registration that has been cancelled under § 201.7.
(5) If an error or omission in a basic renewal registration is extremely minor, and does not involve the identity of the renewal claimant or the legal basis of the claim, supplementary registration may be made at any time. In an exceptional case, however, supplementary registration may be made to correct the name of the renewal claimant and the legal basis of the claim if clear, convincing, and objective documentation is submitted to the Copyright Office which proves that an inadvertent error was made in failing to designate the correct living statutory renewal claimant in the basic renewal registration.
(6) In general, the Copyright Office will not issue a supplementary registration for a basic registration made under title 17 of the United States Code as it existed before January 1, 1978. In an exceptional case, the Copyright Office may issue a supplementary registration for such a registration, if the correction or amplification is supported by clear, convincing, and objective documentation.
(e)
(2) To seek a supplementary registration for a database that consists predominantly of photographs registered under § 202.3(b)(5) of this chapter, an applicant must complete and submit the online application designated for supplementary registration after consultation with and under the direction of the Visual Arts Division.
(3) To seek a supplementary registration for a restored work registered under § 202.12 of this
(4) Before submitting the application, the applicant must sign a certification stating that the applicant reviewed a copy of the certificate of registration for the basic registration that will be corrected or amplified by the supplementary registration. To obtain a copy of the certificate, the applicant may submit a written request to the Records Research and Certification Section using the procedure set forth in Chapter 2400 of the
(5) The appropriate filing fee, as required by § 201.3(c), must be included with the application or charged to an active deposit account. At the Office's discretion, the applicant may be required to pay an additional fee to make a copy of the certificate of registration for the basic registration that will be corrected or amplified by the supplementary registration.
(6) Copies, phonorecords, or supporting documents cannot be made part of the record for a supplementary registration and should not be submitted with the application.
(f)
(2) As provided in section 408(d) of title 17 of the United States Code, the information contained in a supplementary registration augments but does not supersede that contained in the basic registration. The basic registration will not be expunged or cancelled.
17 U.S.C. 408(f), 702.
Environmental Protection Agency (EPA).
Proposed rule.
The Environmental Protection Agency (EPA) is proposing to approve a revision to the Yolo-Solano Air Quality Management District (YSAQMD) portion of the California State Implementation Plan (SIP). This revision concerns emissions of volatile organic compounds (VOCs) and particulate matter (PM) from confined animal facilities (CAFs). We are proposing to approve a local rule to regulate these emission sources under the Clean Air Act (CAA or the Act). We are taking comments on this proposal and plan to follow with a final action.
Any comments must arrive by January 3, 2017.
Submit your comments, identified by Docket ID No. EPA-R09-OAR-2016-0245 at
Nancy Levin, EPA Region IX, (415) 972-3848,
Throughout this document, “we,” “us” and “our” refer to the EPA.
Table 1 lists the rule addressed by this proposal with the dates that it was adopted by the local air agency and submitted by the California Air Resourced Board (CARB).
On October 24, 2006, the EPA determined that the submittal for YSAQMD Rule 11.2 met the completeness criteria in 40 CFR part 51 Appendix V, which must be met before formal EPA review.
There are no previous versions of Rule 11.2 in the SIP.
VOCs help produce ground-level ozone, smog and PM, which harm human health and the environment. Section 110(a) of the CAA requires States to submit regulations that control VOC emissions. PM, including PM equal to or less than 2.5 microns in diameter (PM
SIP rules must be enforceable (see CAA section 110(a)(2)), must not interfere with applicable requirements concerning attainment and reasonable further progress or other CAA requirements (see CAA section 110(l)), and must not modify certain SIP control requirements in nonattainment areas without ensuring equivalent or greater emissions reductions (see CAA section 193).
Guidance and policy documents that we use to evaluate enforceability and revision/relaxation requirements for the applicable criteria pollutants include the following:
1. “Issues Relating to VOC Regulation Cutpoints, Deficiencies, and Deviations,” EPA, May 25, 1988 (the “Bluebook,” revised January 11, 1990).
2. “Guidance Document for Correcting Common VOC & Other Rule Deficiencies,” EPA Region 9, August 21, 2001 (the “Little Bluebook”).
We believe this rule is consistent with CAA requirements and relevant guidance regarding enforceability and SIP revisions. The submitted rule strengthens the SIP by establishing a permit program for CAFs and by prohibiting any person from operating a CAF without first obtaining a CAF permit from the APCO. The CAF permit application must include an emissions mitigation plan. The TSD has more information on our evaluation.
The TSD describes additional rule revisions that we recommend for the next time the local agency modifies the rule.
As authorized in section 110(k)(3) of the Act, the EPA proposes to fully approve the submitted rule because we believe it fulfills all relevant requirements. We will accept comments from the public on this proposal until January 3, 2017. Unless we receive convincing new information during the comment period, we intend to publish a final approval action that will incorporate this rule into the federally-enforceable SIP.
In this rule, the EPA is proposing to include in a final EPA rule regulatory text that includes incorporation by reference. In accordance with requirements of 1 CFR 51.5, the EPA is proposing to incorporate by reference the YSAQMD rule as described in Table 1 of this preamble. The EPA has made, and will continue to make, these materials available through
Under the Clean Air Act, 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, EPA's role is to approve state choices, provided that they meet the criteria of the Clean Air Act. Accordingly, this proposed action merely proposes to approve State law as meeting federal requirements and does not impose additional requirements beyond those imposed by State law. For that reason, this proposed 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 (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 (Public Law 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 Clean Air Act; and
• Does not provide EPA with the discretionary authority to address disproportionate human health or environmental effects with practical, appropriate, 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 the EPA or an Indian tribe has demonstrated that a tribe has jurisdiction. In those areas of Indian country, the rule does not have tribal implications and will not impose substantial direct costs on tribal governments or preempt tribal law as specified by Executive Order 13175 (65 FR 67249, November 9, 2000).
Environmental protection, Air pollution control, Incorporation by reference, Intergovernmental relations, Ozone, Particulate matter, Reporting and recordkeeping requirements, Volatile organic compounds.
42 U.S.C. 7401
Environmental Protection Agency.
Proposed rule.
The Environmental Protection Agency (EPA) is proposing to approve two separate but related submissions (one of which includes multiple components) provided by the Commonwealth of Kentucky, through the Kentucky Division of Air Quality (KDAQ), in relation to attainment of the 2010 Sulfur Dioxide (SO
Comments must be received on or before January 3, 2017.
Submit your comments, identified by Docket ID No. EPA-R04-OAR-2016-0361 at
Steven Scofield of the Air Regulatory Management Section, Air Planning and Implementation Branch, Air, Pesticides and Toxics Management Division, U.S. Environmental Protection Agency, Region 4, 61 Forsyth Street SW., Atlanta, Georgia 30303-8960. Mr. Scofield may be reached by phone at (404) 562-9034 or via electronic mail at
EPA is proposing to take the following five separate but related actions regarding Kentucky's aforementioned requests and SIP submission: (1) To approve Kentucky's RACM determination for the Kentucky portion of the Campbell-Clermont, KY-OH Area pursuant to Clean Air Act (CAA or Act) section 172(c)(1) and incorporate it into the SIP; (2) to approve the base year emissions inventory for the 2010 1-hour SO
Based on the 1-hour SO
On November 21, 2016, EPA published its final approval of the redesignation request and maintenance plan for the Ohio portion of the Area.
EPA is also proposing to approve Kentucky's maintenance plan for its portion of the Campbell-Clermont, KY-OH Area as meeting the requirements of section 175A (such approval being one of the CAA criteria for redesignation to attainment status) and incorporate it into the SIP. The maintenance plan is designed to keep the Area in attainment of the 2010 1-hour SO
EPA also proposes to determine that the Kentucky portion of the Campbell-Clermont, KY-OH Area has met the requirements for redesignation under section 107(d)(3)(E) of the CAA. Accordingly, in this action, EPA is proposing to approve a request to change the legal designation of the portion of Campbell County, Kentucky, within the Campbell-Clermont, KY-OH Area, as found at 40 CFR part 81, from nonattainment to attainment for the 2010 1-hour SO
In summary, this proposed rulemaking is in response to Kentucky's March 31, 2015, submittal requesting a clean data determination and to Kentucky's February 22, 2016, redesignation request and associated SIP submission that address the necessary elements described in section 107(d)(3)(E) of the CAA for redesignation of the Kentucky portion of the Campbell-Clermont, KY-OH Area to attainment for the 2010 1-hour SO
On June 2, 2010, EPA revised the primary SO
Upon promulgation of a new or revised NAAQS, the CAA requires EPA to designate as nonattainment any area that does not meet (or that contributes to ambient air quality in a nearby area that does not meet) the NAAQS. At the time EPA conducted the initial round of designations for the 2010 1-hour SO
As mentioned above, on March 31, 2015, KDAQ submitted a request for EPA to determine that the Campbell-Clermont, KY-OH Area has attained the 2010 1-hour SO
The CAA provides the requirements for redesignating a nonattainment area to attainment. Specifically, section 107(d)(3)(E) of the CAA allows for redesignation provided that the following criteria are met: (1) The Administrator determines that the area has attained the applicable NAAQS; (2) the Administrator has fully approved the applicable implementation plan for the area under section 110(k); (3) the Administrator determines that the improvement in air quality is due to permanent and enforceable reductions in emissions resulting from implementation of the applicable SIP and applicable federal air pollutant
On April 16, 1992 (57 FR 13498), EPA provided guidance on redesignation in the General Preamble for the Implementation of title I of the CAA Amendments of 1990 and supplemented this guidance on April 28, 1992 (57 FR 18070). EPA has provided further guidance on processing redesignation requests in several guidance documents. For the purposes of this proposed action, EPA will be referencing three of these documents: (1) The September 4, 1992, memorandum from John Calcagni titled “Procedures for Processing Requests to Redesignate Areas to Attainment” (hereinafter referred to as the “Calcagni Memo”); (2) the October 14, 1994, memorandum from Mary D. Nichols titled “Part D New Source Review (Part D NSR) Requirements for Areas Requesting Redesignation to Attainment” (hereinafter referred to as the “Nichols Memo”); and (3) the April 23, 2014 memorandum from Stephen D. Page titled “Guidance for 1-Hour SO
On March 31, 2015, KDAQ submitted a request for EPA to determine that the Campbell-Clermont, KY-OH Area has attained the 2010 1-hour SO
As stated above, in accordance with the CAA, EPA proposes to: (1) Approve Kentucky's Subpart 1 RACM determination for the Kentucky portion of the Campbell-Clermont, KY-OH Area and incorporate it into the SIP; (2) approve the base year emissions inventory for the 2010 SO
EPA does not believe that Subpart 1 nonattainment planning requirements designed to provide for attainment, including RACM, are “applicable” for purposes of CAA section 107(d)(3)(E)(ii) once an area is attaining the NAAQS and, therefore, does not believe that these planning requirements must be approved into the SIP before EPA can redesignate an area to attainment.
EPA is bound by the Sixth Circuit's decision in
Subpart 1 requires that each attainment plan “provide for the implementation of all reasonably available control measures as expeditiously as practicable (including such reductions in emissions from the existing sources in the area as may be obtained through the adoption, at a minimum, of reasonably available control technology), and shall provide for attainment of the national primary ambient air quality standards.”
In its February 22, 2016, SIP revision, Kentucky determined that no additional control measures are necessary in the Area to satisfy the section 172(c)(1)
Additionally, Kentucky's Subpart 1 RACM determination is approvable on the basis that the SIP revision demonstrates that no additional reasonably available controls would have advanced the attainment date. In Kentucky's RACM analysis, the Commonwealth notes that the only large point source of SO
Section 172(c)(3) of the CAA requires states to submit a comprehensive, accurate, and current inventory of actual emissions from all sources of the relevant pollutant or pollutants in each nonattainment area. This inventory can be submitted for a year that contributed to the three-year design value used for the original nonattainment designation and should be consistent with the emissions inventory data requirements in 40 CFR part 51, subpart A.
Kentucky submitted a base year emissions inventory for 2011 to satisfy section 172(c)(3). This base year is one of the three years of ambient data used to designate the Area as a nonattainment area and therefore represents emissions associated with nonattainment conditions. The emissions inventory is based on data developed and submitted by Kentucky to EPA's 2011 National Emissions Inventory (NEI), and it contains data elements consistent with the detail required by 40 CFR part 51, subpart A. Kentucky's base year emissions inventory for its portion of the Area provides 2011 emissions data for SO
• Area source emissions were compiled from the 2011 NEI and projections were developed by Kentucky. Kentucky developed its inventory according to the current EPA emissions inventory guidance for area sources.
• Mobile source emissions were calculated from MOVES2014b-produced emission factors. As performed by OKI, mobile source emission projections are based on the EPA MOVES model. The analysis is described in more detail in Appendix E of Kentucky's February 22, 2016, SIP submission. Kentucky developed its inventory according to the current EPA emissions inventory guidance for on-road mobile sources using MOVES version 2014.
• Non-EGU point source information was compiled from Kentucky's 2011 Emissions Inventory Database, while Ohio's EGU point source information was compiled from the 2011 data in the CAMD database. Projections were developed by Kentucky as described in Appendix C of Kentucky's February 22, 2016, SIP submission.
• Non-road emissions were compiled from the 2011 NEI and projections were developed by Kentucky.
• Biogenic emissions are negligible and are not included in these summaries.
A detailed discussion of the inventory development is located in Appendices C and E to Kentucky's February 22, 2016, SIP submittal which is provided in the docket for this proposed action. Table 1, below, provides a summary of the base year emissions inventory.
For the reasons discussed above, EPA has preliminarily determined that Kentucky's 2011 base year emissions inventory meets the requirements under CAA section 172(c)(3). Approval of Kentucky's redesignation request is contingent upon EPA's final approval of the base year emissions inventory for the 2010 1-hour SO
The five redesignation criteria provided under CAA section 107(d)(3)(E) are discussed in greater detail for the Area in the following paragraphs.
For redesignating a nonattainment area to attainment, the CAA requires EPA to determine that the area has attained the applicable NAAQS (CAA section 107(d)(3)(E)(i)). The two primary methods for evaluating ambient air
As discussed in EPA's 2010 SO
Preliminary monitoring data for the Area for 2016 does not indicate a violation of the NAAQS.
For redesignating a nonattainment area to attainment, the CAA requires EPA to determine that the state has met all applicable requirements under section 110 and part D of title I of the CAA (CAA section 107(d)(3)(E)(v)) and that the state has a fully approved SIP under section 110(k) for the area (CAA section 107(d)(3)(E)(ii)). EPA proposes to find that Kentucky has met all applicable SIP requirements for the Kentucky portion of the Area under section 110 of the CAA (general SIP requirements) for purposes of redesignation. Additionally, EPA proposes to find that the Kentucky SIP satisfies the criterion that it meets applicable SIP requirements for purposes of redesignation under part D of title I of the CAA in accordance with section 107(d)(3)(E)(v). Further, EPA proposes to determine that the SIP is fully approved with respect to all requirements applicable for purposes of redesignation in accordance with section 107(d)(3)(E)(ii). In making these determinations, EPA ascertained which requirements are applicable to the Area and, if applicable, that they are fully approved under section 110(k). SIPs must be fully approved only with respect to requirements that were applicable prior to submittal of the complete redesignation request.
Section 110(a)(2)(D) requires that SIPs contain certain measures to prevent sources in a state from significantly contributing to air quality problems in another state. To implement this provision, EPA has required certain states to establish programs to address the interstate transport of air pollutants. The section 110(a)(2)(D) requirements for a state are not linked with a particular nonattainment area's designation and classification in that state. EPA believes that the requirements linked with a particular nonattainment area's designation and classifications are the relevant measures to evaluate in reviewing a redesignation request. The transport SIP submittal requirements, where applicable, continue to apply to a state regardless of the designation of any one particular area in the state. Thus, EPA does not believe that the CAA's interstate transport requirements should be construed to be applicable requirements for purposes of redesignation.
In addition, EPA believes that other section 110(a)(2) elements that are neither connected with nonattainment plan submissions nor linked with an area's attainment status are not applicable requirements for purposes of redesignation. The area will still be subject to these requirements after the
EPA has reviewed Kentucky's SIP and has concluded that it meets the general SIP requirements under section 110(a)(2) of the CAA to the extent they are applicable for purposes of redesignation. These requirements are statewide requirements that are not linked to the SO
Because attainment has been reached in the Area, the section 172(c)(2) requirement that nonattainment plans contain provisions promoting reasonable further progress toward attainment is not relevant for purposes of redesignation. In addition, because the Area has attained the standard and is no longer subject to a RFP requirement, the requirement to submit the section 172(c)(9) contingency measures is not applicable for purposes of redesignation. Section 172(c)(6) requires the SIP to contain control measures necessary to provide for attainment of the NAAQS. Because attainment has been reached, no additional measures are needed to provide for attainment.
Section 172(c)(3) requires submission and approval of a comprehensive, accurate, and current inventory of actual emissions. As noted above, Kentucky submitted a 2011 base year emissions inventory for the Kentucky portion of the Area, and EPA is proposing to approve that inventory as satisfying the requirements of section 172(c)(3). Kentucky's section 172(c)(3) inventory must be approved before EPA can take final action to approve the Commonwealth's redesignation request for the Kentucky portion of the Area.
Section 172(c)(4) requires the identification and quantification of allowable emissions for major new and modified stationary sources to be allowed in an area, and section 172(c)(5) requires source permits for the construction and operation of new and modified major stationary sources anywhere in the nonattainment area. EPA has determined that, since PSD requirements will apply after redesignation, areas being redesignated need not comply with the requirement that a NSR program be approved prior to redesignation, provided that the area demonstrates maintenance of the NAAQS without part D NSR. A more detailed rationale for this view is described in the Nichols Memo. Kentucky has demonstrated that the Area will be able to maintain the NAAQS without part D NSR in effect, and therefore Kentucky need not have fully approved part D NSR programs prior to approval of the redesignation request. Kentucky's PSD program will become effective in Campbell County upon redesignation to attainment.
Section 172(c)(7) requires the SIP to meet the applicable provisions of section 110(a)(2). As noted above, EPA believes the Kentucky SIP meets the requirements of section 110(a)(2) applicable for purposes of redesignation.
EPA believes that it is reasonable to interpret the conformity SIP requirements
For these reasons, EPA proposes to find that Kentucky has satisfied all applicable requirements for purposes of redesignation of the Campbell-Clermont, KY-OH Area under section 110 and part D of title I of the CAA.
EPA has fully approved the Commonwealth's SIP for the Kentucky portion of the Campbell-Clermont, KY-OH Area under section 110(k) of the CAA for all requirements applicable for purposes of this proposed redesignation with the exception of the Subpart 1 RACM and emissions inventory requirements. In today's proposed action, EPA is proposing to approve the Commonwealth's Subpart 1 RACM determination and the Subpart 1 emissions inventory for the Kentucky portion of the Area into the Kentucky SIP.
As indicated above, EPA believes that the section 110 elements that are neither connected with nonattainment plan submissions nor linked to an area's nonattainment status are not applicable requirements for purposes of redesignation. If EPA finalizes approval of the Commonwealth's Subpart 1 RACM determination and Subpart 1 emissions inventory, EPA has approved all part D requirements applicable under the 2010 1-hour SO
For redesignating a nonattainment area to attainment, the CAA requires EPA to determine that the air quality improvement in the area is due to permanent and enforceable reductions in emissions resulting from implementation of the SIP, applicable Federal air pollution control regulations, and other permanent and enforceable reductions (CAA section 107(d)(3)(E)(iii)). EPA has preliminarily determined that Kentucky has demonstrated that the observed air quality improvement in the Area is due to permanent and enforceable reductions in emissions primarily resulting from the permanent shutdown of the Beckjord Facility.
When EPA designated the Campbell-Clermont, KY-OH Area as a nonattainment area for the 2010 1-hour SO
Because the Beckjord Facility which was the primary SO
For redesignating a nonattainment area to attainment, the CAA requires EPA to determine that the area has a fully approved maintenance plan pursuant to section 175A of the CAA.
Section 175A of the CAA sets forth the elements of a maintenance plan for areas seeking redesignation from nonattainment to attainment. Under section 175A, the plan must demonstrate continued attainment of the applicable NAAQS for at least 10 years after the Administrator approves a redesignation to attainment. Eight years after the redesignation, the state must submit a revised maintenance plan demonstrating that attainment will continue to be maintained for the 10 years following the initial 10-year period. To address the possibility of future NAAQS violations, the maintenance plan must contain contingency measures as EPA deems necessary to assure prompt correction of any future 2010 1-hour SO
On November 21, 2016, EPA determined that the Campbell-Clermont, KY-OH Area has attained the 2010 1-hour SO
Maintenance of the SO
As shown in the tables above, the closure of the Beckjord Facility in 2014 resulted in a reduction of 90,835 tpy based on the Facility's 2011 emissions and a reduction of 32,602 tpy based on the Facility's 2014 emissions. After the shutdown, total SO
There is one SO
The Commonwealth of Kentucky, through KDAQ, has the legal authority to enforce and implement the maintenance plan for the Kentucky portion of the Area. This includes the authority to adopt, implement, and enforce any subsequent emissions control contingency measures determined to be necessary to correct future SO
Additionally, monitoring, recordkeeping, and reporting requirements are incorporated into permits to ensure ongoing compliance. Kentucky has an active enforcement program to address violations discovered by the field office. For all of the reasons discussed above, EPA is proposing to find that Kentucky's maintenance plan meets the “Verification of Continued Attainment” requirement.
Section 175A of the CAA requires that a maintenance plan include such contingency measures as EPA deems necessary to assure that the state will promptly correct a violation of the NAAQS that occurs after redesignation. The maintenance plan should identify the contingency measures to be adopted, a schedule and procedure for adoption and implementation, and a time limit for action by the state.
Kentucky will rely on enforcing the applicable requirements in source permits. All measures in the permits and the SIP are being implemented prior to redesignation of the Area to attainment. In the event that a monitored exceedance of the SO
Further, if all sources are found to be in compliance with applicable SIP and permit emission limits, the Commonwealth will perform the necessary analysis to determine the cause of the exceedance, and determine what additional control measures are necessary to impose on the Area's stationary sources to continue to maintain attainment of the 2010 1-hour SO
The Commonwealth will inform any affected stationary sources of SO
Within six months, the source(s) must submit a detailed plan of action specifying additional control measures to be implemented no later than 18 months after the notification. The additional control measures will be submitted to EPA for approval and incorporation into the SIP. Kentucky noted that, since the only source in the nonattainment area has shut down, it is not possible at this time to develop specific contingency measures until the cause of the elevated concentrations is known. EPA is proposing to find that Kentucky's maintenance plan meets the requirement for contingency measures.
EPA preliminarily concludes that the maintenance plan adequately addresses the five basic components of a maintenance plan: The attainment emissions inventory, maintenance demonstration, monitoring, verification of continued attainment, and a contingency plan. Therefore, EPA proposes that the maintenance plan SIP revision submitted by Kentucky for the Commonwealth's portion of the Area meets the requirements of section 175A of the CAA and is approvable.
EPA's proposed actions establish the basis upon which EPA may take final action on the issues being proposed for approval today. Approval of Kentucky's redesignation request would change the legal designation of the portion of Campbell County that is within the Campbell-Clermont, KY-OH Area, as found at 40 CFR part 81, from nonattainment to attainment for the 2010 1-hour SO
EPA is taking five separate but related actions regarding Kentucky's request for a clean data determination, the redesignation request, and the SIP revision associated with the redesignation request for the Kentucky
First, EPA is proposing to determine that the Commonwealth's Subpart 1 RACM determination for the Area meets the requirements of CAA section 172(c)(1) and to incorporate this RACM determination into the SIP.
Second, EPA is proposing to approve Kentucky's 2011 base year emissions inventory for the Kentucky portion of the Campbell-Clermont, KY-OH Area as meeting the requirements of 172(c)(3) and to incorporate this inventory into the SIP.
Third, EPA is proposing to approve Kentucky's March 31, 2015, request for the EPA to make a clean data determination for the Area.
Fourth, EPA is proposing to approve the maintenance plan for the Kentucky portion of the Area into the SIP. The maintenance plan demonstrates that the Area will continue to maintain the 2010 1-hour SO
Finally, contingent upon EPA's final approval for Kentucky's RACM analysis pursuant to section 172(c)(1) and the Commonwealth's base year inventory pursuant to section 172(c)(3), EPA is proposing to determine that the Kentucky portion of the Campbell-Clermont, KY-OH Area has met the criteria under CAA section 107(d)(3)(E) for redesignation from nonattainment to attainment for the 2010 1-hour SO
If finalized, approval of the redesignation request would change the official designation of the portion of Campbell County that is within the Campbell-Clermont, KY-OH Area, as found at 40 CFR part 81, from nonattainment to attainment for the 2010 1-hour SO
Under the CAA, redesignation of an area to attainment and the accompanying approval of a maintenance plan under section 107(d)(3)(E) are actions that affect the status of a geographical area and do not impose any additional regulatory requirements on sources beyond those imposed by state law. A redesignation to attainment does not in and of itself create any new requirements, but rather results in the applicability of requirements contained in the CAA for areas that have been redesignated to attainment. Moreover, the Administrator is required to approve a SIP submission that complies with the provisions of the Act and applicable Federal regulations.
• Are not significant regulatory actions 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);
• Do not impose an information collection burden under the provisions of the Paperwork Reduction Act (44 U.S.C. 3501
• Are 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
• Do not contain any unfunded mandate or significantly or uniquely affect small governments, as described in the Unfunded Mandates Reform Act of 1995 (Public Law 104-4);
• Do not have Federalism implications as specified in Executive Order 13132 (64 FR 43255, August 10, 1999);
• Are not economically significant regulatory actions based on health or safety risks subject to Executive Order 13045 (62 FR 19885, April 23, 1997);
• Are not significant regulatory actions subject to Executive Order 13211 (66 FR 28355, May 22, 2001);
• Are 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
• Will not have disproportionate human health or environmental effects under Executive Order 12898 (59 FR 7629, February 16, 1994).
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 tribe has jurisdiction. In those areas of Indian country, the rule does not have tribal implications as specified by Executive Order 13175 (65 FR 67249, November 9, 2000), nor will it impose substantial direct costs on tribal governments or preempt tribal law.
Environmental protection, Air pollution control, Incorporation by reference, Intergovernmental relations, Sulfur dioxide, Reporting and recordkeeping requirements.
Environmental protection, Air pollution control.
42 U.S.C. 7401
Federal Motor Carrier Safety Administration (FMCSA), DOT.
Notice of proposed rulemaking.
FMCSA proposes amendments to the Federal Motor Carrier Safety Regulations (FMCSRs) to establish an alternate process for qualified physicians employed in the Department of Veterans Affairs (VA) (qualified VA physicians) to be listed on the Agency's National Registry of Certified Medical Examiners (National Registry). After training and testing, they become certified VA medical examiners that can perform medical examinations of commercial motor vehicle (CMV) operators who are military veterans, and issue Medical Examiner's Certificates (MECs) to those same operators as required by the Fixing America's Surface Transportation (FAST) Act.
Comments on this notice must be received on or before January 3, 2017.
You may submit comments identified by Docket Number FMCSA-2016-0333 using any of the following methods:
•
•
•
•
To avoid duplication, please use only one of these four methods. See the “Public Participation and Request for Comments” portion of the
Ms. Christine A. Hydock, Medical Programs Division, MC-PSP, Federal Motor Carrier Safety Administration, 1200 New Jersey Avenue SE., Washington, DC 20590-0001 by telephone at 202-366-4001 or by email,
If you submit a comment, please include the docket number for this NPRM (Docket No. FMCSA-2016-0333), indicate the specific section of this document to which each comment applies, and provide a reason for each suggestion or recommendation. You may submit your comments and material online or by fax, mail, or hand delivery, but please use only one of these means. FMCSA recommends that you include your name and a mailing address, an email address, or a phone number in the body of your document so that FMCSA can contact you if there are questions regarding your submission.
To submit your comment online, go to
If you submit your comments by mail or hand delivery, submit them in an unbound format, no larger than 8
FMCSA will consider all comments and material received during the comment period and may change this proposed rule based on your comments. FMCSA may issue a final rule at any time after the close of the comment period.
To view comments, as well as any documents mentioned in this preamble as being available in the docket, go to
In accordance with 5 U.S.C. 553(c), DOT solicits comments from the public to better inform its rulemaking process. DOT posts these comments, without edit, including any personal information the commenter provides, to
Under the provisions of 49 U.S.C. 31136(f) and (g) (added by section 5202 of the FAST Act), FMCSA is required to publish an advance notice of proposed rulemaking when a rulemaking is likely to lead to the promulgation of a major rule, unless the Agency finds good cause that an ANPRM is impracticable, unnecessary, or contrary to the public interest. This NPRM is not subject to these provisions, because it is not likely to lead to the promulgation of a major rule.
The purpose of this proposed rule is to amend the Federal Motor Carrier Safety Regulations (FMCSRs) to establish a process for qualified physicians employed in the Department of Veterans Affairs (VA) (qualified VA physicians) to be listed on the Agency's National Registry of Certified Medical Examiners (National Registry). After training and testing they become certified VA medical examiners that can perform medical examinations of commercial motor vehicle (CMV) operators who are military veterans, and issue Medical Examiner's Certificates (MECs) to those same operators as required by the Fixing America's Surface Transportation Act (FAST Act), Public Law 114-94, div. A, title V, § 5403, Dec. 4, 2015, 129 Stat. 1548 (set out as a note to 49 U.S.C. 31149).
As stated in the FAST Act, qualified VA physicians must (a) be employed in the Department of Veterans Affairs; (b) be familiar with FMCSA's standards for, and physical requirements of, a CMV operator requiring medical certification; and (c) have never “acted fraudulently” with respect to such certification. Qualified VA physicians would be listed on the National Registry after completing training and testing provided by FMCSA and delivered through a web-based training system operated by the VA, and, upon successful completion, be allowed to conduct medical examinations of and issue MECs only to CMV drivers who are veterans enrolled in the health care system established under 38 U.S.C. 1705(a) that operate a CMV (veteran operator).
Through this rulemaking, FMCSA would establish an alternate process for qualified VA physicians to complete comparable training and testing developed by FMCSA and delivered through the VA's Web-based training system prior to being listed on the National Registry. This is an alternative to VA physicians obtaining training and testing through the private sector.
Qualified VA physicians are subject to the same provisions of 49 CFR 390 subpart D, except for the differences in the eligibility, training, and testing requirements for any other healthcare professional seeking Medical Examiner (ME) certification. Qualified VA physicians must be either a doctor of medicine or doctor of osteopathy currently employed in the VA; be licensed, certified, or registered in accordance with applicable State laws and regulations to perform physical examinations; be familiar with FMCSA's standards for, and physical requirements of, a CMV operator requiring medical certification by completing training provided by FMCSA and delivered through a web-based training system operated by the VA; pass the medical examiner certification test provided by FMCSA and administered through a web-based training system operated by the VA; and have never “acted fraudulently” with respect to such certification of a CMV operator, including by fraudulently
If a certified VA medical examiner is no longer employed in the VA, but would like to remain listed on the National Registry, the physician must update his or her registration information within 30 days or submit such a change in registration information prior to conducting any physical examination of a CMV driver or issuing any medical examiner's certificates. Therefore, after the registration is updated the certified VA medical examiner becomes a certified medical examiner who may perform physical examinations and issue certificates to any CMV driver.
The Agency estimates that costs of the proposed rule would be minimal, with an annualized value of $101,739 at a 7% discount rate. The costs would consist of Federal government information technology (IT)-related expenses, Help Desk operating costs, and curriculum and testing development. Insufficient data are available to quantify the benefits of the proposed rule, as FMCSA does not know how many qualified VA physicians will complete the certification process. FMCSA estimates the per-physician savings (for certifying qualified VA physicians seeking to become certified VA MEs listed on the National Registry) at $614, resulting from the use of online-only training and testing that eliminates travel costs. Non-quantifiable benefits may result from the increased availability for veteran operators to receive their DOT physical.
The legal authority for this proposed rule is derived from 49 U.S.C. 31136 and 31149, as supplemented by section 5403 of the FAST Act. Section 31136(a)(3) requires that operators of CMVs be physically qualified to operate safely, as determined and certified by an ME listed on the National Registry. Section 31149(d) requires FMCSA to ensure that MEs listed on the National Registry are qualified to perform the physical examinations of CMV operators, and to certify that such operators meet the physical qualification standards. In order to ensure that MEs are qualified for listing on the National Registry, 49 U.S.C. 31149(c)(1)(D) requires them to receive training based on core curriculum requirements developed by FMCSA in consultation with the Medical Review Board (established under 49 U.S.C. 31149(a)), to pass a certification examination, and to demonstrate an ability to comply with reporting requirements established by FMCSA.
Section 5403 of the FAST Act supplements the general provisions of section 31149 by providing for physicians employed in the VA to be listed on the National Registry and to perform the physical examination of veterans who require a physical examination and a medical certificate to operate a CMV. In order to be qualified for listing on the National Registry, such physicians must be familiar with the physical standards and requirements for operators of CMVs. They must also have never been found to have acted fraudulently with respect to a medical examiner's certificate for a CMV operator. Certified VA MEs on the National Registry may perform examinations on, and issue medical examiner's certificates to, only veterans enrolled in the health care system operated by the VA.
There is general authority to adopt regulations to implement these provisions from both 49 U.S.C. 31136(a) and 49 U.S.C. 31149(e). Such authority has been delegated to the Administrator of FMCSA by 49 CFR 1.87.
Prior to the National Registry, there was no required training program for the medical professionals who conduct driver physical examinations, although the FMCSRs required MEs to be knowledgeable about the regulations (49 CFR 391.43(c)(1)). No specific knowledge of the Agency's physical qualification standards was required or verified by testing. As a result, some of the medical professionals who conducted these examinations were unfamiliar with FMCSA's physical qualification standards and how to apply them. These medical professionals may have also been unaware of the mental and physical rigors that accompany the occupation of CMV drivers, and how various medical conditions (and the therapies used to treat them) can affect the ability of drivers to safely operate CMVs.
In 2012, FMCSA issued a final rule establishing the National Registry (77 FR 24104, April 20, 2012) to improve highway safety and driver health by requiring that MEs be trained and certified so they can effectively determine whether a CMV driver's medical fitness for duty meets FMCSA's standards. The program implements the requirements of 49 U.S.C. 31149 and requires MEs who conduct physical examinations for CMV drivers to meet the following criteria: (1) Complete certain training concerning FMCSA's physical qualification standards; (2) pass a test to verify an understanding of those standards; and (3) maintain and demonstrate competence through periodic training and testing. Following the establishment of the National Registry, the FMCSRs were amended to require drivers to be examined and certified by only those MEs listed on the Agency's National Registry, and only MECs issued by MEs listed on the National Registry will be acceptable as valid proof of medical certification.
To be listed on the National Registry, MEs are required to attend an accredited training program and pass a certification test to assess their knowledge of FMCSA's physical qualifications standards and how to apply them to drivers. To maintain their certification and listing on the National Registry, MEs are required to complete training at five-year intervals and to complete training and pass a recertification test every 10 years.
Certified MEs listed on the National Registry who conduct medical examinations of CMV drivers are required to submit on a monthly basis via their individual password-protected National Registry account a CMV Driver Medical Examination Results Form, MCSA-5850, to FMCSA for each physical examination conducted. Certified MEs also are required to retain a copy of the Medical Examination Report (MER) Form, MCSA-5875, and MEC, MCSA-5876, for all drivers they examine and certify, for at least three years from the examination date. The MER Form, MCSA-5875, lists the driver's health history and specific results of the various medical tests and assessments used to determine if a driver meets the physical qualification standards set forth in 49 CFR part 391, subpart E. In addition, certified MEs are required to issue a MEC, Form MCSA-5876, to those drivers who they determine meet FMCSA's physical qualification standards.
On April 23, 2015, FMCSA published the Medical Examiner's Certification Integration final rule (80 FR 22790), a follow-on rule to the National Registry, which requires MEs performing physical examinations of CMV drivers to use a newly developed MER Form, MCSA-5875, in place of the former MER Form and to use Form MCSA-5876 for the MEC. In addition, beginning June 22, 2018, this rule will require certified MEs to report results of all CMV drivers' physical examinations performed (including the results of examinations where the driver was found not to be qualified) to FMCSA by midnight (local time) of the next calendar day following the examination. For commercial learner's permit (CLP) and commercial driver's license (CDL) applicants/holders, FMCSA will electronically transmit driver identification, examination results, and restriction information from the National Registry to the State Driver's Licensing Agencies (SDLAs). The Agency will also electronically transmit medical variance information for all CMV drivers to the SDLAs. MEs will still be required to provide drivers of CMVs that do not require a CDL/CLP with an MEC, Form MCSA-5876.
As required by 5403 of FAST Act, FMCSA consulted with the Secretary of Veterans Affairs and is now proposing to establish a process for qualified VA physicians employed in the VA to be included on FMCSA's National Registry, perform medical examinations of CMV drivers who are veteran operators, and issue MECs to qualified drivers. Qualified VA physicians would be listed on the National Registry after registering on the National Registry System, and completing training and testing provided by FMCSA and delivered through a web-based training system operated by the VA. Upon successful completion, certified VA MEs will be allowed to conduct medical examinations of, and issue MECs only to, veteran operators enrolled in the VA health care system. In addition to the requirements proposed, certified VA MEs will be subject to some of the other provisions of 49 CFR 390 subpart D as are all other certified MEs listed on the National Registry.
National Registry eligibility requirements for medical examiner certification require that the person be an advanced practice nurse, doctor of chiropractic, doctor of medicine, doctor of osteopathy, physician assistant, or other medical professional authorized by applicable State laws and regulations to perform physical examinations. As required by the statute, this proposed rule limits eligibility of qualified VA physicians to only those who are either doctors of medicine or doctors of osteopathy and employed in the VA.
Consistent with the FAST Act, this proposed rule adds the requirement that qualified VA physicians must never have “acted fraudulently” with respect to such certification of a CMV operator, including fraudulently awarding a MEC.
This proposed rule has different licensure requirements in that qualified VA physicians may be able to practice in additional States without being licensed, certified, or registered in each State. In accordance with the provisions of 38 U.S.C. 7402(a) and (b)(1), the VA Handbook 5005/85,
Instead of completing a training program conducted by a private training organization that meets the requirements of 49 CFR 390.105, including providing training based on the core curriculum specifications developed by FMCSA, qualified VA physicians must become familiar with FMCSA's standards for, and physical requirements of, a CMV operator requiring medical certification. This would be accomplished by completing training provided by FMCSA and delivered through a Web-based training system operated by the VA. Since the training is being provided by FMCSA, it will be comparable to the core curriculum guidelines provided to private training organizations.
Instead of completing the testing requirements of 49 CFR 390.107 by using a testing organization that has been approved by FMCSA to deliver the test, qualified VA physicians must pass a comparable certification test provided by FMCSA and administered through a Web-based training system operated by the VA. After completing the training described above, qualified VA physicians would be required to take a test and receive a passing grade. The grade received by each qualified VA
One of the requirements for maintaining certification and continued listing on the National Registry is that certified MEs must continue to be licensed, certified, or registered, and authorized to perform physical examinations, in accordance with applicable State laws and regulations of each State in which the ME performs examinations. This proposed rule would require qualified VA physicians who become certified to continue to be licensed, certified, or registered in a State to perform physical examinations.
Another requirement for maintaining certification and continued listing on the National Registry is that certified MEs must maintain documentation of State licensure, registration, or certification to perform physical examinations for each State in which the ME performs examinations. Because certified VA medical examiners may be able to practice in additional States without being licensed, certified, or registered in each State, this proposed rule would only require certified VA medical examiners to maintain documentation of State licensure, registration, or certification to perform physical examinations, again without reference to each State in which the physician performs examinations.
If a certified VA medical examiner is no longer employed in the VA, but would like to remain listed on the National Registry, the physician must update his or her registration information within 30 days or submit such a change in registration information prior to conducting any physical examination of a CMV driver or issuing any medical examiner's certificates. Pursuant to its broad authority under 49 U.S.C. 31149(c)(1)(D), FMCSA proposes to recognize the comparable training received by qualified VA physicians to be suitable for such physicians to continue to be listed on the National Registry. But physicians wishing to continue such listing must be licensed to perform physical examinations in any State where examinations of CMV drivers will be conducted. Therefore, after the registration is updated the previously certified VA medical examiner becomes a certified medical examiner who may perform physical examinations and issue certificates to any CMV driver.
The National Registry regulations allow for certified MEs to perform examinations of all drivers requesting a DOT medical examination. This proposed rule would limit certified VA medical examiners, to conducting examinations of only veteran operators, while they are employed in the VA. This process would provide veteran operators with the option of utilizing their enrollment in the VA healthcare system to obtain their MECs.
After several years of evaluating the operation of the National Registry System, FMCSA proposes changes to the existing requirements for becoming a certified ME. FMCSA proposes to add a requirement that to receive ME certification from FMCSA, prior to taking the training and testing, a person must register on the National Registry System and receive a unique identifier. This has always been how the National Registry System has operated and is the first step in becoming a certified ME but was not specifically included in the regulation.
Additionally, FMCSA proposes to remove the prohibition against an applicant taking the test more than once every 30 days. Since the regulation does not specify any actions that must be taken within the 30-day waiting period (such as additional training), the Agency proposes to remove the provision.
The Agency proposes adding new definitions for the terms “certified VA medical examiner,” “qualified VA physician” and “veteran operator.”
As a whole, FMCSA has reorganized and restructured the paragraphs of this section to introduce separate eligibility requirements for a qualified VA physician. Specifically, the Agency adds the word “either” after “must” in paragraph (a). Additionally, it adds a new paragraph (a)(1)(ii). Third, FMCSA adds a new paragraph (a)(2) and deletes from (a)(3) the sentence stating “An applicant must not take the test more than once every 30 days.” Finally, the Agency adds the citation “or (a)(2)” to paragraph (b).
The Agency adds a new paragraph (c) setting out the training requirements for qualified VA physicians.
FMCSA adds a new paragraph (e) setting out the testing requirements for qualified VA physicians.
In paragraph (a)(2), FMCSA creates new paragraphs (i) and (ii). In new (a)(2)(i), the Agency deletes the word “application” and replaces it with “registration.” Additionally, in this paragraph, the cross-reference is changed to “§ 390.103(a)(1)(ii).” Finally, the Agency adds a new paragraph (a)(2)(ii) that states what happens when a certified VA medical examiner is no longer employed by the VA.
FMCSA divides both paragraphs (a)(3) and (a)(4) into two separate paragraphs: paragraph (i) with the existing requirements and new paragraph (ii) with the new requirements for certified VA MEs. In the new paragraph (a)(4)(i), FMCSA adds “and (b)” after § 390.105(a). In paragraph (a)(5)(ii)(B), the cross-reference is updated to read “§ 390.103(a)(1)(iv) or (a)(2)(ii).”
Finally, in paragraph (b), FMCSA changes the reference from “(4)” to “(5).”
In paragraph (d)(2)(ii), the Agency changed the cross-reference to read “§ 390.103(a)(1)(ii).” Additionally, paragraph (d)(2)(v) is redesignated as (d)(2)(vi) and the Agency inserts new language for (d)(2)(v).
In paragraph (f)(2), the cross-reference is changed to read “§ 390.103(a)(1)(ii).” Paragraph (f)(4) is divided into two separate paragraphs: (i) With the existing requirements and new paragraph (ii) with the new requirements for certified VA MEs.
Paragraph (b) is revised by adding “Exceptions. (1)” before “A licensed optometrist” and dividing the paragraph into two separate paragraphs: Paragraph (1) relating to an optometrist and new paragraph (2) relating to veteran operators.
This proposed rule is not a significant regulatory action under section 3(f) of Executive Order 12866, Regulatory Planning and Review, as supplemented by E.O. 13563 (76 FR 3821, January 21, 2011). It is also not significant within the meaning of DOT regulatory policies and procedures (DOT Order 2100.5 dated May 22, 1980; 44 FR 11034, February 26, 1979) and does not require an assessment of potential costs and benefits under section 6(a)(3) of that Order. Therefore, the Office of Management and Budget has not reviewed the proposed rule under that Order. However, as required by 49 U.S.C. 31136(c)(2)(A), the Agency will consider the cost and benefits of this proposed rule. The Agency estimates the economic benefits and costs of the proposed rule would be less than $100 million annually.
The objective of the proposed rule is to develop a direct process to allow qualified VA physicians employed in the VA to perform physical examinations for veteran operators and to list such physicians on the National Registry. Absent this proposed rule, qualified VA physicians may choose to become certified MEs listed on the National Registry; however, the resource and qualification burden to do so is greater than under the proposed rule. There are just 10 VA physicians certified and listed as MEs on the National Registry under the current process, a small fraction of the 49,943 listed MEs.
A detailed list of requirements to become a certified ME is in § 390.103. The three requirements are:
• Must be licensed, certified, or registered according to State laws and regulations to perform physical examinations;
• Must complete required training from a training organization;
• Must pass the medical examiner certification test at an FMCSA-approved testing center.
The requirements are modified by the proposed rule in order to make training and testing readily accessible to qualified VA physicians. In summary, the quantifiable benefits and costs of the proposed rule are: (1) Benefits in the form of cost savings for qualified VA physicians seeking to become certified VA MEs on the National Registry, through reductions in time and travel expenses; (2) costs associated with the development of an online training and testing module, and (3) information technology (IT) tasks required to construct an interface between the National Registry System and VA's web-based training system. The interface will provide a seamless transfer of completed training and testing information for each registered qualified VA physician to be listed on the National Registry.
To estimate the benefits resulting from cost savings of the proposed rule, the Agency utilized estimated health care professionals' ME training and testing-related travel costs from the December 2011 regulatory evaluation of the National Registry final rule.
FMCSA separately estimates the cost savings resulting from the average reduction of 105 miles of travel per physician subsequent to the proposed rule. Consistent with the approach of the 2011 regulatory evaluation for the National Registry final rule, the Agency monetizes this benefit using the standard Internal Revenue Service (IRS) mileage rate. The 2015 standard IRS mileage rate is 57.5 cents per mile.
The total quantifiable benefit of the proposed rule (per qualified VA physician seeking to become a certified VA ME) is estimated to be $614. This estimate is the sum of the projected savings of $554 in travel time costs and $60 in travel expenses.
Participation of qualified VA physicians in the National Registry is voluntary. It is important to note that the cost savings to the Federal government are specific to the elimination of time and travel expenses
There may also be non-quantifiable benefits of the proposed rule to veteran operators if qualified VA physicians' participation in the National Registry increases the availability of and access to certified VA MEs. This may reduce waiting periods for appointments for veteran operators enrolled in the VA health care system. Shorter waiting periods may expedite a veteran operator's ability to begin driving for personal income. Also, the potential addition of qualified VA physicians to the list of certified MEs in closer proximity to a veteran operator's residence may reduce the cost of travel time and the use of a personal vehicle for those veteran operators seeking to be examined by a certified VA ME.
The costs of the proposed rule are strictly IT systems-related and will be borne by the Federal government. These costs consist of: (1) Development of an online medical examiner certification training and testing module for qualified VA physicians; (2) development and maintenance of an interface between the VA's web-based training system and the National Registry System so that qualified VA physicians' certification training and test results can be transmitted to the National Registry; and (3) operation of the National Registry Help Desk to assist qualified VA physicians with registration for, and completion of, the online training and testing. The VA and FMCSA are responsible for developing the interface between their respective IT systems.
FMCSA has executed a contract with consultants who will develop the online curriculum. The training module will include a test at the end to ensure that qualified VA physicians seeking to become certified VA MEs complete and fully understand the standards for, and physical requirements of, a CMV operator. The results of the test will be posted to his or her National Registry account. The estimated cost of this contract is $84,138.
The IT system developer will be responsible for modifying the National Registry System so it will be able to accept VA physicians' training and test results from the VA's web-based training system and post results to each qualified VA physician's National Registry account. The contract is for $128,675. Presently, FMCSA assumes that the VA's costs of interface development are the same.
The National Registry Help Desk contractor will staff the National Registry Help Desk to provide technical support to qualified VA physicians going through the National Registry registration and certification process and respond to telephone, written, and email inquiries regarding National Registry certification from qualified VA physicians, veterans, motor carriers, and other interested parties. FMCSA estimates costs for the first year of the contract are $46,200 and $57,750 for the second year. Help Desk costs are assumed to be constant at $57,750 for the remaining eight years of the forecast period.
The IT, interface development, Help Desk, and training and testing development costs incurred by FMCSA over the 10-year forecast period are summarized in Table 1. Total costs over the 10 year period are estimated at $908,088 on an undiscounted basis. The estimated costs at a 3 percent discount rate are $837,986, and $764,593 at a 7 percent discount rate. The annualized cost over the 10 year period is $95,376 at a 3 percent discount rate and $101,739 at a 7 percent discount rate.
The Regulatory Flexibility Act (RFA) of 1980 (5 U.S.C. 601
The proposed rule is being issued to fulfill the requirement of section 5403 of the FAST Act that requires the Secretary of Transportation, in consultation with the Secretary of Veterans Affairs, to develop a process for qualified VA physicians to be certified and listed on the Agency's National Registry. By doing so, veteran operators enrolled in the VA health care system will be able to obtain their medical examinations and MECs using their VA health care benefits. Currently, veteran operators enrolled in the VA health care system, more likely than not, would go outside the VA health care system because there are only 25 VA medical professionals in the nation who are certified MEs, 10 of whom are physicians.
The objective of the proposed rule is to develop a process to allow qualified VA physicians employed in the VA to be listed on the National Registry, perform medical examinations of veteran operators, and issue MECs to those that are qualified. Upon the proposed rule's compliance date, qualified VA physicians will be able to complete ME certification training and testing requirements using a web-based training system operated by the VA to become a certified VA ME. As noted above, at present, there are only 25 VA medical professionals across the nation listed on the National Registry, 10 of whom are physicians. If more qualified VA physicians are listed on the National Registry, veteran operators enrolled in the VA health care system will have a greater likelihood of being able to obtain their medical examinations using their VA health care benefits.
The legal authority for this proposed rule is provided by 49 U.S.C. 31136 and 31149 and section 5403 of the FAST Act. Pursuant to 49 U.S.C. 31136(a), FMCSA is authorized to require CMV operators to obtain periodic medical examinations performed by MEs who have received training on DOT physical standards. FMCSA created and administers the National Registry, in accordance with 49 U.S.C. 31149(d). In order to ensure that MEs are qualified for listing on the National Registry, 49 U.S.C. 31149(c)(1)(D) requires them to receive training in core curriculum requirements developed by FMCSA in consultation with the Medical Review Board (established under 49 U.S.C. 31149(a)), to pass a certification examination, and to demonstrate an ability to comply with reporting requirements established by FMCSA.
Section 5403 of the FAST Act directs the Secretary of Transportation, in consultation with the Secretary of Veterans Affairs, to develop a process for qualified VA physicians employed in the VA to be listed on the National Registry. In order to be qualified for ME certification and listing on the National Registry, the FAST Act requires that such physicians must be familiar with the physical standards and requirements for CMV operators. Qualified VA physicians listed on the National Registry may perform examinations of, and issue MECs to, only veterans enrolled in the VA health care system.
FMCSA believes there are no small entities affected by this proposed rule.
The proposed rule requires no new recording, recordkeeping, or other compliance requirements.
The Agency did not identify any Federal rules that duplicate, overlap, or conflict with the rule.
FMCSA has considered whether the proposed rule is expected to have a significant economic impact on a substantial number of small entities. FMCSA believes there are no small entities affected by this proposed rule. Consequently, I certify that the proposed action would not have a significant economic impact on a substantial number of small entities.
In accordance with section 213(a) of the Small Business Regulatory Enforcement Fairness Act of 1996, FMCSA wants to assist small entities in understanding this proposed rule so that they can better evaluate its effects on themselves and participate in the rulemaking initiative. If the proposed rule would affect your small business, organization, or governmental jurisdiction and you have questions concerning its provisions or options for compliance; please consult the FMCSA point of contact, Christine A. Hydock, listed in the
Small businesses may send comments on the actions of Federal employees who enforce or otherwise determine compliance with Federal regulations to the Small Business Administration's Small Business and Agriculture Regulatory Enforcement Ombudsman and the Regional Small Business Regulatory Fairness Boards. The Ombudsman evaluates these actions annually and rates each agency's responsiveness to small business. If you wish to comment on actions by employees of FMCSA, call 1-888-REG-FAIR (1-888-734-3247). DOT has a policy regarding the rights of small entities to regulatory enforcement fairness and an explicit policy against retaliation for exercising these rights.
The Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1531-1538) requires Federal agencies to assess the effects of their discretionary regulatory actions. In particular, the Act addresses actions that may result in the expenditure by a State, local, or tribal government, in the aggregate, or by the private sector of $156 million (which is the value equivalent of $100,000,000 in 1995, adjusted for inflation to 2015 levels) or more in any one year. Though this proposed rule would not result in any such expenditure, the Agency discusses the effects of this rule elsewhere in this preamble.
This proposed rule would call for no new collection of information under the
A rule has implications for Federalism under Section 1(a) of Executive Order 13132 if it has “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.”
FMCSA determined that this proposal would not have substantial direct costs on or for States, nor would it limit the policymaking discretion of States. Nothing in this document preempts any State law or regulation. Therefore, this rule does not have sufficient Federalism implications to warrant the preparation of a Federalism Impact Statement.
This proposed rule meets applicable standards in sections 3(a) and 3(b)(2) of E.O. 12988, Civil Justice Reform, to minimize litigation, eliminate ambiguity, and reduce burden.
E.O. 13045, Protection of Children from Environmental Health Risks and Safety Risks (62 FR 19885, April 23, 1997), requires agencies issuing “economically significant” rules, if the regulation also concerns an environmental health or safety risk that an agency has reason to believe may disproportionately affect children, to include an evaluation of the regulation's environmental health and safety effects on children. The Agency determined this proposed rule is not economically significant. Therefore, no analysis of the impacts on children is required. In any event, the Agency does not anticipate that this regulatory action could in any respect present an environmental or safety risk that could disproportionately affect children.
FMCSA reviewed this proposed rule in accordance with E.O. 12630, Governmental Actions and Interference with Constitutionally Protected Property Rights, and has determined it will not effect a taking of private property or otherwise have taking implications.
Section 522 of title I of division H of the Consolidated Appropriations Act, 2005, (Pub. L. 108-447, 118 Stat. 2809, 3268, 5 U.S.C. 552a note), requires the Agency to conduct a privacy impact assessment (PIA) of a regulation that will affect the privacy of individuals. This rule would not require the collection of any new personally identifiable information (PII) by the National Registry of Certified Medical Examiners system, but will establish a new process of collection for a specific group of individuals. In accordance with this Act, a privacy impact analysis is warranted to address the new process for collection of personally identifiable information contemplated in the proposed rulemaking. The Agency submitted a Privacy Threshold Assessment analyzing the proposed process for collection of personal information to the Department of Transportation, Office of the Secretary's Privacy Office for adjudication. The final adjudication from the DOT Privacy Officer will be incorporated into the Final Rule.
The Privacy Act (5 U.S.C. 552a) applies only to Federal agencies and any non-Federal agency which receives records contained in a system of records from a Federal agency for use in a matching program. The E-Government Act of 2002, Public Law 107-347, 208, 116 Stat. 2899, 2921 (Dec. 17, 2002), requires Federal agencies to conduct a privacy impact assessment for new or substantially changed technology that collects, maintains, or disseminates information in an identifiable form.
Pending the adjudication from the DOT Privacy Officer, the FMCSA Privacy Officer has evaluated the risks and effects that this rulemaking might have on collecting, storing, and sharing Personally Identifying Information and has examined protections and alternative information handling processes in developing the proposal in order to mitigate potential privacy risks. The privacy risks and effects associated with the doctor's registration records resulting from this rule are not unique and have previously been addressed by the doctor registration requirements in the National Registry of Certified Medical Examiners (National Registry) and the Medical Examiner's Certification Integration PIA published on April 27, 2015 and the DOT/FMCSA 009—National Registry of Certified Medical Examiners (National Registry) System of Records Notice (77 FR 24247) published in the
Per the Privacy Act the Department is required to publish in the
The supporting National Registry PIA, available for review in the docket, gives a full and complete explanation of FMCSA practices for protecting PII in general and specifically in relation to the system addressed in the proposed rule.
The regulations implementing E.O. 12372 regarding intergovernmental consultation on Federal programs and activities do not apply to this program.
FMCSA has analyzed this proposed rule under E.O. 13211, Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use. The Agency has determined that it is not a “significant energy action” under that order because it is not a “significant regulatory action” likely to have a significant adverse effect on the supply, distribution, or use of energy. Therefore, it does not require a Statement of Energy Effects under E.O. 13211.
This rule does not have tribal implications under E.O. 13175, Consultation and Coordination with Indian Tribal Governments, because it does not have a substantial direct effect on one or more Indian tribes, on the relationship between the Federal Government and Indian tribes, or on the distribution of power and responsibilities between the Federal Government and Indian tribes.
The National Technology Transfer and Advancement Act (NTTAA) (15 U.S.C. 272 note) directs agencies to use voluntary consensus standards in their regulatory activities unless the agency provides Congress, through OMB, with
FMCSA analyzed this NPRM for the purpose of the National Environmental Policy Act of 1969 (42 U.S.C. 4321
FMCSA also analyzed this rule under the Clean Air Act, as amended (CAA), section 176(c) (42 U.S.C. 7401
Under E.O. 12898, each Federal agency must identify and address, as appropriate, “disproportionately high and adverse human health or environmental effects of its programs, policies, and activities on minority populations and low-income populations” in the United States, its possessions, and territories. FMCSA evaluated the environmental justice effects of this proposed rule in accordance with the E.O., and has determined that no environmental justice issue is associated with this proposed rule, nor is there any collective environmental impact that would result from its promulgation.
Highway safety, Intermodal transportation, Motor carriers, Motor vehicle safety, Reporting and recordkeeping requirements.
Alcohol abuse, Drug abuse, Drug testing, Highway safety, Motor carriers, Reporting and recordkeeping requirements, Safety, Transportation.
In consideration of the foregoing, FMCSA proposes to amend 49 CFR chapter 3, part 390 and 391 to read as follows:
49 U.S.C. 504, 508, 31132, 31133, 31134, 31136, 31137, 31144, 31149, 31151, 31502; sec. 114, Pub. L. 103-311, 108 Stat. 1673, 1677-1678; sec. 212, 217, Pub. L. 106-159, 113 Stat. 1748, 1766, 1767; sec. 229, Pub. L. 106-159 (as transferred by sec. 4114 and amended by secs. 4130-4132, Pub. L. 109-59, 119 Stat. 1144, 1726, 1743-1744); sec. 4136, Pub. L. 109-59, 119 Stat. 1144, 1745; sec. 32101(d) and 32934, Pub. L. 112-141, 126 Stat. 405, 778, 830; sec. 2, Pub. L. 113-125, 128 Stat. 1388; sec. 5403, 5518, 5524, Pub. L. 114-94, 129 Stat. 1312, 1548, 1558, 1560; and 49 CFR 1.81, 1.81a and 1.87.
(a) To receive medical examiner certification from FMCSA a person must either:
(1) Be an advanced practice nurse, doctor of chiropractic, doctor of medicine, doctor of osteopathy, physician assistant, or other medical professional authorized by applicable State laws and regulations to perform physical examinations, and
(i) Be licensed, certified, or registered in accordance with applicable State laws and regulations to perform physical examinations;
(ii) Before taking the training provided below, register on the National Registry System and receive a unique identifier.
(iii) Complete a training program that meets the requirements of § 390.105(a) and (b); and
(iv) Pass the medical examiner certification test provided by FMCSA and administered by a testing organization that meets the requirements of § 390.107 and that has electronically forwarded to FMCSA the applicant's completed test information no more than three years after completion of the training program required by paragraph (a)(1)(iii) of this section; or
(2) Be a doctor of medicine or a doctor of osteopathy employed in the Department of Veterans Affairs, and
(i) Be licensed, certified, or registered in a State to perform physical examinations,
(ii) Before taking the training provided below, register on the National Registry system and receive a unique identifier.
(iii) Be familiar with FMCSA's standards for, and physical requirements of, a commercial motor vehicle (CMV) operator requiring medical certification, by completing the training program in § 390.105(c);
(iv) Pass the medical examiner certification test provided by FMCSA, administered in accordance with § 390.107(e) and has had his or her results electronically forwarded to FMCSA; and
(v) Have never been found to have acted fraudulently with respect to any certification of a CMV operator, including by fraudulently awarding a medical certificate.
(b) If a person has medical examiner certification from FMCSA, then to renew such certification the medical examiner must remain qualified under paragraph (a)(1) or (a)(2) of this section and complete additional testing and training as required by § 390.111(a)(5).
(c) Instead of complying with paragraph (a) and (b) of this section, a qualified VA physician must complete training developed and provided by FMCSA and delivered through a Web-based training system operated by the Department of Veterans Affairs.
(e) Instead of complying with paragraphs (a)-(d) of this section, to receive medical examiner certification from FMCSA, a qualified VA physician must pass the medical examiner certification test developed and provided by FMCSA and administered through a Web-based training system operated by the Department of Veterans Affairs.
(a) * * *
(1) * * *
(2)
(ii) A certified VA medical examiner who is no longer employed in the VA, but would like to remain listed on the National Registry, must either meet the requirements of paragraph (i) or submit this change in registration information prior to conducting any physical examination of a CMV driver or issuing any medical examiner's certificates.
(3)
(ii) Instead of complying with paragraph (3)(i) of ths section, a certified VA medical examiner must continue to be licensed, certified, or registered, and authorized to perform physical examinations, in accordance with the laws and regulations of a State. If a certified VA medical examiner is no longer employed in the Department of Veterans Affairs, such physician must meet the requirements of paragraph (3)(i) of this section.
(4)
(ii) Instead of complying with paragraph (4)(i) of this section, a certified VA medical examiner must maintain documentation of licensure, registration, or certification in a State to perform physical examinations and maintain documentation of and completion of all training required by this section and § 390.105(c). The certified VA medical examiner must make this documentation available to an authorized representative of FMCSA or an authorized representative of Federal, State, or local government. The certified VA medical examiner must provide this documentation within 48 hours of the request for investigations and within 10 days of the request for regular audits of eligibility.
(5) Maintain medical examiner certification by completing training and testing according to the following schedule:
(ii) * * *
(A) * * *
(B) Pass the test required by either § 390.103(a)(1)(iv) or (a)(2)(iii).
(b) FMCSA will issue a new medical examiner certification credential valid for 10 years to a medical examiner who complies with paragraphs (a)(1) through (5) of this section and who successfully completes the training and testing as required by paragraphs (a)(5)(i) or (ii) of this section.
(b) Notice of proposed removal. Except as provided paragraphs (a) and (e) of this section, FMCSA initiates the process for removal of a medical examiner from the National Registry of Certified Medical Examiners by issuing a written notice of proposed removal to the medical examiner, stating the reasons that removal is proposed under § 390.113 and any corrective actions necessary for the medical examiner to remain listed on the National Registry of Certified Medical Examiners.
(d) * * *
(2) * * *
(ii) Report to FMCSA any changes in the registration information submitted under § 390.103(a)(1)(ii) within 30 days of the reinstatement.
(v) Instead of complying with paragraph (2)(iv) of this section, a certified VA medical examiner must maintain documentation of licensure, registration, or certification in a State to perform physical examinations and maintain documentation of and completion of all training required by this section and §§ 390.105(c) and 390.111(a)(iv) of this part. The certified VA medical examiner must make this documentation available to an authorized representative of FMCSA or an authorized representative of Federal, State, or local government. The certified VA medical examiner must provide this documentation within 48 hours of the request for investigations and within 10 days of the request for regular audits of eligibility.
(vi) Complete periodic training as required by the Director, Office of Carrier, Driver and Vehicle Safety Standards.
(f) * * *
(1) * * *
(2) Report to FMCSA any changes in the registration information submitted under § 390.103(a)(1)(ii).
(3) * * *
(4)
(ii) Instead of complying with paragraph (4)(i) of this section, a certified VA medical examiner must maintain documentation of licensure,
49 U.S.C. 504, 508, 31133, 31136, 31149, and 31502; sec. 4007(b) of Pub. L. 102-240, 105 Stat. 1914, 2152; sec. 114 of Pub. L. 103-311, 108 Stat. 1673, 1677; sec. 215 of Pub. L. 106-159, 113 Stat. 1748, 1767; sec. 32934 of Pub. L. 112-141, 126 Stat. 405, 830; sec. 5403 and 5524 of Pub. L. 114-94, 129 Stat. 1312, 1548, 1560; and 49 CFR 1.87.
(b)
(2) A certified VA medical examiner must only perform medical examinations of veteran operators.
National Highway Traffic Safety Administration (NHTSA), DOT.
Denial of petition for rulemaking.
This document denies a petition for rulemaking, submitted by Ms. Scheryn Bennett, requesting that the National Traffic Safety Administration (NHTSA) require every vehicle to be equipped with an emergency glass breaking tool. The data available to the agency shows there is a great deal of uncertainty surrounding the actual number of occupants that may have died due solely to drowning while trapped in an immersed vehicle. The potential effectiveness of such a tool to successfully aid an occupant's safe exit from an immersed vehicle is also not known. In the absence of a requirement that each vehicle have a glass breaking tool, nothing prevents vehicle manufacturers from providing a tool or other means to allow vehicle evacuation during immersion. Additionally, consumers can purchase their own tool and locate it in the vehicle where they would be likely to access it in an emergency.
This denial is effective as of December 1, 2016.
Office of Crashworthiness Standards, National Highway Traffic Safety Administration, 1200 New Jersey Avenue SE., Washington, DC 20590.
The National Traffic and Motor Vehicle Safety Act (“Safety Act,” 49 U.S.C. 30101
On January 22, 2014, Ms. Scheryn Bennett, (henceforth referred to as Ms. Bennett), requested that NHTSA require every vehicle to be equipped with an “emergency window breaker.” Ms. Bennett cited the drowning deaths of a mother and her two minor children during an August 2011 flash flood in Pittsburgh, PA, and wrote that “evidence showed they [the victims] attempted to kick out the windows in their minivan.” Ms. Bennett expressed a concern for vehicle occupants to exit a passenger vehicle via a window after the vehicle has become trapped in water such that the water interrupts the vehicle electrical system, rendering the power windows inoperable. Additionally, Ms. Bennett contended that “[j]ust as a spare tire and jack are standard in all vehicles so should an emergency window breaker.”
As a general matter, any proposed safety standard issued by NHTSA must meet the need for motor vehicle safety. Typically, we assess whether a standard would meet the need for motor vehicle safety by analyzing the real-world safety problem (which is the “safety need”), and then analyzing how well the safety problem can be addressed by the standard we are proposing (whether the safety need is met by the standard). It is challenging for the agency to justify a new regulation based only on an
Ms. Bennett provided a newspaper article reporting on the death of a mother and her two children that drowned in their minivan during a severe flash flood event. We searched for additional data that could support the existence of a safety need which could be addressed by an emergency window breaking tool. NHTSA's data review for this petition examined the information available in the agency's Fatality Analysis Reporting System (FARS) and Not-in-Traffic Surveillance (NiTS) databases. We also examined vehicle related cataclysmic drowning incident information available from the National Oceanic and Atmospheric Administration (NOAA) Web site.
NHTSA's FARS database is a nationwide census of yearly data regarding fatal injuries suffered in motor vehicle traffic crashes. However, it does not capture fatalities that occur directly as a result of a cataclysm, such as flooding. An example of this would be a motor vehicle swept away
In the 2011 technical paper
NHTSA also examined the information available in our NiTS database. The NiTS database tracks nontraffic crashes which occur off of public roads in locations such as private roads, driveways, parking lots, and undeveloped areas. Unfortunately, the system does not have any linked mortality data, which prevents a similar analysis to the one for traffic fatalities using FARS. Furthermore, while the database can list a most harmful event of immersion when applicable, the results previously presented above from the technical paper
NHTSA also researched flood related fatality information available on the NOAA Web site. The NOAA Web site uses data obtained from the CDC. Reviewing the listed event circumstances for only fatalities in which the persons died inside
Multiple types of glass breaking tools are commercially available for consumers to purchase. The tools can be attached to a key chain, attached to a seat belt, mounted in the vehicle interior, or stored in a convenient location within the vehicle interior. These tools are intended to quickly and efficiently break the tempered glass
However, the glass breaking tools will not quickly and efficiently break those passenger vehicle side windows constructed with laminated glass
There are other concerns related to the potential effectiveness of a requirement for such a tool beyond knowing which vehicle windows can or cannot be broken with the tool. First, it is not clear to the agency that a vehicle driver or passenger would be aware of the existence of such a device, its location, or how and when it should be used without additional information being provided. It is unclear whether information in the owner's manual would be sufficient to properly educate the vehicle occupants as to the existence of the device and its use. It is reasonable to assume the device would need to be located within the occupant compartment. However, the agency questions how likely it would be for the tool to be used if the tool was hidden away in the glove compartment or other non-visible location, or whether the tool would need to always be visible and within reach for it to be used when needed. The answer to that question may be tied to the success of the educational information referred to above.
There are many situationally dependent, time critical decisions that conscious occupants may face if their vehicle becomes immersed in water, particularly if it is caught in a flash flood. Do the occupants need to leave the vehicle interior to avoid drowning and how quickly should that happen? What is the best way to safely exit the vehicle? What is the fastest, most survivable path to exit the flood waters? What special considerations are needed to help children get out of the vehicle if only one adult is present? All of these decisions and many more must be made within a few seconds once such a life threatening event begins. Once a vehicle becomes completely submerged, the occupants will face a reduced chance of survival.
All of the above issues are open questions that will affect the real world effectiveness of a requirement to provide an emergency glass breaking tool. Based on the information available to NHTSA about the apparent size of the safety problem (
Anecdotal market research on commercially available tempered glass breaking tools shows that there are a variety of tools marketed as emergency window glass breaking tools. They are generally either a type of hammer or a spring loaded punch. Some of the available tools are intended solely for breaking glass. Other tools provide additional functionality such as seat belt cutters, flashlights, or even tire pressure gauges. Purchase costs for these tools range from approximately $3.50 to $20.00 each.
In addition to the preliminary nature of the above cost estimates, there are several other barriers to making a reasonable estimate of the cost effectiveness of a potential requirement for this tool. First, as previously discussed, the available motor vehicle crash information suggests that the number of people that might be expected to require a means of escaping an immersed vehicle through a window opening may be on the order of 28 persons annually. However, as also outlined above, there is a great deal of uncertainty surrounding any estimate, as the data does not permit a conclusive determination on the number of fatalities due solely to drowning, even when immersion is the first harmful event. Second, the potential effectiveness of the tool measured by an occupant's ability to safely exit a vehicle is not known. Although the glass breaking tool is expected to easily shatter tempered glass when used, there are other factors that are very likely to reduce the effectiveness of the tool. High among these would be a lack of knowledge of the existence of the tool and finding it as a vehicle becomes immersed. Thus, the uncertainty in the population of vehicle occupants that require the tool and in its potential effectiveness results in a highly uncertain assessment of potential benefits. Any resulting cost effectiveness estimate would be tenuous.
Ms. Bennett wrote that spare tires and jacks are “standard” on all vehicles. This is not correct; NHTSA has issued no standard or regulation which requires vehicles to be provisioned with a spare tire and tools for changing tires. Many vehicles do not have a spare tire and jack, but rather other means of facilitating the temporary driving of a vehicle after a tire becomes flat, such as an inflator and sealant kit or run-flat tires.
The vehicle original equipment manufacturers (OEMs) may offer consumers the option to purchase motor vehicle equipment that provides safety benefits beyond the minimum requirements of the various FMVSS. Just as several OEMs sell optional first aid and road side assistance kits for their vehicles, they could sell an appropriate
Consumers also have the option to equip their vehicles with emergency safety equipment. Items such as fire extinguishers, automotive tool kits, aftermarket vehicle jacks and lug wrenches, battery jumper cables, first aid kits, winter emergency survival kits, survival kits for desert travel, and vehicle break down kits are items available for consumers to purchase for emergency preparedness. Consumers who do purchase safety items for their vehicles may be more likely to know where these items are stored in their vehicles and how to use the equipment. All vehicle operators are strongly encouraged to understand their vehicle's capabilities and safety features, their expected driving environment, and to be prepared for possible emergency situations.
NHTSA shares Ms. Bennett's desire to prevent deaths in motor vehicles. However, at this time there are several substantial obstacles to proposing an objective motor vehicle safety standard to assist vehicle occupants in evacuating a passenger vehicle that has become immersed in water.
First, as previously explained, the data available to the agency shows there is a great deal of uncertainty surrounding any estimate of occupants requiring the use of the glass breaking tool. Second, the potential effectiveness of the tool to provide drivers and occupants with a method to safely exit a vehicle during an immersion event is not known. Due to the uncertainty surrounding whether the glass breaking tool would successfully aid all occupants in all vehicles during a vehicle immersion situation, NHTSA cannot justify a mandate for such a tool.
Even without a requirement that each vehicle have a glass breaking tool, there is nothing to keep vehicle manufacturers from providing it or other means to allow vehicle evacuation during immersion. In addition, consumers can purchase their own tool and locate it in the vehicle where they would be likely to access it in an emergency. Those consumers who do this may be more aware of the existence of the tool when the need to use it arises than would occupants of a vehicle where the tool has been provided as standard equipment.
In accordance with 49 CFR part 552, NHTSA hereby denies Ms. Scheryn Bennett's January 22, 2014, petition to require every vehicle to be equipped with “an emergency window breaker.”
49 U.S.C. 322, 30111, 30115, 30117, and 30162; delegation of authority at 49 CFR 1.95.
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Proposed specifications; request for comments.
We are proposing specifications for the 2017Atlantic deep-sea red crab fishery, including an annual catch limit and total allowable landings limit. We are also proposing projected quotas for 2018-2019. This action is necessary to establish allowable red crab harvest levels that will prevent overfishing and allow harvesting of optimum yield. The proposed action is intended to establish the allowable 2017 harvest levels, consistent with the Atlantic Deep-Sea Red Crab Fishery Management Plan.
Comments must be received on or before January 3, 2017.
You may submit comments, identified by NOAA-NMFS-2016-0132, by any one of the following methods:
•
•
Copies of the specifications document, including the Regulatory Flexibility Act Analysis and other supporting documents for the specifications, are available from Thomas A. Nies, Executive Director, New England Fishery Management Council, 50 Water Street, Mill 2, Newburyport, MA 01950. The specifications document is also accessible via the Internet at:
Allison Murphy, Fishery Policy Analyst, (978) 281-9122.
The Atlantic deep-sea red crab fishery is managed by the New England Fishery Management Council. The Atlantic Deep-Sea Red Crab Fishery Management Plan (FMP) includes a specification process that requires the Council to recommend, on a triennial basis, an acceptable biological catch (ABC), an annual catch limit (ACL), and total allowable landings (TAL). The Council's Scientific and Statistical Committee (SSC) provides a recommendation to the Council for these catch limits. The Council makes a recommendation to NMFS that cannot exceed the recommendation of its SSC.
The Council's recommendations must include supporting documentation concerning the environmental, economic, and social impacts of the recommendations. We are responsible for reviewing these recommendations to ensure that they achieve the FMP objectives and are consistent with all applicable laws, and may modify them if they do not. Following this review, we then publish proposed specifications in the
The FMP was implemented in 2002 and was originally managed under a target total allowable catch (TAC) and
The biological and management reference points currently in the FMP are used to determine whether overfishing is occurring or if the stock is overfished. However, these reference points for red crab do not currently meet Magnuson-Stevens Act National Standard 1 criteria. As a result, there is insufficient information on the species to establish the maximum sustainable yield (MSY), optimum yield (OY), or overfishing limit (OFL). ABC is defined in terms of landings instead of total catch because there is insufficient information to estimate dead discards of red crab.
The Council's recommendation for the 2017-2019 red crab specifications are based on the results of the most recent peer-reviewed assessment of the red crab fishery carried out by the Data Poor Stocks Working Group in 2009 and the recommendations of the Council's SSC. The recommended specifications include a status quo TAL for all three years. While an OFL has not been determined for the stock, the Council and its SSC believe continuing the current TAL will not result in overfishing and adequately accounts for scientific uncertainty.
Recent landings, landing per unit of effort, port samples, discard information, and economic data suggest there has been no change in the size of the red crab stock since Amendment 3 was implemented in 2011. On August 10, 2016, the SSC recommended the status quo ABC for fishing years 2017-2019 of 1,775 mt for the directed fishery. The Council approved the specifications on September 21, 2016, summarized in Table 1. We are proposing the Council-recommended specifications for fishing year 2017. By providing projected quotas for 2018 and 2019, we hope to assist fishery participants in planning ahead.
At the end of each fishing year, we evaluate catch information and determine if the quota has been exceeded. If a quota is exceeded, the regulations at 50 CFR 262(b) require a pound-for-pound reduction in a subsequent fishing year, through notification consistent with the Administrative Procedure Act. We would publish a notice in the
Pursuant to section 304(b)(1)(A) of the Magnuson-Stevens Fishery Conservation and Management Act (Magnuson-Stevens Act), the NMFS Assistant Administrator has determined that this proposed rule is consistent with the Atlantic Deep-Sea Red Crab FMP, other provisions of the Magnuson-Stevens Act, and other applicable law, subject to further consideration after public comment.
These proposed specifications are exempt from review under Executive Order 12866.
The Chief Counsel for Regulation, Department of Commerce, certified to the Chief Counsel for Advocacy of the Small Business Administration (SBA) that this proposed rule, if adopted, would not have a significant economic impact on a substantial number of small entities. The Council prepared an analysis of the potential economic impacts of this action, which is included in the Council's document for this action (see
There is no reason to believe small entities would be substantially affected by the proposed action. The proposed action would affect all business entities and the four vessels that participate in the directed red crab fishery, but it is not expected to have any impact on the gross or average revenues for the fishery because it does not change the quota. In addition, this quota is substantially higher than landings in recent years (fishing years 2013 through 2015 landings averaged 2.692 million lb). As a result, the proposed action is not expected to constrain landings markets for red crab substantially and is not expected to have a significant economic impact on a substantial number of small entities.
As a result, an initial regulatory flexibility analysis is not required and none has been prepared.
16 U.S.C. 1801
Forest Service, USDA.
Notice of intent to prepare an environmental impact statement.
As directed by the National Forest Management Act, the U. S. Department of Agriculture, Forest Service, is preparing the Helena-Lewis and Clark National Forest's revised land management plan (forest plan). The Forest Service will prepare an environmental impact statement (EIS) for its revised forest plan.
This notice briefly describes the proposed action based on the need to change the existing plans, the nature of the decision to be made, and information concerning public participation. This notice also provides estimated dates for filing the EIS, the name and address of the responsible agency officials, and the individuals who can provide additional information. Finally, this notice identifies the applicable planning rule that will be used for completing the plan revision.
The revised Helena-Lewis and Clark Forest Plan will supersede the existing Helena National Forest and Lewis and Clark National Forest plans that were approved by the Regional Forester in 1986. The existing forest plans will remain in effect until the revised forest plan takes effect.
In response to this notice, we are asking for comments on the proposed action so we may refine it and identify possible alternatives.
Comments concerning the scope of the analysis must be received by March 30, 2017. The draft environmental impact statement is expected November 2017 and the final environmental impact statement is expected August 2018.
Comments may be sent via email to
Deb Entwistle, Acting Revision Team Leader, Helena-Lewis and Clark National Forest, 2880 Skyway Dr., Helena, Montana 59602, (406) 449-5201.
Individuals who use telecommunication devices for the deaf (TDD) may call the Federal Information Relay Service (FIRS) at 1-800-877-8339 between 8 a.m. and 8 p.m., Eastern Time, Monday through Friday.
The purpose of the Helena-Lewis and Clark National Forest Plan Revision is to have an integrated set of plan direction to provide for social, economic, and ecological sustainability and multiple uses of the Helena-Lewis and Clark lands and resources. The plan sets forth the overall context for informed decision making by evaluating and integrating social, economic, and ecological considerations relevant to management of the forest.
The need for the proposed action is due to the significant changes that have occurred in conditions and demands since the Helena National Forest and the Lewis and Clark National Forest plans were signed in 1986. In addition, the Helena National Forest and the Lewis and Clark National Forest were recently administratively combined. The consolidation of the two forests was approved by the Under Secretary for Natural Resources and the Environment on December 11, 2015.
Several areas where changes are needed in the Helena-Lewis and Clark National Forest Plan were brought to the forefront by the requirements of the 2012 Planning Rule for the National Forest System; findings from the development of the Assessment of the Helena-Lewis and Clark National Forest (a precursor document in the planning process that identified and evaluated the existing condition across the forest landscape); changes in conditions and demands since the 1986 forest plans; and public concerns to date.
The 2012 Planning Rule, which became effective May 9, 2012, requires inclusion of plan components, including standards or guidelines, that address social and economic sustainability, ecosystem services, and multiple uses integrated with the plan components for ecological sustainability and species diversity. Social and economic management direction is needed to provide people and communities with a range of social and economic benefits for present and future generations. As an example, since approval of the Helena National Forest Plan in 1986 and the Lewis and Clark National Forest Plan in 1986, the role of timber harvest in meeting ecosystem management and social and economic objectives has changed. The 2012 Planning Rule requires forests to undertake a process to identify lands within the plan area for timber production suitability, and from this process, the Helena-Lewis and Clark National Forest will develop plan components for lands suitable for timber production and for lands where timber harvest is appropriate for purposes other than timber production. To meet the Planning Rule's requirement to provide for ecological sustainability, management direction is needed that addresses ecosystem diversity (including key ecosystem characteristics and their integrity), in light of changes in climate, fuels, vegetation management strategies, and future environmental conditions. Revised plan components are needed that focus on maintaining or restoring vegetation and ecosystems to provide for species diversity including threatened and endangered species, species of conservation concern, and species of public interest. Additionally, comprehensive management direction is needed to address suitability of certain areas for particular uses, address access and sustainable recreation, provide for the management of existing and anticipated uses, as well as protect resources. During the plan revision process, the 2012 Planning Rule requires the Forest Service to undertake processes to identify and evaluate lands that may be suitable for inclusion in the National Wilderness Preservation
Under the Endangered Species Act of 1973, federal agencies are directed to use their authorities to seek to conserve endangered and threatened species. The Canada lynx was listed as a threatened species in 2000. Since that time, the Helena and the Lewis and Clark National Forest plans have been amended with the Northern Rockies Lynx Management Direction (USDA FS 2007), the USFWS designated and updated Canada lynx critical habitat (USDI FWS 2009, 2014), and the Lynx Conservation and Assessment Strategy has been updated (Lynx Biology Team 2013). Thus, the Forest Plan needs to integrate recent and relevant information for Canada lynx to its plan.
In 2013, the U.S. Fish and Wildlife Service announced the availability of a draft Grizzly Bear Conservation Strategy for the Northern Continental Divide Ecosystem population for public review and input. When finalized, the Grizzly Bear Conservation Strategy will become the post-delisting management plan for the Northern Continental Divide Ecosystem grizzly bear population and its habitat. By providing relevant direction from the Northern Continental Divide Ecosystem Grizzly Bear Conservation Strategy into the forest plans, the Forest Service will be able to demonstrate to the U.S. Fish and Wildlife Service that adequate regulatory mechanisms exist on national forests within the Northern Continental Divide Ecosystem to support a delisted grizzly bear population.
Finally, public participation through scoping may identify other issues or concerns that will be considered during the plan revision.
The Forest Service is preparing the Helena-Lewis and Clark National Forest revised land management plan (forest plan). The full proposed action for the revised forest plan includes forestwide and geographic area desired conditions, goals, objectives, standards, guidelines, and the suitability of lands for specific multiple uses, and includes lands that could be recommended to Congress for inclusion into the National Wilderness Preservation System and the identification of rivers eligible for inclusion into the National Wild and Scenic Rivers System. The proposed action includes a description of the plan area's distinctive roles and contributions within the broader landscape, the identification of priority restoration watersheds, and suitability of national forest lands to support a variety of proposed and possible actions that may occur on the plan area over the life of the plan. The proposed action also identifies a monitoring program. The proposed action and appendices can be found on the Helena-Lewis and Clark National Forest Revision Web site (
The responsible official who will approve the Record of Decision for the Helena-Lewis and Clark National Forest revised forest plan is William Avey, Forest Supervisor for the Helena-Lewis and Clark National Forest, 2880 Skyway Dr., Helena, MT 59602, (406) 449-5201.
For the Helena-Lewis and Clark National Forest plan revision, the responsible official will decide whether the required plan components (desired conditions, goals, objectives, standards, guidelines) are sufficient to promote the ecological integrity and sustainability of the Helena-Lewis and Clark National Forest's ecosystems, watersheds, and diverse plant and animal communities. In addition, the responsible official will decide if the plan provides sufficient management guidance to contribute to social and economic sustainability, to provide people and communities with ecosystem services and multiple uses including a range of social, economic, and ecological benefits for the present and into the future. Standards, guidelines, and other direction related to conservation of threatened and endangered species will be evaluated for the Helena-Lewis and Clark National Forest in the EIS.
This proposed action is programmatic in nature and guides future implementation of site-specific projects. Additional NEPA compliance would be required for site-specific projects as part of a two-stage decision making process (Council of Environmental Quality regulations for implementing NEPA; 40 CFR 1508.23, 42 U.S.C. 4322(2)(C)), 36 CFR 219.7(f)).
This notice of intent initiates the scoping process, which guides the development of the environmental impact statement. We are seeking your input to continue to develop the Helena-Lewis and Clark National Forest revised plan.
Community meetings will be held to provide additional information and address questions related to the revision proposed action. Dates and locations are as follows:
It is important that reviewers provide their comments at such times and in such manner that they are useful to the agency's preparation of the environmental impact statement. Therefore, comments should be provided prior to the close of the comment period and should clearly articulate the reviewer's concerns and contentions. Further instructions for providing comments that will assist the planning team in reviewing comments can be found at
Only those individuals and entities who have submitted substantive formal comments related to the Helena-Lewis and Clark NF plan revision during the opportunities provided for public comment during the planning process will be eligible to file an objection (36 Code of Federal Regulations (CFR) 219.53(a)). The decision to approve the revised forest plan for the Helena-Lewis and Clark National Forest will be subject to the objection process identified in 36 CFR part 219 Subpart B (219.50 to 219.62).
Comments received in response to this solicitation, including names and addresses of those who comment, will be part of the public record for this proposed action. Comments submitted anonymously will be accepted and considered, however, anonymous comments will not provide the Agency with the ability to provide the respondent with subsequent environmental documents.
U.S. Commission on Civil Rights.
Announcement of meeting.
Notice is hereby given, pursuant to the provisions of the rules and regulations of the U.S. Commission on Civil Rights (Commission) and the Federal Advisory Committee Act that the Wisconsin Advisory Committee (Committee) will hold a meeting on Friday, January 13, 2017, at 2:00 p.m. CST for the purpose of discussing testimony received regarding hate crime in the state, in preparation to issue a civil rights report to the Commission on the topic.
The meeting will be held on Friday, January 13, 2017, at 2:00 p.m. CST.
Public Call Information: Dial: 888-778-8913, Conference ID: 2637349.
Melissa Wojnaroski, DFO, at
Members of the public can listen to the discussion. This meeting is available to the public through the following toll-free call-in number: 888-778-8913, conference ID: 2637349. Any interested member of the public may call this number and listen to the meeting. An open comment period will be provided to allow members of the public to make a statement as time allows. The conference call operator will ask callers to identify themselves, the organization they are affiliated with (if any), and an email address prior to placing callers into the conference room. Callers can expect to incur regular charges for calls they initiate over wireless lines, according to their wireless plan. The Commission will not refund any incurred charges. Callers will incur no charge for calls they initiate over land-line connections to the toll-free telephone number. Persons with hearing impairments may also follow the proceedings by first calling the Federal Relay Service at 1-800-977-8339 and providing the Service with the conference call number and conference ID number.
Members of the public are also entitled to submit written comments; the comments must be received in the regional office within 30 days following the meeting. Written comments may be mailed to the Midwestern Regional Office, U.S. Commission on Civil Rights, 55 W. Monroe St., Suite 410, Chicago, IL 60615. They may also be faxed to the Commission at (312) 353-8324, or emailed to Carolyn Allen at
Records generated from this meeting may be inspected and reproduced at the Midwestern Regional Office, as they become available, both before and after the meeting. Records of the meeting will be available via
U.S. Commission on Civil Rights.
Announcement of meeting.
Notice is hereby given, pursuant to the provisions of the rules and regulations of the U.S. Commission on Civil Rights (Commission) and the Federal Advisory Committee Act that the Illinois Advisory Committee (Committee) will hold a meeting on Tuesday, December 13, 2016, at 12:00pm CST for the purpose of discussing preparations to host a public hearing on civil rights and voter participation in the state.
The meeting will be held on Tuesday, December 13, 2016, at 12:00 p.m. CST. Public Call Information: Dial: 888-352-6798, Conference ID: 9169077.
Melissa Wojnaroski, DFO, at
Members of the public can listen to the discussion. This meeting is available to the public through the following toll-free call-in number: 888-352-6798, conference ID: 9169077. Any interested member of the public may call this number and listen to the meeting. An open comment period will be provided to allow members of the public to make a statement as time allows. The conference call operator will ask callers to identify themselves, the organization they are affiliated with (if any), and an email address prior to placing callers into the conference room. Callers can expect to incur regular charges for calls they initiate over wireless lines, according to their wireless plan. The Commission will not refund any incurred charges. Callers will incur no charge for calls they initiate over land-line connections to the toll-free telephone number. Persons with hearing impairments may also follow the proceedings by first calling the Federal Relay Service at 1-800-977-8339 and providing the Service with the conference call number and conference ID number.
Members of the public are also entitled to submit written comments; the comments must be received in the regional office within 30 days following the meeting. Written comments may be mailed to the Midwestern Regional Office, U.S. Commission on Civil Rights, 55 W. Monroe St., Suite 410, Chicago, IL 60615. They may also be faxed to the Commission at (312) 353-8324, or emailed to Carolyn Allen at
Records generated from this meeting may be inspected and reproduced at the Midwestern Regional Office, as they become available, both before and after the meeting. Records of the meeting will be available via
The Department of Commerce will submit to the Office of Management and Budget (OMB) for clearance the following proposal for collection of information under the provisions of the Paperwork Reduction Act (44 U.S.C. chapter 35).
During the years preceding the 2020 Census, the Census Bureau is pursuing its commitment to reducing the cost of conducting the census while maintaining the quality of the results. Testing of the feasibility of collecting tribal enrollment information is the primary objective of this test. A sample of 80,000 households will be drawn for a self-response-only operation, oversampled in areas with relatively higher concentrations of people identifying as American Indian or Alaska Native, as indicated through American Community Survey data.
These households will be mailed census questionnaires and other materials that provide details about the available modes of response, including Internet. Census Questionnaire Assistance (CQA) will offer the option for completing the questionnaire on the telephone, as well as language assistance with completing the questionnaire and Interactive Voice Recognition to answer respondent questions and route calls appropriately.
Self-response to the test can occur through Internet, paper questionnaire or telephone modes. There will be no follow-up field operation to obtain response. However, there will be a sample of 15,000 housing units selected for reinterview to check the quality of responses to the tribal enrollment question. Responses received to both the self-enumeration and the reinterview will be used for the test results and evaluation.
A second objective is continued testing of the systems designed for Internet self-response and the integration of the systems associated with self-response. With the development of these systems, the Census Bureau has made the transition from in-house test systems created in prior years to the full systems designed under the Census Enterprise Data Collection and Processing (CEDCaP) contract. It is crucial to test and prove in the new systems in pre-decennial tests, starting with this 2017 Census Test. Internet Self-Response has been prioritized as the system to complete in time for the 2017 Census Test. The Internet Self-Response application will have a Spanish language option. Other key systems that will be tested are the CQA and the Operational Control System that is integrated with these two response modes. We will also test the ability to provision and run in a Cloud environment.
This test was described in the 60-day
Written comments and recommendations for the proposed information collection should be sent within 30 days of publication of this notice to
The Department of Commerce will submit to the Office of Management and Budget (OMB) for clearance the following proposal for collection of information under the provisions of the Paperwork Reduction Act (44 U.S.C. chapter 35).
During the years preceding the 2020 Census, the Census Bureau is pursuing its commitment to reducing the cost of conducting the census while maintaining the quality of the results. Testing of the feasibility of collecting tribal enrollment information is the primary objective of this test. A sample of 80,000 households will be drawn for a self-response-only operation, oversampled in areas with relatively higher concentrations of people identifying as American Indian or Alaska Native, as indicated through American Community Survey data.
These households will be mailed census questionnaires and other materials that provide details about the available modes of response, including Internet. Census Questionnaire Assistance (CQA) will offer the option for completing the questionnaire on the telephone, as well as language assistance with completing the questionnaire and Interactive Voice Recognition to answer respondent questions and route calls appropriately.
Self-response to the test can occur through Internet, paper questionnaire or telephone modes. There will be no follow-up field operation to obtain response. However, there will be a sample of 15,000 housing units selected for reinterview to check the quality of responses to the tribal enrollment question. Responses received to both the self-enumeration and the reinterview will be used for the test results and evaluation.
A second objective is continued testing of the systems designed for Internet self-response and the integration of the systems associated with self-response. With the development of these systems, the Census Bureau has made the transition from in-house test systems created in prior years to the full systems designed under the Census Enterprise Data Collection and Processing (CEDCaP) contract. It is crucial to test and prove in the new systems in pre-decennial tests, starting with this 2017 Census Test. Internet Self-Response has been prioritized as the system to complete in time for the 2017 Census Test. The Internet Self-Response application will have a Spanish language option. Other key systems that will be tested are the CQA and the Operational Control System that is integrated with these two response modes. We will also test the ability to provision and run in a Cloud environment.
This test was described in the 60-day
Written comments and recommendations for the proposed information collection should be sent within 30 days of publication of this notice to
On July 27, 2016, the Houma-Terrebonne Airport Commission, grantee of FTZ 279, submitted a notification of proposed production activity to the FTZ Board on behalf of Thoma-Sea Marine Constructors, L.L.C., within Subzone 279A, in Houma and Lockport, Louisiana
The notification was processed in accordance with the regulations of the FTZ Board (15 CFR part 400), including notice in the
(1) Any foreign steel mill products admitted to the zone for the Thoma-Sea Marine Constructors, L.L.C., activity, including plate, angles, shapes, channels, rolled steel stock, bars, pipes and tubes, not incorporated into merchandise otherwise classified, and which is used in manufacturing, shall be subject to full customs duties in accordance with applicable law, unless the Executive Secretary determines that the same item is not then being produced by a domestic steel mill.
(2) Thoma-Sea Marine Constructors, L.L.C., shall meet its obligation under 15 CFR 400.13(b) by annually advising the FTZ Board's Executive Secretary as to significant new contracts with appropriate information concerning foreign purchases otherwise dutiable, so that the FTZ Board may consider whether any foreign dutiable items are being imported for manufacturing in the zone primarily because of FTZ procedures and whether the FTZ Board should consider requiring customs duties to be paid on such items.
Enforcement and Compliance, International Trade Administration, Department of Commerce.
Brenda E. Waters, Office of AD/CVD Operations, Customs Liaison Unit, Enforcement and Compliance, International Trade Administration, U.S. Department of Commerce, 14th Street and Constitution Avenue NW., Washington, DC 20230, telephone: (202) 482-4735.
Each year during the anniversary month of the publication of an antidumping or countervailing duty order, finding, or suspended investigation, an interested party, as defined in section 771(9) of the Tariff Act of 1930, as amended (“the Act”), may request, in accordance with 19 CFR 351.213, that the Department of Commerce (“the Department”) conduct an administrative review of that antidumping or countervailing duty order, finding, or suspended investigation.
All deadlines for the submission of comments or actions by the Department discussed below refer to the number of calendar days from the applicable starting date.
In the event the Department limits the number of respondents for individual examination for administrative reviews initiated pursuant to requests made for the orders identified below, the Department intends to select respondents based on U.S. Customs and Border Protection (“CBP”) data for U.S. imports during the period of review. We intend to release the CBP data under Administrative Protective Order (“APO”) to all parties having an APO within five days of publication of the initiation notice and to make our decision regarding respondent selection within 21 days of publication of the initiation
In the event the Department decides it is necessary to limit individual examination of respondents and conduct respondent selection under section 777A(c)(2) of the Act:
In general, the Department finds that determinations concerning whether particular companies should be “collapsed” (
Pursuant to 19 CFR 351.213(d)(1), a party that requests a review may withdraw that request within 90 days of the date of publication of the notice of initiation of the requested review. The regulation provides that the Department may extend this time if it is reasonable to do so. In order to provide parties additional certainty with respect to when the Department will exercise its discretion to extend this 90-day deadline, interested parties are advised that, with regard to reviews requested on the basis of anniversary months on or after December 2016, the Department does not intend to extend the 90-day deadline unless the requestor demonstrates that an extraordinary circumstance prevented it from submitting a timely withdrawal request. Determinations by the Department to extend the 90-day deadline will be made on a case-by-case basis.
The Department is providing this notice on its Web site, as well as in its “Opportunity to Request Administrative Review” notices, so that interested parties will be aware of the manner in which the Department intends to exercise its discretion in the future.
In accordance with 19 CFR 351.213(b), an interested party as defined by section 771(9) of the Act may request in writing that the Secretary conduct an administrative review. For both antidumping and countervailing duty reviews, the interested party must specify the individual producers or exporters covered by an antidumping finding or an antidumping or countervailing duty order or suspension agreement for which it is requesting a review. In addition, a domestic interested party or an interested party described in section 771(9)(B) of the Act must state why it desires the Secretary to review those particular producers or exporters. If the interested party intends for the Secretary to review sales of merchandise by an exporter (or a producer if that producer also exports merchandise from other suppliers) which was produced in more than one country of origin and each country of origin is subject to a separate order, then the interested party must state specifically, on an order-by-order basis, which exporter(s) the request is intended to cover.
Note that, for any party the Department was unable to locate in prior segments, the Department will not accept a request for an administrative review of that party absent new information as to the party's location. Moreover, if the interested party who files a request for review is unable to locate the producer or exporter for which it requested the review, the interested party must provide an explanation of the attempts it made to locate the producer or exporter at the same time it files its request for review, in order for the Secretary to determine if the interested party's attempts were reasonable, pursuant to 19 CFR 351.303(f)(3)(ii).
As explained in
Further, as explained in
Following initiation of an antidumping administrative review when there is no review requested of the NME entity, the Department will instruct CBP to liquidate entries for all exporters not named in the initiation notice, including those that were suspended at the NME entity rate.
All requests must be filed electronically in Enforcement and Compliance's Antidumping and Countervailing Duty Centralized Electronic Service System (“ACCESS”) on Enforcement and Compliance's ACCESS Web site at
The Department will publish in the
For the first administrative review of any order, there will be no assessment of antidumping or countervailing duties on entries of subject merchandise entered, or withdrawn from warehouse, for consumption during the relevant provisional-measures “gap” period of the order, if such a gap period is applicable to the period of review.
This notice is not required by statute but is published as a service to the international trading community.
Enforcement and Compliance, International Trade Administration, Department of Commerce.
In accordance with section 751(c) of the Tariff Act of 1930, as amended (“the Act”), the Department of Commerce (“the Department”) is automatically initiating the five-year reviews (“Sunset Reviews”) of the antidumping and countervailing duty (“AD/CVD”) order(s) listed below. The International Trade Commission (“the Commission”) is publishing concurrently with this notice its notice of
The Department official identified in the
The Department's procedures for the conduct of Sunset Reviews are set forth in its
In accordance with 19 CFR 351.218(c), we are initiating Sunset Reviews of the following antidumping and countervailing duty order(s):
As a courtesy, we are making information related to sunset proceedings, including copies of the pertinent statute and Department's regulations, the Department's schedule for Sunset Reviews, a listing of past revocations and continuations, and current service lists, available to the public on the Department's Web site at the following address: “
This notice serves as a reminder that any party submitting factual information in an AD/CVD proceeding must certify to the accuracy and completeness of that information.
On April 10, 2013, the Department modified two regulations related to AD/CVD proceedings: The definition of factual information (19 CFR 351.102(b)(21)), and the time limits for the submission of factual information (19 CFR 351.301).
Pursuant to 19 CFR 351.103(d), the Department will maintain and make available a public service list for these proceedings. Parties wishing to participate in any of these five-year reviews must file letters of appearance as discussed at 19 CFR 351.103(d)). To facilitate the timely preparation of the public service list, it is requested that those seeking recognition as interested parties to a proceeding submit an entry of appearance within 10 days of the publication of the Notice of Initiation.
Because deadlines in Sunset Reviews can be very short, we urge interested parties who want access to proprietary information under administrative protective order (“APO”) to file an APO application immediately following publication in the
Domestic interested parties, as defined in section 771(9)(C), (D), (E), (F), and (G) of the Act and 19 CFR 351.102(b), wishing to participate in a Sunset Review must respond not later than 15 days after the date of publication in the
If we receive an order-specific notice of intent to participate from a domestic interested party, the Department's regulations provide that
This notice of initiation is being published in accordance with section 751(c) of the Act and 19 CFR 351.218(c).
Enforcement and Compliance, International Trade Administration, Commerce.
The Department of Commerce (“the Department”) is amending the preliminary determination of the less-than-fair-value (“LTFV”) investigation of 1,1,1,2-Tetrafluoroethane (“R-134a”) from the People's Republic of China (“PRC”) to correct significant ministerial errors with respect to our preliminary determination.
Effective December 1, 2016.
Keith Haynes or Paul Stolz, AD/CVD Operations, Office III, Enforcement and Compliance, International Trade Administration, U.S. Department of Commerce, 1401 Constitution Avenue NW., Washington, DC 20230; telephone: (202) 482-5139 or, (202) 482-4474, respectively.
On October 7, 2016, the Department published its
The period of investigation is July 1, 2015, through December 31, 2015.
The product subject to this investigation is 1,1,1,2-Tetrafluoroethane, R-134a, or its chemical equivalent, regardless of form, type, or purity level. The chemical formula for 1,1,1,2-tetrafluoroethane is CF
Merchandise covered by the scope of this investigation is currently classified in the Harmonized Tariff Schedule of the United States (“HTSUS”) at subheading 2903.39.2020. Although the HTSUS subheading and CAS registry number are provided for convenience and customs purposes, the written description of the scope is dispositive.
The Department will analyze any comments received and, if appropriate, correct any significant ministerial error by amending the preliminary determination according to 19 CFR 351.224(e). A ministerial error is defined in 19 CFR 351.224(f) as “an error in addition, subtraction, or other arithmetic function, clerical error resulting from inaccurate copying, duplication, or the like, and any other similar type of unintentional error which the Secretary considers ministerial.”
Pursuant to 19 CFR 351.224(e) and (g)(1), the Department is amending the
Because Sanmei is the only mandatory respondent eligible for a separate rate, Sanmei is the only respondent for which we individually calculated an estimated weighted-average dumping margin. For this reason, we assigned Sanmei's calculated rate to all non-examined separate rate respondents. With this amended preliminary determination, the estimated weighted-average dumping margin for each non-examined separate rate respondent is also amended to 232.30 percent.
In the
Because we are relying on information obtained in the course of this investigation on which to base this rate, not on secondary information, it is not necessary to corroborate this calculated rate as AFA.
The collection of cash deposits and suspension of liquidation will be revised accordingly, in accordance with section 733(d) and (g)(1) of the Act and 19 CFR 351.224. Because it is an increase from the
The Department preliminarily determines that the following estimated weighted-average antidumping duty margins exist:
We intend to disclose the calculations performed to parties in this proceeding within five days after publication of the notice of amended preliminary determination in the
In accordance with section 733(f) of the Act, we will notify the International
This determination is issued and published pursuant to sections 733(f) and 777(i)(1) of the Act and 19 CFR 351.224(e).
Enforcement and Compliance, International Trade Administration, Department of Commerce.
Brenda E. Waters, AD/CVD Operations, Customs Unit, Enforcement and Compliance, International Trade Administration, U.S. Department of Commerce, 14th Street and Constitution Avenue NW., Washington, DC 20230; telephone: (202) 482-4735.
On November 1, 2016, the Department of Commerce (“Department”) published
Enforcement and Compliance, International Trade Administration, Department of Commerce.
Effective December 1, 2016.
Kaitlin Wojnar, 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) 482-3857.
On October 11, 2016, the Department of Commerce (the Department) initiated the countervailing duty (CVD) investigation of steel concrete reinforcing bar from the Republic of Turkey.
Section 703(b)(1) of the Tariff Act of 1930, as amended (the Act), requires the Department to issue the preliminary determination in a CVD investigation within 65 days of the date on which the Department initiated the investigation. However, if the Department concludes that the parties concerned are cooperating and that the case is extraordinarily complicated, such that additional time is necessary to make the preliminary determination, section 703(c)(1)(B) of the Act allows the Department to postpone making the preliminary determination until no later than 130 days after the date on which the administering authority initiated the investigation.
The Department determines that the parties concerned are currently cooperating and that the investigation is extraordinarily complicated, such that it will need more time to make the preliminary determination. Specifically, in addition to evaluating the financial contribution and specificity of numerous national and regional programs, the Department will analyze the provision of several inputs for less than adequate remuneration and will consider a more-than-adequate-remuneration program for the first time in a proceeding involving the Republic of Turkey.
For the reasons stated above, the Department, in accordance with section 703(c)(l)(B) of the Act, is postponing the deadline for the preliminary determination to no later than 130 days after the day on which the Department initiated this investigation. Therefore, the new deadline for the preliminary determination is February 21, 2017.
This notice is issued and published in accordance with section 703(c)(2) of the Act and 19 CFR 351.205(f)(1).
Enforcement and Compliance, International Trade Administration, Department of Commerce.
The Department of Commerce (Department) published its
Effective December 1, 2016.
Fred Baker, AD/CVD Operations, Office VI, Enforcement and Compliance, International Trade Administration, Department of Commerce, 1401 Constitution Avenue NW., Washington, DC 20230; telephone: (202) 482-2924.
On July 15, 2016, the Department of Commerce (Department) published its
The merchandise covered by this order is certain non-egg dry pasta in packages of five pounds (2.27 kilograms) or less, whether or not enriched or fortified or containing milk or other optional ingredients such as chopped vegetables, vegetable purees, milk, gluten, diastases, vitamins, coloring and flavorings, and up to two percent egg white. The pasta covered by this scope is typically sold in the retail market, in fiberboard or cardboard cartons, or polyethylene or polypropylene bags of varying dimensions. Excluded from the scope of this review are refrigerated, frozen, or canned pastas, as well as all forms of egg pasta, with the exception of non-egg dry pasta containing up to two percent egg white. The merchandise subject to review is currently classifiable under item 1902.19.20 of the Harmonized Tariff Schedule of the United States (HTSUS). Although the HTSUS subheading is provided for convenience and customs purposes, the written description of the merchandise subject to the order is dispositive.
All issues raised in the case briefs by parties are addressed in the Issues and Decision Memorandum
For the
Because we have determined that Durum does not qualify for a NSR, we are rescinding this NSR.
As the Department is rescinding this NSR, we have not calculated a company-specific dumping margin for Durum. Durum's entries will be liquidated at the “all-others” rate applicable to Turkish exporters who do not have their own company-specific rate. That rate is 51.49 percent.
Effective upon publication of this notice of final rescission of the NSR of Durum, the Department will instruct U.S. Customs and Border Protection to discontinue the option of posting a bond or security in lieu of a cash deposit for entries of subject merchandise from Durum. Because we did not calculate a dumping margin for Durum, Durum continues to be subject to the “all-others” rate. The all-others cash deposit rate is 51.49 percent. These cash deposit requirements shall remain in effect until further notice.
This notice also serves as a reminder to parties subject to Administrative Protective Order (APO) of their responsibility concerning the return or destruction of proprietary information disclosed under APO in accordance with 19 CFR 351.305, which continues to govern business proprietary information in these segments of the proceeding. 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 which is subject to sanction.
We are issuing and publishing this notice in accordance with sections 751(a)(2)(B) and 777(i) of the Tariff Act of 1930, as amended, and 19 CFR 351.214.
Enforcement and Compliance, International Trade Administration, Department of Commerce.
Every five years, pursuant to section 751(c) of the Tariff Act of 1930, as amended (“the Act”), the Department of Commerce (“the Department”) and the International Trade Commission automatically initiate and conduct a review to determine whether revocation of a countervailing or antidumping duty order or termination of an investigation suspended under section 704 or 734 of the Act would be likely to lead to continuation or recurrence of dumping or a countervailable subsidy (as the case may be) and of material injury.
The following Sunset Reviews are scheduled for initiation in January 2017 and will appear in that month's Notice of Initiation of Five-Year Sunset Reviews (“Sunset Reviews”).
No Sunset Review of countervailing duty orders is scheduled for initiation in January 2017.
No Sunset Review of suspended investigations is scheduled for initiation in January 2017.
The Department's procedures for the conduct of Sunset Reviews are set forth in 19 CFR 351.218. The Notice of Initiation of Five-Year (“Sunset”) Reviews provides further information regarding what is required of all parties to participate in Sunset Reviews.
Pursuant to 19 CFR 351.103(c), the Department will maintain and make available a service list for these proceedings. To facilitate the timely preparation of the service list(s), it is requested that those seeking recognition as interested parties to a proceeding contact the Department in writing within 10 days of the publication of the Notice of Initiation.
Please note that if the Department receives a Notice of Intent to Participate from a member of the domestic industry within 15 days of the date of initiation, the review will continue. Thereafter, any interested party wishing to participate in the Sunset Review must provide substantive comments in response to the notice of initiation no later than 30 days after the date of initiation.
This notice is not required by statute but is published as a service to the international trading community.
The Department of Commerce will submit to the Office of Management and Budget (OMB) for clearance the following proposal for collection of information under the provisions of the Paperwork Reduction Act (44 U.S.C. Chapter 35).
(B) “Limited Access Death Master File (LADMF) State or Local Government Auditor General (AG) or Inspector General (IG) Systems Safeguards Attestation Form” (AG or IG Systems Safeguards Attestation Form).
ACAB Systems Safeguards Attestation Form: NTIS expects to receive approximately 500 ACAB Systems Safeguards Attestation Forms from Persons and Certified Persons annually.
AG or IG Systems Safeguards Attestation Form: NTIS expects to receive approximately 60 AG or IG Systems Safeguards Attestation Forms from Persons and Certified Persons annually.
ACAB Systems Safeguards Attestation Form: 3 hours.
AG or IG Systems Safeguards Attestation Form: 3 hours.
ACAB Systems Safeguards Attestation Form: 1500 (500 × 3 hours = 1500 hours).
AG or IG Systems Safeguards Attestation Form: 180 (60 × 3 hours = 180 hours).
On December 30, 2014, NTIS initially described a “Limited Access Death Master File Systems Safeguards Attestation Form” in the notice of proposed rulemaking (79 FR 78314 at 78321). To accommodate the requirements of the final rule, NTIS is using both the ACAB Systems Safeguards Attestation Form and the AG or IG Systems Safeguards Attestation Form.
The ACAB Systems Safeguards Attestation Form requires an “Accredited Conformity Assessment Body” (ACAB), as defined in the final rule, to attest that a Person seeking certification or a Certified Person seeking renewal of certification has information security systems, facilities and procedures in place to protect the security of the Limited Access DMF, as
Section 1110.501(a)(2) of the final rule provides that a state or local government office of AG or IG and a Person or Certified Person that is a department or agency of the same state or local government, respectively, are not considered to be owned by a common “parent” entity under Section 1110.501(a)(1)(ii) for the purpose of determining independence, and attestation by the AG or IG is possible. The AG or IG Systems Safeguards Attestation Form is for the use of a state or local government AG or IG to attest on behalf of a state or local government department or agency Person or Certified Person. The AG or IG Systems Safeguards Attestation Form requires the state or local government AG or IG to attest that a Person seeking certification or a Certified Person seeking renewal of certification has information security systems, facilities and procedures in place to protect the security of the Limited Access DMF, as required under Section 1110.102(a)(2) of the final rule. The AG or IG Systems Safeguards Attestation Form collects information based on an assessment by the state or local government AG or IG conducted within three years prior to the date of the Person or Certified Person's submission of a completed certification statement under Section 1110.101(a) of the final rule. This collection includes specific requirements of the final rule, which the state or local government AG or IG must certify are satisfied, and the provision of specific information by the state or local government AG or IG, such as the date of the assessment.
NTIS requires emergency clearance under the Paperwork Reduction Act in time to be able to implement the certification program on November 28, 2016.
This information collection request may be viewed at
Written comments and recommendations for the proposed information collection should be sent within 30 days of publication of this notice to
Department of the Army, U.S. Army Corps of Engineers, DoD.
Record of Decision.
The U.S. Army Corps of Engineers (USACE), Fort Worth District, is issuing this notice to advise Federal, state, and local governmental agencies and the public that USACE has signed a Record of Decision (ROD) for the Trinity Parkway from Interstate Highway (IH) 35/State Highway (SH) 183 to United States (US) 175/SH 310
The USACE Fort Worth District Commander, Colonel Calvin C. Hudson II, signed the ROD and Section 408 Permission on October 21, 2016.
U.S. Army Corps of Engineers, Regional Planning and Environmental Center, CESWF-PEC-CI (Attn: Ms. Marcia Hackett), 819 Taylor Street, Room 3A12, Fort Worth, TX 76102.
Marcia Hackett, Senior Environmental Planner, Regional Planning and Environmental Center. Email address:
The City of Dallas has requested permission to construct the Trinity Parkway in Dallas County, Texas. The Parkway will constitute an alternation of the existing Dallas Floodway, a USACE federally authorized civil works project that requires Title 33 United States Code, Section 408 (Section 408) compliance. The proposed Parkway consists of a multi-lane transportation project constructed on earthen embankments generally aligned along the East Levee within the Dallas Floodway. The alterations were analyzed and disclosed in the
Office of Innovation and Improvement (OII), Department of Education (ED).
Notice.
In accordance with the Paperwork Reduction Act of 1995 (44 U.S.C. chapter 3501
Interested persons are invited to submit comments on or before January 3, 2017.
To access and review all the documents related to the information collection listed in this notice, please use
For specific questions related to collection activities, please contact Soumya Sathya, 202-260-0819.
The Department of Education (ED), in accordance with the Paperwork Reduction Act of 1995 (PRA) (44 U.S.C. 3506(c)(2)(A)), provides the general public and Federal agencies with an opportunity to comment on proposed, revised, and continuing collections of information. This helps the Department assess the impact of its information collection requirements and minimize the public's reporting burden. It also helps the public understand the Department's information collection requirements and provide the requested data in the desired format. ED is soliciting comments on the proposed information collection request (ICR) that is described below. The Department of Education is especially interested in public comment addressing the following issues: (1) Is this collection necessary to the proper functions of the Department; (2) will this information be processed and used in a timely manner; (3) is the estimate of burden accurate; (4) how might the Department enhance the quality, utility, and clarity of the information to be collected; and (5) how might the Department minimize the burden of this collection on the respondents, including through the use of information technology. Please note that written comments received in response to this notice will be considered public records.
The application package requests programmatic and budgetary information needed to evaluate new applications and make funding decisions based on the authorizing statute, program regulations, and EDGAR. Respondents are non-profit Charter Management Organizations interested in applying for funding under the CMO program.
Office of Science, Department of Energy.
Notice of open meeting.
This notice announces a meeting of the Advanced Scientific Computing Advisory Committee (ASCAC). The Federal Advisory Committee Act requires that public notice of these meetings be announced in the
American Geophysical Union, (AGU), 2000 Florida Avenue NW., Washington, DC 20009.
Christine Chalk, Office of Advanced Scientific Computing Research; SC-21/Germantown Building; U.S. Department of Energy; 1000 Independence Avenue SW; Washington, DC 20585; Telephone (301) 903-7486
Those wishing to speak should submit your request at least five days before the meeting. Those not able to attend the meeting or who have insufficient time to address the committee are invited to send a written statement to Christine Chalk, U.S. Department of Energy, 1000 Independence Avenue SW., Washington DC 20585, email to
Federal Energy Regulatory Commission.
Notice of information collection and request for comments.
In compliance with the requirements of the Paperwork Reduction Act of 1995, 44 U.S.C. 3506(c)(2)(A), the Federal Energy Regulatory Commission (Commission or FERC) is soliciting public comment on the information collection, [FERC-725V (Mandatory Reliability Standards: COM Reliability Standards)] which will be submitted to the Office of Management and Budget (OMB) for a review of the information collection requirements.
Comments on the collection of information are due January 30, 2017.
You may submit comments (identified by Docket No. RD16-9-000) by either of the following methods:
• eFiling at Commission's Web site:
•
Ellen Brown may be reached by email at
1. By letter filed November 16, 2016, 169 Sunapee Street, LLC informed the Commission that the exemption from licensing for the Sugar River I Project No. 3320, originally issued April 4,
2. 169 Sunapee Street, LLC is now the exemptee of the Sugar River 1 Project No. 3320. All correspondence should be forwarded to: Mr. Ronald K. DeCola, Manager, 169 Sunapee Street, LLC, 300 River Road, Suite 110, Manchester, NH 03104, Phone: 603-289-2738, Email:
The staff of the Federal Energy Regulatory Commission (FERC or Commission) will prepare an environmental assessment (EA) that will discuss the environmental impacts of the Valley Expansion Project involving construction and operation of facilities by WBI Energy Transmission, Inc. (WBI Energy) between Mapleton, North Dakota and Felton, Minnesota. The Commission will use this EA in its decision-making process to determine whether the project is in the public convenience and necessity.
This notice announces the opening of the scoping process the Commission will use to gather input from the public and interested agencies on the project. You can make a difference by providing us with your specific comments or concerns about the project. Your comments should focus on the potential environmental effects, reasonable alternatives, and measures to avoid or lessen environmental impacts. Your input will help the Commission staff determine what issues they need to evaluate in the EA. To ensure that your comments are timely and properly recorded, please send your comments so that the Commission receives them in Washington, DC on or before December 23, 2016.
If you sent comments on this project to the Commission before the opening of this docket on October 17, 2016, you will need to file those comments in Docket No. PF16-10-000 to ensure they are considered as part of this proceeding.
This notice is being sent to the Commission's current environmental mailing list for this project. State and local government representatives should notify their constituents of this planned project and encourage them to comment on their areas of concern.
If you are a landowner receiving this notice, a pipeline company representative may contact you about the acquisition of an easement to construct, operate, and maintain the planned facilities. The company would seek to negotiate a mutually acceptable agreement. However, if the Commission approves the project, that approval conveys with it the right of eminent domain. Therefore, if easement negotiations fail to produce an agreement, the pipeline company could initiate condemnation proceedings where compensation would be determined in accordance with state law.
A fact sheet prepared by the FERC entitled “An Interstate Natural Gas Facility On My Land? What Do I Need To Know?” is available for viewing on the FERC Web site (
For your convenience, there are three methods you can use to submit your comments to the Commission. The Commission encourages electronic filing of comments and has expert staff available to assist you at (202) 502-8258 or
(1) You can file your comments electronically using the
(2) You can file your comments electronically by using the
(3) You can file a paper copy of your comments by mailing them to the following address. Be sure to reference the project docket number (PF16-10-000) with your submission: Kimberly D. Bose, Secretary, Federal Energy Regulatory Commission, 888 First Street NE., Room 1A, Washington, DC 20426.
WBI Energy plans to construct 38 miles of new bidirectional 16-inch-diameter pipeline between Mapleton, North Dakota and Felton, Minnesota. Additionally, WBI Energy would construct a new 2,600-horsepower electric-driven compressor station in Clay County, Minnesota, a metering station, farm taps, valve settings, and ancillary facilities. Finally, WBI Energy would increase the maximum allowable operating pressure on a portion of its Line Section 24. According to WBI Energy, the project would provide an additional 40 million cubic feet per day of firm transportation on its system.
The general location of the project facilities is shown in appendix 1.
Construction of the project would affect a total of about 530 acres of land, including the pipeline construction right-of-way, additional temporary workspace, staging areas, temporary and permanent access roads, and aboveground facilities. The total acreage required for operation of the project is approximately 235 acres, including the new permanent pipeline easement, permanent access roads, and permanent aboveground facilities' footprint.
The National Environmental Policy Act (NEPA) requires the Commission to take into account the environmental impacts that could result from an action whenever it considers the issuance of a Certificate of Public Convenience and Necessity. NEPA also requires us
In the EA, we will discuss impacts that could occur as a result of the construction and operation of the planned project under these general headings:
• Geology and soils;
• water resources, fisheries, and wetlands;
• vegetation and wildlife;
• endangered and threatened species;
• cultural resources;
• socioeconomics;
• land use;
• air quality and noise;
• public safety; and
• cumulative impacts.
We will also evaluate possible alternatives to the planned project or portions of the project, and make recommendations on how to lessen or avoid impacts on the various resource areas.
Although no formal application has been filed, we have already initiated our NEPA review under the Commission's pre-filing process. The purpose of the pre-filing process is to encourage early involvement of interested stakeholders and to identify and resolve issues before the FERC receives an application. As part of our pre-filing review, we have begun to contact some federal and state agencies to discuss their involvement in the scoping process and the preparation of the EA.
The EA will present our independent analysis of the issues. The EA will be available in the public record through eLibrary. Depending on the comments received during the scoping process, we may also publish and distribute the EA to the public for an allotted comment period. We will consider all comments on the EA before we make our recommendations to the Commission. To ensure we have the opportunity to consider and address your comments, please carefully follow the instructions in the Public Participation section, beginning on page 2.
With this notice, we are asking agencies with jurisdiction by law and/or special expertise with respect to the environmental issues related to this project to formally cooperate with us in the preparation of the EA.
In accordance with the Advisory Council on Historic Preservation's implementing regulations for section 106 of the National Historic Preservation Act, we are using this notice to initiate consultation with the applicable State Historic Preservation Offices (SHPO), and to solicit their views and those of other government agencies, interested Indian tribes, and the public on the project's potential effects on historic properties.
We have already identified several issues that we think deserve attention based on a preliminary review of the planned facilities and the environmental information provided by WBI Energy. This preliminary list of issues may change based on your comments and our analysis, but currently includes:
• Drain tiles;
• deep topsoil and poor quality subsoils (salinity/sodium or lime);
• prime farm land;
• federally listed species, including the whooping crane, gray wolf, Dakota skipper, northern long-eared bat, western prairie fringed orchid, and the powershiek skipperling;
• cultural resources; and
• crossing methods of the Rush River, Red River of the North, and the Buffalo River.
The environmental mailing list includes federal, state, and local government representatives and agencies; elected officials; Native American Tribes; other interested parties; and local libraries and newspapers. This list also includes all affected landowners (as defined in the Commission's regulations) who are potential right-of-way grantors, whose property may be used temporarily for project purposes, or who own homes within certain distances of aboveground facilities, and anyone who submits comments on the project. We will update the environmental mailing list as the analysis proceeds to ensure that we send the information related to this environmental review to all individuals, organizations, and government entities interested in and/or potentially affected by the planned project.
If we publish and distribute the EA, copies will be sent to the environmental mailing list for public review and comment. If you would prefer to receive a paper copy of the document instead of the CD version or would like to remove your name from the mailing list, please return the attached Information Request (appendix 2).
Once WBI Energy files its application with the Commission, you may want to become an “intervenor” which is an official party to the Commission's proceeding. Intervenors play a more formal role in the process and are able to file briefs, appear at hearings, and be heard by the courts if they choose to appeal the Commission's final ruling. An intervenor formally participates in the proceeding by filing a request to intervene. Motions to intervene are more fully described at
Additional information about the project is available from the Commission's Office of External Affairs, at (866) 208-FERC, or on the FERC Web site (
In addition, the Commission offers a free service called eSubscription, which allows you to keep track of all formal issuances and submittals in specific dockets. This can reduce the amount of time you spend researching proceedings by automatically providing you with notification of these filings, document summaries, and direct links to the documents. Go to
Finally, public meetings or site visits will be posted on the Commission's calendar located at
Take notice that the Commission received the following electric rate filings:
Take notice that the Commission received the following qualifying facility filings:
The filings are accessible in the Commission's eLibrary system by clicking on the links or querying the docket number.
Any person desiring to intervene or protest in any of the above proceedings must file in accordance with Rules 211 and 214 of the Commission's Regulations (18 CFR 385.211 and 385.214) on or before 5:00 p.m. Eastern time on the specified comment date. Protests may be considered, but intervention is necessary to become a party to the proceeding.
eFiling is encouraged. More detailed information relating to filing requirements, interventions, protests, service, and qualifying facilities filings can be found at:
Take notice that on November 22, 2016, pursuant to sections 292.205(c) and 385.207 of the Federal Energy Regulatory Commission's (Commission) Rules of Practice and Procedure, 18 CFR 292.205(c) and 385.207 (2016), Clear Lake Cogeneration Limited Partnership filed a Petition for Temporary Waiver of Operating and Efficiency Standards for Qualifying Cogeneration Facility, for calendar years 2016 and 2017, all as more fully explained in the petition.
Any person desiring to intervene or to protest this filing must file in accordance with Rules 211 and 214 of the Commission's Rules of Practice and Procedure (18 CFR 385.211, 385.214). Protests will be considered by the Commission in determining the appropriate action to be taken, but will not serve to make protestants parties to the proceeding. Any person wishing to become a party must file a notice of intervention or motion to intervene, as appropriate. Such notices, motions, or protests must be filed on or before the comment date. Anyone filing a motion to intervene or protest must serve a copy of that document on the Petitioner.
The Commission encourages electronic submission of protests and interventions in lieu of paper using the “eFiling” link at
This filing is accessible on-line at
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j. FFP Project 133, LLC filed its request to use the Traditional Licensing Process on September 26, 2016. FFP Project 133, LLC provided public notice of its request on September 26, 2016. In a letter dated November 25, 2016, the Director of the Division of Hydropower Licensing approved FFP Project 133, LLC's request to use the Traditional Licensing Process.
k. With this notice, we are initiating informal consultation with the U.S. Fish and Wildlife Service and/or NOAA Fisheries under section 7 of the Endangered Species Act and the joint agency regulations thereunder at 50 CFR, Part 402; and NOAA Fisheries under section 305(b) of the Magnuson-Stevens Fishery Conservation and Management Act and implementing regulations at 50 CFR 600.920. We are also initiating consultation with the Pennsylvania State Historic Preservation Office, as required by section 106, National Historic Preservation Act, and the implementing regulations of the Advisory Council on Historic Preservation at 36 CFR 800.2.
l. With this notice, we are designating FFP Project 133, LLC as the Commission's non-federal representative for carrying out informal consultation pursuant to section 7 of the Endangered Species Act and section 305(b) of the Magnuson-Stevens Fishery Conservation and Management Act; and consultation pursuant to section 106 of the National Historic Preservation Act.
m. FFP Project 133, LLC filed a Pre-Application Document (PAD; including a proposed process plan and schedule) with the Commission, pursuant to 18 CFR 5.6 of the Commission's regulations.
n. A copy of the PAD is available for review at the Commission in the Public Reference Room or may be viewed on the Commission's Web site (
o. Register online at
Environmental Protection Agency (EPA).
Notice of final Order on petition to object to Clean Air Act Title V operating permit.
This document announces that the Environmental Protection Agency (EPA) Administrator has denied two petitions asking EPA to object to a Title V operating permit issued by the Wisconsin Department of Natural Resources (WDNR) to Appleton Coated LLC (Appleton Coated). The first petition was submitted by the Sierra Club, the Clean Water Action Council, and the Midwest Environmental Defense Center (Sierra Club Petition). The second petition was submitted by Appleton Coated and the Wisconsin Paper Council (Appleton Coated/WPC Petition). Sections 307(b) and 505(b)(32) of the Clean Air Act (Act) provide that a petitioner may ask for judicial review of those portions of the petition that EPA denies in the United States Court of Appeals for the appropriate circuit. Any petition for review shall be filed within 60 days from the date this notice appears in the
You may review copies of the final Order, the petition, and other supporting information at the EPA Region 5 Office, 77 West Jackson Boulevard, Chicago, Illinois 60604. If you wish to examine these documents, you should make an appointment at least 24 hours before the day you would like to visit. Additionally, the final Order for the Appleton petition is available electronically at:
Genevieve Damico, Chief, Air Permits Section, Air Programs Branch, Air and Radiation Division, EPA, Region 5, 77 West Jackson Boulevard AR-18J, Chicago, Illinois 60604, telephone (312) 353-4761.
The Act affords EPA a 45-day period to review and object, as appropriate, to Title V operating permits proposed by state permitting authorities. Section 505(b)(2) of the Act authorizes any person to petition the EPA Administrator within 60 days after the expiration of the EPA review period to object to a Title V operating permit if EPA has not done so. A petition must be based only on objections to the permit that were raised with reasonable specificity during the public comment period provided by the state, unless the petitioner demonstrates that it was impracticable to raise issues during the comment period, or the grounds for the issues arose after this period.
On October 28, 2013, EPA received the Sierra Club Petition which alleged that WDNR applied an erroneous interpretation of the “routine maintenance, repair, and replacement” exemption for a superheater boiler tube replacement project from 2005, and that the project resulted in a significant net emissions increase triggering New Source Review (NSR). On November 19, 2013, EPA received the Appleton Coated/WPC Petition which alleged that the permit is deficient because it lacks a permit shield from NSR requirements for the 2005 superheater boiler tube replacement project.
On October 14, 2016, the Administrator issued an Order denying both petitions. The Order explains the reasons behind EPA's conclusion.
United States Environmental Protection Agency (EPA).
Notice; comment period extended.
The Environmental Protection Agency (EPA) previously provided notice of, and requested public comment on, the EPA's draft general permit for gasoline dispensing facilities for use in Indian country within California pursuant to the Clean Air Act (CAA) Federal Indian Country Minor New Source Review (NSR) program for new and modified minor sources. The EPA is extending the deadline for submitting comments on this action until January 31, 2017. Any person may submit written comments on the draft permit during the public comment period.
Comments will be accepted until January 31, 2017.
Documents relevant to the above-referenced permit are available for public inspection during normal business hours at the following address: U.S. Environmental Protection Agency, Region 9, 75 Hawthorne Street, San Francisco, CA 94105-3901. To arrange for viewing of these documents, call Lisa Beckham at (415) 972-3811. Due to building security procedures, at least 24 hours advance notice is required.
Lisa Beckham, EPA Region 9, (415) 972-3811,
On September 30, 2016, the EPA provided notice of, and requested public comment on, the EPA's draft general permit for gasoline dispensing facilities for use in Indian country within California pursuant to the Clean Air Act (CAA) Federal Indian Country Minor New Source Review (NSR) program for new and modified minor sources at 40 CFR 49.151 through 49.161. See also 81 FR 69814 (Oct. 7, 2016).
The EPA is extending the deadline for submitting comments on this action until January 31, 2017. Any person may submit written comments on the draft permit during the public comment period. These comments must raise any reasonably ascertainable issue with supporting arguments by the close of the public comment period. All written comments on the draft general permit must be received or postmarked by January 31, 2017. Comments must be sent or delivered in writing to Lisa Beckham at one of the following addresses:
Please see our previous notice for additional information about this action, which is available through the online docket here:
As detailed in our previous notice, the EPA has scheduled a public hearing for this action on November 30, 2016 from 2:00 to 3:30 p.m. at U.S. EPA Region 9, 1st Floor Conference Center, 75 Hawthorne Street, San Francisco, California. Please note that our previous notice for this action announced a deadline of November 16, 2016 for requesting an additional public hearing; this deadline has passed and is not being extended.
The draft general permit and other supporting information about this action are available through this Web page:
The draft general permit is for a single source category, gasoline dispensing facilities (GDFs), and would be available in certain areas of Indian country that are within the geographical boundaries of California. This includes areas located in an Indian reservation or in another area of Indian country (as defined in 18 U.S.C. 1151) over which an Indian tribe, or the EPA, has demonstrated that the tribe has jurisdiction and where there is no EPA-approved minor NSR program in place. The EPA is proposing this general permit as an option for CAA minor NSR preconstruction permitting to help streamline the EPA's permitting of certain minor sources that construct or modify in Indian country and belong to the GDF source category.
The primary pollutant of concern for GDFs that may use this general permit is volatile organic compounds (VOC), which are emitted from storage tanks and gasoline dispensing units at GDFs. Some GDFs may also have emergency engines, but only those sources with emergency engines that are exempt from minor NSR permitting requirements may use this general permit. Emissions of all other regulated NSR pollutants from new or modified GDF sources that may use the general permit are expected to be below the minor NSR permitting thresholds in 40 CFR 49.153.
This draft general permit regulates VOC emissions from GDFs, and includes emission limitations that require each GDF to control emissions from storage tanks during unloading of the gasoline cargo from the tanker truck, using what are known as Stage I controls. In addition, the draft general permit requires GDFs in ozone nonattainment areas to limit VOC emissions resulting from vehicle refueling by recovering vapors displaced from the vehicle fuel tank, using pump-based controls known as Stage II controls. There are also limits on the amount of gasoline each GDF can
Please bring the foregoing notice to the attention of all persons who would be interested in this matter.
Environmental Protection Agency (EPA).
Notice.
The Environmental Protection Agency has submitted an information collection request (ICR), “Notice of Supplemental Distribution of a Registered Pesticide Product” (EPA ICR No. 0278.12, OMB Control No. 2070-0044) to the Office of Management and Budget (OMB) for review and approval in accordance with the Paperwork Reduction Act (44 U.S.C. 3501
Additional comments may be submitted on or before January 3, 2017.
Submit your comments, referencing Docket ID Number EPA-HQ-OPP-2016-0108, to (1) EPA online using
EPA's policy is that all comments received will be included in the public docket without change including any personal information provided, unless the comment includes profanity, threats, information claimed to be Confidential Business Information (CBI) or other information whose disclosure is restricted by statute.
Jeffrey Bryan, Field and External Affairs Division (7506P), Office of Pesticide Programs, Environmental Protection Agency, 1200 Pennsylvania Ave. NW., Washington, DC 20460-0001; telephone number: (703) 347-8782; email address:
Supporting documents which explain in detail the information that the EPA will be collecting are available in the public docket for this ICR. The docket can be viewed online at
Environmental Protection Agency (EPA).
Notice.
EPA is holding a meeting to update the public on changes to the New Chemicals Review Program under the Toxic Substances Control Act as amended by the Frank R. Lautenberg Chemical Safety for the 21st Century Act (TSCA). EPA will describe its review process for new chemicals under the amended statute, as well as discuss issues, challenges, and opportunities that the Agency has identified in the first few months of implementation. The meeting will provide interested parties with an opportunity to provide input on their experiences with the New Chemicals Review Program, including submittal of pre-manufacture notices (PMNs), microbial commercial activities notices (MCANs), and significant new use notices (SNUNs) under section 5 of the law. Information obtained during these meetings will be considered as the Agency works to implement the new requirements and increase efficiency in its review process under TSCA.
The meeting will be held on December 14, 2016 from 9:00 a.m. to 3:00 p.m. Requests to participate in the meeting must be received on or before December 13, 2016. On-site registration will be permitted, but seating and speaking priority will be given to those who pre-register by the deadline.
To request accommodation of a disability, please contact the meeting logistics person listed under
EPA will hear oral comments at the meeting, and will accept written comments and materials submitted to the docket on or before January 14, 2016.
The meeting will be held at The Ronald Reagan Building and International Trade Center, Polaris Room, 1300 Pennsylvania Avenue Northwest, Washington, DC 20004. The meetings will also be available by remote access for registered participants. For further information, see Unit III.A. under
To participate in the meeting, identified by docket identification (ID) number EPA-HQ-OPPT-2016-0658, you may register online (preferred) or in person at the meeting. To register online, for the meeting, go to
Written comments, identified by the docket ID number, EPA-HQ-OPPT-2016-0658, can be submitted by one of the following methods:
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Additional instructions on commenting or visiting the docket, along with more information about dockets in general is available at
This action is directed to the public in general, and may be of interest to a wide range of stakeholders including chemical manufacturers, processors and users, consumer product companies, non-profit organizations in the environmental and public health sectors, state and local government agencies, and members of the public interested in the environmental and human health assessment and regulation of chemical substances. Since others also may be interested, the Agency has not attempted to describe all the specific entities that may be affected by this action.
The docket for this action, identified by docket ID number EPA-HQ-OPPT-2016-0658, is available at
On June 22, 2016, President Obama signed into law the Frank R. Lautenberg Chemical Safety for the 21st Century Act, which amended the TSCA Act of 1976. A number of statutory changes have enhanced the EPA's authority to evaluate chemicals and make determinations regarding their unreasonable risk to health and the environment prior to commercialization. Specifically, under section 5 of the amended TSCA, there are new requirements and additional determinations that EPA must make. These requirements provide EPA new authority to review and determine risk associated with the manufacturing and processing of new chemicals.
Additional information on the revisions to TSCA can be found at
The meetings will be accessible remotely for registered participants. Registered participants will receive information on how to connect to the meetings prior to their start.
Members of the public may register to attend the meeting as observers and may also register to provide oral comments on the day of the meeting. A registered speaker is encouraged to focus on issues directly relevant to the meeting's subject matter. Each speaker is allowed no more than 5 minutes to provide oral comments. To accommodate as many registered speakers as possible, speakers may present oral comments only, without visual aids or written material. Persons registered to speak (as well as others) may submit written materials to the docket as described under
To attend the meeting in person or to receive remote access, you must register no later than December 13, 2016, using one of the methods described under
Members of the public may register to attend as observers or speak if planning to offer oral comments during the scheduled public comment period. To register for the meeting online, you must provide your full name, organization or affiliation, and contact information.
15 U.S.C.2601
Federal Election Commission.
Tuesday, December 6, 2016 at 11:00 a.m.
999 E Street NW., Washington, DC.
This meeting will be closed to the public.
Compliance matters pursuant to 52 U.S.C. 30109.
Matters concerning participation in civil actions or proceedings or arbitration.
Information the premature disclosure of which would be likely to have a considerable adverse effect on the implementation of a proposed Commission action.
Judith Ingram, Press Officer, Telephone: (202) 694-1220.
The companies listed in this notice have applied to the Board for approval, pursuant to the Bank Holding Company Act of 1956 (12 U.S.C. 1841
The applications listed below, as well as other related filings required by the Board, are available for immediate inspection at the Federal Reserve Bank indicated. The applications will also be available for inspection at the offices of the Board of Governors. Interested persons may express their views in writing on the standards enumerated in the BHC Act (12 U.S.C. 1842(c)). If the proposal also involves the acquisition of a nonbanking company, the review also includes whether the acquisition of the nonbanking company complies with the standards in section 4 of the BHC Act (12 U.S.C. 1843). Unless otherwise noted, nonbanking activities will be conducted throughout the United States.
Unless otherwise noted, comments regarding each of these applications must be received at the Reserve Bank indicated or the offices of the Board of Governors not later than December 28, 2016.
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The notificants listed below have applied under the Change in Bank Control Act (12 U.S.C. 1817(j)) and § 225.41 of the Board's Regulation Y (12 CFR 225.41) to acquire shares of a bank or bank holding company. The factors that are considered in acting on the notices are set forth in paragraph 7 of the Act (12 U.S.C. 1817(j)(7)).
The notices are available for immediate inspection at the Federal Reserve Bank indicated. The notices also will be available for inspection at the offices of the Board of Governors. Interested persons may express their views in writing to the Reserve Bank indicated for that notice or to the offices of the Board of Governors. Comments must be received not later than December 19, 2016.
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Centers for Disease Control and Prevention (CDC), Department of Health and Human Services (HHS).
Notice with comment period.
The Centers for Disease Control and Prevention (CDC), as part of its continuing efforts to reduce public burden and maximize the utility of government information, invites the general public and other Federal agencies to take this opportunity to comment on proposed and/or continuing information collections, as required by the Paperwork Reduction Act of 1995. This notice invites comment on the proposed extension of the Developmental Studies to Improve the National Health Care Surveys, a generic package that includes studies to evaluate and improve upon existing survey design and operations, as well as to examine the feasibility of, and address challenges that may arise with, future expansions of the National Health Care Surveys.
Written comments must be received on or before January 30, 2017.
You may submit comments, identified by Docket No. CDC-2016-0115 by any of the following methods:
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To request more information on the proposed project or to obtain a copy of
Under the Paperwork Reduction Act of 1995 (PRA) (44 U.S.C. 3501-3520), Federal agencies must obtain approval from the Office of Management and Budget (OMB) for each collection of information they conduct or sponsor. In addition, the PRA also requires Federal agencies to provide a 60-day notice in the
Comments are invited on: (a) Whether the proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information shall have practical utility; (b) the accuracy of the agency's estimate of the burden of the proposed collection of information; (c) ways to enhance the quality, utility, and clarity of the information to be collected; (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; and (e) estimates of capital or start-up costs and costs of operation, maintenance, and purchase of services to provide information. Burden means the total time, effort, or financial resources expended by persons to generate, maintain, retain, disclose or provide information to or for a Federal agency. This includes the time needed to review instructions; to develop, acquire, install and utilize technology and systems for the purpose of collecting, validating and verifying information, processing and maintaining information, and disclosing and providing information; to train personnel and to be able to respond to a collection of information, to search data sources, to complete and review the collection of information; and to transmit or otherwise disclose the information.
Developmental Studies to Improve the National Health Care Surveys (OMB No. 0920-1030, expires 10/31/2017)—Extension—National Center for Health Statistics (NCHS), Centers for Disease Control and Prevention (CDC).
Section 306 of the Public Health Service (PHS) Act (42 U.S.C. 242k), as amended, authorizes the Secretary of Health and Human Services (DHHS), acting through the Division of Health Care Statistics (DHCS) within NCHS, shall collect statistics on the extent and nature of illness and disability of the population of the United States.
The DHCS conducts the National Health Care Surveys, a family of nationally representative surveys of encounters and health care providers in inpatient, outpatient, and long-term care settings. This information collection request (ICR) is for the extension of a generic clearance to conduct developmental studies to improve this family of surveys. This three year clearance period will include studies to evaluate and improve upon existing survey design and operations, as well as to examine the feasibility of, and address challenges that may arise with, future expansions of the National Health Care Surveys.
Specifically, this request covers developmental research with the following aims: (1) To explore ways to refine and improve upon existing survey designs and procedures; and (2) to explore and evaluate proposed survey designs and alternative approaches to data collection. The goal of these research studies is to further enhance DHCS existing and future data collection protocols to increase research capacity and improve health care data quality for the purpose of monitoring public health and well-being at the national, state and local levels, thereby informing the health policy decision-making process. The information collected through this generic ICR will not be used to make generalizable statements about the population of interest or to inform public policy; however, methodological findings may be reported.
This generic ICR would include studies conducted in person, via the telephone or internet, and by postal or electronic mail. Methods covered would include qualitative (
To explore and evaluate proposed survey designs and alternative approaches to collecting data, especially with the nationwide adoption of electronic health records, studies may expand the evaluation of data extraction of electronic health records and submission via continuity of care documentation to small/mid-size/large medical providers and hospital networks, managed care health plans, prison-hospitals, and other inpatient, outpatient, and long-term care settings that are currently either in-scope or out-of-scope of the National Health Care Surveys. Research on feasibility, data quality and respondent burden also may be carried out in the context of developing new surveys of health care providers and establishments that are currently out-of-scope of the National Health Care Surveys.
Specific motivations for conducting developmental studies include: (1) Within the National Ambulatory Medical Care Survey (NAMCS), new clinical groups may be expanded to include dentists, psychologists, podiatrists, chiropractors, optometrists), mid-level providers (
The National Health Care Surveys collect critical, accurate data that are used to produce reliable national estimates—and in recent years (when budget allows), state-level estimates—of clinical services and of the providers who delivered those services in inpatient, outpatient, ambulatory, and long-term care settings. The data from these surveys are used by providers, policy makers and researchers to address important topics of interest, including the quality and disparities of care among populations, epidemiology of medical conditions, diffusion of technologies, effects of policies and practice guidelines, and changes in health care over time. Research studies need to be conducted to improve existing and proposed survey design and procedures of the National Health Care Surveys, as well as to evaluate alternative data collection approaches particularly due to the expansion of electronic health record use, and to develop new sample frames of currently out-of-scope providers and settings of care. There is no cost to respondents other than their time to participate. Average burdens are designed to cover 15-40 min interviews as well as 90 minute focus groups, longer on-site visits, and situations where organizations may be preparing electronic data files.
Health Resources and Services Administration (HRSA), Department of Health and Human Services (HHS).
Notice.
HRSA is publishing this notice of petitions received under the National Vaccine Injury Compensation Program (the Program), as required by Section 2112(b)(2) of the Public Health Service (PHS) Act, as amended. While the Secretary of HHS (the Secretary) is named as the respondent in all proceedings brought by the filing of petitions for compensation under the Program, the United States Court of Federal Claims is charged by statute with responsibility for considering and acting upon the petitions.
For information about requirements for filing petitions, and the Program in general, contact the Clerk, United States Court of Federal Claims, 717 Madison Place NW., Washington, DC 20005, (202) 357-6400. For information on HRSA's role in the Program, contact the Director, National Vaccine Injury Compensation Program, 5600 Fishers Lane, Room 08N146B, Rockville, MD 20857; (301) 443-6593, or visit our Web site at:
The Program provides a system of no-fault compensation for certain individuals who have been injured by specified childhood vaccines. Subtitle 2 of Title XXI of the PHS Act, 42 U.S.C. 300aa-10
A petition may be filed with respect to injuries, disabilities, illnesses, conditions, and deaths resulting from vaccines described in the Vaccine Injury Table (the Table) set forth at 42 CFR 100.3. This Table lists for each covered childhood vaccine the conditions that may lead to compensation and, for each condition, the time period for occurrence of the first symptom or manifestation of onset or of significant aggravation after vaccine administration. Compensation may also be awarded for conditions not listed in the Table and for conditions that are manifested outside the time periods specified in the Table, but only if the petitioner shows that the condition was caused by one of the listed vaccines.
Section 2112(b)(2) of the PHS Act, 42 U.S.C. 300aa-12(b)(2), requires that “[w]ithin 30 days after the Secretary receives service of any petition filed under section 2111 the Secretary shall publish notice of such petition in the
Section 2112(b)(2) also provides that the special master “shall afford all interested persons an opportunity to
1. The existence of evidence “that there is not a preponderance of the evidence that the illness, disability, injury, condition, or death described in the petition is due to factors unrelated to the administration of the vaccine described in the petition,” and
2. Any allegation in a petition that the petitioner either:
a. “[S]ustained, or had significantly aggravated, any illness, disability, injury, or condition not set forth in the Vaccine Injury Table but which was caused by” one of the vaccines referred to in the Table, or
b. “[S]ustained, or had significantly aggravated, any illness, disability, injury, or condition set forth in the Vaccine Injury Table the first symptom or manifestation of the onset or significant aggravation of which did not occur within the time period set forth in the Table but which was caused by a vaccine” referred to in the Table.
In accordance with Section 2112(b)(2), all interested persons may submit written information relevant to the issues described above in the case of the petitions listed below. Any person choosing to do so should file an original and three (3) copies of the information with the Clerk of the U.S. Court of Federal Claims at the address listed above (under the heading
Health Resources and Services Administration (HRSA), Department of Health and Human Services.
Notice of Single-Award Deviation from Competition Requirements for the National Technical Resource Center for the Newborn Hearing Screening and Intervention Program at Utah State University—Grant Number U52MC04391.
HRSA announces the award of a supplement in the amount of $460,000 for the National Technical Resource Center (NTRC) for the Newborn Hearing Screening and Intervention program cooperative agreement. The purpose of the NTRC is to promote the use of targeted and measurable interventions to increase the number of infants who are followed up for rescreening, referral, and intervention after having not passed a physiologic newborn screening examination prior to discharge from newborn nurseries. Under the authority of the Economy Act approved June 30, 1932, as amended (31 U.S.C. 1535) and Section 648(a)(1) of the Head Start Act (42 U.S.C. 9843(a)(1)), Public Law 110-134, the Administration for Children and Families (ACF) is delegating authority to HRSA to administer this grant supplement on its behalf and to obligate approximately $460,000 under an Interdepartmental Delegation of Authority (IDDA) to provide funds to the NTRC for the Newborn Hearing Screening and Intervention Program. Authorized by Section 648(a)(1) of the Improving Head Start Readiness Act (42 U.S.C. 9843(a)(1), ACF provides technical assistance and training for Head Start programs for the purpose of helping children succeed in school. In addition, the Head Start Program Performance Standard requires the Head Start program to ensure that hearing screening is provided within 45 days of the child entering the program.
The supplement, which was awarded on September 29, 2016, permits Utah State University, the cooperative agreement recipient, to improve hearing screening for children in Early Head Start and Head Start programs to ensure school readiness of enrolled children.
Sadie Silcott, MBA, MPH, Division of Services for Children with Special Health Needs, Maternal and Child Health Bureau, HRSA, 5600 Fishers Lane, Room 18W57, Rockville, Maryland 20857, Phone: (301) 443-0133, Email:
Health Resources and Services Administration, (HRSA), Department of Health and Human Services.
Notice.
In compliance with Section 3507(a)(1)(D) of the Paperwork Reduction Act of 1995, the Health Resources and Services Administration (HRSA) has submitted an Information Collection Request (ICR) to the Office of Management and Budget (OMB) for review and approval. Comments submitted during the first public review of this ICR will be provided to OMB. OMB will accept further comments from the public during the review and approval period.
Comments on this ICR should be received no later than January 3, 2017.
Submit your comments, including the Information Collection Request Title, to the desk officer for HRSA, either by email to
To request a copy of the clearance requests submitted to OMB for review, email the HRSA Information Collection Clearance Officer at
To qualify for participation in the SDS program, a school must be carrying out a program for recruiting and retaining students from disadvantaged backgrounds, including students who are members of racial and ethnic minority groups (section 737(d)(1)(B) of the PHS Act). A school must meet the eligibility criteria to demonstrate that the program has achieved success based on the number and/or percentage of students from disadvantaged backgrounds who graduate from the school. In awarding SDS funds to eligible schools, funding priority points must be given to schools based on the proportion of graduate students practicing in primary care, the proportion of underrepresented minority students, and the proportion of graduates working in medically underserved communities (section 737(c) of the PHS Act).
Information collected for the SDS application is needed by HRSA to determine whether applicant schools meet applicable requirements and establish priority points for funding. Applicant schools must complete an application for each discipline or program. Data provided includes numbers of full-time student enrollment and their racial/ethnicity data, full-time enrollment by class year of students from disadvantaged background, full-time students graduated, full-time students from disadvantaged background graduated, and full-time graduates serving in Medically Underserved Communities. Numbers of full-time graduates serving in primary care must be provided for schools of medicine, osteopathic medicine, dentistry, nursing (graduate degree program), physician assistants, dental hygiene, and mental and behavioral health.
Each school will determine the eligibility of students based on financial need and whether a student is from a disadvantaged background.
The SDS program specific form has been revised to reflect a change in the order of the fields only. Fields K (Public or Non Profit Institution) and H (Point of Contact) have been moved to fields A and B respectively. Now Field A is Public or Non Profit Institution and Field B is Point of Contact. All other fields remained in sequence and were renamed in appropriate letter order.
Health Resources and Services Administration (HRSA), Department of Health and Human Services.
Notice.
In compliance with Section 3507(a)(1)(D) of the Paperwork Reduction Act of 1995, HRSA has submitted an Information Collection Request (ICR) to the Office of Management and Budget (OMB) for review and approval. Comments submitted during the first public review of this ICR will be provided to OMB. OMB will accept further comments from the public during the review and approval period.
Comments on this ICR should be received no later than January 3, 2017.
Submit your comments, including the Information Collection Request Title, to the desk officer for HRSA, either by email to
To request a copy of the clearance requests submitted to OMB for review, email the HRSA Information Collection Clearance Officer at
This request continues a web-based data collection system, the Reviewer Recruitment Module (RRM), used to gather critical review participant information. The RRM uses standardized categories of information in drop down menu format for data such as the following: degree, specialty, occupation, work setting, and, in select instances, affiliations with organizations and institutions that serve special populations. Other demographic data may be voluntarily provided by a potential review participant. HRSA maintains a roster of approximately 6,000 qualified individuals who are willing to serve on HRSA objective review committees.
Review participants may also update their information electronically. The RRM is 508 compliant and accessible to the general public using any of the commonly used internet browsers via a link on the HRSA “Grants” internet site or by keying the RRM URL into their browser.
Fish and Wildlife Service, Interior.
Notice of receipt of applications for permit.
We, the U.S. Fish and Wildlife Service, invite the public to comment on the following applications to conduct certain activities with endangered species. With some exceptions, the Endangered Species Act (ESA) prohibit activities with listed species unless Federal authorization is acquired that allows such activities.
We must receive comments or requests for documents on or before January 3, 2017.
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When submitting comments, please indicate the name of the applicant and the PRT# you are commenting on. We will post all comments on
Brenda Tapia, (703) 358-2104 (telephone); (703) 358-2281 (fax);
Send your request for copies of applications or comments and materials concerning any of the applications to the contact listed under
Please make your requests or comments as specific as possible. Please confine your comments to issues for which we seek comments in this notice, and explain the basis for your comments. Include sufficient information with your comments to allow us to authenticate any scientific or commercial data you include.
The comments and recommendations that will be most useful and likely to influence agency decisions are: (1) Those supported by quantitative information or studies; and (2) Those that include citations to, and analyses of, the applicable laws and regulations. We will not consider or include in our administrative record comments we receive after the close of the comment period (see
Comments, including names and street addresses of respondents, will be available for public review at the street address listed under
To help us carry out our conservation responsibilities for affected species, and in consideration of section 10(a)(1)(A) of the Endangered Species Act of 1973, as amended (16 U.S.C. 1531
The applicant requests a permit to export one female captive-bred giant panda (
The applicant requests a permit to import one captive-bred snow leopard (
The applicant requests a captive-bred wildlife registration under 50 CFR 17.21(g) for the following species to enhance species propagation or survival: Asian elephant (
The applicant requests a captive-bred wildlife registration under 50 CFR
The applicant requests a permit to import a sport-hunted trophy of one male bontebok (
Bureau of Land Management, Interior.
Notice.
Notice is hereby given that the United States Department of the Interior, Bureau of Land Management (BLM) Utah State Office, will offer the Federal coal resources described below as the Greens Hollow Tract (UTU-84102) for competitive sale by sealed bid, in accordance with the Mineral Leasing Act of 1920, as amended, and the applicable implementing regulations. The sale tract is located in Sanpete and Sevier Counties, Utah. The Greens Hollow coal lease sale was originally scheduled to be held on September 22, 2016. Due to a Notice of Appeal and Petition for Stay on the BLM's Record of Decision filed with the Interior Board of Land Appeals (IBLA) by four environmental groups, BLM was required to postpone the previous lease sale. Under the Department of the Interior's regulations, when a decision is appealed to the IBLA and a stay is requested, the BLM's decision is stayed while the Board considers the stay request. On October 26, 2016, the IBLA denied the request for a stay, holding that the environmental groups failed to show a likelihood of immediate and irreparable harm resulting from BLM's decision to hold a competitive coal lease sale for the Greens Hollow tract. This notice announces a new date for the previously postponed lease sale.
The lease sale will be held at 1 p.m. Mountain Time, on January 4, 2017. Sealed bids must be sent by certified mail, return receipt requested, to the Collections Officer, BLM, Utah State Office, or be hand-delivered to the BLM public room Contact Representatives, BLM Utah State Office, at the address indicated below, and must be received on or before 10 a.m. Mountain Time, on January 4, 2017. Any bid received after the time specified will not be considered and will be returned. The BLM Contact Representatives will issue a receipt for each hand-delivered, sealed bid. The outside of the sealed envelope containing the bid must clearly state the envelope contains a bid for Coal Lease Sale UTU-84102, and is not to be opened before the date and hour of the sale.
Sealed bids must be mailed to the Collection Officer or hand-delivered to the BLM public room Contact Representative at BLM, Utah State Office, 440 West 200 South, Suite 500, Salt Lake City, Utah 84101-1345. The opening of the sealed bids will take place at the Salt Lake City Public Library, 210 East 400 South, Salt Lake City, Utah at 1 p.m. Mountain Time on January 4, 2017.
Contact Jeff McKenzie, 440 West 200 South, Suite 500 Salt Lake City, Utah 84101-1345 or telephone 801-539-4038. Persons who use a telecommunications device for the deaf (TDD) may call the Federal Relay Service (FRS) at 1-800-877-8339 to leave a message or question for the above individual. The FRS is available 24 hours a day, 7 days a week. Replies are provided during scheduled business hours.
This Competitive Coal Lease Sale is being held in response to a lease by application submitted by Ark Land Company (Ark). That application was assigned by Ark to Canyon Fuel Company, LLC, a subsidiary of Bowie Resource Partners, LLC. The assignment was effective September 1, 2013, and was approved by the BLM on July 1, 2014. The coal resources to be offered consist of all recoverable reserves available in the lands identified below. These lands are located in Sanpete and Sevier Counties, Utah, approximately 10.5 miles west of Emery, Utah, under surface lands managed by the Manti-La Sal and Fishlake National Forests. Those lands are described as follows:
The area described contains 6,175.39 acres.
The coal in the Greens Hollow Tract has one minable coal bed, which is designated as either the Upper Hiawatha or the Lower Hiawatha seam. These seams are approximately 11 feet in thickness. The coal beds contain approximately 73.4 million in-place tons of coal. However, based on BLM's assessment and mitigation proposed by the Forest Service to address subsidence impacts, the tract being offered for sale is projected to contain approximately 55.7 million tons of technically recoverable high-volatile C bituminous coal. The “as received basis” coal quality in the Upper Hiawatha coal bed is: 11,565 Btu/lb., 7.46 percent moisture, 9.81 percent ash, 36.55 percent volatile matter, 46.1 percent fixed carbon, and 0.55 percent sulfur. The “as received basis” coal quality in the Lower Hiawatha coal bed is: 11,538 Btu/lb., 7.21 percent moisture, 9.69 percent ash, 38.88 percent volatile matter, 43.85 percent fixed carbon, and 1.26 percent sulfur.
Pursuant to the applicable regulations, the Greens Hollow Tract may be leased to the qualified bidder (as established at 43 CFR subpart 3472) that submits the highest cash bonus bid that is equal to or exceeds the Fair Market Value (FMV) for the tract as determined by the authorized officer after the sale. The BLM has prepared its fair market value estimate for the tract, which has been reviewed by the Department of the Interior's Office of Valuation Services.
The Department of the Interior has established a general minimum bid of $100 per acre or fraction thereof for the tract. The minimum bid is not intended to represent the FMV, and a tract will not be sold unless the bid received
This coal lease application (UTU-84102) is not subject to case-by-case processing fees pursuant to 43 CFR 3473.2(f). However, the successful bidder must pay to the BLM the cost BLM incurs for publishing this sale notice. If there is no successful bidder, the applicant will be responsible for all publishing costs.
The required detailed statement under 43 CFR 3422.2 for the offered tract, including bidding instructions and sale procedures under 43 CFR 3422.3-2, and the terms and conditions of the proposed coal lease, is available in the BLM Public Room (Suite 500), Utah State Office, 440 West 200 South, 5th Floor, Salt Lake City, Utah 84101-1345. All case file documents and written comments submitted by the public on FMV, except those portions identified as proprietary by the author and meeting exemptions stated in the Freedom of Information Act, are available for public inspection during normal business hours in the BLM Public Room (Suite 500). The actions announced by this notice are consistent with the Department of the Interior Secretarial Order 3338, which allows for the sale and issuance of a coal lease for a pending application where the environmental analysis under the National Environmental Policy Act had been completed and a Record of Decision or Decision Record had been issued by the BLM or the applicable surface management agency prior to the issuance of the Order. Here the BLM held a public hearing and requested comments on the Environmental Impact Statement, Maximum Economic Recovery, and the FMV of the Greens Hollow Tract on May 6, 2009. The Governor of the State of Utah recommended proceeding with this lease sale on May 26, 2011.
The United States Forest Service prepared a Final Supplemental Environmental Impact Statement, and signed a Record of Decision consenting to the sale on October 5, 2015, prior to the issuance of Secretarial Order 3338.
43 CFR 3420.1
United States International Trade Commission.
Notice.
The Commission hereby gives notice that it has instituted reviews pursuant to the Tariff Act of 1930 (“the Act”), as amended, to determine whether revocation of the antidumping and countervailing duty orders on cut-to-length carbon-quality steel plate (“CTL plate”) from India, Indonesia, and Korea would be likely to lead to continuation or recurrence of material injury. Pursuant to the Act, interested parties are requested to respond to this notice by submitting the information specified below to the Commission.
Effective December 1, 2016. To be assured of consideration, the deadline for responses is January 3, 2017. Comments on the adequacy of responses may be filed with the Commission by February 13, 2017.
Mary Messer (202-205-3193), Office of Investigations, U.S. International Trade Commission, 500 E Street SW., Washington, DC 20436. Hearing-impaired persons can obtain information on this matter by contacting the Commission's TDD terminal on 202-205-1810. Persons with mobility impairments who will need special assistance in gaining access to the Commission should contact the Office of the Secretary at 202-205-2000. General information concerning the Commission may also be obtained by accessing its internet server (
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(2) The
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Former Commission employees who are seeking to appear in Commission five-year reviews are advised that they may appear in a review even if they participated personally and substantially in the corresponding underlying original investigation or an earlier review of the same underlying investigation. The Commission's designated agency ethics official has advised that a five-year review is not the same particular matter as the underlying original investigation, and a five-year review is not the same particular matter as an earlier review of the same underlying investigation for purposes of 18 U.S.C. 207, the post employment statute for Federal employees, and Commission rule 201.15(b) (19 CFR 201.15(b)), 79 FR 3246 (Jan. 17, 2014), 73 FR 24609 (May 5, 2008). Consequently, former employees are not required to seek Commission approval to appear in a review under Commission rule 19 CFR 201.15, even if the corresponding underlying original investigation or an earlier review of the same underlying investigation was pending when they were Commission employees. For further ethics advice on this matter, contact Carol McCue Verratti, Deputy Agency Ethics Official, at 202-205-3088.
No response to this request for information is required if a currently valid Office of Management and Budget (OMB) number is not displayed; the OMB number is 3117 0016/USITC No. 16-5-375, expiration date June 30, 2017. Public reporting burden for the request is estimated to average 15 hours per response. Please send comments regarding the accuracy of this burden estimate to the Office of Investigations, U.S. International Trade Commission, 500 E Street SW., Washington, DC 20436.
(1) The name and address of your firm or entity (including World Wide Web address) and name, telephone number, fax number, and Email address of the certifying official.
(2) A statement indicating whether your firm/entity is an interested party under 19 U.S.C. 1677(9) and if so, how, including whether your firm/entity is a U.S. producer of the
(3) A statement indicating whether your firm/entity is willing to participate in this proceeding by providing information requested by the Commission.
(4) A statement of the likely effects of the revocation of the antidumping and countervailing duty orders on the
(5) A list of all known and currently operating U.S. producers of the
(6) A list of all known and currently operating U.S. importers of the
(7) A list of 3-5 leading purchasers in the U.S. market for the
(8) A list of known sources of information on national or regional prices for the
(9) If you are a U.S. producer of the
(a) Production (quantity) and, if known, an estimate of the percentage of total U.S. production of the
(b) Capacity (quantity) of your firm to produce the
(c) the quantity and value of U.S. commercial shipments of the
(d) the quantity and value of U.S. internal consumption/company transfers of the
(e) the value of (i) net sales, (ii) cost of goods sold (COGS), (iii) gross profit, (iv) selling, general and administrative (SG&A) expenses, and (v) operating income of the
(10) If you are a U.S. importer or a trade/business association of U.S. importers of the
(a) The quantity and value (landed, duty-paid but not including antidumping or countervailing duties) of U.S. imports and, if known, an estimate of the percentage of total U.S. imports of
(b) the quantity and value (f.o.b. U.S. port, including antidumping and/or countervailing duties) of U.S. commercial shipments of
(c) the quantity and value (f.o.b. U.S. port, including antidumping and/or countervailing duties) of U.S. internal consumption/company transfers of
(11) If you are a producer, an exporter, or a trade/business association of producers or exporters of the
(a) Production (quantity) and, if known, an estimate of the percentage of total production of
(b) Capacity (quantity) of your firm(s) to produce the
(c) the quantity and value of your firm's(s') exports to the United States of
(12) Identify significant changes, if any, in the supply and demand conditions or business cycle for the
(13) (OPTIONAL) A statement of whether you agree with the above definitions of the
This proceeding is being conducted under authority of title VII of the Tariff Act of 1930; this notice is published pursuant to section 207.61 of the Commission's rules.
By order of the Commission.
United States International Trade Commission.
Notice.
The Commission hereby gives notice that it has instituted a review pursuant to the Tariff Act of 1930 (“the Act”), as amended, to determine whether revocation of the antidumping duty order on stainless steel wire rod from India would be likely to lead to continuation or recurrence of material injury. Pursuant to the Act, interested parties are requested to respond to this notice by submitting the information specified below to the Commission.
Effective December 1, 2016. To be assured of consideration, the deadline for responses is January 3, 2017. Comments on the adequacy of responses may be filed with the Commission by February 13, 2017.
Mary Messer (202-205-3193), Office of Investigations, U.S. International Trade Commission, 500 E Street SW., Washington, DC 20436. Hearing-impaired persons can obtain information on this matter by contacting the Commission's TDD terminal on 202-205-1810. Persons with mobility impairments who will need special assistance in gaining access to the Commission should contact the Office of the Secretary at 202-205-2000. General information concerning the Commission may also be obtained by accessing its internet server (
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(2) The
(3) The
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Former Commission employees who are seeking to appear in Commission five-year reviews are advised that they may appear in a review even if they participated personally and substantially in the corresponding underlying original investigation or an earlier review of the same underlying investigation. The Commission's designated agency ethics official has advised that a five-year review is not the same particular matter as the underlying original investigation, and a five-year review is not the same particular matter as an earlier review of the same underlying investigation for purposes of 18 U.S.C. 207, the post employment statute for Federal employees, and Commission rule 201.15(b) (19 CFR 201.15(b)), 79 FR 3246 (Jan. 17, 2014), 73 FR 24609 (May 5, 2008). Consequently, former employees are not required to seek Commission approval to appear in a review under Commission rule 19 CFR 201.15, even if the corresponding underlying original investigation or an earlier review of the same underlying investigation was pending when they were Commission employees. For further ethics advice on
No response to this request for information is required if a currently valid Office of Management and Budget (OMB) number is not displayed; the OMB number is 3117 0016/USITC No. 16-5-374, expiration date June 30, 2017. Public reporting burden for the request is estimated to average 15 hours per response. Please send comments regarding the accuracy of this burden estimate to the Office of Investigations, U.S. International Trade Commission, 500 E Street SW., Washington, DC 20436.
(1) The name and address of your firm or entity (including World Wide Web address) and name, telephone number, fax number, and Email address of the certifying official.
(2) A statement indicating whether your firm/entity is an interested party under 19 U.S.C. 1677(9) and if so, how, including whether your firm/entity is a U.S. producer of the
(3) A statement indicating whether your firm/entity is willing to participate in this proceeding by providing information requested by the Commission.
(4) A statement of the likely effects of the revocation of the antidumping duty order on the
(5) A list of all known and currently operating U.S. producers of the
(6) A list of all known and currently operating U.S. importers of the
(7) A list of 3-5 leading purchasers in the U.S. market for the
(8) A list of known sources of information on national or regional prices for the
(9) If you are a U.S. producer of the
(a) Production (quantity) and, if known, an estimate of the percentage of total U.S. production of the
(b) Capacity (quantity) of your firm to produce the
(c) the quantity and value of U.S. commercial shipments of the
(d) the quantity and value of U.S. internal consumption/company transfers of the
(e) the value of (i) net sales, (ii) cost of goods sold (COGS), (iii) gross profit, (iv) selling, general and administrative (SG&A) expenses, and (v) operating income of the
(10) If you are a U.S. importer or a trade/business association of U.S. importers of the
(a) The quantity and value (landed, duty-paid but not including antidumping duties) of U.S. imports and, if known, an estimate of the percentage of total U.S. imports of
(b) the quantity and value (f.o.b. U.S. port, including antidumping duties) of U.S. commercial shipments of
(c) the quantity and value (f.o.b. U.S. port, including antidumping duties) of U.S. internal consumption/company transfers of
(11) If you are a producer, an exporter, or a trade/business association of producers or exporters of the
(a) Production (quantity) and, if known, an estimate of the percentage of total production of
(b) Capacity (quantity) of your firm(s) to produce the
(c) the quantity and value of your firm's(s') exports to the United States of
(12) Identify significant changes, if any, in the supply and demand conditions or business cycle for the
(13) (OPTIONAL) A statement of whether you agree with the above definitions of the
This proceeding is being conducted under authority of title VII of the Tariff Act of 1930; this notice is published pursuant to section 207.61 of the Commission's rules.
By order of the Commission.
The Foreign Claims Settlement Commission, pursuant to its regulations (45 CFR part 503.25) and the Government in the Sunshine Act (5 U.S.C. 552b), hereby gives notice in regard to the scheduling of open meetings as follows:
All meetings are held at the Foreign Claims Settlement Commission, 600 E Street NW., Washington, DC. Requests for information, or advance notices of intention to observe an open meeting, may be directed to: Patricia M. Hall, Foreign Claims Settlement Commission, 600 E Street NW., Suite 6002, Washington, DC 20579. Telephone: (202) 616-6975.
Notice.
Under 44 U.S.C. 3506(e) and 44 U.S.C. 3501, the Department of Labor
These revisions become effective upon publication of this notice in the
Questions about this notice should be addressed to Michel Smyth by telephone at 202-693-4129 (this is not a toll-free number); by email at
Michel Smyth at (202)693-4129 (this is not a toll-free number) or by email at
Federal statistics provide key information that the Nation uses to measure its performance and make informed choices about budgets, employment, health, investments, taxes, and a host of other significant topics. The overwhelming majority of Federal surveys are conducted on a voluntary basis. Respondents, ranging from businesses to households to institutions, may choose whether to provide the requested information. Many of the most valuable Federal statistics come from surveys that ask for highly sensitive information such as proprietary business data from companies or particularly personal information or practices from individuals. Strong and trusted confidentiality and exclusively statistical use pledges under the CIPSEA and similar statistical confidentiality pledges are effective and necessary in honoring the trust that businesses, individuals, and institutions, by their responses, place in statistical agencies.
Under the CIPSEA and similar statistical confidentiality protection statutes, many Federal statistical agencies make statutory pledges that the information respondents provide will be seen only by statistical agency personnel or their sworn agents, and will be used only for statistical purposes. The CIPSEA and similar statutes protect the confidentiality of information that agencies collect solely for statistical purposes and under a pledge of confidentiality. These Acts protect such statistical information from administrative, law enforcement, taxation, regulatory, or any other non-statistical use and immunize the information submitted to statistical agencies from many legal processes. Moreover, statutes like the CIPSEA carry criminal penalties of a Class E felony (fines up to $250,000, or up to five years in prison, or both) for conviction of a knowing and willful unauthorized disclosure of covered information.
As part of the Consolidated Appropriations Act for Fiscal Year 2016 signed on December 17, 2015, the Congress enacted the Federal Cybersecurity Enhancement Act of 2015 (H.R. 2029, Division N, Title II, Subtitle B, Sec. 223). This Act, among other provisions, requires the DHS to provide Federal civilian agencies' information technology systems with cybersecurity protection for their Internet traffic. The DHS cybersecurity program's objective is to protect Federal civilian information systems from malicious malware attacks. The Federal statistical system's objective is to ensure that the DHS Secretary performs those essential duties in a manner that honors the Government's statutory promises to the public to protect their confidential data. Given that the DHS is not a Federal statistical agency, both DHS and the Federal statistical system have been successfully engaged in finding a way to balance both objectives and achieve these mutually reinforcing objectives.
As required by passage of the Federal Cybersecurity Enhancement Act of 2015, the Federal statistical community will implement DHS' cybersecurity protection program, called Einstein.
The technology currently used to provide this protection against cyber malware electronically searches Internet traffic in and out of Federal civilian agencies in real time for malware signatures. When such a signature is found, the Internet packets that contain the malware signature are shunted aside for further inspection by DHS personnel. Because it is possible that such packets entering or leaving a statistical agency's information technology system may contain confidential statistical data, statistical agencies can no longer promise their respondents that their responses will be seen only by statistical agency personnel or their sworn agents. However, they can promise, in accordance with provisions of the Federal Cybersecurity Enhancement Act of 2015, that such monitoring can be used only to protect information and information systems from cybersecurity risks, thereby, in effect, providing stronger protection to the security and integrity of the respondents' submissions.
Accordingly, DHS and Federal statistical agencies, in cooperation with their parent Departments, have developed a Memorandum of Agreement for the installation of Einstein cybersecurity protection technology to monitor their Internet traffic.
The DOL is providing this notice to alert the public in an efficient and coordinated fashion that it is revising its confidentiality pledge. Below is a listing of the current numbers and information collection titles for those BLS programs whose confidentiality pledges will change to reflect the statutory implementation of DHS' Einstein monitoring for cybersecurity protection purposes.
For the Information Collections listed in the table below, BLS statistical confidentiality pledges will be modified to include the following sentence, “
Nuclear Regulatory Commission.
Draft environmental assessment and draft finding of no significant impact; request for comment.
The U.S. Nuclear Regulatory Commission (NRC) is considering issuance of amendments to Renewed Facility Operating License Nos. DPR-33, DPR-52, and DPR-68 issued to Tennessee Valley Authority (TVA, the licensee) for operation of Browns Ferry Nuclear Plant, Units 1, 2, and 3 (BFN) located in Limestone County, Alabama. The proposed amendments would increase the maximum licensed thermal power level for each reactor from 3,458 megawatts thermal (MWt) to 3,952 MWt. This change, referred to as an extended power uprate (EPU), represents an increase of approximately 14.3 percent above the current licensed thermal power limit. The NRC is issuing a draft environmental assessment (EA) and draft finding of no significant impact (FONSI) for public comment associated with the proposed EPU.
Submit comments by January 3, 2017. The NRC can only ensure that its staff considers comments received on or before this date. Comments received after this date will be considered if it is practicable to do so.
You may submit comments by any of the following methods (unless this document describes a different method for submitting comments on a specific subject):
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For additional direction on obtaining information and submitting comments, see “Obtaining Information and Submitting Comments” in the
Siva P. Lingam, telephone: 301-415-1564; email:
Please refer to Docket ID NRC-2016-0244 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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Please include Docket ID NRC-2016-0244 in the subject line of your comment submission, in order to ensure that the NRC is able to make your comment submission available to the public in this docket.
The NRC cautions you not to include identifying or contact information that you do not want to be publicly disclosed in your comment submission. The NRC posts all comment submissions at
If you are requesting or aggregating comments from other persons for submission to the NRC, then you should inform those persons not to include identifying or contact information that they do not want to be publicly disclosed in their comment submission. Your request should state that the NRC does not routinely edit comment submissions to remove such information before making the comment submissions available to the public or entering the comment submissions into ADAMS.
The NRC is considering issuance of amendments to Renewed Facility Operating License Nos. DPR-33, DPR-52, and DPR-68 issued to TVA for operation of BFN located in Limestone County, Alabama. The licensee submitted its license amendment request in accordance with section 50.90 of title 10 of the
The BFN site encompasses 840 acres (ac) (340 hectares (ha)) of Federally owned land that is under the custody of TVA in Limestone County, Alabama. The site lies on the north shore of Wheeler Reservoir at Tennessee River Mile (TRM) 294 and is situated approximately 10 miles (mi) (16 kilometers [km]) south of Athens, Alabama, 10 mi (16 km) northwest of Decatur, Alabama, and 30 mi (48 km) west of Huntsville, Alabama.
Each of BFN's three nuclear units is a General Electric boiling-water reactor that produces steam to turn turbine to generate electricity. The BFN uses a once-through (open-cycle) condenser circulating water system with seven helper cooling towers to dissipate waste heat. Four of the original six cooling towers that serve BFN have undergone replacement, and TVA plans to replace the remaining two towers in fiscal years 2018 and 2019. Additionally, TVA constructed a seventh cooling tower in May 2012 (TVA 2016a).
Wheeler Reservoir serves as the source of water for condenser cooling and for most of BFN's auxiliary water systems. Pumps and related equipment to supply water to plant systems are housed in BFN's intake structure on Wheeler Reservoir. The reservoir is formed by Wheeler Dam, which is owned and operated by TVA, and it extends from Guntersville Dam at TRM 349.0 downstream to Wheeler Dam at TRM 274.9. Wheeler Reservoir has an area of 67,070 ac (27,140 ha) and a volume of 1,050,000 acre-feet (1,233 cubic meters) at its normal summer pool elevation of 556 feet (ft) (169 meters (m)) above mean sea level (TVA 2016a).
The Alabama Department of Environmental Management (ADEM) establishes beneficial uses of waters of the State and has classified the majority of the reservoir for use as a public water supply, for recreational use, and as a fish and wildlife resource. The reservoir is currently included on the State of Alabama's Federal Water Pollution Control Act (
The BFN intake structure draws water from Wheeler Reservoir at TRM 294.3. The intake forebay includes a 20-feet (6-meters)-high gate structure that can be raised or lowered depending on the operational requirements of the plant. The flow velocity through the openings varies depending on the gate position. When the gates are in a full open position and the plant is operating in either open or helper modes, the average flow velocity through the openings is about 0.2 meters per second (m/s) (0.6 feet per second (fps)) for the operation of one unit, 0.34m/s (1.1 fps) for the operation of two units, and 0.52 m/s (1.7 fps) for the operation of all three units assuming a water withdrawal rate of approximately 734,000 gallons per minute (gpm) (46.3 cubic meters per second (m
The licensee maintains a Certificate of Use (Certificate No. 1058.0, issued December 5, 2005) for its surface water withdrawals. The Alabama Department of Economic and Community Affairs, Office of Water Resources issues this certificate to register large water users (
Once withdrawn water has passed through the condensers for cooling, it is discharged back to Wheeler Reservoir via three large submerged diffuser pipes. The pipes range in diameter from 5.2 to 6.2 m (17 to 20.5 ft) and are perforated to maximize mixing into the water column. Water exits the pipes through 7,800 individual 5-centimeter (2-inch) ports. This straight-through flow path is called “open mode.” As originally designed, the maximum thermal discharge back to the reservoir from the once-through condenser circulating water system operated in open mode is 25 °F (13.9 °C) above the intake temperature (NRC 2005). Some of the heated water can also be directed through cooling towers to reduce its temperature, as necessary to comply with State environmental regulations and BFN's ADEM-issued National Pollutant Discharge Elimination System (NPDES) Permit No. AL0022080 (ADEM 2012), in what is called “helper mode.” The plant design also allows for a closed mode of operation in which water from the cooling towers is recycled directly back to the intake structure without discharge to the reservoir. However, TVA has not used this mode for many years due to the difficulty in maintaining temperature limits in the summer months (NRC 2005).
To operate BFN, TVA must comply with the CWA, including associated requirements imposed by the State as part of the NPDES permitting system under CWA Section 402. The BFN NPDES permit (ADEM 2012) specifies that at the downstream end of the mixing zone, which lies 2,400 ft (732 m) downstream of the diffusers, operation of the plant shall not cause the:
• Measured 1-hour average temperature to exceed 93 °F (33.9 °C),
• measured daily average temperature to exceed 90 °F (32.2 °C), or
• measured daily average temperature rise relative to ambient to exceed 10 °F (5.6 °C).
In cases where the daily average ambient temperature of the Tennessee River as measured 3.8 mi (6.1 km) upstream of BFN exceeds 90 °F (32.2 °C), the daily average downstream temperature may equal, but not exceed, the upstream value. In connection with such a scenario, if the daily average upstream ambient river temperature begins to cool at a rate of 0.5 °F (0.3 °C) or more per day, the downstream temperature is allowed to exceed the upstream value for that day.
When plant operating conditions create a river temperature approaching one of the NPDES limits specified in the preceding paragraphs, TVA shifts BFN from open mode to helper mode. The three units can be placed in helper mode individually or collectively. Thus, the amount of water diverted to the cooling towers in helper mode depends on the amount of cooling needed for the plant to remain in compliance with the NPDES permit limits. If helper mode operation is not sufficient to avoid the river temperature approaching the NPDES permit limits, TVA reduces (
The licensee performed hydrothermal modeling to compare the impacts of BFN operations at the current licensed thermal power level (
The BFN site, plant operations, and environs are described in greater detail in Chapter 2 of NRC's June 2005 NUREG-1437, Supplement 21, Generic Environmental Impact Statement for License Renewal of Nuclear Plants: Regarding Browns Ferry Nuclear Plant, Units 1, 2, and 3—Final Report (herein referred to as “BFN FSEIS”) (NRC 2005). Updated information that pertains to the plant site and environs and that is relevant to the assessment of the environmental impacts of the proposed EPU is included throughout this draft EA, as appropriate.
The BFN units were originally licensed to operate in 1973 (Unit 1), 1974 (Unit 2), and 1976 (Unit 3) at 3,293 MWt per unit. In 1997, TVA submitted a license amendment request to the NRC for a stretch power uprate (SPU) to increase the thermal output of Units 2 and 3 by 5 percent (to 3,458 MWt per unit). The NRC prepared an EA and FONSI for the SPU, which was published in the FR on September 1, 1998 (NRC 1998, 63 FR 46491), and NRC subsequently issued the amendments later that month.
In June 2004, TVA submitted license amendment requests for uprates at all three units (TVA 2004a, 2004b). The licensee requested a 15 percent EPU at Units 2 and 3 and a 20 percent EPU at Unit 1 such that if the proposed EPU was granted, each unit would operate at 3,952 MWt (120 percent of the original licensed power level). In September 2006, TVA submitted a supplement to the EPU application that requested interim operation of Unit 1 at 3,458 MWt (the Units 2 and 3 SPU power level) (TVA 2006). The NRC prepared a draft EA and FONSI, which were published for public comment in the FR on November 6, 2006 (NRC 2006b, 71 FR 65009). The draft EA and FONSI addressed the impacts of operating all three BFN units at EPU levels. The NRC received comments from TVA and the U.S. Fish and Wildlife Service (FWS), which the staff addressed in the NRC's final EA and FONSI dated February 12, 2007 (NRC 2007a, 72 FR 6612). The NRC issued an amendment approving the SPU for Unit 1 in March 2007 (NRC 2007b); the staff's 2007 final EPU EA was used to support the SPU. Subsequently, in September 2014, TVA withdrew the 2004 EPU license amendment requests and stated that it would submit a new, consolidated EPU request by October 2015 (TVA 2014).
Separately, on May 4, 2006, the NRC approved TVA's application for renewal of the BFN operating licenses for an additional 20-year period (NRC 2006a). As part of its environmental review of the license renewal application, the NRC issued the BFN FSEIS (NRC 2005). In the BFN FSEIS, the NRC staff analyzed the environmental impacts of license renewal, the environmental impacts of alternatives to license renewal, and mitigation measures available for reducing or avoiding any adverse impacts. Although the NRC did not evaluate impacts associated specifically with the then-pending EPU in the BFN FSEIS, it performed an evaluation of the impacts of license renewal assuming that all three BFN units would operate at the EPU level of 3,952 MWt during the 20-year period of extended operations.
The proposed action is the NRC's issuance of amendments to the BFN operating licenses that would increase the maximum licensed thermal power level for each reactor from 3,458 MWt to 3,952 MWt. This change, referred to as an EPU, represents an increase of approximately 14.3 percent above the current licensed thermal power level and would result in BFN operating at 120 percent of the original licensed thermal power level (3,293 MWt). The proposed action is in accordance with TVA's application dated September 21, 2015 (TVA 2015a) as supplemented by letters, which affected the EA, dated November 13, 2015 (TVA 2015b), December 15, 2015 (TVA 2015c), December 18, 2015 (TVA 2015d), April 22, 2016 (TVA 2016b), and May 27, 2016 (TVA 2016c).
An EPU usually requires significant modifications to major balance-of-plant equipment. The proposed EPU for BFN would require the modifications described in Attachment 47 to the licensee's application entitled “List and Status of Plant Modifications, Revision 1” (TVA 2016e), which include replacement of the steam dryers, replacement of the high pressure turbine rotors, replacement of reactor feedwater pumps, installation of higher capacity condensate booster pumps and motors, modifications to the condensate demineralizer system, modifications to the feedwater heaters, and upgrade of miscellaneous instrumentation, setpoint changes, and software modifications.
All onsite modifications associated with the proposed action would be within the existing structures, buildings, and fenced equipment yards. All deliveries of materials to support EPU-related modifications and upgrades would be by truck, and equipment and materials would be temporarily stored in existing storage buildings and laydown areas. The licensee anticipates no changes in existing onsite land uses
According to TVA's current schedule, modifications and upgrades related to the proposed EPU would be completed at Unit 1 during the fall 2018 refueling outage, at Unit 2 during the spring 2019 outage, and at Unit 3 during the spring 2018 outage. If the NRC approves the proposed EPU, TVA would begin operating each unit at the uprated power level following these outages.
Operating BFN at the EPU power level of 3,952 MWt per unit would increase the heat generated by the plant's steam turbines, which would in turn increase the amount of waste heat that must be dissipated. The licensee would increase its use of the cooling towers (
The licensee simulated possible future discharge scenarios under EPU conditions using river flows and meteorological data for the 6-year period 2007 through 2012. This period included the warmest summer of record (2010) as well as periods of extreme drought conditions (2007 and 2008). For years with warm summers, TVA predicts that the temperature of water exiting the diffusers and entering Wheeler Reservoir (assuming all BFN units are operating at the full EPU power level) would be 2.6 °F (1.4 °C) warmer on average than current operations. The river temperature at the NPDES compliance depth at the downstream end of the mixing zone would be 0.6 °F (0.3 °C) warmer on average. The licensee predicts that it would operate the cooling towers in helper mode an additional 22 days per year on average (88 days total) and that the most extreme years could result in an additional 39 days per year of cooling tower helper mode operation (121 days total).
The EPU would require several upgrades to the transmission system and the BFN main generator excitation system to ensure transmission system stability at EPU power levels. The licensee performed a Revised Interconnection System Impact Study in May 2016, which determined that the EPU would require the following transmission upgrades: (1) Replacement of six 500-kilovolt (kV) breaker failure relays, (2) installation of 764 megavolt-ampere reactive (MVAR) capacitor banks in five locations throughout TVA transmission system, and (3) modification of the excitation system of all three BFN main generators (TVA 2016c). These upgrades are described in more detail as follows.
The licensee would replace the 500-kV breaker failure relays at BFN for breakers 5204, 5208, 5254, 5258, 5274, and 5278 to mitigate potential transmission system issues resulting from specific fault events on the transmission system. The relays are located in panels in the relay room inside the BFN control building, and physical work would be limited to this area. TVA would complete the breaker failure relay replacements prior to spring 2018 (TVA 2016c, 2016e).
The licensee would install 764 MVAR capacitor banks in five locations throughout TVA service area to address MVAR deficiencies associated with the additional power generation that would occur at EPU power levels. The proposed locations are the Clayton Village 161-kV Substation in Oktibbeha County, Mississippi; Holly Springs 161-kV Substation in Marshall County, Mississippi; Corinth 161-kV Substation in Alcorn County, Mississippi; East Point 161-kV Substation in Cullman County, Alabama; and Wilson 500-kV Substation in Wilson County, Tennessee. Two of the five capacitor bank installations (Clayton Village and East Point substations) would be within existing substation boundaries, while three installations (Holly Springs, Corinth, and Wilson substations) would require expansion of the existing substation footprint and additional grading and clearing. The licensee expects to purchase approximately 2.5 ac (1 ha) of land and disturb 2.25 ac (0.9 ha) of land for the Holly Springs Substation expansion. For the Corinth Substation expansion, TVA would purchase 3.5 ac (1.4 ha) of land and disturb 3 ac (1.2 ha) of land. For the Wilson Substation expansion, TVA owns the land that would be required for expansion, and TVA anticipates disturbing a total of 5 ac (2 ha). The licensee would complete the MVAR capacitor bank installations by spring 2019, although TVA's transmission system operator does not preclude BFN from operating at EPU levels during the capacitor bank installations (TVA 2016c, 2016e).
The licensee would replace the BFN main generator Alterrex excitation system with a bus-fed static excitation system consisting of a 3-phase power potential transformer, an automatic voltage regulator, and a power section. Physical work to complete these modifications would be performed within existing BFN structures and would not involve any previously undisturbed land. The licensee is in the preliminary phase of the design change notice development for these modifications; therefore, TVA has not yet developed a specific timeline for implementation of the main generator excitation system modifications. However, TVA projects that these upgrades would be completed by 2020 (Unit 1), 2023 (Unit 2), and 2024 (Unit 3) (TVA 2016c, 2016e).
As stated by the licensee in its application, the proposed action would allow TVA to meet the increasing power demand forecasted in TVA service area. The licensee estimates that energy consumption in this area will increase at a compound annual growth rate of 1.2 percent until 2020 with additional moderate growth continuing after 2020.
This section addresses the radiological and non-radiological impacts of the proposed EPU. Separate from this EA, the NRC staff is evaluating the potential radiological consequences of an accident that may result from the proposed action. The results of the NRC staff's safety analysis will be documented in a safety evaluation, which will be issued with the license amendment package approving the license amendment, if granted.
The BFN's waste treatment systems collect, process, recycle, and dispose of gaseous, liquid, and solid wastes that contain radioactive material in a safe
The Gaseous Waste Management System manages radioactive gases generated during the nuclear fission process. Radioactive gaseous wastes are principally activation gases and fission product radioactive noble gases resulting from process operations. The licensee's evaluation submitted as part of TVA's EPU application determined that implementation of the proposed EPU would not significantly increase the inventory of carrier gases normally processed in the Gaseous Waste Management System since plant system functions are not changing and the volume inputs remain the same. The analysis showed that the proposed EPU would result in an increase in radioiodines of approximately 5 percent and particulates by approximately 13 percent. The expected increase in tritium is linear with the proposed power level increase and is, therefore, estimated to increase by 14.3 percent (TVA 2016a).
The licensee's evaluation (TVA 2016a) concluded that the proposed EPU would not change the radioactive gaseous waste system's design function and reliability to safely control and process waste. The projected gaseous release following implementation of the EPU would remain bounded by the values given in the BFN FSEIS. The existing equipment and plant procedures that control radioactive releases to the environment would continue to be used to maintain radioactive gaseous releases within the dose limits of 10 CFR 20.1302 and the as low as is reasonably achievable (ALARA) dose objectives in Appendix I to 10 CFR part 50. Therefore, the NRC staff concludes that the increase in offsite dose due to gaseous effluent release following implementation of the EPU would not be significant.
The Liquid Waste Management System collects, processes, and prepares radioactive liquid waste for disposal. During normal operation, the liquid effluent treatment systems process and control the release of liquid radioactive effluents to the environment such that the doses to individuals offsite are maintained within the limits of 10 CFR part 20 and 10 CFR part 50, appendix I. The Liquid Waste Management System is designed to process the waste and then recycle it within the plant as condensate, reprocess it through the radioactive waste system for further purification, or discharge it to the environment as liquid radioactive waste effluent in accordance with State and Federal regulations. The licensee's evaluation shows that implementation of the proposed EPU would increase the volume of liquid waste effluents by approximately 3.44 percent due to increased flow in the condensate demineralizers requiring more frequent backwashes. The current Liquid Waste Management System would be able to process the 3.44 percent increase in the total volume of liquid radioactive waste without any modifications. The licensee's evaluation determined that implementation of the proposed EPU would result in an increase in reactor coolant inventory of radioiodines of approximately 5 percent and an increase in radionuclides with long half-lives of approximately 13 percent. The expected increase in tritium is linear with the proposed power level increase and is, therefore, estimated to increase by 15 percent (TVA 2016a).
Since the composition of the radioactive material in the waste and the volume of radioactive material processed through the system are not expected to significantly change, the current design and operation of the Liquid Waste Management System would accommodate the effects of the proposed EPU. The projected liquid effluent release following the EPU would remain bounded by the values given in the BFN FSEIS. The existing equipment and plant procedures that control radioactive releases to the environment would continue to be used to maintain radioactive liquid releases within the dose limits of 10 CFR 20.1302 and ALARA dose standards in appendix I to 10 CFR part 50. Therefore, the NRC staff concludes that there would not be a significant environmental impact from the additional volume of liquid radioactive waste generated following EPU implementation.
Radioactive solid wastes at BFN include solids from reactor coolant systems, solids in contact with liquids or gases from reactor coolant systems, and solids used in support of reactor coolant systems operation. The licensee evaluated the potential effects of the proposed EPU on the Solid Waste Management System. The low-level radioactive waste (LLRW) consists of resins, filters and evaporator bottoms, dry active waste, irradiated components, and other waste (combined packages). The majority of BFN solid LLRW is shipped offsite as dry active waste. This LLRW is generated from outages, special projects and normal BFN operations. Normal operations at BFN are also a contributor to solid LLRW shipments due to system cleanup activities. This is due to resins from six waste phase separators and three reactor water cleanup phase separators. The licensee states (TVA 2016a) that BFN has approximately 29 spent resin shipments per year. The licensee's evaluation determined that implementation of the proposed EPU would result in an increase in activity of the solid wastes proportionate to an increase of 5 to 13 percent in the activity of long-lived radionuclides in the reactor coolant. The results of the licensee's evaluation also determined that the proposed EPU would result in a 15 percent increase in the total volume of solid waste generated for shipment offsite.
Since the composition and volume of the radioactive material in the solid wastes are not expected to significantly change, they can be handled by the current Solid Waste Management System without modification. The equipment is designed and operated to process the waste into a form that minimizes potential harm to the workers and the environment. Waste processing areas are monitored for radiation, and there are safety features to ensure worker doses are maintained within regulatory limits. The proposed EPU would not generate a new type of waste or create a new waste stream. Therefore, the NRC staff concludes that the impact from the proposed EPU on the management of radioactive solid waste would not be significant.
The licensee states (TVA 2016a) that in-plant radiation sources are expected to increase approximately linearly with the proposed increase in core power level of 14.3 percent. To protect the workers, the BFN Radiation Protection Program monitors radiation levels throughout the plant to establish appropriate work controls, training, temporary shielding, and protective equipment requirements to minimize worker doses.
Plant shielding is designed to provide for personnel access to the plant to perform maintenance and carry out operational duties with minimal personnel exposures. In-plant radiation levels and associated doses are
Based on the preceding paragraphs, the NRC staff concludes that the proposed EPU is not expected to significantly affect radiation levels within BFN and, therefore, there would not be a significant radiological impact to the workers.
The primary sources of offsite dose to members of the public from BFN are radioactive gaseous, liquid effluents, and skyshine from Nitrogen-16 (N-16). As previously discussed, operation under proposed EPU conditions would not change the radioactive waste management systems' abilities to perform their intended functions. Also, there would be no change to the radiation monitoring system and procedures used to control the release of radioactive effluents in accordance with NRC radiation protection standards in 10 CFR part 20 and appendix I to 10 CFR part 50.
The licensee states (TVA 2016a) that the contribution of radiation shine from the implementation of the proposed EPU from N-16 would increase linearly with the EPU. The licensee estimates that this increase could result in offsite doses up to 32 percent greater than current operating levels. However, since current offsite doses due to N-16 skyshine are on average less than 1 millirem, doses would still be well within the 10 CFR 20.1301 and 40 CFR part 190 dose limits to members of the public following implementation of the proposed EPU. Further, any increase in radiation would be monitored at the on-site environmental thermoluminescent dosimeter stations at BFN to make sure offsite doses would remain in regulatory compliance (TVA 2016a).
Based on the preceding paragraphs, the NRC staff concludes that the impact of offsite radiation dose to members of the public at EPU conditions would continue to be within the NRC and EPA regulatory limits and would not be significant.
Spent fuel from BFN is stored in the plant's spent fuel pool and in dry casks in the independent spent fuel storage installation (ISFSI). The licensee estimates that the impact on spent fuel storage from operating at EPU conditions would increase the number of dry storage casks necessary for storage by approximately 19 percent. The licensee also states that the current ISFSI storage pad is projected to be filled on or before 2022 prior to being loaded with EPU fuel. An additional storage pad is anticipated to be required even if no EPU is approved. Since BFN's initial ISFSI plans included sufficient room for any necessary ISFSI expansion, the additional dry casks necessary for spent fuel storage at EPU levels can be accommodated on site and, therefore, would not have any significant environmental impact (TVA 2016a).
Approval of the proposed EPU would not increase the maximum fuel enrichment above 5 percent by weight uranium-235. The average fuel assembly discharge burnup for the proposed EPU is not expected to exceed the maximum fuel rod burnup limit of 62,000 megawatt days per metric ton of uranium. The licensee's fuel reload design goals would maintain the fuel cycles within the limits bounded by the impacts analyzed in 10 CFR part 51, Table S-3, “Table of Uranium Fuel Cycle Environmental Data,” and Table S-4, “Environmental Impact of Transportation of Fuel and Waste to and from One Light Water-Cooled Nuclear Power Reactor,” as supplemented by the findings documented in Section 6.3, “Transportation,” Table 9.1, “Summary of findings on NEPA [National Environmental Policy Act] issues for license renewal of nuclear power plants” in NRC (1999). Therefore, the NRC staff concludes that the environmental impacts of the EPU would remain bounded by the impacts in Tables S-3 and S-4, and would not be significant.
As a result of implementation of the proposed EPU, there would be an increase in the source term used in the evaluation of some of the postulated accidents in the BFN FSEIS. The inventory of radionuclides in the reactor core is dependent upon power level; therefore, the core inventory of radionuclides could increase by as much as 14.3 percent. The concentration of radionuclides in the reactor coolant may also increase by as much as 14.3 percent; however, this concentration is limited by the BFN Technical Specifications. Therefore, the reactor coolant concentration of radionuclides would not be expected to increase significantly. This coolant concentration is part of the source term considered in some of the postulated accident analyses. Some of the radioactive waste streams and storage systems evaluated for postulated accidents may contain slightly higher quantities of radionuclides (TVA 2016a).
In 2002, TVA requested a license amendment to allow the use of Alternate Source Term (AST) methodology for design basis accident analyses for BFN. The licensee conducted full-scope AST analyses, which considered the core isotopic values for the current and future vendor products under EPU conditions. The licensee concluded that the calculated post-accident offsite doses for the EPU using AST methodologies meet all the applicable acceptance criteria of 10 CFR 50.67 and the NRC Regulatory Guide 1.183, “Alternative Radiological Source Terms for Evaluating Design Basis Accidents at Nuclear Power Reactors” (NRC 2000). The NRC staff is reviewing the licensee's analyses and performing confirmatory calculations to verify the acceptability of the licensee's calculated doses under accident conditions. The results of the NRC staff's calculations will be presented in the safety evaluation to be issued with the license amendment, if approved, and the EPU would not be approved by NRC unless the NRC staff's independent review of dose calculations under postulated accident conditions determines that dose is within regulatory limits. Therefore, the NRC staff concludes that the EPU would not significantly increase the consequences of accidents and would not result in a significant increase in the radiological environmental impact of BFN from postulated accidents.
The proposed EPU would not significantly increase the consequences of accidents, would not result in a significant increase in occupational or public radiation exposure, and would not result in significant additional fuel cycle environmental impacts. Accordingly, the NRC staff concludes that there would be no significant radiological environmental impacts associated with the proposed action.
The potential impacts associated with land use for the proposed action include
The onsite plant modifications and upgrades would occur within existing structures, buildings, and fenced equipment yards and would use existing parking lots, road access, lay-down areas, offices, workshops, warehouses, and restrooms in previously developed areas of the BFN site. Thus, existing onsite land uses would not be affected by onsite plant modifications and upgrades (TVA 2016a).
Regarding transmission system upgrades, the breaker failure relay replacements and BFN main generator excitation system modifications would occur within existing BFN structures and would not involve any previously undisturbed land. The MVAR capacitor bank installations would occur at five offsite locations throughout TVA service area as described previously. Two of the capacitor bank installations would be within existing substation boundaries and would, therefore, not affect any previously undisturbed land or alter existing land uses (TVA 2016d). The remaining three capacitor bank installations would require expansion of the existing substation footprints and would require additional grading and clearing (TVA 2016d). TVA expects that the expansions would disturb 2.25 ac (0.9 ha), 3 ac (1.2 ha), and 5 ac (2 ha) of land at the Holly Springs, Corinth, and Wilson substations, respectively (TVA 2016d). The affected land currently contains terrestrial habitat or other semi-maintained natural areas, but none of the three land parcels contain wetlands, ecologically sensitive or important habitats, prime or unique farmland, scenic areas, wildlife management areas, recreational areas, greenways, or trails. TVA would implement Best Management Practices (BMPs) to minimize the duration of soil exposure during clearing, grading, and construction (TVA 2016d). TVA would also revegetate and mulch the disturbed areas as soon as practicable after each disturbance (TVA 2016d). The NRC staff did not identify any significant environmental impacts related to altering land uses within the small parcels of land required for the capacitor bank installations.
Following the necessary plant modifications and transmission system upgrades, operation of BFN at the EPU power level would not affect onsite or offsite land uses.
The NRC staff concludes that the proposed EPU would not result in significant impacts on onsite or offsite land use.
No residential homes occur within foreground viewing distance of the BFN site to the north and east. A small residential development located to the northwest and another residential development located across Wheeler Reservoir to the southwest have at least partial views of the BFN site. Additionally, the site can be seen from the Mallard Creek public use area directly across the reservoir. Two earthen berms lie adjacent to the cooling tower complex that block views of the northern and eastern plant areas. The berms, as well as portions of the cooling tower complex, are visible to motorists traveling on Shaw Road (TVA 2016b).
Plant modifications and upgrades associated with the proposed EPU are unlikely to result in additional visual resource impacts beyond those already occurring from ongoing operation of BFN for several reasons. First, the BFN site is already an industrial-use site. Therefore, the short-term, intensified use of the site that would be required to implement EPU-related modifications and upgrades is unlikely to be noticeable to members of the public within the site's viewshed. Second, TVA would implement all EPU-related modifications and upgrades during scheduled refueling outages when additional machinery and heightened activity would already be occurring on the site. Accordingly, the NRC staff does not expect that EPU-related modifications and upgrades would result in significant impacts to visual resources.
Regarding transmission system upgrades, the breaker failure relay replacements and BFN main generator excitation system modifications would occur within existing BFN structures and thus would not result in visual impacts. The MVAR capacitor bank installations would result in short-term visual impacts at the three sites for which substation expansion would be required. However, these areas are industrial-use sites, and use of machinery and equipment for ongoing maintenance and upgrades is common.
Following the necessary plant modifications and transmission system upgrades, operation of BFN at the EPU power level would not significantly affect visual resources. The licensee estimates that the EPU would require cooling tower operation 22 more days per year on average, which would increase the number of days in which a plume would be visible. However, given that the cooling towers are already operated intermittently, the additional use of the cooling towers following the EPU would not result in significantly different visual impacts that those experienced during current operations.
The NRC staff concludes that the temporary visual impacts during implementation of EPU modifications and upgrades and capacitor bank installations would be minor and of short duration, and would not result in significant impacts to visual resources. The additional cooling tower operation following implementation of the EPU would also result in minor and insignificant visual impacts.
Onsite non-radioactive air emissions from BFN are primarily from operation of the emergency diesel generators. Emissions occur when these generators are tested or are used to supply backup power. The licensee (2016a) does not anticipate an increase in use of the emergency diesel generators as a result of the proposed EPU, nor is it planning to increase the frequency or duration of the emergency diesel generator surveillance testing. Additionally, TVA (2016a) maintains a Synthetic Minor Source Air Operating Permit for its diesel generators issued and enforced by the ADEM, and TVA would continue to comply with the requirements of this permit under EPU conditions. Accordingly, the NRC staff does not expect that onsite emission sources attributable to the EPU would result in significant impacts to air quality.
Offsite non-radioactive emissions related to the proposed EPU would result primarily from personal vehicles of EPU-related workforce members driving to and from the site and from work vehicles delivering supplies and equipment to the site. The licensee (2016a) estimates that of the additional workers that would be present on the site during each of the refueling outages, 80 to 120 workers or less would be dedicated to implementing EPU-related modifications and upgrades. The licensee (2016a) generally ramps up outage staffing two to three weeks prior to the outage start and ramps down staffing beginning 21 to 28 days from the start of the outage. Major equipment and materials to support the EPU-related modifications and upgrades would be transported to the site well before the start of each outage period, and smaller EPU supplies will be delivered on trucks that routinely supply similar tools and materials to support BFN operations (TVA 2016a). The capacitor bank installations
Following the necessary plant modifications and transmission system upgrades, operation at EPU levels would result in no additional air emissions as compared to operations at the current licensed power levels.
The NRC staff concludes that the temporary increase in air emissions during implementation of EPU modifications and upgrades and capacitor bank installations would be minor and of short duration, and would not result in significant impacts to air quality.
The potential noise impacts related to the proposed action would be primarily confined to those resulting from the use of construction equipment and machinery during the EPU outage periods. However, implementation of EPU-related modifications and upgrades during these periods is unlikely to result in additional noise impacts beyond those already occurring from ongoing operation because the BFN site is already an industrial-use site and because TVA would implement all EPU-related modifications and upgrades during scheduled refueling outages when additional machinery and heightened activity would already be occurring on the site. Accordingly, the NRC staff does not expect that EPU-related modifications and upgrades would result in significant noise impacts.
Regarding transmission system upgrades, the breaker failure relay replacements and BFN main generator excitation system modifications would occur within existing BFN structures, and would, therefore, not result in noise impacts. The MVAR capacitor bank installations would result in short-term and temporary noise impacts associated with construction equipment and machinery use at the three sites for which substation expansion would be required. However, these areas are industrial-use sites, and periodic noise impacts associated with ongoing maintenance and upgrades are common.
Following the EPU outages, operation of BFN at EPU levels would result in an average of 22 additional days per year of cooling tower operation, which would slightly increase the duration for which residents nearest the BFN site would experience cooling tower-related noise during the warmer months. The NRC staff reviewed information submitted by TVA (2016a) regarding an environmental sound pressure level assessment performed in 2012 at the BFN site in 2012. The assessment found that background noise levels without cooling tower operation was 59.7 decibels A-weighted scale (dBA), and that the noise levels with operation of six of the seven cooling towers was 61.9 dBA, an increase of 2.2 dBA. The licensee compared this level with the Federal Interagency Committee on Noise's (FICON) recommendation that a 3-dBA increase in noise indicates a possible impact and the need for further analysis. Based on this criteria, TVA determined that the noise level emitted by operation of the cooling towers is acceptable. Additionally, TVA (2016c) is planning to conduct additional sound monitoring following the replacement of Cooling Towers 1 and 2, which are scheduled for replacement in fiscal years 2018 and FY 2019. The licensee will continue to meet FICON guidelines by working with the cooling tower vendor to ensure noise attenuating features, such as low-noise fans, lower speed fans, and sound attenuators, are incorporated as required to meet the guidelines. In the event that TVA (2016a) finds that the resulting noise levels exceed the FICON guidelines, TVA would develop and implement additional acoustical mitigation, such as modifications to fans and motors or the installation of barriers. The licensee will also continue to comply with Occupational Safety and Health Administration (OSHA) regulations to protect worker health onsite.
The NRC staff concludes that the implementation of EPU modifications and upgrades, the capacitor bank installations, and additional operation of the cooling towers following implementation of the EPU would not result in significant noise impacts. Additionally, TVA would continue to comply with FICON guidelines and OSHA regulations regarding noise impacts, which would further ensure that future cooling tower operation would not result in significant impacts on the acoustic environment and human health.
As previously described, EPU-related modifications at BFN to include replacement and upgrades of plant equipment would occur within existing structures, buildings, and fenced equipment yards. The licensee does not expect any impact on previously undisturbed land. Any ground-disturbing activity would be subject to BFN's BMP Plan, which TVA must maintain as a condition of the BFN site NPDES permit (ADEM 2012). The licensee must implement and maintain the BMP Plan to prevent or minimize the potential for the release of pollutants in site runoff, spills, and leaks to waters of the State from site activities and operational areas. Consequently, the NRC staff concludes that onsite EPU activities at BFN would have no significant effect on surface water runoff and no impact on surface water or groundwater quality.
Implementation of the EPU would also require upgrades to TVA's transmission system, including installation of 764 MVAR capacitor banks at five sites throughout TVA service area (see “MVAR Capacitor Bank Installations” under “Description of the Proposed Action”). At two of the substations, new equipment installation would take place outdoors but within the confines of existing substation enclosures with ground disturbance limited to previously disturbed areas. As appropriate, TVA would use standard BMPs to minimize any potential impacts to surface water and groundwater. The licensee's BMPs address preventive measures such as use of proper containment, treatment, and disposal of wastewaters, stormwater runoff, wastes, and other potential pollutants. The BMPs would also address soil erosion and sediment control and prevention and response to spills and leaks from construction equipment that could potentially runoff or infiltrate to underlying groundwater. After installation, the capacitor banks would result in no wastewater discharges (TVA 2016d). Therefore, there would be no operational impact on water resources.
Capacitor installation work at three substations (Holly Springs and Corinth in Mississippi and Wilson in Tennessee) would require expansion of the existing substation footprints and additional grading and clearing. Projected new ground disturbance for these substation expansions would range from approximately 2.25 ac (0.9 ha) of land for the Holly Springs, Mississippi Substation to 5 ac (2 ha) at the Wilson, Tennessee Substation. The substation expansion projects would have no impact on perennial surface water features. A small portion of the expanded footprint of the Wilson Substation lies within the 100-year floodplain, but TVA proposes no construction activities in the floodplain. At the Holly Springs substation, TVA staff identified an ephemeral stream that may lie within the expansion footprint.
To support substation expansion work, water would be required for such uses as potable and sanitary use by the construction workforce and for concrete production, equipment washdown, dust suppression, and soil compaction. The NRC staff assumes that the modest volumes of water needed would be supplied from local sources and transported to the work sites. Use of portable sanitary facilities, typically serviced offsite by a commercial contractor, would serve to reduce the volume of water required to meet the sanitary needs of the construction workforce.
The licensee would obtain any necessary construction fill material from an approved borrow pit, and TVA would place any spoils generated from site grading, trenching, or other excavation work in a permitted spoil area on the substation property, or the material would be spread or graded across the site. Areas disturbed by construction work and equipment installation would be stabilized by applying new gravel or resurfacing the disturbed areas (TVA 2016d). Consequently, following the completion of construction, disturbed areas would lie within the footprint of the expanded substation footprint and otherwise overlain by equipment or hard surfaces and would not be subject to long-term soil erosion and with little potential to impact surface water or groundwater resources.
The expansion projects at all three substations would also be subject to various permits and approvals, which TVA would obtain. Construction stormwater runoff from land disturbing activities of 1 ac (0.4 ha) or more is subject to regulation in accordance with Section 402 of the CWA. Section 402 establishes the NPDES permit program. Mississippi and Tennessee administer these regulatory requirements through State NPDES general permits. Specifically, State construction stormwater general permits will be required for construction activities at the Holly Springs, Corinth, and Wilson substations. Additionally, for the Wilson Substation, a Wilson County Land Disturbance permit will also be required (TVA 2016d). For NPDES general permits, permit holders must also develop and implement a Stormwater Pollution Prevention Plan to ensure the proper design and maintenance of stormwater and soil erosion BMPs to prevent sediment and other pollutants in stormwater discharges and ensure compliance with State water quality standards.
Based on the foregoing, the NRC staff finds that the transmission system upgrades and associated substation expansion projects would have negligible direct impacts on water resources and would otherwise be conducted in accordance with TVA standard BMPs to minimize environmental impacts. The licensee's construction activities would also be subject to regulation under NPDES general permits for stormwater discharges associated with construction activity. Accordingly, the NRC staff concludes that EPU-related transmission system upgrades would not result in significant impacts on surface water or groundwater resources.
The EPU implementation at BFN would result in operational changes with implications for environmental conditions. As further detailed under “Plant Site and Environs” of this EA, BFN withdraws surface water from Wheeler Reservoir to supply water for condenser cooling and other in-plant uses. Total water withdrawals by BFN have averaged 1,848,000 gpm (4,117 cfs; 116.3 m/s) over the last 5 years, although the average withdrawal rate in 2015 exceeded the average rate (TVA 2016b). The BFN uses a once-through circulating water system for condenser cooling aided by periodic operation of helper cooling towers. Normally, during once-through (open cycle) operation, BFN returns nearly all of the water it withdraws back to the reservoir, albeit at a higher temperature, through three, submerged diffuser pipes. When necessary throughout the course of the year, BFN's return condenser cooling water is routed through one or more of the helper cooling towers based on the level of cooling needed so that the resulting discharge to the river meets thermal limits as stipulated in TVA's NPDES permit. The licensee may also derate one or more BFN generating units in order to ensure compliance with NPDES thermal limits, as previously described (TVA 2016a).
Following implementation of the EPU, TVA predicts that BFN would need to operate helper cooling towers an additional 22 days per year on average (for a total of 88 days per year) to maintain compliance with NPDES thermal limits, as compared to a projected average of 66 days per year at current power levels (TVA 2016b; TVA 2016a). When helper cooling towers are used, a portion of the water passing through the towers is consumptively used (lost) due to evaporation and cooling tower drift. The results of TVA's hydrothermal modeling, as previously described, indicate that approximately 3 percent of the cooling water flow passed through the helper towers is consumptively used (TVA 2016a). Thus, for an additional 22 days per year on average, BFN's cooling water return flows to Wheeler Reservoir would be reduced by approximately 3 percent following the proposed EPU as compared to current operations. This is a negligible percentage of the total volume of water passing through Wheeler Reservoir and that is otherwise diverted by TVA to meet BFN cooling and other in-plant needs (TVA 2016a).
Operations at EPU power levels would not require any modifications to BFN's circulating water system, residual heat removal service water system, emergency equipment cooling water system, raw cooling water, or raw water systems. Therefore, TVA expects no changes in the volume of water that would be withdrawn from Wheeler Reservoir during operations (TVA 2016b). The EPU operations would result in an increase in the temperature of the condenser cooling water discharged to Wheeler Reservoir. The licensee's hydrothermal modeling predicts that the average temperature of the return discharge through BFN's submerged diffusers would be 2.6 °F (1.4 °C) warmer than under current operations and that the average temperature at the downstream edge of the mixing zone prescribed by BFN's NPDES permit would increase by 0.6 °F (0.3 °C). Nevertheless, these thermal changes would continue to meet BFN's NPDES permit limits, including temperate change limitations within the prescribed mixing zone (TVA 2016b, 2016a). In addition, there would also be no change in the use of cooling water treatment chemicals or other changes in the quality of other effluents discharged to Wheeler Reservoir in conjunction with implementation of the EPU (TVA 2016b).
In summary, implementation of the EPU at BFN and associated operational changes would not affect water availability or impair ambient surface water or groundwater quality. The NRC staff concludes that the proposed EPU would not result in significant impacts on water resources.
The BFN site's natural areas include riparian areas, upland forests, and
Regarding transmission system upgrades, the breaker failure relay replacements and BFN main generator excitation system modifications would occur within existing BFN structures and would not involve any previously undisturbed land. These upgrades would result in no impacts on terrestrial resources. The MVAR capacitor bank installations would occur at five offsite locations throughout TVA service area as described previously. Three of the five capacitor bank installations would require expansion of the existing substation footprints and additional grading and clearing, as described in the “Land Use Impacts” section. The affected land currently contains terrestrial habitat or other semi-maintained natural areas, and TVA (2016d) reports that all three areas are likely to contain primarily non-native, invasive botanicals. None of the three land parcels contain wetlands, ecologically sensitive or important habitats, prime or unique farmland, scenic areas, wildlife management areas, recreational areas, greenways, or trails. The licensee (2016d) also reports that no bird colonies or aggregations of migratory birds have been documented within 3 mi (4.8 km) of the substation footprints. The licensee would implement BMPs to minimize the duration of soil exposure during clearing, grading, and construction (TVA 2016d). The licensee would also revegetate and mulch the disturbed areas as soon as practicable after each disturbance, and TVA's landscaping BMPs require revegetation with native plants or non-invasive species (TVA 2016d). The NRC staff did not identify any significant environmental impacts to terrestrial resources related to altering land uses within the small parcels of land required for the capacitor bank installations.
Following the necessary plant modifications and transmission system upgrades, operation at EPU levels would result in no additional or different impacts on terrestrial resources as compared to operations at the current licensed power levels. The NRC assessed the impacts of continued operation of BFN through the period of extended operation in the BFN FSEIS (NRC 2005) and determined that impacts on terrestrial resources would be small (
The NRC staff concludes that the temporary noise and lighting during implementation of EPU modifications and upgrades and small areas of land disturbance associated with the MVAR capacitor bank installations would be minor and would not result in significant impacts to terrestrial resources.
Aquatic habitats associated with the site include Wheeler Reservoir and 14 related tributaries, of which Elk River, located 10 mi (16 km) downstream of BFN, is the largest. Onsite plant modifications and upgrades would not affect aquatic resources because EPU-related modifications and upgrades would not involve any new construction outside existing facility footprints and would not result in sedimentation or erosion or any other disturbances that would otherwise affect aquatic habitats.
Regarding transmission system upgrades, the breaker failure relay replacements and BFN main generator excitation system modifications would occur within existing BFN structures and would, therefore, not affect aquatic resources. Although three of the five MVAR capacitor bank installations would require expansion of existing substation footprints as described previously, TVA (2016d) reports that the expansions would not affect the flow, channels, or banks of any nearby streams. As described previously in the “Water Resource Impacts” section, the substation expansions would have negligible direct impacts on water resources, and TVA would implement BMPs, as appropriate, and be subject to regulations under NPDES general permits during any construction activities. Accordingly, the NRC staff did not identify any significant environmental impacts related to aquatic resources with respect to transmission system upgrades.
Following the necessary plant modifications and transmission system upgrades, operation at EPU levels would result in additional thermal discharge to Wheeler Reservoir. As described in the “Cooling Tower Operation and Thermal Discharge” and “Water Resources Impacts” sections of this document, TVA predicts that the temperature of water entering Wheeler Reservoir would be 2.6 °F (1.4 °C) warmer on average than current operations and that the river temperature at the NPDES compliance depth at the downstream end of the mixing zone would be 0.6 °F (0.3 °C) warmer on average. In the BFN FSEIS, the NRC (2005) evaluated the potential impacts of thermal discharges in Section 4.1.4, “Heat Shock,” assuming continued operation at EPU power levels. The NRC (2005) found that the BFN thermal mixing zone constitutes a small percentage of the Wheeler Reservoir surface area, that the maximum temperatures at the edge of the mixing zone do not exceed the upper thermal limits for common aquatic species, and that continued compliance with the facility's NPDES permit would ensure that impacts to aquatic biota are minimized. Since the time the NRC staff performed its license renewal review, the ADEM has issued a renewed BFN NPDES permit. The CWA requires the EPA or States, where delegated, to set thermal discharge variances such that compliance with the NPDES permit assures the protection and propagation of a balanced, indigenous community of shellfish, fish, and wildlife in and on the body of water into which the discharge is made, taking into account the cumulative impact of a facility's thermal discharge together with all other significant impacts on the species affected. Under the proposed action, TVA would remain subject to the limitations set forth in the renewed BFN NPDES permit. The NRC staff finds it reasonable to assume that TVA's continued compliance with, and the State's continued enforcement of, the BFN NPDES permit would ensure that Wheeler Reservoir aquatic resources are protected.
Regarding impingement and entrainment, in Sections 4.1.2 and 4.1.3 of the BFN FSEIS, the NRC (2005) determined that impingement and entrainment during the period of extended operation would be small. The proposed EPU would not increase the volume or rate of water withdrawal from Wheeler Reservoir and no modifications to the current cooling system design would be required. Thus, the NRC finds that the proposed EPU would not change the rate of impingement or
Regarding chemical effluents, the types and amounts of effluents would not change under the proposed EPU, and effluent discharges to Wheeler Reservoir would continue to be regulated by the ADEM under the facility's NPDES permit. Thus, the NRC concludes that compared to current operations, the proposed EPU would not change the type or concentration of chemical effluents that could impact aquatic resources.
The NRC staff concludes that onsite plant modifications and transmission system upgrades associated with the proposed EPU would not affect aquatic resources. Although operation at EPU levels would increase thermal effluent to Wheeler Reservoir, the NRC staff concludes that any resulting impacts on aquatic resources would not be significant because thermal discharges would remain within the limits imposed by the BFN NPDES permit.
Under section 7 of the Endangered Species Act of 1973, as amended (16 U.S.C. 1531
The FWS lists 31 Federally endangered, threatened, or candidate species as potentially occurring near the BFN site. Of these species, 11 are terrestrial. As described under “Terrestrial Resource Impacts,” the NRC determined that the proposed EPU would not have significant impacts on the terrestrial environment. The NRC staff did not identify any unique or different impacts that might affect Federally listed or candidate terrestrial species, and as such, the NRC staff concludes that the proposed EPU would have no effect on any listed or candidate terrestrial species. Terrestrial species are not addressed in detail in this EA, but a list of these species can be viewed in the FWS's (2016) Environmental Conservation Online System Information for Planning and Conservation report (FWS 2016). The remaining 20 species are aquatic and are listed in Table 1 of this document. No proposed or designated critical habitat occurs near the BFN site (FWS 2016).
The implementing regulations for section 7(a)(2) of the ESA define “action area” as all areas to be affected directly or indirectly by the Federal action and not merely the immediate area involved in the action (50 CFR 402.02). The action area effectively bounds the analysis of ESA-protected species and habitats because only species that occur within the action area may be affected by the Federal action.
For the purposes of the ESA analysis for the proposed BFN EPU, the NRC staff considers the action area to be the full bank width of Wheeler Reservoir from the point of water withdrawal downstream to the edge of the mixing
The NRC staff are not including the areas that would be affected by the Holly Springs, Corinth, and Wilson substation expansions in the BFN EPU action area. The licensee, as a Federal agency, must itself comply with ESA section 7. The NRC has no authority over transmission upgrades. Therefore, prior to undertaking the expansions, TVA, and not NRC, would conduct section 7 consultation with the FWS, if necessary, to address any potential impacts to Federally listed species and critical habitats related to the substation expansions. Tennessee Valley Authority's (2016d) preliminary review did not identify any Federally listed species or critical habitats within the vicinity of the three substations.
Since the 1970s, TVA has maintained a Natural Heritage Database that includes data on sensitive species and habitats, including Federally threatened and endangered species, in TVA's power service area. Based on its Natural Heritage Database, TVA (2016a) reports that seven Federally listed aquatic species occur in the vicinity of the BFN site (see Table 1).
Tennessee Valley Authority (2016a) Natural Heritage Database records indicate that three freshwater mussels—spectaclecase (
Tennessee Valley Authority (2016a) Natural Heritage Database records indicate that three aquatic snails—Anthony's snail (
The NRC staff concludes that the proposed EPU would have
The National Historic Preservation Act of 1966, as amended (16 U.S.C. 470
According to the BFN FSEIS (NRC 2005), the only significant cultural resources in the proximity of BFN are Site 1Li535 and the Cox Cemetery, which was moved to accommodate original construction of the plant. Tennessee Valley Authority (2016a) researched current historic property records and found nothing new within 3 mi (4.8 km) of the plant. As described under “Description of the Proposed Action,” all onsite modifications associated with the proposed action would be within existing structures, buildings, and fenced equipment yards, and TVA anticipates no disturbance of previously undisturbed onsite land. Thus, historic and cultural resources would not be affected by onsite power plant modifications and upgrades at BFN.
Regarding transmission system upgrades, Tennessee Valley Archaeological Research (TVAR) performed Phase I Cultural Surveys to determine if the expansion of the Holly Springs, Corinth, and Wilson substations would affect any historic or cultural resources. Tennessee Valley Archaeological Research's findings are summarized in the following paragraphs.
During its Phase I Cultural Resource Survey for the Holly Springs Substation (Karpynec et al. 2016b), TVAR revisited two NRHP-listed historic districts, the Depot-Compress Historic District and the East Holly Springs Historic District, within the survey radius. Tennessee Valley Archaeological Research determined that the historic districts are outside the viewshed of the proposed substation expansion. During the survey, TVAR also identified 14 potentially historic properties, none of which were found to be eligible for listing on the NRHP due to their lack of architectural and historic significance. Tennessee Valley Archaeological Research concluded that no historic properties would be affected by the Holly Spring Substation expansion.
During its Phase I Cultural Resource Survey for the Corinth Substation (Karpynec et al. 2016b), TVAR identified 13 properties within the area of potential effect, none of which were determined to be eligible for listing on the NRHP due to their lack of architectural distinction and loss of integrity caused by modern alterations or damage. Tennessee Valley Archaeological Research concluded that
During its Phase I Cultural Resources Survey for the Wilson Substation (Karpynec et al. 2016c), TVAR identified one property within the area of potential effect, which was determined as eligible for listing on the NRHP under Criteria A and C for its historical and archaeological significance. Tennessee Valley Archaeological Research concluded that the Wilson Substation expansion would have a visual effect on the property. However, the effect would not be adverse due to the fact that the existing substation and modern development located immediately northwest and southeast of the property have already established a visual effect.
Following power plant modifications and substation upgrades, operation of BFN at EPU power levels would have no effect on existing historic and cultural resources. Further, TVA has procedures in place to ensure that BFN operations would continue to protect historic and cultural resources, and the proposed action would not change such procedures (NRC 2005). Therefore, the NRC staff concludes that EPU-related power plant modifications and substation upgrades would not result in significant impacts to historic and cultural resources.
Potential socioeconomic impacts from the proposed EPU include increased demand for short-term housing, public services, and increased traffic due to the temporary increase in the size of the workforce required to implement the EPU at BFN and upgrade affected substations. The proposed EPU also could generate increased tax revenues for the State and surrounding counties due to increased “book” value of BFN and increased power generation.
During outages, the workforce at BFN increases by 800 to 1,200 workers for an average of 1,000 additional workers onsite. Normally, outage workers begin to arrive at BFN 2 to 3 weeks prior to the start of the outage, and the total number of onsite workers peaks at about the 3rd day of the 21- to 28-day outage. The EPU outage for each unit would last 35 days or less (TVA 2016a). Once EPU-related plant modifications have been completed, the size of the workforce at BFN would return to pre-EPU levels approximately 1 week after the end of the outage with no significant increases during future outages. The size of the operations workforce would be unaffected by the proposed EPU.
Most of the EPU plant modification workers are expected to relocate temporarily to the Huntsville metropolitan area during outages, resulting in short-term increased demands for public services and housing. Because plant modification work would be temporary, most workers would stay in available rental homes, apartments, mobile homes, and camper-trailers.
The additional number of outage workers and truck material and equipment deliveries needed to support EPU-related power plant modifications could cause short-term level-of-service impacts (restricted traffic flow and higher incident rates) on secondary roads in the immediate vicinity of BFN. However, only small traffic delays are anticipated during the outages.
The BFN currently makes payments in lieu of taxes to states and counties in which power operations occur and on properties previously subjected to state and local taxation. The licensee pays a percentage of its gross power revenues to such states and counties. Only a very small share of TVA payment is paid directly to counties; most is paid to the states, which use their own formulas for redistribution of some or all of the payments to local governments to fund their respective operating budgets. In general, half of TVA payment is apportioned based on power sales and half is apportioned based on the “book” value of TVA property. Therefore, for a capital improvement project such as the EPU, the in-lieu-of-tax payments are affected in two ways: (1) As power sales increase, the total amount of the in-lieu-of-tax payment to be distributed increases, and (2) the increased “book” value of BFN causes a greater proportion of the total payment to be allocated to Limestone County. The state's general fund, as well as all of the counties in Alabama that receive TVA in-lieu-of-tax distributions from the State of Alabama, benefit under this method of distribution (TVA 2016a).
Due to the short duration of EPU-related plant modification and substation upgrade activities, there would be little or no noticeable effect on tax revenues generated by additional workers temporarily residing in Limestone County and elsewhere. In addition, there would be little or no noticeable increased demand for housing and public services or level-of-service traffic impacts beyond what is experienced during normal refueling outages at BFN. Therefore, the NRC staff concludes that there would be no significant socioeconomic impacts from EPU-related plant modifications, substation upgrades, and power plant operations under EPU conditions.
The environmental justice impact analysis evaluates the potential for disproportionately high and adverse human health and environmental effects on minority and low-income populations that could result from activities associated with the proposed EPU at BFN. Such effects may include human health, biological, cultural, economic, or social impacts. Minority and low-income populations are subsets of the general public residing in the vicinity of BFN, and all are exposed to the same health and environmental effects generated from activities at BFN.
According to the 2010 Census, an estimated 22 percent of the total population (approximately 978,000 individuals) residing within a 50-mile radius of BFN identified themselves as a minority (MCDC 2016). The largest minority populations were Black or African American (approximately 135,000 persons or 14 percent), followed by Hispanic, Latino, or Spanish origin of any race (approximately 44,000 persons or 4.5 percent). According to the U.S. Census Bureau's 2010 Census, about 21 percent of the Limestone County population identified themselves as minorities, with Black or African Americans comprising the largest minority population (approximately 13 percent) (U.S. Census Bureau (USCB) 2016). According to the USCB's 2015 American Community Survey 1-Year Estimates, the minority population of Limestone County, as a percent of the total population, had increased to about 23 percent with Black or African Americans comprising 14 percent of the total county population (USCB 2016).
According to the USCB's 2010-2014 American Community Survey 5-Year Estimates, approximately 32,000 families and 154,000 individuals (12 and 16 percent, respectively) residing within a 50-mile radius of BFN were identified as living below the Federal poverty threshold (MCDC 2016). The 2014 Federal poverty threshold was $24,230 for a family of four (USCB 2016).
According to the USCB's 2015 American Community Survey 1-Year Estimates, the median household income for Alabama was $44,765, while 14 percent of families and 18.5 percent of the state population were found to be living below the Federal poverty
Potential impacts to minority and low-income populations would consist of environmental and socioeconomic effects (
Noise and dust impacts would be temporary and limited to onsite activities. Minority and low-income populations residing along site access roads could experience increased commuter vehicle traffic during shift changes. Increased demand for inexpensive rental housing during the EPU-related plant modifications could disproportionately affect low-income populations; however, due to the short duration of the EPU-related work and the availability of housing, impacts to minority and low-income populations would be of short duration and limited. According to 2015 American Community Survey 1-Year Estimates, there were approximately 4,016 vacant housing units in Limestone County (USCB 2016).
Based on this information and the analysis of human health and environmental impacts presented in this EA, the NRC staff concludes that the proposed EPU would not have disproportionately high and adverse human health and environmental effects on minority and low-income populations residing in the vicinity of BFN.
The Council on Environmental Quality defines cumulative impacts under the NEPA of 1969, as amended (42 U.S.C. 4321
In Section 4.8 of the BFN FSEIS (NRC 2005), the NRC staff assessed the cumulative impacts related to continued operation of BFN through the license renewal term assuming operation of BFN at EPU levels. In its analysis, the NRC (2005) considered changes and modifications to the Tennessee River; current and future water quality; current and future competing water uses, including public supply, industrial water supply, irrigation, and thermoelectric power generation; the radiological environment; future socioeconomic impacts; historic and cultural resources; and cumulative impacts to Federally endangered and threatened species. The NRC (2005) determined that the contribution of BFN continued operations at EPU levels to past, present, and reasonably foreseeable future actions would not be detectable or would be so minor as to not destabilize or noticeably alter any important attribute of the resources.
Because the proposed EPU would either not change or result in significant impacts to the radiological environment, onsite or offsite land uses, visual resources, air quality, noise, terrestrial resources, special status species and habitats, historical and cultural resources, socioeconomic conditions, or environmental justice populations, the NRC concludes that implementation of the proposed action would not incrementally contribute to cumulative impacts to these resources. Regarding water resources and aquatic resources, although the proposed EPU would result in more thermal effluent, discharges would remain within the limits set forth in the current BFN NPDES permit, and no other facilities discharge thermal effluent within the BFN mixing zone that would exacerbate thermal effects. As described in this document, the NRC (2005) determined cumulative impacts to these resources would not be detectable or would be so minor as to not destabilize or noticeably alter any important attribute of the resources. Accordingly, the NRC staff finds that cumulative impacts on water resources and aquatic resources under the proposed action would not be significant.
Additionally, for those resources identified as potentially impacted by activities associated with the proposed EPU (
Predicted changes in the timing, intensity, and distribution of precipitation would be likely to result in changes in surface water runoff affecting water availability across the Southeastern United States. Specifically, while average precipitation during the fall has increased by 30 percent since about 1900, summer and winter precipitation has declined by about 10 percent across the eastern portion of the region, including eastern Tennessee (USGCRP 2009). A continuation of this trend coupled with predicted higher temperatures during all seasons (particularly the summer months), would reduce groundwater recharge during the winter, produce less runoff and lower stream flows during the spring, and potentially lower groundwater base flow to rivers during the drier portions of the year (when stream flows are already lower). As cited by the USGCRP, the loss of moisture from soils because of higher temperatures along with evapotranspiration from vegetation is likely to increase the frequency, duration, and intensity of droughts across the region into the future (USGCRP 2009, USGCRP 2014).
Changes in runoff in a watershed along with reduced stream flows and higher air temperatures all contribute to an increase in the ambient temperature of receiving waters. Annual runoff and river-flow are projected to decline in the Southeast region (USGCRP 2014). Land use changes, particularly those involving the conversion of natural areas to impervious surface, exacerbate these effects. These factors combine to affect the availability of water throughout a watershed, such as that of the Tennessee River, for aquatic life, recreation, and industrial uses. While changes in projected precipitation for the Southeast region are uncertain, the USGCRP has reasonable expectation that there will be reduced water availability due to the increased evaporative losses from rising temperatures alone (USGCRP 2014). Nevertheless, when considering that the
The potential effects of climate change described in preceding paragraphs for water resources, whether from natural cycles or man-made activities, could result in changes that would affect aquatic resources in the Tennessee River. Increased air temperatures could result in higher water temperatures in the Tennessee River reservoirs. For instance, TVA found that a 1 °F (0.5 °C) increase in air temperature resulted in an average water temperature increase between 0.25 °F and 0.5 °F (0.14 °C and 0.28 °C) in the Chickamauga Reservoir (NRC 2015). Higher water temperatures would increase the potential for thermal effects on aquatic biota and, along with altered river flows, could exacerbate existing environmental stressors, such as excess nutrients and lowered dissolved oxygen associated with eutrophication. Even slight changes could alter the structure of aquatic communities. Invasions of non-native species that thrive under a wide range of environmental conditions could further disrupt the current structure and function of aquatic communities (NRC 2015). Nevertheless, when considering that the Tennessee River System and associated reservoirs are closely operated, managed, and regulated for multiple uses that include thermoelectric power generation, the incremental contribution of the proposed EPU on climate change impacts is not significant.
As an alternative to the proposed action, the NRC staff considered denial of the proposed license amendments (
The action does not involve the use of any different resources than those previously considered in NUREG-1437, Supplement 21, Generic Environmental Impact Statement for License Renewal of Nuclear Plants: Regarding Browns Ferry Station, Units 1, 2, and 3—Final Report (NRC 2005).
The NRC staff did not enter into consultation with any other Federal or State agency regarding the environmental impact of the proposed action. However, on October 6, 2016, the NRC notified the Alabama State official, Mr. David Walter, Director of Alabama Office of Radiation Control of the proposed amendments, requesting his comments by October 13, 2016. If the State official has any comments, the comments will be addressed and resolved in the final EA. The NRC will also forward copies of this draft EA and FONSI to the EPA, FWS, and ADEM and publish the draft EA and FONSI in the FR for comment. The NRC will address any comments received during the comment period in the final EA.
The NRC is considering issuing amendments for Renewed Facility Operating License Nos. DPR-33, DPR-52, and DPR-68, issued to TVA for operation of BFN to increase the maximum licensed thermal power level for each of the three BFN reactor units from 3,458 MWt to 3,952 MWt.
On the basis of the EA included in Section III of this document and incorporated by reference in this finding, the NRC concludes that the proposed action would not have significant effects on the quality of the human environment. The NRC's evaluation considered information provided in the licensee's application and associated supplements as well as the NRC's independent review of other relevant environmental documents. Section of this document lists the environmental documents related to the proposed action and includes information on the availability of these documents. Based on its findings, the NRC has decided not to prepare an environmental impact statement for the proposed action.
The following table identifies the environmental and other documents cited in this document and related to the NRC's FONSI. Documents with an ADAMS accession number are available for public inspection online through ADAMS at
For The Nuclear Regulatory Commission.
December 5, 2016 at 2:00 p.m., and December 6, 2016, at 9:00 a.m.
Las Vegas, Nevada.
Closed.
1. Strategic Issues.
2. Financial Matters.
3. Pricing.
4. Personnel Matters and Compensation Issues.
1. Executive Session—Discussion of prior agenda items and Board governance.
The General Counsel of the United States Postal Service has certified that the meeting may be closed under the Government in the Sunshine Act.
Requests for information about the meeting should be addressed to the Secretary of the Board, Julie S. Moore, at 202-268-4800.
On May 19, 2016, NYSE Arca, Inc. filed with the Securities and Exchange Commission (“Commission”), pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (“Act”)
Section 19(b)(2) of the Act
The Commission finds it appropriate to designate a longer period within which to issue an order approving or disapproving the proposed rule change so that it has sufficient time to consider this proposed rule change. Accordingly, the Commission, pursuant to Section 19(b)(2) of the Act,
For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.
Pursuant to Section 19(b)(1)
The Exchange proposes to (1) allow the Exchange to trade pursuant to unlisted trading privileges (“UTP”) for any NMS Stock listed on another national securities exchange; (2) establish rules for the trading pursuant to UTP of exchange traded products (“ETPs”); and (3) adopt new equity trading rules relating to trading halts of securities traded pursuant to UTP on the Pillar platform. The proposed rule change is available on the Exchange's Web site at
In its filing with the Commission, the self-regulatory organization 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 those 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 parts of such statements.
The Exchange is proposing new rules to trade all Tape A and Tape C symbols, on a UTP basis, on its new trading platform, Pillar.
In addition, the Exchange is proposing rules for the trading on Pillar pursuant to UTP of the following types of Exchange Traded Products:
• Equity Linked Notes (“ELNs”);
• Investment Company Units;
• Index-Linked Exchangeable Notes;
• Equity Gold Shares;
• Equity Index-Linked Securities;
• Commodity-Linked Securities;
• Currency-Linked Securities;
• Fixed-Income Index-Linked Securities;
• Futures-Linked Securities;
• Multifactor-Index-Linked Securities;
• Trust Certificates;
• Currency and Index Warrants;
• Portfolio Depositary Receipts;
• Trust Issued Receipts;
• Commodity-Based Trust Shares;
• Currency Trust Shares;
• Commodity Index Trust Shares;
• Commodity Futures Trust Shares;
• Partnership Units;
• Paired Trust Shares;
• Trust Units;
• Managed Fund Shares; and
• Managed Trust Securities.
The Exchange's proposed rules for these products are substantially identical (other than with respects[sic] to certain non-substantive and technical amendments described below) as the rules of NYSE Arca Equities for the qualification, listing and trading of such products.
The Exchange's approach in this filing is the same as the approach of (1) BATS BYX Exchange, Inc. f/k/a BATS Y-Exchange, Inc. (“BYX”), which filed a proposed rule change with the Commission to conform its rules to the rules of its affiliate, Bats BZX Exchange, Inc. f/k/a BATS Exchange, Inc. (“BATS”),
The Exchange's only trading pursuant to UTP will be on the Pillar platform; it will not trade securities pursuant to UTP on its current platform. Further, at this time, the Exchange does not intend to list ETPs on its Pillar platform and will only trade ETPs on the Pillar platform pursuant to UTP.
In accordance with the rule numbering framework adopted by the Exchange in the Pillar Framework Filing,
Finally, in the Pillar Framework Filing, the Exchange adopted rules grouped under proposed Rule 7E relating to equities trading.
The Exchange is proposing new Rule 5.1E(a) to establish rules regarding the extension of UTP securities to the Pillar platform, which are listed on other national securities exchanges. As proposed, the first sentence of new Rule 5.1E(a) would allow the Exchange to trade securities eligible for UTP under Section 12(f) of the Exchange Act.
Proposed Rule 5.1E(a) would adopt rules reflecting requirements for trading products on the Exchange pursuant to UTP that have been established in various new product proposals previously approved by the Commission.
Finally, proposed Rule 5.1E(a)(1) would make clear that the Exchange would not list any ETPs, unless it filed a proposed rule change under Section 19(b)(2)
The Exchange proposes Rule 5.1E(a)(2) to specifically govern trading of ETPs pursuant to UTP. Specifically, the requirements in subparagraphs (A)-(F) of proposed Rule 5.1E(a)(2) would apply to ETPs traded pursuant to UTP on the Exchange.
Under proposed Rule 5.1E(a)(2)(A), the Exchange would file a Form 19b-4(e) with the Commission with respect to each ETP
The Exchange proposes Supplementary Material .01 to Rule 5.1E(a) to allow the Exchange to trade, pursuant to UTP, any ETP that (1) was originally listed on another registered national securities exchange (“Other SRO”) and continues to be listed on such Other SRO; and (2) satisfies the Exchange's continued listing criteria for the trading pursuant to UTP, which is applicable to the product class that would include such ETP. For the purposes of Supplementary Material .01 to proposed Rule 5.1E(a), the term “Exchange Traded Product” would include securities described in proposed Rules 5.2E(j)(2) (Equity Linked Notes); 5.2E(j)(3) (Investment Company Units); 5.2E(j)(4) (Index-Linked Exchangeable Notes); 5.2E(j)(6) (Equity Index-Linked Securities, Commodity-Linked
In addition, proposed Rule 5.1E(a)(2)(B) would provide that the Exchange will distribute an information circular prior to the commencement of trading in such an ETP that generally would include the same information as the information circular provided by the listing exchange, including (a) the special risks of trading the ETP, (b) the Exchange's rules that will apply to the ETP, including Rules 2090—Equities and 2111—Equities,
Under proposed Rule 5.1E(a)(2)(D), the Exchange would halt trading in a UTP Exchange Traded Product in certain circumstances. Specifically, if a temporary interruption occurs in the calculation or wide dissemination of the intraday indicative value (or similar value) or the value of the underlying index or instrument and the listing market halts trading in the product, the Exchange, upon notification by the listing market of such halt due to such temporary interruption, also would immediately halt trading in that product on the Exchange. If the intraday indicative value (or similar value) or the value of the underlying index or instrument continues not to be calculated or widely available as of the commencement of trading on the Exchange on the next business day, the Exchange would not commence trading of the product that day. If an interruption in the calculation or wide dissemination of the intraday indicative value (or similar value) or the value of the underlying index or instrument continues, the Exchange could resume trading in the product only if calculation and wide dissemination of the intraday indicative value (or similar value) or the value of the underlying index or instrument resumes or trading in such series resumes in the listing market. The Exchange also would halt trading in a UTP Exchange Traded Product listed on the Exchange for which a net asset value (and in the case of managed fund shares or actively managed exchange-traded funds, a “disclosed portfolio”) is disseminated if the Exchange became aware that the net asset value or, if applicable, the disclosed portfolio was not being disseminated to all market participants at the same time. The Exchange would maintain the trading halt until such time as the Exchange became aware that the net asset value and, if applicable, the disclosed portfolio was available to all market participants.
Finally, the Exchange represents that its surveillance procedures for ETPs traded on the Exchange pursuant to UTP would be similar to the procedures used for equity securities traded on the Exchange and would incorporate and rely upon existing Exchange surveillance systems.
Proposed Rules 5.1E(a)(2)(C) and (E) would establish the following requirements for ETP Holders that have customers that trade UTP Exchange Traded Products:
•
•
•
The Exchange proposes to define the term “exchange traded product” in Rule 1.1E(bbb). Proposed Rule 1.1E(bbb) would define the term “Exchange Traded Product” to mean a security that meets the definition of “derivative securities product” in Rule 19b-4(e) under the Securities Exchange Act of 1934 and a “UTP Exchange Traded Product” to mean an Exchange Traded Product that trades on the Exchange pursuant to unlisted trading privileges.
Next, the Exchange proposes to add the definitions contained in NYSE Arca Equities Rule 5.1(b) that are relevant to the rules for the trading pursuant to UTP of the ETPs that the Exchange proposes in this filing, which are described below. To maintain
Finally, the Exchange proposes to make the following substitutions in its proposed rules for terms used in the NYSE Arca Equities ETP listing and trading rules (collectively, the “General Definitional Term Changes”):
• Because the Exchange uses the term “Supplementary Material” to refer to commentaries to its Rules, the Exchange proposes to substitute this term where “Commentary” is used in the rules of NYSE Arca Equities;
• Because the Exchange tends to use the term “will” to impose obligations or duties on its members and ETP Holders, the Exchange proposes to substitute this term where “shall” is used in the rules of NYSE Arca Equities;
• The Exchange proposes to use the term “ETP Holder”
• The Exchange proposes to use the term “Exchange”
• Because the Exchange's hours for business are described in Rule 51—Equities and the Exchange's rules do not use a defined term to refer to such hours, the Exchange is proposing to refer to its core trading hours as the “Exchange's normal trading hours,” and substitute this phrase for “Core Trading Session” and “Core Trading Hours,” as defined in the rules of NYSE Arca Equities;
• Because the Exchange's rules pertaining to trading halts due to extraordinary market volatility on the Pillar platform are described in Rule 7.12E, the Exchange is proposing to refer to Rule 7.12E in its proposed rules wherever NYSE Arca Equities Rule 7.12
• Because the Exchange's rules pertaining to the mechanics of the limit-up-limit down plan as it relates to trading pauses in individual securities due to extraordinary market volatility are described in Rule 80C—Equities, the Exchange is proposing to refer to Rule 80C—Equities in its proposed rules wherever NYSE Arca Equities Rule 7.11
• Because NYSE Arca Equities Rule 7.18
• Because the Exchange's rules regarding the production of books and records are described in Rule 440—Equities, the Exchange is proposing to refer to Rule 440-Equities in its proposed rules wherever NYSE Arca Equities Rule 4.4
The Exchange would have to file a Form 19b-4(e) with the Commission to trade these ETPs pursuant to UTP. The Exchange is proposing substantially identical rules to those of NYSE Arca Equities for the qualification, listing and delisting of companies on the Exchange applicable to the ETPs.
The Exchange proposes to add introductory language under the main heading of proposed Rule 5E, which states that the provisions of proposed Rule 5E would apply only to the trading pursuant to UTP of ETPs, and would not apply to the listing of ETPs on the Exchange. The Exchange is proposing this language to clarify that the rules incorporated in proposed Rule 5E should not be interpreted to be listing requirements of the Exchange, but rather, requirements that pertain solely to the trading of ETPs pursuant to UTP on the Pillar platform.
The Exchange proposes to add Rules 5.2E(j)(2)-(j)(7), which would be substantially identical to NYSE Arca Equities Rules 5.2(j)(2)-(j)(7). These proposed rules would permit the Exchange to trade pursuant to UTP the following:
• Equity Linked Notes that meet the rules for the trading pursuant to UTP that are contained in proposed Rule 5.2E(j)(2);
• Investment Company Units that meet the rules for the trading pursuant to UTP that are contained in proposed Rule 5.2E(j)(3);
• Index-Linked Exchangeable Notes that meet the rules for the trading pursuant to UTP that are contained in proposed Rule 5.2E(j)(4);
• Equity Gold Shares that meet the rules for the trading pursuant to UTP that are contained in proposed Rule 5.2E(j)(5);
• Equity Index Linked Securities, Commodity-Linked Securities, Currency-Linked Securities, Fixed Income Index-Linked Securities, Futures-Linked Securities, and Multifactor Index-Linked Securities that meet the rules for the trading pursuant to UTP that are contained in proposed Rule 5.2E(j)(6); and
• Trust Certificates that meet the rules for the trading pursuant to UTP that are contained in proposed Rule 5.2E(j)(7).
The text of these proposed rules is identical to NYSE Arca Equities Rules 5.2(j)(2)-5.2(j)(7), other than certain non-substantive and technical differences explained below.
The Exchange proposes to Reserve paragraphs 5.2E(a)-(i)
The Exchange is proposing Rule 5.2E(j)(2) to provide rules for the trading pursuant to UTP of ELNs, so that they may be traded on the Exchange pursuant to UTP.
Other than with respect to the General Definitional Term Changes described above, there are no differences between this proposed rule and NYSE Arca Equities Rule 5.2(j)(2).
The Exchange is proposing Rule 5.2E(j)(3) to provide rules for the trading pursuant to UTP of investment company units, so that they may be traded on the Exchange pursuant to UTP.
Other than with respect to the General Definitional Term Changes described above, there are no differences between this proposed rule and NYSE Arca Equities Rule 5.2(j)(3).
The Exchange is proposing Rule 5.2E(j)(4) to provide rules for the trading pursuant to UTP of index-linked exchangeable notes, so that they may be traded on the Exchange pursuant to UTP.
In addition to the General Definitional Term Changes described above, the Exchange is proposing the following non-substantive changes between this proposed rule and NYSE Arca Equities Rule 5.2(j)(4):
• To qualify for listing and trading under NYSE Arca Equities Rule 5.2(j)(4), an index-linked exchangeable note and its issuer must meet the criteria in NYSE Arca Equities Rule 5.2(j)(1) (Other Securities), except that the minimum public distribution will be 150,000 notes with a minimum of 400 public note-holders, except, if traded in thousand dollar denominations then there is no minimum public distribution and number of holders.
Because the Exchange does not have and is not proposing a rule for “Other Securities” comparable to NYSE Arca Rule 5.2(j)(1), the Exchange proposes to reference NYSE Arca Equities Rule 5.1(j)(1) in subparagraphs (a) and (c) of proposed Rule 5.2E(j)(4) in establishing the criteria that an issuer and issue must satisfy.
• To qualify for listing and trading under NYSE Arca Equities Rule 5.2(j)(4), an index to which an exchangeable note is linked and its underlying securities must meet (i) the procedures in NYSE Arca Options Rules 5.13(b)-(c); or (ii) the criteria set forth in subsections (C) and (D) of NYSE Arca Equities Rule 5.2(j)(2), the index concentration limits set forth in NYSE Arca Options Rule 5.13(b)(6), and Rule 5.13(b)(12) insofar as it relates to Rule 5.13(b)(6). Because the Exchange's rules for listing of index option contracts are described in Rule 901C, the Exchange is proposing to refer to Rule 901C wherever NYSE Arca Options Rule 5.13
• Correction of a typographical error in NYSE Arca Equities Rule 5.2(j)(4)(f)((iii), so that proposed Rule 5.2E(j)(4)(f)((iii) reads “further dealings on the Exchange,” rather than “further dealings of the Exchange,” as is currently drafted in NYSE Arca Equities Rule 5.2(j)(4)(f)(iii).
The Exchange is proposing Rule 5.2E(j)(5) to provide rules for the trading pursuant to UTP of equity gold shares, so that they may be traded on the Exchange pursuant to UTP.
Other than with respect to the General Definitional Term Changes described above, there are no differences between this proposed rule and NYSE Arca Equities Rule 5.2(j)(5).
The Exchange is proposing Rule 5.2E(j)(6) to provide rules for the trading pursuant to UTP of equity index-linked securities, so that they may be traded on the Exchange pursuant to UTP.
In addition to the General Definitional Term Changes described above, the Exchange is proposing the following non-substantive changes between this proposed rule and NYSE Arca Equities Rule 5.2(j)(6):
• To qualify for listing and trading under NYSE Arca Equities Rule 5.2(j)(6), both the issue and issuer of an index-linked security must meet the criteria in NYSE Arca Equities Rule 5.2(j)(1) (Other Securities), with certain specified exceptions. Because the Exchange does not have and is not proposing a rule for “Other Securities” comparable to NYSE Arca Rule 5.1(j)(1), the Exchange proposes to reference NYSE Arca Equities Rule 5.1(j)(1) in proposed Rule 5.2E(j)(6)(A)(a) establishing the criteria that an issue and issuer must satisfy.
• The listing standards for Equity Index-Linked Securities in NYSE Arca
The Exchange is proposing Rule 5.2E(j)(7) to provide rules for the trading pursuant to UTP of trust certificates, so that they may be traded on the Exchange pursuant to UTP.
In addition to the General Definitional Term Changes described above, the Exchange is proposing the following non-substantive change between this proposed rule and NYSE Arca Equities Rule 5.2(j)(7):
• Commentary .08 to NYSE Arca Equities Rule 5.2(j)(7) contains a cross-reference to NYSE Arca Rule 9.2.
The Exchange proposes to add introductory language under the main heading of proposed Rule 8E, which states that the provisions of proposed Rule 8E would apply only to the trading pursuant to UTP of ETPs, and would not apply to the listing of ETPs on the Exchange. The Exchange is proposing this language to clarify that the rules incorporated in proposed Rule 8E should not be interpreted to be listing requirements of the Exchange, but rather, requirements that pertain solely to the trading of ETPs pursuant to UTP on the Pillar platform.
The Exchange proposes to add Rule 8E, which would be substantially identical to Sections 1 and 2 of NYSE Arca Equities Rule 8. These proposed rules would permit the Exchange to trade pursuant to UTP the following: Currency and Index Warrants, Portfolio Depositary Receipts, Trust Issued Receipts, Commodity-Based Trust Shares, Currency Trust Shares, Commodity Index Trust Shares, Commodity Futures Trust Shares, Partnership Units, Paired Trust Shares, Trust Units, Managed Fund Shares, and Managed Trust Securities.
The Exchange proposes to Reserve Rule 8.100E(g), to maintain the same rule numbers as the NYSE Arca rules with which it conforms.
The text of proposed Rule 8E is identical to Sections 1 and 2 of NYSE Arca Equities Rule 8, other than certain non-substantive and technical differences explained below. The Exchange also proposes that all of the General Definitional Term Changes described under proposed Rule 5E above would also apply to proposed Rule 8E.
The Exchange is proposing Rules 8.1E-8.13E to provide rules for the trading pursuant to UTP (including sales-practice rules such as those relating to suitability and supervision of accounts) of currency and index warrants, so that they may be traded on the Exchange pursuant to UTP.
In addition to the General Definitional Term Changes described above under proposed Rule 5E, the Exchange is proposing the following non-substantive changes between these proposed rules and NYSE Arca Equities Rules 8.1-8.13 (Currency and Index Warrants):
• Other than with respect to the General Definitional Term Changes described above, there are no differences between this proposed rule and NYSE Arca Equities Rule 8.1.
• Other than with respect to the General Definitional Term Changes described above, there are no differences between this proposed rule and NYSE Arca Equities Rule 8.2.
• NYSE Arca Equities Rule 8.3 references NYSE Arca Equities Rule 5.2(c) to establish the earnings requirements that a warrant issuer is required to substantially exceed. Because the Exchange does not currently have and is not proposing a rule similar to NYSE Arca Equities Rule 5.2(c), the Exchange proposes to include the earnings requirements set forth in NYSE Arca Equities Rule 5.2(c) in subparagraph (a) of proposed Rule 8.3E.
• The account approval rules of NYSE Arca Equities Rule 8.4 reference NYSE Arca Equities Rule 9.18(b) in describing the criteria that must be met for opening up a customer account for options trading. Because the Exchange's account approval rules are described in Rule 921,
• The account suitability rules of NYSE Arca Equities Rule 8.5 reference NYSE Arca Equities Rule 9.18(c) in describing rules that apply to
• The rules of NYSE Arca Equities Rule 8.6 reference the fact that NYSE Arca Equities Rule 9.6(a) will not apply to customer accounts insofar as they may relate to discretion to trade in stock index, currency index and currency warrants, and that NYSE Arca Equities Rule 9.18(e) will apply to such discretionary accounts instead. Because the Exchange's discretionary account rules for equity trading are described in Rule 408—Equities,
• The account supervision rules of NYSE Arca Equities Rule 8.7 reference NYSE Arca Equities Rule 9.18(d) in describing rules that apply to the supervision of customer accounts in which transactions in stock index, currency index or currency warrants are effected. Because the Exchange's rules that apply to the supervision of customer accounts of such nature are described in Rule 922,
• The customer complaint rules of NYSE Arca Equities Rule 8.8 reference NYSE Arca Equities Rule 9.18(l) in describing rules that apply to customer complaints received regarding stock index, currency index or currency warrants. Because the Exchange's rules that govern doing a public business in options are described in Rule 932,
• The rules pertaining to communications to customers regarding stock index, currency index and currency warrants described in NYSE Arca Equities Rule 8.9 reference NYSE Arca Equities Rule 9.28. Because the Exchange's rules that govern advertisements, market letters and sales literature relating to options are described in Rule 991,
• Other than with respect to the General Definitional Term Changes described above, there are no differences between this proposed rule and NYSE Arca Equities Rule 8.10.
• Other than with respect to the General Definitional Term Changes described above, there are no differences between this proposed rule and NYSE Arca Equities Rule 8.11.
• Other than with respect to the General Definitional Term Changes described above, there are no differences between this proposed rule and NYSE Arca Equities Rule 8.12.
• The Exchange proposes to correct a typographical error in NYSE Arca Equities Rule 8.13. Proposed Rule 8.13E would read “whenever a report shall be required to be filed with respect to an account pursuant to this Rule, the ETP Holder filing the report shall file with the Exchange such additional periodic reports with respect to such account as the Exchange may from time to time prescribe,” rather than “whenever a report shall be required to be filed with respect to an account pursuant to this Rule, the ETP Holder filing the same file with the Exchange such additional periodic reports with respect to such account as the Exchange may from time to time prescribe,” as in current NYSE Arca Equities Rule 8.13.
The Exchange is proposing Rule 8.100E to provide rules for the trading pursuant to UTP of portfolio depositary receipts, so that they may be traded on the Exchange pursuant to UTP.
Other than with respect to the General Definitional Term Changes described above under proposed Rule 5E, there are no differences between this proposed rule and NYSE Arca Equities Rule 8.100.
The Exchange is proposing Rule 8.200E to provide rules for the trading pursuant to UTP of trust issued receipts, so that they may be traded on the Exchange pursuant to UTP.
Other than with respect to the General Definitional Term Changes described above under proposed Rule 5E, there are no differences between this proposed rule and NYSE Arca Equities Rule 8.200.
The Exchange is proposing Rule 8.201E to provide rules for the trading pursuant to UTP of commodity-based trust shares, so that they may be traded on the Exchange pursuant to UTP.
Other than with respect to the General Definitional Term Changes described above under proposed Rule 5E, there are no differences between this proposed rule and NYSE Arca Equities Rule 8.201.
The Exchange is proposing Rule 8.202E to provide rules for the trading pursuant to UTP of currency trust shares, so that they may be traded on the Exchange pursuant to UTP.
Other than with respect to the General Definitional Term Changes described
The Exchange is proposing Rule 8.203E to provide rules for the trading pursuant to UTP of commodity index trust shares, so that they may be traded on the Exchange pursuant to UTP.
In addition to the General Definitional Term Changes described above, the Exchange is proposing the following non-substantive change between this proposed rule and NYSE Arca Equities Rule 8.203:
• Correction of a typographical error in NYSE Arca Equities Rule 8.203(d), so that proposed Rule 8.203E(d) reads “one or more” in the first sentence, rather than “one more more,” as is currently drafted in NYSE Arca Equities Rule 8.203(d).
The Exchange is proposing Rule 8.204E to provide rules for the trading pursuant to UTP of commodity futures trust shares, so that they may be traded on the Exchange pursuant to UTP.
Other than with respect to the General Definitional Term Changes described above under proposed Rule 5E, there are no differences between this proposed rule and NYSE Arca Equities Rule 8.204.
The Exchange is proposing Rule 8.300E to provide rules for the trading pursuant to UTP of partnership units, so that they may be traded on the Exchange pursuant to UTP.
Other than with respect to the General Definitional Term Changes described above under proposed Rule 5E, there are no differences between this proposed rule and NYSE Arca Equities Rule 8.300.
The Exchange is proposing Rule 8.400E to provide rules for the trading pursuant to UTP of paired trust shares, so that they may be traded on the Exchange pursuant to UTP.
In addition to the General Definitional Term Changes described above, the Exchange is proposing the following non-substantive change between this proposed rule and NYSE Arca Equities Rule 8.400:
• To be consistent with the Exchange's definitions proposed in Rule 5.1E(b), the Exchange proposes to substitute the terms “security” and “equity securities” (as such terms are defined in proposed Rule 5.1E(b)
The Exchange is proposing Rule 8.500E to provide rules for the trading pursuant to UTP of trust units, so that they may be traded on the Exchange pursuant to UTP.
In addition to the General Definitional Term Changes described above, the Exchange is proposing the following non-substantive change between this proposed rule and NYSE Arca Equities Rule 8.500:
• To be consistent with the Exchange's definitions proposed in Rule 5.1E(b), the Exchange proposes to substitute the terms “security” and “equity securities” (as such terms are defined in proposed Rule 5.1E(b)
The Exchange is proposing Rule 8.600E to provide rules for the trading pursuant to UTP of managed fund shares, so that they may be traded on the Exchange pursuant to UTP.
Other than with respect to the General Definitional Term Changes described above under proposed Rule 5E, there are no differences between this proposed rule and NYSE Arca Equities Rule 8.600.
The Exchange is proposing Rule 8.700E to provide rules for the trading pursuant to UTP of managed trust securities, so that they may be traded on the Exchange pursuant to UTP.
Other than with respect to the General Definitional Term Changes described above under proposed Rule 5E, there are no differences between this proposed rule and NYSE Arca Equities Rule 8.700.
In conjunction with the implementation of the Pillar trading
Since the Exchange is only proposing rules in this filing pertaining to trading pursuant to UTP on the Pillar platform, the Exchange is only proposing Rules 7.18E(a) and (d)(1)(B), which pertain to trading halts of securities traded pursuant to UTP and UTP Exchange Traded Products. The Exchange proposes to Reserve Rules 7.18E(b)-(c)
Other than with respect to the proposed General Definitional Term Changes described above, there are no differences between proposed Rules 7.18E(a) and (d)(1)(B) and NYSE Arca Equities Rules 7.18(a) and (d)(1)(B).
Finally, proposed Rules 7.18E(a) and (d)(1)(B) would use the terms and definitions that were added in the Pillar Framework Filing and proposed as new Rules 1.1E(aaa) and (bbb), described above. The Exchange also proposes to define the term “UTP regulatory halt” in Rule 1.1E(kk).
The Exchange believes that its proposal is consistent with Section 6(b) of the Act,
The Exchange believes the proposed rule change also supports the principals of Section 11A(a)(1)
The Exchange believes that the proposed rule change is consistent with these principles. By providing for the trading of securities on the Exchange on a UTP basis, the Exchange believes its proposal will lead to the addition of liquidity to the broader market for these securities and to increased competition among the existing group of liquidity providers. The Exchange also believes that, by so doing, the proposed rule change would encourage the additional utilization of, and interaction with, the exchange market, and provide market participants with improved price discovery, increased liquidity, more competitive quotes and greater price improvement for securities traded pursuant to UTP.
The Exchange further believes that enhancing liquidity by trading securities on a UTP basis would help raise investors' confidence in the fairness of the market, generally, and their transactions in particular. As such, the general UTP trading rule would foster cooperation and coordination with persons engaged in facilitating securities transactions, enhance the mechanism of a free and open market, and promote fair and orderly markets in securities on the Exchange.
In addition, the trading criteria set forth in proposed Rule 5.1E(a) is intended to protect investors and the public interest. The requirements for trading securities pursuant to UTP, as proposed herein in a single, consolidated Rule 5.1E(a), are at least as stringent as those of any other national securities exchange and, specifically, are based on the consolidated rules for trading UTP securities established by other national securities exchanges.
The proposal is also designed to promote just and equitable principles of trade by way of initial and continued listing standards which, if not maintained, will result in the discontinuation of trading in the affected products. These requirements, together with the applicable Exchange trading rules (which apply to the proposed products), ensure that no investor would have an unfair advantage over another respecting the trading of the subject products. On the contrary, all investors will have the same access to, and use of, information concerning the specific products and trading in the specific products, all to the benefit of public customers and the marketplace as a whole.
The proposal is intended to ensure that investors receive up-to-date information on the value of certain underlying securities and indices in the products in which they invest, and protect investors and the public interest, enabling investors to: (i) Respond quickly to market changes through intra-day trading opportunities; (ii) engage in hedging strategies; and (iii) reduce transaction costs for trading a group or index of securities.
Furthermore, the proposal is designed to remove impediments to and perfect the mechanism of a free and open market and a national market system by adopting rules that will lead ultimately to the trading pursuant to UTP of the
The proposed change is not designed to address any competitive issue, but rather to adopt new rules that are word-for-word identical to the rules of NYSE Arca (other than with respects[sic] to certain non-substantive and technical amendments described above), to support the Exchange's new Pillar trading platform. As discussed in detail above, with this rule filing, the Exchange is not proposing to change its core functionality, but rather to adopt a rule numbering framework and rules based on the rules of NYSE Arca. The Exchange believes that the proposed rule change would promote consistent use of terminology to support the Pillar trading platform on both the Exchange and its affiliate, NYSE Arca, thus making the Exchange's rules easier to navigate.
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. To the contrary, the current variances between the Exchange's rules for the trading pursuant to UTP and the rules of other exchanges limit competition in that there are certain products that the Exchange cannot trade pursuant to UTP, while other exchanges can trade such products. Thus, approval of the proposed rule change will promote competition because it will allow the Exchange to compete with other national securities exchanges for the trading of securities pursuant to UTP.
No written comments were solicited or received with respect to the proposed rule change.
Within 45 days of the date of publication of this notice in the
(A) By order approve or disapprove the proposed rule change, or
(B) institute proceedings to determine whether the proposed rule change should be disapproved.
Interested persons are invited to submit written data, views, and arguments concerning the foregoing, including whether the proposed rule change is consistent with the Act. Comments may be submitted by any of the following methods:
• Use the Commission's Internet comment form (
• Send an email to
• Send paper comments in triplicate to Brent J. Fields, 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.
On September 30, 2016, The NASDAQ Stock Market LLC (“Nasdaq”) filed with the Securities and Exchange Commission (“Commission”), pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (“Act”)
Section 19(b)(2) of the Act
The Commission finds that it is appropriate to designate a longer period within which to take action on the proposed rule change so that it has sufficient time to consider the proposed rule change. Accordingly, the Commission, pursuant to Section 19(b)(2) of the Act,
For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.
On October 3, 2016, NYSE Arca, Inc. (“Exchange”) filed with the Securities and Exchange Commission (“Commission”), pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (“Act”)
The Exchange proposes to list and trade Shares of the Fund under Commentary .01 to NYSE Arca Equities Rule 5.2(j)(3), which governs the listing and trading of Investment Company Units on the Exchange. The Exchange represents that it has submitted the proposed rule change because the underlying index of the Fund does not meet all of the generic listing requirements of Commentary .01(a)(A) to NYSE Arca Equities Rule 5.2(j)(3), applicable to the listing of Investment Company Units based upon an index of “US Component Stocks.” Specifically, as discussed in the Notice,
The Fund will be an index-based exchange traded fund (“ETF”). The Shares will be offered by the Trust, which is registered with the Commission as an investment company and has filed a registration statement on Form N-1A (the “Registration Statement”) with the Commission on behalf of the Fund.
The investment adviser to the Fund will be Virtus ETF Advisers LLC (“Adviser”). ETF Distributors LLC will serve as the distributor (“Distributor”) of Fund shares on an agency basis. The Bank of New York Mellon (“Administrator”) will be the administrator, custodian and transfer agent for the Fund.
According to the Exchange, the Fund's investment objective is to seek investment results that, before fees and expenses, closely correspond to the price and yield performance of the Rampart Enhanced U.S. Equity Index (“Index”).
While the Fund, under normal market conditions will invest at least 80% of its net assets in the securities and financial instruments described above, the Fund may invest its remaining assets in the securities and financial instruments described below.
The Fund may invest in short-term, high quality securities issued or guaranteed by the U.S. government (in addition to U.S. Treasury securities) and non-U.S. governments, and each of their agencies and instrumentalities; debt securities issued by U.S. government sponsored enterprises; repurchase
The Fund may invest in ETFs.
The Fund may invest in U.S. exchange-traded equity index futures contracts.
The Fund may invest in U.S. exchange-traded index options (other than SPX) and U.S. exchange-traded options on ETFs.
The Fund may invest in U.S. exchange-traded options on futures contacts and U.S. exchange-traded options on stocks.
The Exchange represents that the Fund will not invest in any non-U.S. equity securities. The Fund's investments will be consistent with the Fund's investment objective and will not be used to enhance leverage.
The Fund intends to qualify each year as a regulated investment company under Subchapter M of the Internal Revenue Code of 1986, as amended.
After careful review, the Commission finds that the proposed rule change is consistent with the requirements of Section 6 of the Act
The Commission also finds that the proposal to list and trade the Shares on the Exchange is consistent with Section 11A(a)(1)(C)(iii) of the Act,
The Commission believes that the proposal to list and trade the Shares is reasonably designed to promote fair disclosure of information that may be necessary to price the Shares appropriately and to prevent trading when a reasonable degree of transparency cannot be assured. The Exchange may consider all relevant factors in exercising its discretion to halt or suspend trading in the Shares of a Fund. Shares of the Fund will be halted if the “circuit breaker” parameters in NYSE Arca Equities Rule 7.12 are reached. Trading may be halted because of market conditions or for reasons that, in the view of the Exchange, make trading in the Shares inadvisable. These may include: (1) The extent to which trading is not occurring in the securities and/or the financial instruments of the Fund; or (2) whether other unusual conditions or circumstances detrimental to the maintenance of a fair and orderly market are present.
If the IIV, Index value or the value of the Index components is not being disseminated as required, the Exchange may halt trading during the day in which the disruption occurs; if the interruption persists past the day in which it occurred, the Exchange will halt trading no later than the beginning of the trading day following the interruption.
In support of this proposal, the Exchange has made the following representations:
(1) The Shares will conform to the initial and continued listing criteria under NYSE Arca Equities Rules 5.2(j)(3) and 5.5(g)(2), except that the Index will not meet the requirements of NYSE Arca Equities Rule 5.2(j)(3), Commentary .01(a)(A)(1-5) in that the Index will include options.
(2) The Exchange represents that trading in the Shares will be subject to the existing Exchange trading surveillances procedures, as well as cross-market surveillances administered by the Financial Industry Regulatory Authority (“FINRA”) on behalf of the Exchange.
(3) The Exchange or FINRA, on behalf of the Exchange will communicate as needed regarding trading in the Shares, ETFs, options, and futures with markets and other entities that are members of the Intermarket Surveillance Group (“ISG”), and the Exchange or FINRA, on behalf of the Exchange may obtain trading information regarding trading in the Shares, ETFs, options, and futures from those markets and other entities that are members of ISG or with which
(4) For initial and continued listing of the Shares, the Trust is required to comply with Rule 10A-3 under the Act.
(5) Prior to the commencement of trading of Shares in the Fund, the Exchange will inform its ETP Holders in an Information Bulletin (“Bulletin”) of the special characteristics and risks associated with trading the Shares. Specifically, the Bulletin will discuss the following: (a) The procedures for purchases and redemptions of Shares in Creation Unit aggregations (and that Shares are not individually redeemable); (b) NYSE Arca Equities Rule 9.2(a), which imposes a duty of due diligence on its ETP Holders to learn the essential facts relating to every customer prior to trading the Shares; (c) the risks involved in trading the Shares during the Opening and Late Trading Sessions when an updated IIV or Index value will not be calculated or publicly disseminated; (d) how information regarding the IIV and Index value will be disseminated; (e) the requirement that ETP Holders deliver a prospectus to investors purchasing newly issued Shares prior to or concurrently with the confirmation of a transaction; and (f) trading information.
(6) A minimum of 100,000 Shares will be outstanding at the commencement of trading on the Exchange.
(7) The Exchange represents that all statements and representations made in this filing regarding (a) the description of the portfolio, (b) limitations on portfolio holdings or reference assets, or (c) the applicability of Exchange rules and surveillance procedures shall constitute continued listing requirements for listing the Shares on the Exchange.
(8) The issuer has represented to the Exchange that it will advise the Exchange of any failure by the Fund to comply with the continued listing requirements, and, pursuant to its obligations under Section 19(g)(1) of the Act, the Exchange will surveil for compliance with the continued listing requirements. If the Fund is not in compliance with the applicable listing requirements, the Exchange will commence delisting procedures under NYSE Arca Equities Rule 5.5(m).
This approval order is based on all of the Exchange's representations, including those set forth above and in the Notice.
For the foregoing reasons, the Commission finds that the proposed rule change, is consistent with Section 6(b)(5) of the Act
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”)
FINRA is proposing to amend FINRA Rule 6433 (Minimum Quotation Size Requirements for OTC Equity Securities) to extend the Tier Size Pilot, which currently is scheduled to expire on December 9, 2016, until June 9, 2017.
The text of the proposed rule change is available on FINRA's Web site at
In its filing with the Commission, FINRA 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. FINRA has prepared summaries, set forth in sections A, B, and C below, of the most significant aspects of such statements.
FINRA proposes to amend FINRA Rule 6433 (Minimum Quotation Size Requirements for OTC Equity Securities) (the “Rule”) to extend, until June 9, 2017, the amendments set forth in File No. SR-FINRA-2011-058 (“Tier Size Pilot” or “Pilot”), which currently are scheduled to expire on December 9, 2016.
The Tier Size Pilot was filed with the SEC on October 6, 2011,
FINRA has filed the proposed rule change for immediate effectiveness. The operative date of the proposed rule change will be December 9, 2016.
FINRA believes that the proposed rule change is consistent with the provisions of Section 15A(b)(6) of the Act,
FINRA believes that the extension of the Tier Size Pilot until June 9, 2017, is consistent with the Act in that it would provide the Commission and FINRA with additional time to finalize a proposal with regard to the Tier Size Pilot.
FINRA does not believe that the proposed rule change will result in any burden on competition that is not necessary or appropriate in furtherance of the purposes of the Act.
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)
FINRA has asked the Commission to waive the 30-day operative delay so that the proposal may become operative immediately upon filing. The Commission believes that waiver of the operative delay is consistent with the protection of investors and the public interest because such waiver will allow the pilot program to continue without interruption. Therefore, the Commission designates the proposal operative upon filing.
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. 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.
For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.
U. S. Small Business Administration.
Notice of members for the FY 2016 Performance Review Board.
Title 5 U.S.C. 4314(c) (4) requires each agency to publish notification of the appointment of individuals who may serve as members of that Agency's Performance Review Board (PRB). The following individuals have been designated to serve on the FY 2016 Performance Review Board for the U.S. Small Business Administration.
Members:
Pursuant to the authority granted to the United States Small Business Administration under the Small Business Investment Act of 1958, as amended, under Section 309 of the Act and Section 107.1900 of the Small Business Administration Rules and Regulations (13 CFR 107.1900) to function as a small business investment company under the Small Business Investment Company License No. 05/75-0252 issued to EDF Ventures II, L.P., said license is hereby declared null and void.
U.S. Small Business Administration.
Amendment 2.
This is an amendment of the Presidential declaration of a major disaster for Public Assistance Only for the State of Kansas (FEMA-4287-DR), dated 10/20/2016.
Incident: Severe Storms and Flooding.
Incident Period: 09/02/2016 through 09/12/2016.
11/21/2016.
Physical Loan Application Deadline Date: 12/19/2016.
Economic Injury (EIDL) Loan Application Deadline Date: 07/20/2017.
Submit completed loan applications to: U.S. Small Business Administration, Processing and Disbursement Center, 14925 Kingsport Road, Fort Worth, TX 76155.
A. Escobar, Office of Disaster Assistance, U.S. Small Business Administration, 409 3rd Street SW., Suite 6050, Washington, DC 20416.
The notice of the President's major disaster declaration for Private Non-Profit organizations in the State of Kansas, dated 10/20/2016, is hereby amended to include the following areas as adversely affected by the disaster.
All other information in the original declaration remains unchanged.
U.S. Small Business Administration.
Amendment 2.
This is an amendment of the Presidential declaration of a major disaster for Public Assistance Only for the State of North Carolina (FEMA-4285-DR), dated 11/10/2016.
Incident: Hurricane Matthew.
Incident Period: 10/04/2016 through 10/24/2016.
11/21/2016.
Physical Loan Application Deadline Date: 01/09/2017.
Economic Injury (EIDL) Loan Application Deadline Date: 08/10/2017.
Submit completed loan applications to: U.S. Small Business Administration, Processing and Disbursement Center, 14925 Kingsport Road, Fort Worth, TX 76155.
A. Escobar, Office of Disaster Assistance, U.S. Small Business Administration, 409 3rd Street SW., Suite 6050, Washington, DC 20416.
The notice of the President's major disaster declaration for Private Non-Profit organizations in the State of North
All other information in the original declaration remains unchanged.
The United States Department of State, in cooperation with the United States Global Change Research Program, seeks nominations for U.S. scientists with requisite expertise to serve as Lead Authors or Review Editors on the first Special Report to be undertaken by the Intergovernmental Panel on Climate Change (IPCC) during the Sixth Assessment Report (AR6) cycle. The outline for the “Special Report on Impacts of Global Warming of 1.5 °C above Pre-Industrial Levels and Related Global Greenhouse Gas Emission Pathways, in the Context of Strengthening the Global Response to the Threat of Climate Change, Sustainable Development, and Efforts to Eradicate Poverty” was adopted at the 44th session of the IPCC Plenary.
Nominations may be submitted at
The United Nations Environment Programme (UNEP) and the World Meteorological Organization (WMO) established the IPCC in 1988. In accordance with its mandate and as reaffirmed in various decisions by the Panel, the major activity of the IPCC is to prepare comprehensive and up-to-date assessments of policy-relevant scientific, technical, and socio-economic information for understanding the scientific basis of climate change, potential impacts, and options for mitigation and adaptation.
This notice will be published in the
Drafted by:
Cleared by:
This notice announces a meeting of the Department of State's International Telecommunication Advisory Committee (ITAC) to review recent activities of the Department of State in international meetings on international communications and information policy and prepare for similar activities in the next quarter. The ITAC will meet on December 16, 2016 at 2:00 p.m. EST at: 1120 20th Street NW., Suite 1000, Washington, DC 20036 to discuss the results of recent events and preparations for upcoming meetings at the International Telecommunication Union (ITU), the Inter-American Telecommunications Commission of the Organization of American States (OAS CITEL), Organization for Economic Cooperation and Development (OECD), and Asia-Pacific Economic Cooperation Telecommunication and Information Working Group (APEC TEL). The meeting will focus on the following topics:
Attendance at this meeting is open to the public as seating capacity allows. The public will have an opportunity to provide comments at this meeting at the invitation of the chair. Further details on this ITAC meeting will be announced on the Department of State's email list,
Please note that the Charter of the Advisory Committee has been extended until July 22, 2018, which was erroneously reflected as 2016 in Public Notice: 9658 on the Renewal of the Charter of the International Telecommunication Advisory Committee (ITAC).
Please contact Franz Zichy at 202-647-5778,
The Department of State's Advisory Committee on International Communications and Information Policy (ACICIP) will hold a public meeting on Friday, December 16, 2016 from 9:30 a.m. to 12:00 p.m. in the Room 1107 of the Harry S Truman (HST) Building of the U.S. Department of State. The Truman Building is located at 2201 C Street NW., Washington, DC 20520.
The committee provides a formal channel for regular consultation and coordination on major economic, social and legal issues and problems in international communications and information policy, especially as these issues and problems involve users of information and communications services, providers of such services, technology research and development, foreign industrial and regulatory policy, the activities of international organizations with regard to communications and information, and developing country issues.
The meeting will be led by Ambassador Daniel A. Sepulveda, U.S. Coordinator for International Communications and Information Policy. The meeting's agenda will include discussions pertaining to various upcoming international telecommunications meetings and conferences, as well as efforts focused on technology and international development, including updates from the ACICIP ICT for International Development and International Disaster Response Sub-Committees.
Members of the public may submit suggestions and comments to the ACICIP. Comments concerning topics to be addressed in the agenda should be received by the ACICIP Executive Secretary (contact information below) at least ten working days prior to the date of the meeting. All comments must be submitted in written form and should not exceed one page. Resource limitations preclude acknowledging or replying to submissions.
While the meeting is open to the public, admittance to the building is only by means of a pre-clearance. For placement on the pre-clearance list, please submit the following information no later than 5:00 p.m. on Tuesday, December 13, 2015. (Please note that this information is required by Diplomatic Security for each entrance into HST and must therefore be re-submitted for each ACICIP meeting):
6. Acceptable forms of identification for entry into the building include:
7. ID number on the form of ID that the visitor will show upon entry.
8. Whether the visitor has a need for reasonable accommodation. Such requests received after December 1st, 2016, might not be possible to fulfill.
Send the above information to Joseph Burton by fax (202) 647-5957 or email
Please note that registrations will be accepted to the capacity of the meeting room. All visitors for this meeting must use the 23rd Street entrance. The valid ID bearing the number provided with your pre-clearance request will be required for admittance. Non-U.S. government attendees must be escorted by Department of State personnel at all times when in the building.
Personal data is requested pursuant to Public Law 99-399 (Omnibus Diplomatic Security and Antiterrorism Act of 1986), as amended; Public Law 107-56 (USA PATRIOT Act); and Executive Order 13356. The purpose of the collection is to validate the identity of individuals who enter Department facilities. The data will be entered into the Visitor Access Control System (VACS-D) database. Please see the Security Records System of Records Notice (State-36) at
For further information, please contact Joseph Burton, Executive Secretary of the Committee, at (202) 647-5231 or
General information about ACICIP and the mission of International Communications and Information Policy is available at:
Susquehanna River Basin Commission.
Notice.
This notice lists the approved by rule projects rescinded by the Susquehanna River Basin Commission during the period set forth in
October 1-31, 2016.
Susquehanna River Basin Commission, 4423 North Front Street, Harrisburg, PA 17110-1788.
Jason E. Oyler, General Counsel, telephone: (717) 238-0423, ext. 1312; fax: (717) 238-2436; email:
This notice lists the projects, described below, being rescinded for the consumptive use of water pursuant to the Commission's approval by rule process set forth in 18 CFR 806.22(e) and § 806.22(f) for the time period specified above:
1. Chesapeake Appalachia, LLC, Pad ID: A&M, ABR-201501005, Wilmot Township, Bradford County, Pa.; Rescind Date: October 27, 2016.
2. Chesapeake Appalachia, LLC, Pad ID: Dingo, ABR-201401008, Cherry Township, Sullivan County, Pa.; Rescind Date: October 27, 2016.
3. Chesapeake Appalachia, LLC, Pad ID: Kintner, ABR-201309016, Wilmot Township, Bradford County, Pa.; Rescind Date: October 27, 2016.
4. Chesapeake Appalachia, LLC, Pad ID: Three D Acres, ABR-201301009, Monroe Township, Bradford County, Pa.; Rescind Date: October 27, 2016.
5. Chesapeake Appalachia, LLC, Pad ID: Windswept, ABR-201407002, Auburn Township, Susquehanna County, Pa.; Rescind Date: October 27, 2016.
6. Chesapeake Appalachia, LLC, Pad ID: Packard, ABR-2011050122.R1, Sheshequin Township, Bradford County, Pa.; Rescind Date: October 31, 2016.
Pub. L. 91-575, 84 Stat. 1509
Susquehanna River Basin Commission.
Notice.
This notice lists the projects approved by rule by the Susquehanna River Basin Commission during the period set forth in
October 1-31, 2016.
Susquehanna River Basin Commission, 4423 North Front Street, Harrisburg, PA 17110-1788.
Jason E. Oyler, General Counsel, telephone: (717) 238-0423, ext. 1312; fax: (717) 238-2436; email:
This notice lists the projects, described below, receiving approval for the consumptive use of water pursuant to the Commission's approval by rule process set forth in 18 CFR 806.22(f) for the time period specified above:
1. Talisman Energy USA, Inc., Pad ID: 02 113 Reinfried C, ABR-201109004.R1, Warren Township, Tioga County, Pa.; Consumptive Use of Up to 6.0000 mgd; Approval Date: October 5, 2016.
2. Chesapeake Appalachia, LLC, Pad ID: Circle Z BRA, ABR-201203031.R1, Wilmot Township, Bradford County, Pa.; Consumptive Use of Up to 7.5000 mgd; Approval Date: October 5, 2016.
3. Chesapeake Appalachia, LLC, Pad ID: Floydie, ABR-201203019.R1, Tuscarora Township, Bradford County, Pa.; Consumptive Use of Up to 7.5000 mgd; Approval Date: October 5, 2016.
4. Chesapeake Appalachia, LLC, Pad ID: Hattie BRA, ABR-201203030.R1, Wilmot Township, Bradford County, Pa.; Consumptive Use of Up to 7.5000 mgd; Approval Date: October 5, 2016.
5. Chesapeake Appalachia, LLC, Pad ID: Maggie, ABR-201203020.R1, Tuscarora Township, Bradford County, Pa.; Consumptive Use of Up to 7.5000 mgd; Approval Date: October 5, 2016.
6. Chesapeake Appalachia, LLC, Pad ID: R&N, ABR-201203014.R1, Cherry Township, Sullivan County, Pa.; Consumptive Use of Up to 7.5000 mgd; Approval Date: October 5, 2016.
7. EOG Resources, Inc., Pad ID: WOLFE Pad, ABR-201110033.R1, Smithfield Township, Bradford County, Pa.; Consumptive Use of Up to 4.9990 mgd; Approval Date: October 6, 2016.
8. EOG Resources, Inc., Pad ID: WALLACE Pad, ABR-201110032.R1, Smithfield Township, Bradford County, Pa.; Consumptive Use of Up to 4.9990 mgd; Approval Date: October 6, 2016.
9. EOG Resources, Inc., Pad ID: PRUYNE 1H Pad, ABR-201110034.R1, Smithfield Township, Bradford County, Pa.; Consumptive Use of Up to 4.9990 mgd; Approval Date: October 6, 2016.
10. SWN Production Company, LLC, Pad ID: CSB, ABR-201108013.R1, Cherry Township, Sullivan County, Pa.; Consumptive Use of Up to 7.5000 mgd; Approval Date: October 11, 2016.
11. Cabot Oil & Gas Corporation, Pad ID: WilliamsD P1, ABR-201110018.R1, Brooklyn Township, Susquehanna County, Pa.; Consumptive Use of Up to 3.5750 mgd; Approval Date: October 11, 2016.
12. SWN Production Company, LLC, Pad ID: CHILSON-JENNINGS, ABR-201201012.R1, Herrick Township, Bradford County, Pa.; Consumptive Use of Up to 4.9990 mgd; Approval Date: October 13, 2016.
13. Chesapeake Appalachia, LLC, Pad ID: Manning, ABR-201204009.R1, Cherry Township, Sullivan County, Pa.; Consumptive Use of Up to 7.5000 mgd; Approval Date: October 17, 2016.
14. Chesapeake Appalachia, LLC, Pad ID: Freed, ABR-201204014.R1, Albany Township, Bradford County, Pa.; Consumptive Use of Up to 7.5000 mgd; Approval Date: October 17, 2016.
15. Chesapeake Appalachia, LLC, Pad ID: Reilly, ABR-201204015.R1, Colley Township, Sullivan County, Pa.; Consumptive Use of Up to 7.5000 mgd; Approval Date: October 17, 2016.
16. EOG Resources, Inc., Pad ID: ASHBY Pad, ABR-201110031.R1, Athens and Smithfield Townships, Bradford County, Pa.; Consumptive Use of Up to 4.9990 mgd; Approval Date: October 17, 2016.
17. SWN Production Company, LLC, Pad ID: Carty-Wisemen Well Pad, ABR-201109006.R1, Liberty Township, Susquehanna County, Pa.; Consumptive Use of Up to 4.0000 mgd; Approval Date: October 17, 2016.
18. SWN Production Company, LLC, Pad ID: Kass North Well Pad, ABR-201109007.R1, Liberty Township, Susquehanna County, Pa.; Consumptive Use of Up to 4.0000 mgd; Approval Date: October 17, 2016.
19. SWN Production Company, LLC, Pad ID: Robinson Well Pad, ABR-201109009.R1, Liberty Township, Susquehanna County, Pa.; Consumptive Use of Up to 4.0000 mgd; Approval Date: October 17, 2016.
20. SWN Production Company, LLC, Pad ID: HDK Pad, ABR-201112001.R1, Franklin Township, Susquehanna County, Pa.; Consumptive Use of Up to 4.0000 mgd; Approval Date: October 17, 2016.
21. Chief Oil & Gas LLC, Pad ID: Leh Drilling Pad #1, ABR-201204002.R1, Burlington Township, Bradford County, Pa.; Consumptive Use of Up to 2.0000 mgd; Approval Date: October 19, 2016.
22. Talisman Energy USA, Inc., Pad ID: 03 078 Bellows L, ABR-201610001, Columbia Township, Bradford County, Pa.; Consumptive Use of Up to 6.0000 mgd; Approval Date: October 21, 2016.
23. SWN Production Company, LLC, Pad ID: HOWLAND-LENT, ABR-201112032.R1, Herrick Township, Bradford County, Pa.; Consumptive Use of Up to 4.9990 mgd; Approval Date: October 21, 2016.
24. Chesapeake Appalachia, LLC, Pad ID: Rainbow BRA, ABR-201203033.R1, Terry Township, Bradford County, Pa.; Consumptive Use of Up to 7.5000 mgd; Approval Date: October 24, 2016.
25. Inflection Energy (PA), LLC, Pad ID: Ultimate Warrior, ABR-201111036.R1, Upper Fairfield Township, Lycoming County, Pa.; Consumptive Use of Up to 4.0000 mgd; Approval Date: October 27, 2016.
26. Range Resources—Appalachia, LLC, Pad ID: Bobst Unit #34H-#37H, ABR-201111004.R1, Cogan House Township, Lycoming County, Pa.; Consumptive Use of Up to 1.0000 mgd; Approval Date: October 31, 2016.
27. Range Resources—Appalachia, LLC, Pad ID: Sechrist, Mark—#1H-#3H, ABR-201111005.R1, Anthony Township, Lycoming County, Pa.; Consumptive Use of Up to 1.0000 mgd; Approval Date: October 31, 2016.
28. Range Resources—Appalachia, LLC, Pad ID: Red Bend B Unit—#1H-#8H, ABR-201111006.R1, Cogan House Township, Lycoming County, Pa.; Consumptive Use of Up to 1.0000 mgd; Approval Date: October 31, 2016.
29. Range Resources—Appalachia, LLC, Pad ID: Red Bend C Unit—#1H-#5H, ABR-201111007.R1, Cogan House Township, Lycoming County, Pa.; Consumptive Use of Up to 1.0000 mgd; Approval Date: October 31, 2016.
Pub. L. 91-575, 84 Stat. 1509
Federal Aviation Administration (FAA), DOT.
Notice and request for comments, extension of comment period.
FAA is extending the comment period on a Notice published in the
The comment period for the Notice published October 19, 2016 (81 FR 72145), is extended until January 17, 2017.
Send comments identified by docket number to FAA-2016-9284 using any of the following methods:
•
•
•
•
Mr. Elliott Black, Director, Office of Airport Planning and Programming, Federal Aviation Administration, 800 Independence Ave. SW., Washington, DC 20591. Telephone (202) 267-8775. Email Address:
A Notice published in the
The notice requested that interested parties submit written comments by November 18, 2016. On November 18, 2016, an airport industry association requested an extension to the comment period. After careful consideration, the FAA has decided to extend the comment period until January 17, 2017.
Federal Aviation Administration (FAA), DOT.
Notice and request for comments.
In accordance with the Paperwork Reduction Act of 1995, FAA invites public comments about our intention to request the Office of Management and Budget (OMB) approval to renew a previously approved information collection. The collection of information is necessary to document participation, completion, and compliance with the pilot training program for the MU-2B under the newly published subpart N of part 91 which will replace SFAR No. 108.
Written comments should be submitted by January 3, 2017.
Interested persons are invited to submit written comments on the proposed information collection to the Office of Information and Regulatory Affairs, Office of Management and Budget. Comments should be addressed to the attention of the Desk Officer, Department of Transportation/FAA, and sent via electronic mail to
You are asked to comment on any aspect of this information collection, including (a) Whether the proposed collection of information is necessary for FAA's performance; (b) the accuracy of the estimated burden; (c) ways for FAA to enhance the quality, utility and clarity of the information collection; and (d) ways that the burden could be minimized without reducing the quality of the collected information. The agency will summarize and/or include your comments in the request for OMB's clearance of this information collection.
Ronda Thompson by email at:
Federal Aviation Administration (FAA), DOT.
Notice and request for comments.
In accordance with the Paperwork Reduction Act of 1995, FAA invites public comments about our intention to request the Office of Management and Budget (OMB) approval to renew a previously approved information collection. 14 CFR part 121 to ensure safety-of-flight by making certain that adequate training is obtained and maintained by those who operate under this part of the regulation.
Written comments should be submitted by January 3, 2017.
Interested persons are invited to submit written comments on the proposed information collection to the Office of Information and Regulatory Affairs, Office of Management and Budget. Comments should be addressed to the attention of the Desk Officer, Department of Transportation/FAA, and sent via electronic mail to
Ronda Thompson by email at:
Federal Aviation Administration (FAA), DOT.
Notice and request for comments.
In accordance with the Paperwork Reduction Act of 1995, FAA invites public comments about our intention to request the Office of Management and Budget (OMB) approval to renew a previously approved information collection. The FAA's Fuel Tank Flammability rule requires manufacturers to report to the FAA every six months for up to 5 years after the flammability reduction system is incorporated into the fleet. The data is needed to assure system performance meets that predicted at the time of certification.
Written comments should be submitted by January 3, 2017.
Interested persons are invited to submit written comments on the proposed information collection to the Office of Information and Regulatory Affairs, Office of Management and Budget. Comments should be addressed to the attention of the Desk Officer, Department of Transportation/FAA, and sent via electronic mail to
Ronda Thompson by email at:
Federal Aviation Administration (FAA), DOT.
Notice and request for comments.
In accordance with the Paperwork Reduction Act of 1995, FAA invites public comments about our intention to request the Office of Management and Budget (OMB) approval to renew a previously approved information collection. This collection is necessary in order to determine applicants qualification for certification as Aviation Medical Examiners (AME's).
Written comments should be submitted by January 3, 2017.
Interested persons are invited to submit written comments on the proposed information collection to the Office of Information and Regulatory Affairs, Office of Management and Budget. Comments should be addressed to the attention of the Desk Officer, Department of Transportation/FAA, and sent via electronic mail to
Ronda Thompson by email at:
Federal Aviation Administration (FAA), DOT.
Notice.
This notice contains a summary of a petition seeking relief from specified requirements of Title 14 of the Code of Federal Regulations. The purpose of this notice is to improve the public's awareness of, and participation in, the FAA's exemption process. Neither publication of this notice nor the inclusion or omission of information in the summary is intended to affect the legal status of the petition or its final disposition.
Comments on this petition must identify the petition docket number and must be received on or before December 21, 2016.
Send comments identified by docket number FAA-2016-8884 using any of the following methods:
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For technical questions concerning this action, contact Nia Daniels, (202)267-7626, 800 Independence Avenue SW., Washington, DC 20591.
This notice is published pursuant to 14 CFR 11.85.
Federal Aviation Administration (FAA), DOT.
Request for public comments.
The FAA is considering a request from the Laconia Airport Authority in Gilford, NH, to dispose of 2.96 acres of airport land that is not required for aviation purposes at Laconia Municipal Airport.
The subject parcel has been identified as property no longer needed for aviation use by the Laconia Airport Authority (LAA). The property, Lot 13, located along the east side of Lily Pond Road (NH Route 11C) in the Town of Gilford, is located on the northerly side of the airport's existing business park. The intended use of the property is for boat storage, which is a compatible use adjacent to the airport. Given the location of the parcel, the disposal of this property will have no effect on aviation land nor future development opportunities for the airport. The proceeds of the disposal will be placed in the airport's account and to be used for the operation and maintenance of the airport. Appropriate avigation easements will be placed on the property to ensure compatibility with the airport and the airport's airspace.
Comments must be received on or before January 3, 2017.
You may send comments using any of the following methods:
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Interested persons may inspect the request and supporting documents by contacting the FAA at the address listed under
Mr. Jorge E. Panteli, Compliance and Land Use Specialist, Federal Aviation Administration New England Region Airports Division, 1200 District Avenue, Burlington, Massachusetts 01803. Telephone: 781-238-7618.
Maritime Administration (MARAD).
Final Policy Clarification.
On April 22, 2015, the Maritime Administration (MARAD) published a Notice of Proposed Policy Clarification (80 FR 22611) seeking comments on a proposed policy clarifying the application of the Cargo Preference Act of 1954 (CPA 1954), 46 U.S.C. 55305, to applications, commitments, and guarantees under MARAD's Federal Ship Financing Program (Title XI), 46 U.S.C. Chapter 537. This Notice finalizes MARAD's policy clarification.
This policy is effective on the date of publication, including for all pending Title XI applications.
Owen J. Doherty, Associate Administrator for Business and Finance Development, Maritime Administration, 1200 New Jersey Avenue SE., Washington, DC 20590, (202) 366-9595,
MARAD received ten (10) public comments in response to its Notice of Proposed Policy Clarification. In addition, on July 9, 2015, MARAD held a meeting with interested stakeholders, a transcript of which was published on the public docket folder at
Numerous comments focused on the application of the CPA 1954 to mortgage-period financing. Some commenters asserted that the application of the CPA 1954 to mortgage-period financing would result in such a severe administrative and cost burden that it would render compliance with the CPA 1954 impracticable and deter future Title XI applications. Commenters also asserted that the Proposed Policy Clarification was a significant deviation from MARAD's prior practice of not applying the CPA 1954 to mortgage-period financing. Relatedly, virtually all commenters were concerned about the timing for application of the CPA 1954, with
MARAD has revisited the text of the CPA 1954 and its regulations at 46 CFR 381.7 and determined that cargo preference will not be applied to mortgage-period financing. This decision required conscientious consideration of all public input and is focused on the project scope under Title XI mortgage-period financing and that of construction-period financing. MARAD bases its decision upon the statutory text, which provides in relevant part that the CPA 1954 applies when the U.S. Government “provides financing in any way for . . . equipment, materials, or commodities . . . which may be transported on ocean vessels.” 46 U.S.C. 55305(b). In mortgage-period financing, separate and distinct from construction-period financing, MARAD is only providing financing for the completed, delivered vessel. Financing is not provided for any actual vessel construction activities or vessel components prior to the completed vessel's delivery, which in turn are privately financed. It is further compelling that in admiralty, a vessel, once completed and delivered, is a distinct legal entity that is, for example, “treated in other connections as an entity capable of entering into relations with others, of acting independently and of becoming responsible for her acts.”
Consistent with the above analysis, MARAD notes that a narrow exception to the inapplicability of the CPA 1954 to mortgage-period financing may exist. Specifically, the CPA 1954 may apply if a vessel is financed with a mortgage-period guarantee and the completed vessel is to be delivered at a location other than the shipyard. For example, if MARAD provides a mortgage-period guarantee for a completed vessel and the shipyard places that vessel on a heavy lift ship for final delivery to the Title XI recipient, the ocean transportation for that final delivery may be subject to the CPA 1954. MARAD will review this exceptional circumstance on a case-by-case basis and may apply the contents of this Notice as appropriate.
Separate from mortgage-period financing, and consistent with the project scope analysis described above, the CPA 1954 does apply to all cargoes under Title XI construction-period financing, without regard to the timing of the Title XI application or approval. In construction-period financing, when an application is approved, MARAD is providing financing based upon the “Actual Cost” of the vessel as defined by 46 CFR 298.2 and further described in 46 CFR 298.13(b). In providing construction-period financing, MARAD is therefore financing all discrete equipment and materials that will be incorporated into the vessel and included in the Actual Cost, regardless of when an application is submitted or approved. In this manner, equipment and materials purchased and transported prior to the approval and issuance of a Title XI guarantee but included in Actual Cost is akin to using Federal assistance to finance pre-award costs.
It is further noted that the above analysis regarding construction-period financing will also generally apply to Title XI financing for vessel reconstruction or reconditioning. Therefore, absent evidence to the contrary for a particular project, the CPA 1954 is applicable in the same manner to cargoes for vessel reconstruction or reconditioning projects financed through a Title XI guarantee.
Beyond the applicability to different types of financing, MARAD also received multiple comments asserting that the submission of bills of lading was overly burdensome. Bills of lading are the sole basis by which MARAD can assess what cargo has been transported and whether program participants have complied with the CPA 1954. The requirement to submit bills of lading under Federal acquisitions and Federal financing agreements is long established.
Commenters also expressed concern regarding the submission of transportation plans, specifically that there was a lack of clarity for what needs to be contained in a transportation plan. In response, MARAD has included example transportation plan contents below in Section 3 of this Final Policy Clarification. It is also noted that while a transportation plan is required to be submitted at the time of application, MARAD views transportation plans as cooperative documents that should be updated as construction progresses. This process ensures that all parties, including MARAD, the Title XI participant, and the shipyard have a continuing understanding of the participant's CPA 1954 compliance as the project evolves.
A number of commenters also expressed concern regarding the process used to determine U.S.-flag vessel availability and the related issue of determining when an offered rate is fair and reasonable. The comments often incorrectly cited the cost differential between U.S.-flag and foreign-flag vessels. The statute unambiguously states that availability is based upon “fair and reasonable rates
Finally, some commenters disagree with the potential remedies listed in Section 5 of the Notice of Proposed Policy Clarification and expressed doubt that MARAD possesses the requisite authority to impose such remedies. MARAD disagrees and affirms that it possesses the discretion to impose the remedies in Section 5. If MARAD chooses to impose civil penalties under 46 U.S.C. 55305(d) as a result of a violation of the CPA 1954 by a Title XI participant, MARAD would also follow applicable procedures to afford all protections under the Administrative Procedure Act.
The CPA 1954 mandates that shippers use U.S.-flag vessels to transport a portion of Government-impelled, ocean borne cargoes. Through statutory amendments in 2008 to 46 U.S.C. 55305(b), the CPA 1954 was clarified to state that the statute applies whenever the U.S. Government provides financing in any way with Federal funds for the account of any person. MARAD, as the agency charged with implementing and overseeing compliance administration of the CPA 1954, previously determined that “financing in any way” includes Federal loan guarantee programs, such as Title XI.
There are both transportation and administrative requirements associated with the CPA 1954:
For vessel reconstruction, reconditioning, or construction-period financing, the cargo preference requirements apply to all foreign components that are transported by ocean and included in the “Actual Cost” of the project in accordance with 46 CFR 298.13(b). Consistent with the statutory mandate, given that MARAD is providing financing for all equipment included in Actual Cost, including equipment transported prior to approval, the total revenue tonnage of all foreign equipment transported by ocean will serve as the denominator from which the at-least-50-percent-U.S.-flag transportation calculation will be made.
At the time of application, all vessel reconstruction, reconditioning, or construction-period financing applicants are required to submit a transportation plan for review by MARAD to ensure that sufficient planning has occurred to meet the CPA 1954 requirements. This requirement will be discussed with each applicant and potential applicant at the earliest possible time. A transportation plan generally contains a description of each shipment cargo including weight and volume, country of origin, date of shipment, the flag of the vessels that will carry the cargo, and, to the extent known, the vessel and/or carrier that will be engaged for future shipments. Ideally, the U.S.-flag portion is shipped first under a transportation plan to ensure compliance with the CPA 1954; however, a plan that does not conform to this principle may still be acceptable. Furthermore, understanding that schedules will change as the project develops, MARAD anticipates that the Title XI participant and the shipyard constructing the vessel will continuously engage with MARAD to update the transportation plan as necessary. By reviewing the shipping plan early in the application process, or prior to submission of any application if possible, MARAD can work with Title XI participants and their respective shipyards to help identify and work with them to mitigate challenges to CPA 1954 compliance.
Only MARAD can issue a determination that no U.S.-flag vessels are available at fair and reasonable rates. If a Title XI participant, through demonstrably diligent efforts, is unable to find U.S.-flag service, without MARAD's issuance of a determination of the non-availability of qualified U.S.-flag carriage, the participant's due diligence alone will not excuse that applicant from CPA 1954 requirements. Title XI participants must communicate with U.S.-flag carriers at the earliest possible time to ensure the greatest degree of coordination and to obtain the best freighted rates. In the event that a Title XI participant experiences difficulty obtaining U.S.-flag service, or if it can only find partial U.S.-flag service, the participant must contact MARAD without delay at
In evaluating whether U.S.-flag vessels are available at fair and reasonable rates, MARAD may consider, at its discretion: (1) U.S.-flag rates offered in response to the shipper's solicitation; (2) U.S.-flag commercial rates being offered on the same trade route under similar circumstances taking into account, as available, information obtained from interviews with U.S.-flag carriers, historic rates, published rates, and applicable index rates; (3) As available and applicable, guideline rates calculated under 46 CFR part 382; and (4) Whether the shipper has made a demonstrably diligent effort to obtain U.S.-flag service, including evidence of advanced planning and requests for proposals for ocean transportation issued by the shipper. Vessel availability is assessed in consideration of shipper's reasonable required laycan and delivery dates.
At MARAD's direction, as the administrator of the Title XI program, non-compliant parties may be denied a letter commitment or, consistent with 46 U.S.C. 55305(d)(2)(B), may be required to provide make-up cargoes for carriage aboard U.S.-flag vessels to offset the lost cargo carriage supporting work under the Title XI financing application. Where knowing and willful violations occur, consistent with 46 U.S.C. 55305(d)(2)(C), MARAD may issue a civil penalty of not more than $25,000 for each violation, with each day of a continuing violation following the date of shipment counting as a separate violation. Additionally, CPA 1954 requirements are incorporated into Title XI letter commitments; therefore, failure to properly adhere to cargo preference requirements could impact MARAD's ability to close on a Title XI guarantee because the recipient has not met its obligations under the letter commitment. However, with early planning and coordination with MARAD, no CPA 1954 violations need occur.
The CPA 1954 provides cargo that helps to retain and encourage a privately-owned and operated U.S.-flag merchant fleet. The U.S.-flag fleet is a vital resource, providing essential sealift capability to globally project and sustain the U.S. Armed Forces or support other national emergencies, maintaining a cadre of skilled seafarers available in time of national emergencies, and helping to protect U.S. economic interests. The U.S. maritime industry also supports thousands of sea-going, shore-based, and secondary, associated jobs, supporting the Nation's economic growth. It is imperative that Federal programs, such as Title XI, and beneficiary Title XI applicants and shipyards, as members of the U.S. maritime industry, support this national priority through proper adherence to cargo preference requirements. Therefore, while the use of U.S.-flag vessels to carry 50 percent of the gross tons of ocean borne cargoes is the statutory minimum, MARAD, as the agency charged with administering both Title XI and the CPA 1954, encourages the use of U.S.-flag vessels for greater than the minimum whenever possible.
46 U.S.C. 55305; 46 U.S.C. Ch. 537.
By Order of the Maritime Administrator.
Maritime Administration, Department of Transportation.
Notice.
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 January 3, 2017.
Comments should refer to docket number MARAD-2016-0117. 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 CRACKER JACK is:
The complete application is given in DOT docket MARAD-2016-0117 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.
Office of the Secretary, U.S. Department of Transportation (DOT).
Notice of open committee meeting.
The Department of Transportation is publishing this notice to announce the following Federal advisory committee meeting of the Advisory Committee on Transportation Equity (ACTE). The meeting is open to the public.
The Committee will meet from 2:30 p.m. to 5 p.m. EST on December 15, 2016.
The meeting will be held at 1200 New Jersey Avenue SE., Washington, DC.
Barbara McCann, U.S. Department of Transportation, Office of the Secretary, Office of Policy, Room W84-212, 1200 New Jersey Avenue SE., Washington, DC 20590; phone (202) 366-2234; email:
The committee meeting is being held in accordance with the Federal Advisory Committee Act, 5 U.S.C. App.
Environmental Protection Agency (EPA).
Final rule.
Pursuant to the U.S. Environmental Protection Agency's (EPA) Significant New Alternatives Policy program, this action lists certain substances as
This rule is effective January 3, 2017. The incorporation by reference of certain publications listed in the rule is approved by the Director of the Federal Register as of January 3, 2017.
EPA has established a docket for this action under Docket ID No. EPA-HQ-OAR-2015-0663. All documents in the docket are listed on the
Chenise Farquharson, Stratospheric Protection Division, Office of Atmospheric Programs (Mail Code 6205T), Environmental Protection Agency, 1200 Pennsylvania Ave. NW., Washington, DC 20460; telephone number: 202-564-7768; email address:
Under section 612 of the Clean Air Act (CAA), EPA is required to evaluate substitutes
Over the past twenty years, the SNAP program has played an important role in assisting with a continuous smooth transition to safer alternatives. Since the first SNAP framework rule published in 1994, which provided confidence and certainty by identifying safer alternatives in key consumer and industrial uses, the SNAP program has ensured that businesses and consumers have access to information about suitable alternatives. The SNAP program works with many stakeholders, domestically and abroad, to continuously evaluate and provide updates on safer alternatives and new technologies. Thanks to these efforts and the work of individuals, businesses, and organizations, the transitions generally have been successful.
When reviewing a substitute, EPA compares the risk posed by that substitute to the risks posed by other alternatives and determines whether that specific substitute under review poses significantly more risk than other available or potentially available alternatives for the same use. EPA recently has begun to review the lists in a broader manner to determine whether substitutes added to the lists early in the program pose significantly more risk than substitutes that have more recently been added. As with initial listing decisions, EPA bases decisions to change the status of an already listed alternative on the same comparative risk framework.
In this action, EPA is listing a number of substances as acceptable, subject to use conditions; listing several substances as unacceptable; and changing the listing status for certain substances from acceptable to acceptable, subject to narrowed use limits or to unacceptable. We performed a comparative risk analysis, based on our criteria for review, with other alternatives for the relevant end-uses. For the substances addressed in this action, EPA found significant potential differences in risk as compared to other available or potentially available substitutes with respect to one or more specific criteria, such as flammability, toxicity, or local air quality. In some cases, those risks could be addressed through use conditions and EPA is listing several substitutes as acceptable, subject to use conditions. In other cases, the risks could not be adequately mitigated through use conditions and, in those cases, EPA is listing several new substitutes and changing the status of several existing substitutes to unacceptable. In a few instances, EPA established narrowed use limits for certain substitutes over a limited period of time for specific military or space-and aeronautics-related applications in the refrigeration and air conditioning (AC), and foam blowing sectors, on the basis that other acceptable alternatives would not be available for those specific applications within broader end-uses, but acceptable alternatives were expected to become available over time. EPA is also applying unacceptability determinations for foam blowing agents to closed cell foam products and products containing closed cell foam. See section VI.C.4 for the details of this action. Additionally, EPA is exempting propane as a refrigerant in new self-contained commercial ice machines, in new water coolers, and in new very low temperature refrigeration equipment from the venting prohibition under CAA section 608(c)(2). See section VI.A.2.c for the details of this action.
Per the guiding principles of the SNAP program, this action does not specify that any alternative is acceptable or unacceptable across all sectors and end-uses. Instead, in all cases, EPA considered the intersection between the specific alternative and the particular end-use and the availability of substitutes for those particular end-uses. In the case of refrigeration and AC, we consider new equipment to be a separate end-use from retrofitting existing equipment with a different refrigerant from that for which the equipment was originally designed. EPA is not setting a “risk threshold” for any specific SNAP criterion, such that the only acceptable substitutes pose risk below a specified level of risk. Because the substitutes available and the types of risk they may pose vary by sector and end-use, our review focuses on the specific end-use and the alternatives for that end-use, including the other risks alternatives might pose. Thus, there is no bright line that can be established to apply to all sectors and end-uses. Also, EPA recognizes that there are a range of substitutes with various uses that include both fluorinated (
The following is a summary of the actions taken in this rule.
(1) For refrigeration, EPA is listing as acceptable, subject to use conditions, as of January 3, 2017:
• Propane in new commercial ice machines, new water coolers, and new
(2) For motor vehicle air conditioning (MVAC) systems, EPA is listing, as acceptable, subject to use conditions, as of January 3, 2017:
• HFO-1234yf in newly manufactured medium-duty passenger vehicles (MDPVs), heavy-duty (HD) pickup trucks, and complete HD vans.
(3) For fire suppression and explosion protection end-uses, EPA is listing as acceptable, subject to use conditions, as of January 3, 2017:
• 2-bromo-3,3,3-trifluoroprop-1-ene (2-BTP) as a total flooding agent for use in engine nacelles and auxiliary power units (APUs) on aircraft; and
• 2-BTP as a streaming agent for use in handheld extinguishers in aircraft.
(1) For retrofit residential and light commercial AC and heat pumps—unitary split AC systems and heat pumps, EPA is listing as unacceptable, as of January 3, 2017:
• All refrigerants identified as flammability Class 3 in American National Standards Institute (ANSI)/American Society of Heating, Refrigerating and Air-Conditioning Engineers (ASHRAE) Standard 34-2013; and
• All refrigerants meeting the criteria for flammability Class 3 in ANSI/ASHRAE Standard 34-2013. These include, but are not limited to, refrigerant products sold under the names R-22a, 22a, Blue Sky 22a refrigerant, Coolant Express 22a, DURACOOL-22a, EC-22, Ecofreeez EF-22a, Envirosafe 22a, ES-22a, Frost 22a, HC-22a, Maxi-Fridge, MX-22a, Oz-Chill 22a, Priority Cool, and RED TEK 22a.
(2) For new residential and light commercial AC and heat pumps, cold storage warehouses, centrifugal chillers, and positive displacement chillers, EPA is listing as unacceptable, as of January 3, 2017:
• Propylene and R-443A.
(1) For new centrifugal chillers, EPA is listing as unacceptable, except as otherwise allowed under a narrowed use limit, as of January 1, 2024:
• FOR12A, FOR12B, HFC-134a, HFC-227ea, HFC-236fa, HFC-245fa, R-125/134a/600a (28.1/70/1.9), R-125/290/134a/600a (55.0/1.0/42.5/1.5), R-404A, R-407C, R-410A, R-410B, R-417A, R-421A, R-422B, R-422C, R-422D, R-423A, R-424A, R-434A, R-438A, R-507A, RS-44 (2003 composition), and THR-03.
(2) For new positive displacement chillers, EPA is listing as unacceptable, except as otherwise allowed under a narrowed use limit, as of January 1, 2024:
• FOR12A, FOR12B, HFC-134a, HFC-227ea, KDD6, R-125/134a/600a (28.1/70/1.9), R-125/290/134a/600a (55.0/1.0/42.5/1.5), R-404A, R-407C, R-410A, R-410B, R-417A, R-421A, R-422B, R-422C, R-422D, R-424A, R-434A, R-437A, R-438A, R-507A, RS-44 (2003 composition), SP34E, and THR-03.
(3) For new centrifugal chillers, EPA is listing as acceptable, subject to narrowed use limits, as of January 1, 2024:
• HFC-134a for military marine vessels and HFC-134a and R-404A for human-rated spacecraft and related support equipment
(4) For new positive displacement chillers, EPA is listing as acceptable, subject to narrowed use limits, as of January 1, 2024:
• HFC-134a for military marine vessels and HFC-134a and R-404A for human-rated spacecraft and related support equipment
(5) For new cold storage warehouses, EPA is listing as unacceptable, as of January 1, 2023:
• HFC-227ea, R-125/290/134a/600a (55.0/1.0/42.5/1.5), R-404A, R-407A, R-407B, R-410A, R-410B, R-417A, R-421A, R-421B, R-422A, R-422B, R-422C, R-422D, R-423A, R-424A, R-428A, R-434A, R-438A, R-507A, and RS-44 (2003 composition).
(6) For new retail food refrigeration (refrigerated food processing and dispensing equipment), EPA is listing as unacceptable, as of January 1, 2021:
• HFC-227ea, KDD6, R-125/290/134a/600a (55.0/1.0/42.5/1.5), R-404A, R-407A, R-407B, R-407C, R-407F, R-410A, R-410B, R-417A, R-421A, R-421B, R-422A, R-422B, R-422C, R-422D, R-424A, R-428A, R-434A, R-437A, R-438A, R-507A, RS-44 (2003 formulation).
(7) For new household refrigerators and freezers, EPA is listing as unacceptable, as of January 1, 2021:
• FOR12A, FOR12B, HFC-134a, KDD6, R-125/290/134a/600a (55.0/1.0/42.5/1.5), R-404A, R-407C, R-407F, R-410A, R-410B, R-417A, R-421A, R-421B, R-422A, R-422B, R-422C, R-422D, R-424A, R-426A, R-428A, R-434A, R-437A, R-438A, R-507A, RS-24 (2002 formulation), RS-44 (2003 formulation), SP34E, and THR-03.
(8) For rigid polyurethane (PU) high-pressure two-component spray foam, EPA is listing as unacceptable for all uses, except military or space- and aeronautics-related applications, as of January 1, 2020; as acceptable, subject to narrowed use limits, for military or space-and aeronautics-related applications, as of January 1, 2020; and as unacceptable for military or space-and aeronautics-related applications as of January 1, 2025:
• HFC-134a, HFC-245fa, and blends thereof; blends of HFC-365mfc with at least four percent HFC-245fa, and commercial blends of HFC-365mfc with seven to 13 percent HFC-227ea and the remainder HFC-365mfc; and Formacel TI.
(9) For rigid PU low-pressure two-component spray foam, EPA is listing as unacceptable for all uses, except military or space-and aeronautics-related applications, as of January 1, 2021; as acceptable, subject to narrowed use limits, for military or space-and aeronautics-related applications, as of January 1, 2021; and as unacceptable for military or space-and aeronautics-related applications as of January 1, 2025:
• HFC-134a, HFC-245fa, and blends thereof; blends of HFC-365mfc with at least four percent HFC-245fa, and commercial blends of HFC-365mfc with seven to 13 percent HFC-227ea and the remainder HFC-365mfc; and Formacel TI.
(10) For rigid PU one-component foam sealants, EPA is listing as unacceptable, as of January 1, 2020:
• HFC-134a, HFC-245fa, and blends thereof; blends of HFC-365mfc with at least four percent HFC-245fa, and commercial blends of HFC-365mfc with seven to 13 percent HFC-227ea and the remainder HFC-365mfc; and Formacel TI.
(11) For all foam blowing end-uses except for rigid PU spray foam, EPA is listing as unacceptable, as of January 1, 2025:
• HFCs and HFC blends previously listed as unacceptable as of January 1, 2022, for space-and aeronautics-related applications.
(12) For flexible PU foam applications, EPA is listing as unacceptable, as of January 3, 2017:
• Methylene chloride.
While EPA proposed and requested comments on listing certain perfluorocarbons (PFCs) as unacceptable in fire suppression total flooding uses, EPA is not finalizing that change in this rulemaking.
(1) For all foam blowing end-uses, EPA is prohibiting the use of closed cell
(2) For fire suppression total flooding uses, EPA is clarifying the listing for Powdered Aerosol D (Stat-X®), which was previously listed as both “acceptable” and “acceptable, subject to use conditions,” by removing the listing as “acceptable, subject to use conditions,” as of January 3, 2017.
Potential entities that may be affected by this rule include:
This table is not intended to be exhaustive, but rather provides 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. Other types of entities not listed in the table could also be regulated. To determine whether your entity is regulated by this action, you should carefully examine the applicability criteria found in 40 CFR part 82. If you have questions regarding the applicability of this action to a particular entity, consult the person listed in the
Below is a list of acronyms and abbreviations used in the preamble of this document:
CAA section 612 requires EPA to develop a program for evaluating alternatives to ODS. This program is known as the SNAP program. The major provisions of section 612 are:
Section 612(c) requires EPA to promulgate rules making it unlawful to replace any class I (chlorofluorocarbon (CFC), halon, carbon tetrachloride, methyl chloroform, methyl bromide, hydrobromofluorocarbon (HBFC), and chlorobromomethane) or class II hydrochlorofluorocarbon (HCFC)) substance with any substitute that the Administrator determines may present adverse effects to human health or the environment where the Administrator has identified an alternative that (1) reduces the overall risk to human health and the environment and (2) is currently or potentially available.
Section 612(c) requires EPA to publish a list of the substitutes that it finds to be unacceptable for specific uses and to publish a corresponding list of acceptable substitutes for specific uses. The list of “acceptable” substitutes is found at
Section 612(d) grants the right to any person to petition EPA to add a substance to, or delete a substance from, the lists published in accordance with section 612(c). The Agency has 90 days to grant or deny a petition. Where the Agency grants the petition, EPA must publish the revised lists within an additional six months.
Section 612(e) directs EPA to require any person who produces a chemical substitute for a class I substance to
Section 612(b)(1) states that the Administrator shall seek to maximize the use of federal research facilities and resources to assist users of class I and II substances in identifying and developing alternatives to the use of such substances in key commercial applications.
Section 612(b)(4) requires the Agency to set up a public clearinghouse of alternative chemicals, product substitutes, and alternative manufacturing processes that are available for products and manufacturing processes which use class I and II substances.
On March 18, 1994, EPA published the initial SNAP rule (59 FR 13044) which established the process for administering the SNAP program and issued EPA's first lists identifying acceptable and unacceptable substitutes in major industrial use sectors (40 CFR part 82 subpart G). These sectors include the following: Refrigeration and AC; foam blowing; solvents cleaning; fire suppression and explosion protection; sterilants; aerosols; adhesives, coatings and inks; and tobacco expansion. These sectors comprise the principal industrial sectors that historically consumed the largest volumes of ODS.
Under the SNAP regulations, anyone who produces a substitute to replace a class I or II ODS in one of the eight major industrial use sectors listed previously must provide the Agency with notice and the required health and safety information on the substitute at least 90 days before introducing it into interstate commerce for significant new use as an alternative (40 CFR 82.176(a)). While this requirement typically applies to chemical manufacturers as the person likely to be planning to introduce the substitute into interstate commerce,
The Agency has identified four possible decision categories for substitute submissions: Acceptable; acceptable, subject to use conditions; acceptable, subject to narrowed use limits; and unacceptable (40 CFR 82.180(b).
After reviewing a substitute, the Agency may determine that a substitute is acceptable only if certain conditions in the way that the substitute is used are met to ensure risks to human health and the environment are not significantly greater than other substitutes. EPA describes such substitutes as “acceptable, subject to use conditions.” Entities that use these substitutes without meeting the associated use conditions are in violation of CAA section 612 and EPA's SNAP regulations (40 CFR 82.174(c)).
For some substitutes, the Agency may permit a narrow range of use within an end-use or sector. For example, the Agency may limit the use of a substitute to certain end-uses or specific applications within an industry sector. The Agency generally requires a user of a substitute subject to narrowed use limits to demonstrate that no other acceptable substitutes are available for their specific application.
The section 612 mandate for EPA to prohibit the use of a substitute that may present risk to human health or the environment where a lower risk alternative is available or potentially available
In contrast, EPA publishes “notices of acceptability” to notify the public of substitutes that are deemed acceptable with no restrictions. As described in the preamble to the rule initially implementing the SNAP program (59 FR 13044; March 18, 1994), rulemaking procedures are not necessary to list substitutes that are acceptable without restrictions because such listings neither impose any sanction nor prevent anyone from using a substitute.
Many SNAP listings include “comments” or “further information” to provide additional information on substitutes. Since this additional information is not part of the regulatory decision, these statements are not binding for use of the substitute under the SNAP program. However, regulatory requirements so listed are binding under other regulatory programs (
The seven guiding principles of the SNAP program, elaborated in the preamble to the initial SNAP rule and consistent with section 612, are discussed in this section.
The SNAP program evaluates the risk of alternative compounds compared to available or potentially available substitutes to the ozone-depleting compounds which they are intended to replace. The risk factors that are considered include ozone depletion potential (ODP) as well as flammability, toxicity, occupational health and safety, and contributions to climate change and other environmental factors.
Substitutes found to be acceptable must not pose significantly greater risk than other substitutes, but they do not have to be risk free. A key goal of the SNAP program is to promote the use of substitutes that minimize risks to human health and the environment relative to other alternatives. In some cases, this approach may involve designating a substitute acceptable even though the compound may pose a risk of some type, provided its use does not pose significantly greater risk than other alternatives.
EPA does not intend to restrict a substitute if it has only marginally greater risk. Drawing fine distinctions would be extremely difficult. The Agency also does not want to intercede in the market's choice of substitutes by listing as unacceptable all but one substitute for each end-use, and does not intend to restrict substitutes on the market unless a substitute has been proposed or is being used that is clearly more harmful to human health or the environment than other alternatives.
Central to SNAP's evaluations is the intersection between the characteristics of the substitute itself and its specific end-use application. Section 612 requires that substitutes be evaluated by use. Environmental and human health exposures can vary significantly depending on the particular application of a substitute. Thus, the risk characterizations must be designed to represent differences in the environmental and human health effects associated with diverse uses. This approach cannot, however, imply fundamental tradeoffs with respect to different types of risk to either the environment or to human health.
The Agency recognizes the need to provide the regulated community with information on the acceptability of various substitutes as soon as possible. To do so, EPA issues notices or determinations of acceptability and rules identifying substitutes as unacceptable; acceptable, subject to use conditions; or acceptable, subject to narrowed use limits, in the
The Agency does not issue company-specific product endorsements. In many cases, the Agency may base its analysis on data received on individual products, but the addition of a substitute to the acceptable list based on that analysis does not represent an endorsement of that company's products.
In some cases, EPA and other federal agencies have developed extensive regulations under other sections of the CAA or other statutes that address potential environmental or human health effects that may result from the use of alternatives to class I and class II substances. For example, use of some substitutes may in some cases entail increased use of chemicals that contribute to tropospheric air pollution. The SNAP program takes existing regulations under other programs into account when reviewing substitutes.
EPA applies the same criteria for determining whether a substitute is acceptable or unacceptable. These criteria, which can be found at § 82.180(a)(7), include atmospheric effects and related health and environmental effects, ecosystem risks, consumer risks, flammability, and cost and availability of the substitute. To enable EPA to assess these criteria, we require submitters to include various information including ODP, global warming potential (GWP), toxicity, flammability, and the potential for human exposure.
When evaluating potential substitutes, EPA evaluates these criteria in the following groupings:
1.
2.
• Releases in the workplace and in homes;
• Releases to ambient air and surface water;
• Releases from the management of solid wastes.
3.
• Permissible Exposure Limits (PELs) for occupational exposure;
• Inhalation reference concentrations (RfCs) for non-carcinogenic effects on the general population;
• Cancer slope factors for carcinogenic risk to members of the general population.
When considering risks in the workplace, if OSHA has not issued a PEL for a compound, EPA then considers Recommended Exposure Limits (RELs) from the National Institute for Occupational Safety and Health (NIOSH), Workplace Environmental Exposure Limits (WEELs) set by the American Industrial Hygiene Association (AIHA), or threshold limit values (TLVs) set by the American Conference of Governmental Industrial Hygienists (ACGIH). If limits for occupational exposure or exposure to the general population are not already established, then EPA derives these values following the Agency's peer review guidelines. Exposure information is combined with toxicity information to explore any basis for concern. Toxicity data are used with existing EPA guidelines to develop health-based limits for interim use in these risk characterizations.
4.
• Flash point and flammability limits (
• Data on testing of blends with flammable components;
• Test data on flammability in consumer applications conducted by independent laboratories; and
• Information on flammability risk mitigation techniques.
5.
EPA's consideration of cost in listing decisions is limited to evaluating the cost of the substitute under review pursuant to § 82.180(a)(7)(vii). This is distinct from consideration of costs associated with the use of other alternatives to which the substitute is being compared.
Over the past twenty years, the menu of substitutes has become much broader and a great deal of new information has been developed on many substitutes. Because the overall goal of the SNAP program is to ensure that substitutes listed as acceptable do not pose significantly greater risk to human health and the environment than other substitutes, the SNAP criteria continue to be informed by our current overall understanding of environmental and human health impacts and our experience with and current knowledge about alternatives. Over time, the range of substitutes reviewed by SNAP has changed, and at the same time, scientific approaches have evolved to more accurately assess the potential environmental and human health impacts of these chemicals and alternative technologies.
Three mechanisms exist for modifying the list of SNAP determinations. First, under section 612(d), the Agency must review and either grant or deny petitions to add or delete substances from the SNAP list of acceptable or unacceptable substitutes. That provision allows any person to petition the Administrator to add a substance to the list of acceptable or unacceptable substitutes or to remove a substance from either list. The second means is through the notifications which must be submitted to EPA 90 days before introduction of a substitute into interstate commerce for significant new use as an alternative to a class I or class II substance. These 90-day notifications are required by CAA section 612(e) for producers of substitutes to class I substances for new uses and, in all other cases, by EPA regulations issued under sections 114 and 301 of the Act to implement section 612(c).
Finally, since the inception of the SNAP program, we have interpreted the section 612 mandate to find substitutes acceptable or unacceptable to include the authority to act on our own to add or remove a substance from the SNAP lists (59 FR 13044, 13047; March 18, 1994). In determining whether to add or remove a substance from the SNAP lists, we consider whether there are other alternatives that pose lower overall risk to human health and the environment. In determining whether to modify a listing of a substitute we undertake the same consideration, but do so in the light of new data that may not have been available at the time of our original listing decision, including information on substitutes that was not included in our comparative review at the time of our initial listing decision and new information on substitutes previously reviewed.
As described in this document and elsewhere, including in the initial SNAP rule published in the
It has now been over twenty years since the initial SNAP rule was promulgated. When the SNAP program began, the number of substitutes available for consideration was, for many end-uses, somewhat limited. Thus, while the SNAP program's initial comparative assessments of overall risk to human health and the environment were rigorous, often there were few substitutes upon which to apply the comparative assessment. The immediacy of the class I phaseout often meant that EPA listed class II ODS (
Since EPA issued the initial SNAP rule in 1994, the Agency has issued 20 rules and 31 notices that generally expand the menu of options for the various SNAP sectors and end-uses. Thus, comparisons today apply to a broader range of alternatives—both chemical and non-chemical—than at the inception of the SNAP program. Industry experience with these substitutes has also grown during the history of the program.
In addition to an expanding menu of substitutes, developments over the past 20 years have improved our understanding of global environmental issues. With regard to that information, our review of substitutes in this action includes comparative assessments that consider our evolving understanding of a variety of factors. For example, GWPs and climate effects are not new elements in our evaluation framework, but as is the case with all of our review criteria, the amount of information has expanded and the quality has improved.
To the extent possible, EPA's ongoing management of the SNAP program considers new information, including new substitutes, and improved understanding of the risk to the environment and human health. EPA previously has taken several actions revising listing determinations from acceptable or acceptable with use conditions to unacceptable. On January 26, 1999, EPA listed the refrigerant blend known by the trade name MT-31 as unacceptable for all refrigeration and AC end-uses for which EPA had previously listed this blend as an acceptable substitute (62 FR 30275; June 3, 1997). EPA based this decision on new information about the toxicity of one of the chemicals in the blend.
Another example of EPA revising a listing determination occurred in 2007, when EPA listed HCFC-22 and HCFC-142b as unacceptable for use in the foam sector (72 FR 14432; March 28, 2007). These HCFCs, which are ozone-depleting and subject to a global production phaseout, were initially listed as acceptable substitutes since they had a lower ODP than the substances they were replacing and there were no other alternatives that posed lower overall risk at the time of EPA's listing decision. HCFCs offered a path forward for some sectors and end-uses at a time when the number of substitutes was far more limited. In light of the expanded availability of other alternatives with lower overall risk to human health and the environment in specific foam end-uses, and taking into account the 2010 class II ODS phase down step, EPA changed the listing for these HCFCs in relevant end-uses from acceptable to unacceptable. In that rule, EPA noted that continued use of these HCFCs would contribute to unnecessary depletion of the ozone layer and delay the transition to substitutes that pose lower overall risk to human health and the environment. EPA established a change of status date that recognized that existing users needed time to adjust their manufacturing processes to safely accommodate the use of other substitutes.
GWP is one of several criteria EPA considers in the overall evaluation of the alternatives under the SNAP program. The President's June 2013 Climate Action Plan (CAP)
In the July 2015 rule, various HFCs and HFC-containing blends that were previously listed as acceptable under the SNAP program were listed as unacceptable in various end-uses in the aerosols, foam blowing, and refrigeration and AC sectors where there are other alternatives that pose lower overall risk to human health and the environment for specific uses. The July 2015 rule also changed the status from acceptable to unacceptable for certain HCFCs being phased out of production under the Montreal Protocol and CAA section 605(a). Per the guiding principles of the SNAP program, the July 2015 rule did not specify that any HFCs or HCFCs are unacceptable across all sectors and end-uses. Instead, in all cases, EPA considered the intersection between the specific substitute and the particular end-use and the availability of substitutes for those particular end-uses when making its determinations.
For copies of the comprehensive SNAP lists of substitutes or additional information on SNAP, refer to EPA's Web site at
GWP is one of several criteria EPA considers in the overall evaluation of alternatives under the SNAP program. During the past two decades, the general science on climate change and the potential contributions of greenhouse gases (GHGs) such as HFCs to climate change have become better understood.
On December 7, 2009, at 74 FR 66496, the Administrator issued an endangerment finding determining that, for purposes of CAA section 202(a), elevated atmospheric concentrations of the combination of six key well-mixed GHGs in the atmosphere—CO
Like the ODS they replace, HFCs are potent GHGs.
Without action, annual global emissions of HFCs are projected to rise to about 6.4 to 9.9 gigatons of CO
PFCs are potent GHGs and have very long atmospheric lifetimes. PFCs are produced as a byproduct of various industrial processes associated with aluminum production and the manufacturing of semiconductors, then captured for intentional use or manufactured for use in various industrial applications. PFCs have had limited use in the eight sectors regulated under SNAP. While status changes for certain PFCs in fire suppression total flooding uses were proposed, no final action on PFCs in this end-use is being taken in this action.
This action is consistent with a provision in the President's CAP announced June 2013:
Moving forward, the Environmental Protection Agency will use its authority through the Significant New Alternatives Policy Program to encourage private sector investment in low-emissions technology by identifying and approving climate-friendly chemicals while prohibiting certain uses of the most harmful chemical alternatives.
The CAP further states, “To reduce emissions of HFCs, the United States can and will lead both through international diplomacy as well as domestic actions.” This action is consistent with that call for leadership through domestic actions. Regarding international leadership, for the past seven years, the United States, Canada, and Mexico have proposed an amendment to the Montreal Protocol to phase down the production and consumption of HFCs. Adopting the North American proposal would reduce cumulative HFC emissions by more than 90 GtCO
Throughout our discussions with the regulated community, we have sought to convey our understanding of the role that certainty plays in enabling the robust development and uptake of alternatives. As noted above, some of the key strengths of the SNAP program, such as its substance and end-use specific consideration, its multi-criteria basis for action, and its petition process, counters measures some have advocated could provide more certainty, such as setting specific numerical criteria for environmental evaluations (
EPA received two petitions on October 6, 2015, requesting the Agency to modify certain acceptability listings of high-GWP substances in various end-uses. The first was submitted by the Natural Resource Defense Council (NRDC) and the Institute for Governance and Sustainable Development (IGSD) and the second by the Environmental
• HFC-134a in new centrifugal chillers, new positive displacement chillers, new household refrigerators and freezers, and rigid PU spray foam;
• R-404A, R-410A, R-410B, and R-507A in new centrifugal chillers, new positive displacement chillers, new household refrigerators and freezers, and new cold storage warehouses;
• R-407A in new cold storage warehouses;
• R-421A, R-422B, R-422C, R-422D, R-424A, and R-434A in new centrifugal chillers and new positive displacement chillers;
• HFC-227ea in new cold storage warehouses, new centrifugal chillers, and new positive displacement chillers;
• HFC-245fa, HFC-365mfc, and HFC-227ea in rigid PU spray foam;
• HFC-245fa and HFC-227ea in new centrifugal chillers and new positive displacement chillers; and
• a number of refrigerant blends with higher GWPs in certain new refrigeration and AC equipment.
Parts of two other SNAP petitions previously submitted by the same three organizations are also relevant to this rulemaking. In a petition EIA submitted to EPA on April 26, 2012, EIA stated that “in light of the comparative nature of the SNAP program's evaluation of substitutes and given that other acceptable substitutes are on the market or soon to be available,” EPA should “remove HFC-134a and HFC-134a blends from the list of acceptable substitutes for any ozone-depleting substance in any non-essential uses under EPA's SNAP program.” Additionally, NRDC, EIA, and IGSD filed a petition on April 27, 2012, requesting that EPA remove HFC-134a from the list of acceptable substitutes in household refrigerators and freezers, and stand-alone retail food refrigerators and freezers, among other end-uses. On August 7, 2013, EPA found both petitions to be incomplete. While EPA has not found these petitions complete at this time, EPA possesses sufficient information to finalize action on some of the end-uses covered by the petitions. Similar to the October 2015 petitions, this action is responsive to certain aspects of the petitions that relate to the refrigeration and AC and foam blowing sectors.
To briefly summarize the primary requirements of CAA section 608, that section requires, among other things, that EPA establish regulations governing the use and disposal of ODS used as refrigerants, such as certain CFCs and HCFCs, during the service, repair, or disposal of appliances and industrial process refrigeration (IPR). Section 608(c)(1) provides that it is unlawful for any person, in the course of maintaining, servicing, repairing, or disposing of an appliance (or IPR), to knowingly vent, or otherwise knowingly release or dispose of any class I or class II substance used as a refrigerant in that appliance (or IPR) in a manner which permits the ODS to enter the environment.
Section 608(c)(1) exempts
Section 608(c)(2) extends the prohibition in section 608(c)(1) to any substitutes for class I or class II substances used as refrigerants. This prohibition applies to all refrigerant substitutes unless the Administrator determines that the venting, releasing, or disposing of the substitute does not pose a threat to the environment. Thus, section 608(c) provides EPA authority to promulgate regulations to interpret and enforce this prohibition on venting, releasing, or disposing of class I or class II substances and their refrigerant substitutes, which this action refers to as the “venting prohibition.” EPA's authority under section 608(c) includes authority to exempt certain refrigerant substitutes for class I or class II substances from the venting prohibition under section 608(c)(2) when the Administrator determines that such venting, release, or disposal does not pose a threat to the environment. EPA's authority to promulgate some of the regulatory revisions in this action is thus based in part on CAA section 608.
Regulations issued under CAA section 608, published on May 14, 1993 (58 FR 28660), established a recycling program for ozone-depleting refrigerants recovered during the servicing and maintenance of refrigeration and AC appliances. These regulations are codified at 40 CFR part 82, subpart F. In the same 1993 rule, EPA also issued regulations implementing the section 608(c) prohibition on knowingly venting, releasing, or disposing of class I or class II substances. These regulations were designed to substantially reduce the use and emissions of ozone-depleting refrigerants.
EPA issued rules on March 12, 2004 (69 FR 11946) and April 13, 2005 (70 FR 19273) clarifying how the venting prohibition in section 608(c) applies to substitutes for CFC and HCFC refrigerants (
As explained in an earlier EPA rulemaking concerning refrigerant substitutes, EPA had not, at the time of that rulemaking, issued regulations
The Administrator signed final regulations to require certification of refrigerant recovery and/or recycling equipment for use with refrigerants that are not exempt from the venting prohibition. For information on the final 608 rule, see the docket for the rulemaking (EPA-HQ-OAR-2015-0453).
On May 23, 2014 (79 FR 29682), EPA exempted from the venting prohibition three HC refrigerant substitutes listed as acceptable, subject to use conditions, in the following end-uses: Isobutane and R-441A in household refrigerators, freezers, and combination refrigerators and freezers; and propane in retail food refrigerators and freezers (stand-alone units only). Similarly, on April 10, 2015 (80 FR 19453), EPA exempted from the venting prohibition four HC refrigerant substitutes listed as acceptable, subject to use conditions, in the following end-uses: Isobutane and R-441A in retail food refrigerators and freezers (stand-alone units only); propane in household refrigerators, freezers, and combination refrigerators and freezers; ethane in very low temperature refrigeration equipment and equipment for non-mechanical heat transfer; R-441A, propane, and isobutane in vending machines; and propane and R-441A in self-contained room air conditioners for residential and light commercial AC and heat pumps. Those regulatory exemptions do not apply to blends of HCs with other refrigerants or containing any amount of any CFC, HCFC, HFC, or PFC.
In those 2014 and 2015 actions, EPA determined that for the purposes of CAA section 608(c)(2), the venting, release, or disposal of such HC refrigerant substitutes in the specified end-uses does not pose a threat to the environment, considering both the inherent characteristics of these substances and the limited quantities used in the relevant applications. EPA further concluded that other authorities, controls, or practices that apply to such refrigerant substitutes help to mitigate environmental risk from the release of those HC refrigerant substitutes.
EPA is listing certain newly submitted alternatives as acceptable, subject to use conditions, and other newly submitted alternatives as unacceptable. EPA is also modifying current listings from acceptable to acceptable, subject to narrowed use limits, or to unacceptable for certain alternatives in various end-uses in the refrigeration and AC and foam blowing sectors. In each instance where EPA is listing a newly submitted substitute as unacceptable or is changing the status of a substitute from acceptable to unacceptable, EPA has determined that there are other alternatives that pose lower overall risk to human health and the environment. In a few instances, EPA established narrowed use limits for certain substitutes for specific military or space-and aeronautics-related applications in the refrigeration and AC, and foam blowing sectors, on the basis that other acceptable alternatives would not be available for those specific applications within broader end-uses, but acceptable alternatives were expected to become available over time. This action also applies unacceptability determinations for foam blowing agents to closed cell foam products and products containing closed cell foam. Additionally, EPA is exempting propane as a refrigerant in new self-contained commercial ice machines, in new water coolers, and in new very low temperature refrigeration equipment from the venting prohibition under CAA section 608(c)(2). This action also clarifies the listing for Powdered Aerosol D (Stat-X®), which was previously listed as both
In determining whether to modify the previous listing decisions for substitutes based on whether other alternatives are available that pose lower risk to human health and the environment, we considered, among other things: Comments to the proposed rule of April 18, 2016, scientific findings, information provided by the Technology and Economic Assessment Panel (TEAP) that supports the Montreal Protocol, journal articles, submissions to the SNAP program, the regulations and supporting dockets for other EPA rulemakings, presentations and reports presented at domestic and international conferences, and materials from trade associations and professional organizations. The materials on which we have relied are in the docket for this rulemaking (EPA-HQ-OAR-2015-0663). Key references are highlighted in section VIII of this action.
The change of status dates are based upon EPA's understanding of the availability of alternatives, considering factors such as commercial availability and supply of alternatives, time required to work through technical challenges with using alternatives, and time required to meet other federal regulatory requirements with redesigned equipment or formulations. As discussed in previous actions, as part of our consideration of the availability of alternatives, we consider “all available information, including information provided during the public comment period, and information claimed as confidential and provided during meetings, regarding technical challenges that may affect the time at which the alternatives can be used safely and used consistent with other requirements such as testing and code compliance obligations” (80 FR 42873; July 20, 2015).
Under the SNAP criteria for review in 40 CFR 82.180(a)(7), consideration of cost is limited to cost of the substitute under review, and that consideration does not include the cost of transition when a substitute is found unacceptable. EPA requires information on cost and availability of substitutes as part of SNAP submissions to judge how widely a substitute might be used and, therefore, what its potential environmental and health effects might be. The SNAP criteria do not identify other cost considerations and thus we have not historically used cost information independent of environmental and health effects to determine the acceptability of substitutes under review—that is, we have never determined a substitute under review to be unacceptable or acceptable on the basis of its cost. When considering a change of status for substitutes already listed as acceptable, the SNAP program has not considered the costs of transition away from HFCs, HFC blends, PFCs, and other alternatives affected by the changes of status as part of determining the status
We are not addressing in this rulemaking whether to revise the regulatory criteria to include an expanded role for the consideration of costs in SNAP listing decisions. We have simply applied the existing regulatory criteria in determining whether to change the listing status of the substitutes addressed in this action.
Nevertheless, EPA has estimated the costs of the changes of status in this action to provide information to the public and to meet various statutory and executive order requirements. We have estimated costs for applicable NAICS codes in a document titled, “Cost Analysis for Regulatory Changes to the Listing Status of High-GWP Alternatives used in Refrigeration and Air Conditioning, Foams, and Fire Suppression.”
In addition, we have analyzed costs and impacts on small businesses in a document titled, “Economic Impact Screening Analysis for Regulatory Changes to the Listing Status of High-GWP Alternatives used in Refrigeration and Air Conditioning, Foams, and Fire Suppression.”
This section, and other “background” sections that follow in the rule, provide information on the end-uses relevant to this decision, available alternatives, and other applicable regulations relevant to these end-uses.
Commercial ice machines are used in commercial establishments, such as hotels, restaurants, and convenience stores to produce ice. Many commercial ice machines are self-contained units, while some have the condenser separated from the portion of the machine making the ice and have refrigerant lines running between the two. This action applies only to self-contained commercial ice machines.
Water coolers are self-contained units providing chilled water for drinking. They may or may not feature detachable containers of water.
Very low temperature refrigeration equipment is intended to maintain temperatures considerably lower than for refrigeration of food—generally, −80 °C (−170 °F) or lower. In some cases, very low temperature refrigeration equipment may use a refrigeration system with two refrigerant loops containing different refrigerants or with a direct expansion (DX) refrigeration loop coupled with an alternative refrigeration technology (
The U.S. Department of Energy (DOE) has established energy conservation standards for automatic commercial ice machines which apply to the self-contained commercial ice machines in this listing.
As proposed, EPA is listing propane (R-290) as acceptable, subject to use conditions, as a refrigerant in new self-contained commercial ice machines, in new water coolers, and in new very low temperature refrigeration equipment. The use conditions include conditions requiring conformity with industry standards, limits on charge size, and requirements for warnings and markings on equipment. The use conditions are detailed in section VI.A.1.b.ii.
EPA has listed a number of alternatives as acceptable in the commercial ice machine, water cooler, and very low temperature refrigeration end-uses. In the proposed rule (81 FR at 22824; April 18, 2016), EPA provided information on the environmental and health properties of propane and the various substitutes in these end-uses. Additionally, EPA's risk assessments for propane and a technical support document
Propane has an ODP of zero.
The GWP is a means of quantifying the potential integrated climate forcing of various GHGs relative to a value of one for CO
In assessing the overall climate impacts associated with use of these refrigerants, we focus on the “direct” emissions, which are emissions from releases of the refrigerants over the full lifecycle of refrigerant-containing products.
In addition to ODP and GWP, EPA evaluated potential impacts of propane and other HC refrigerants on local air quality. Propane meets the definition of VOC under CAA regulations (see 40 CFR 51.100(s)) and is not excluded from that definition for the purpose of developing State Implementation Plans (SIPs) to attain and maintain the National Ambient Air Quality Standards (NAAQS). As described below, EPA estimates that potential emissions of HCs, including propane, when used as refrigerant substitutes in all end-uses in the refrigeration and AC sector, have little impact on local air quality, with the exception of unsaturated HCs such as propylene.
EPA analyzed various scenarios to consider the potential impacts on local air quality if HC refrigerants were used widely.
In a less conservative analysis of potential impacts on ambient ozone levels, EPA looked at a set of end-uses that would be more likely to use HC refrigerants between now and 2030, including end-uses where HC refrigerants previously have been listed as acceptable and the three end-uses addressed in this rule. For example, we assumed use of propane in water coolers and commercial ice machines and in other end-uses where EPA has already listed propane as acceptable, including room air conditioners and household and retail food refrigeration equipment. We also assumed the use of other HCs in end-uses where they are already listed as acceptable such as isobutane in household and retail food refrigeration equipment and R-441A in room air conditioners and household and retail food refrigeration equipment. For further information on the specific assumptions, see the docket for this rulemaking.
Because of the relatively minimal air quality impacts of propane if it is released to the atmosphere from commercial ice machines, water coolers, and very low temperature refrigeration equipment even in a worst-case scenario, we conclude that propane does not have a significantly greater overall impact on human health and the environment based on its effects on local air quality than other refrigerants listed as acceptable in commercial ice machines, water coolers, and very low temperature refrigeration equipment.
Ecosystem effects from propane, primarily effects on aquatic life, are expected to be small as are the effects of other acceptable substitutes. Propane is highly volatile and typically evaporates or partitions to air, rather than contaminating surface waters, and thus propane's effects on aquatic life are expected to be small. Propane will pose no greater risk of aquatic or ecosystem effects than those of other alternatives for these uses.
Propane is classified as an A3 refrigerant by ASHRAE Standard 34-2013 and subsequent addenda, indicating that it has low toxicity and high flammability. ANSI/ASHRAE Standard 34-2013 assigns a safety group classification for each refrigerant which consists of two alphanumeric characters (
The flammability classification “1” is given to refrigerants that, when tested, show no flame propagation. The flammability classification “2” is given to refrigerants that, when tested, exhibit flame propagation, have a heat of combustion less than 19,000 kJ/kg (8,174 British thermal units (BTU)/lb), and have a lower flammability limit (LFL) greater than 0.10 kg/m
Propane's flammability risks are of potential concern because commercial ice machines, water coolers, and very low temperature refrigeration equipment have traditionally used refrigerants that are not flammable. Without appropriate use conditions, the flammability risk posed by propane would be higher than non-flammable refrigerants because individuals may not be aware that their actions could potentially cause a fire.
Because of its flammability, propane could pose a significant safety concern for workers and consumers in the end-uses addressed in this proposal if it is not handled correctly. In the presence of an ignition source (
To determine whether flammability would be a concern for service personnel or for consumers, EPA analyzed multiple scenarios, beginning with a plausible worst-case scenario to model a catastrophic release of propane. Based upon the results of those analyses, we expect there would not be an unacceptable risk of fire or explosion provided that the charge size is limited to 150 g for self-contained ice machines or very low temperature refrigeration equipment or to 60 g for water coolers. EPA also reviewed the submitters' detailed assessments of the probability of events that might create a fire and approaches to avoid sparking from the refrigeration equipment. Further information on these analyses and EPA's risk assessments are available in the docket for this rulemaking (EPA-HQ-OAR-2015-0663) and in section VI.A.1.b.ii of the proposed rule (81 FR 22827).
Service personnel or consumers may not be familiar with refrigeration or AC
In evaluating potential toxicity impacts of propane on human health in these end-uses, EPA considered both occupational and consumer risks. In general when evaluating non-cancer toxicity risks of a substitute, we use measured exposure concentrations if available, or modeled exposure concentrations using conservative assumptions appropriate to an end-use, and compare these exposure levels to recommended or required exposure limits for a compound that are intended to protect against adverse health effects. Where measured or modeled exposure levels are below relevant exposure limits for a chemical, we consider toxicity risks to be acceptable. Other acceptable substitutes listed for these end-uses have been evaluated for toxicity in this manner, including ethane for very low temperature refrigeration, ammonia for commercial ice machines, and a number of HFC blends for all three end-uses.
To evaluate the toxicity of propane, EPA estimated the maximum TWA exposure both for a short-term exposure scenario, with a 30-minute TWA exposure, and for an 8-hour TWA that would be more typical of occupational exposure for a technician servicing the equipment or a worker disposing of appliances. The modeling results indicate that both the short-term (30-minute) and long-term (8-hour) worker exposure concentrations would be below the relevant workplace exposure limits.
A similar analysis of asphyxiation risks considered whether a worst-case release of refrigerant in the same room sizes would result in oxygen concentrations of 12 percent or less. This analysis found that impacts on oxygen concentrations were minimal, with oxygen concentrations remaining at approximately 21 percent.
For equipment with which consumers might come into contact, such as water coolers and commercial ice machines, EPA performed a consumer exposure analysis. In this analysis, we examined potential catastrophic release of the entire charge of the substitute in one minute under a worst-case scenario. We did not examine exposure to consumers in very low temperature refrigeration, as equipment for this end-use would typically be used in the workplace, such as in laboratories, and not in a home or public space. The analysis was undertaken to determine the short term (30-minute TWA) exposure levels for the substitute, which were then compared to the toxicity limit to assess the risk to consumers. The analysis found, even under the highly conservative assumptions used in the consumer exposure modeling, the estimated 30-minute consumer exposures to propane are lower than the relevant toxicity limits.
Based upon our analysis, workplace and consumer exposure to propane when used in these end-uses according to the use conditions is not expected to exceed relevant exposure limits. Thus, propane does not pose significantly greater toxicity risks than other acceptable refrigerants in these end-uses. For further information, including EPA's risk screens and risk assessments as well as information from the submitters of propane as a substitute refrigerant, see docket EPA-HQ-OAR-2015-0663 and section VI.A.1.b.iii of the proposed rule (81 FR 22827-8).
To ensure that using propane in commercial ice machines, water coolers, and very low temperature refrigeration equipment will not cause greater risk to human health or the environment than other alternatives, we have identified and are establishing use conditions to address flammability and toxicity concerns.
Propane's flammability risks are of potential concern because commercial ice machines, water coolers, and very low temperature refrigeration equipment have traditionally used refrigerants that are not flammable. Propane could pose a significant safety concern for workers and consumers in the end-uses addressed in this action if it is not handled correctly. In the presence of an ignition source (
We are finalizing the proposed use conditions, summarized in section VI.A.1.b.ii.(a)-(e), with one change—we are lowering the charge size for water coolers. In response to public comment and for consistency with the Underwriters Laboratories (UL) 399 standard, we are finalizing a charge size of 60 g for water coolers instead of 150 g. The use conditions are consistent with industry standards, limits on charge size, and requirements for warnings and markings on equipment.
In the specified end-uses in this action, propane is limited to use only in new equipment
EPA is requiring that propane be used only in equipment that meets all requirements in the relevant supplements for flammable refrigerants in certain applicable UL standards for refrigeration and AC equipment. Specifically, Supplement SA to the 8th edition of UL 563 standard, dated July 31, 2009, applies to self-contained commercial ice machines using flammable refrigerants.
UL has tested equipment for flammability risk in household and retail food refrigeration and in commercial freezers for very low temperature refrigeration. Further, UL has developed acceptable safety standards including requirements for construction, markings, and performance tests concerning refrigerant leakage, ignition of switching components, surface temperature of parts, and component strength after being scratched. These standards were developed in an open and consensus-based approach, with the assistance of experts in the AC and refrigeration industry as well as experts involved in assessing the safety of products. While similar standards exist from other bodies such as the International Electrotechnical Commission (IEC), we are relying on UL standards as those are the standards applicable to and recognized by the U.S. market. This approach is the same as that adopted in our previous rules on flammable refrigerants (76 FR 78832, December 20, 2011; 80 FR 19453, April 10, 2015). EPA acknowledges that international standards exist and believes that UL will likely harmonize with these standards in the future. If UL plans to update ANSI/UL399 to harmonize with IEC-60335-2-89, then referencing an IEC standard in future actions may allow for a smoother transition. Specifically, the international standard must adequately provide guidelines for use conditions for all equipment types under SNAP review, including refrigerant charge size limits, minimum room sizes for installation, ventilation requirements, and required permanent markings on equipment, system parts, and servicing equipment.
EPA is requiring a charge size not to exceed 150 g in each refrigerant circuit for self-contained commercial ice machines and very low temperature refrigeration equipment and not to exceed 60 g in each refrigerant circuit for water coolers.
EPA is requiring that equipment designed for use with propane must have distinguishing color-coded hoses and piping to indicate use of a flammable refrigerant. This will help technicians immediately identify the use of a flammable refrigerant, thereby reducing the risk of using sparking equipment or otherwise having an ignition source nearby. The AC and refrigeration industry currently uses distinguishing colors as means to identify different refrigerants. Likewise, distinguishing coloring has been used elsewhere to indicate an unusual and potentially dangerous situation, for example in the use of orange insulated wires in hybrid electric vehicles. Currently, no industry standard exists for color-coded hoses or pipes for propane. EPA is requiring that all such refrigerator tubing be colored red Pantone matching system (PMS) #185 to match the red band displayed on the container of flammable refrigerants under the Air Conditioning, Heating and Refrigeration Institute (AHRI) Guideline “N” 2014, “2014 Guideline for Assignment of Refrigerant Container Colors.”
EPA is particularly concerned with ensuring adequate and proper notification for servicing and disposal of appliances containing flammable refrigerants. The use of color-coded hoses, as well as the use of warning labels discussed in the next paragraph, would be consistent with other general industry practices. This approach is consistent with the approach adopted in our previous rules on flammable refrigerants (76 FR 78832, December 20, 2011; 80 FR 19453, April 10, 2015).
EPA is requiring labeling of self-contained commercial ice machines, water coolers, and very low temperature refrigeration equipment. EPA is requiring that the warning labels on the equipment contain letters at least
(1) “DANGER—Risk of Fire or Explosion. Flammable Refrigerant Used. Do Not Use Mechanical Devices To Defrost Refrigerator. Do Not Puncture Refrigerant Tubing.” This marking must be provided on or near any evaporators that can be contacted by the consumer.
(2) “DANGER—Risk of Fire or Explosion. Flammable Refrigerant Used. To Be Repaired Only By Trained Service Personnel. Do Not Puncture Refrigerant Tubing.” This marking must be located near the machine compartment.
(3) “CAUTION—Risk of Fire or Explosion. Flammable Refrigerant Used. Consult Repair Manual/Owner's Guide Before Attempting To Service This Product. All Safety Precautions Must be Followed.” This marking must be located near the machine compartment.
(4) “CAUTION—Risk of Fire or Explosion. Dispose of Properly In Accordance With Federal or Local Regulations. Flammable Refrigerant Used.” This marking must be provided on the exterior of the refrigeration equipment.
(5) CAUTION—Risk of Fire or Explosion Due To Puncture Of Refrigerant Tubing; Follow Handling Instructions Carefully. Flammable Refrigerant Used.” This marking must be provided near all exposed refrigerant tubing.
The warning label language is similar to or exactly the same as that required in UL standards: For commercial ice machines in UL 563 in section SB6.1, for water coolers in UL 399 in section SA6.1, and for commercial refrigerators and freezers, including very low temperature freezers, in UL 471 in section SB6.1.
It would be difficult to see warning labels with the minimum lettering height requirement of
In addition to establishing regulatory use conditions, which are binding on users of this substitute, EPA is also making recommendations for the use of this substitute. EPA is recommending that only technicians specifically trained in handling flammable refrigerant dispose of or service refrigeration and AC equipment containing these substances. Trained technicians should know how to minimize the risk of fire and the procedures for using flammable refrigerants safely. Releases of large quantities of flammable refrigerants during servicing and manufacturing, especially in enclosed, poorly ventilated spaces or in areas where large amounts of refrigerant are stored, could cause an explosion if there is an ignition source nearby. For these reasons, technicians should be properly trained to handle flammable refrigerant when maintaining, servicing, repairing, or disposing of water coolers, commercial ice machines, and very low temperature freezers. In addition, EPA recommends that if propane is vented, released, or disposed of (rather than recovered) for these specified end-uses, the release should be in a well-ventilated area, such as outside of a building. Ensuring proper ventilation and avoiding ignition sources are recommended practices, whether venting or recovering a flammable refrigerant.
The Australian Institute of Refrigeration, Air Conditioning and Heating (AIRAH) provides useful guidance on safety precautions technicians can follow when servicing equipment containing flammable refrigerants or when venting refrigerant. One of those practices is to connect a hose to the appliance to allow for venting the refrigerant outside.
We are aware that at least two organizations in the United States, Refrigeration Service Engineers Society (RSES) and the ESCO Institute, have developed technician training programs in collaboration with refrigeration equipment manufacturers and users that address safe use of flammable refrigerant substitutes. In addition, EPA has reviewed several training programs provided as part of SNAP submissions from persons interested in flammable refrigerant substitutes. The Agency intends to update the test bank for technician certification under CAA section 608, and will consider including additional questions on flammable refrigerants. By adding such questions to the test bank, EPA would supplement but not replace technician training programs currently provided by non-government entities. EPA intends to seek additional information and guidance on how best to incorporate this content through a separate process outside the scope of this final rule.
EPA is establishing a listing date as of January 3, 2017, the same as the effective date of this regulation, to allow for the safe use of this substitute at the earliest opportunity.
EPA received comments from organizations with various interests in commercial refrigeration regarding the proposed listing of propane as acceptable, subject to use conditions, in newly manufactured self-contained commercial ice machines, water coolers, and very low temperature refrigeration equipment. Most commenters supported the proposed listing decision and effective date of 30 days after publication of the rule in the
Commenters included Filtrine Manufacturing Company (Filtrine), a manufacturer of drinking fountains, water coolers, and drinking water filtration equipment; the Flexible Packaging Association (FPA); Chemours, a chemical producer; the National Environmental Development Association's Clean Air Project (NEDA/CAP), an organization representing manufacturers of a variety of refrigeration and AC equipment among others; and UL, a safety consulting and certification company.
We have grouped comments together and responded to the issues raised by the comments in the sections that follow, or in a separate Response to Comments document which is included in the docket for this rule (EPA-HQ-OAR-2015-0663).
Under section 608(c) of the CAA, it is unlawful for any person, in the course of maintaining, servicing, repairing, or disposing of an appliance to knowingly vent or otherwise knowingly release any ODS or substitute refrigerant into the environment. The Administrator may
For purposes of CAA section 608(c)(2), EPA considers two factors in determining whether or not venting, release, or disposal of a refrigerant substitute during the maintenance, servicing, repairing, or disposal of appliances poses a threat to the environment. See 69 FR 11948, March 12, 2004; 79 FR 29682, May 23, 2014; and 80 FR 19453, April 10, 2015. First, EPA analyzes the threat to the environment due to inherent characteristics of the refrigerant substitute, such as GWP. Second, EPA determines whether and to what extent venting, release, or disposal actually takes place during the maintenance, servicing, repairing, or disposing of appliances, and to what extent such actions are controlled by other authorities, regulations, or practices. To the extent that it determines such releases are adequately controlled by other authorities, EPA generally defers to those authorities.
EPA has reviewed the potential environmental impacts of propane in the three specific end-uses in this action, as well as the authorities, controls, and practices in place for that substitute. EPA also considered the public comments on the proposal for this action. Based on this review, EPA concludes that propane in these end-uses and subject to these use conditions are not expected to pose a threat to the environment based on the inherent characteristics of these substances and the limited quantities used in the relevant applications. EPA additionally concludes that existing authorities, controls, or practices help mitigate environmental risk from the release of propane in these end-uses and subject to these use conditions.
In light of these conclusions and those described or identified above in this section, EPA is determining that based on current evidence and risk analyses, the venting, release, or disposal of propane in these end-uses during the maintenance, servicing, repairing, or disposing of the relevant appliances does not pose a threat to the environment.
EPA is therefore exempting from the venting prohibition at 40 CFR 82.154(a)(1) these additional end-uses for which propane is being listed as acceptable, subject to use conditions, under the SNAP program.
EPA evaluated the potential environmental impacts of releasing into the environment propane in water coolers, self-contained commercial ice machines, and very low temperature refrigeration equipment. In particular, we assessed the potential impact of the release of propane on local air quality and its ability to decompose in the atmosphere, its ODP, its GWP, and its potential impacts on ecosystems. EPA also considered propane's flammability and toxicity risks from the end-uses addressed in this rule.
As discussed previously, propane has an ODP of zero and a GWP of three and its effects on aquatic life are expected to be small. As to potential effects on local air quality, propane meets the definition of VOC under CAA regulations (see 40 CFR 51.100(s)) and is not excluded from that definition for the purpose of developing SIPs to attain and maintain the NAAQS. Based on the analysis and modeling results described in section VI.A.1.b.i, EPA concludes that the release of propane from the end-uses in this action, in addition to the HCs previously listed as acceptable, subject to use conditions, for their specific end-uses, is expected to have little impact on local air quality. In this regard, EPA finds particularly noteworthy that even assuming 100 percent market penetration of propane and the other acceptable HCs in the acceptable end-uses, which is a conservative assumption, the highest impact for a single 8-hour average ozone concentration based on this analysis would be 0.05 ppb in Los Angeles compared to both the 2008 ozone NAAQS at 75 ppb and the new, more stringent NAAQS at 70 ppb.
In addition, when examining all HC substitute refrigerants in those uses for which UL currently has standards in place, for which the SNAP program has already listed the uses as acceptable, subject to use conditions, or for which the SNAP program is reviewing a submission, including those in this action, we found that even if all the HC refrigerant substitutes in appliances in end-uses listed acceptable, subject to use conditions in this action and listed as acceptable in previous rules were to be emitted, there would be a worst-case impact of less than 0.15 ppb for ground-level ozone in the Los Angeles area.
In light of its evaluation of potential environmental impacts, EPA concludes that propane in the end-uses for which it is listed under SNAP as acceptable, subject to use conditions, in this action is not expected to pose a threat to the environment on the basis of the inherent characteristics of this substance and the limited quantities used in the relevant end-uses. In this regard, EPA finds particularly noteworthy that even assuming 100 percent market penetration of propane and the other acceptable HCs in the end-uses where they are listed as acceptable, subject to use conditions, which is a conservative assumption, the highest impact for a single 8-hour average ozone concentration based on this analysis would be 0.05 ppb in Los Angeles and less than 0.01 ppb in Houston and Atlanta.
EPA expects that existing authorities, controls, and/or practices will mitigate environmental risk from the release of propane. Analyses performed for both this rule and prior rules (59 FR 13044, March 17, 1994; 76 FR 78832, December 20, 2011; 79 FR 29682, May 23, 2014; and 80 FR 19453, April 10, 2015) indicate that existing regulatory requirements and industry practices limit and control the emission of propane, or other hydrocarbons, when used as a refrigerant in end-uses similar to this action. EPA notes that other applicable environmental regulatory requirements still apply and are not affected by the determination made in this action. This conclusion is relevant to the second factor mentioned above in the overall determination of whether venting, release, or disposal of a refrigerant substitute poses a threat to the environment.
Propane and other HCs being recovered, vented, released, or otherwise disposed of from commercial
As discussed in section VI.A.1.b.ii of this action and sections VI.A.1.b.ii and VI.A.1.b.iii of the proposed rule (81 FR 22827; April 18, 2016), EPA's SNAP program evaluated the flammability and toxicity risks from propane in the end-uses in this rule. Propane is classified as an A3 refrigerant by ASHRAE Standard 34-2013 and subsequent addenda, indicating that it has low toxicity and high flammability (for a further discussion on ASHRAE safety categories, see section VI.A.1.b.i.(b). Propane has an LFL of 2.1 percent. In addition, like most refrigerants, HCs at high concentrations can displace oxygen and cause asphyxiation.
To address flammability risks, this action establishes required use conditions and provides voluntary recommendations for its safe use (see section VI.A.1.b.iii). This SNAP listing limits the amount of propane in the refrigerant loop to 150 g in self-contained commercial ice machines and in very low temperature refrigeration equipment and 60 g in water coolers. These charge size limits also reflect the UL 563, UL 399, and UL 471 industry standards, as discussed in the previous section. These use conditions mean that any potential propane emissions from any individual appliance will therefore be small. HC emissions from the three specific end-uses in this rule would be significantly smaller than those emanating from IPR systems, which are controlled by OSHA for safety reasons. Furthermore, it is the Agency's understanding that flammability risks and occupational exposures to HCs are adequately regulated by OSHA and building and fire codes at a local and national level.
The release and/or disposal of propane is also controlled by authorities established by OSHA and NIOSH guidelines, various industry standards, and state and local building codes. To the extent that release during maintaining, repairing, servicing, or disposing of appliances is controlled by regulations and standards of other authorities, these practices and controls for the use of propane are sufficiently protective. These practices and controls mitigate the risk to the environment that may be posed by the venting, release, or disposal of propane during the maintaining, servicing, repairing, or disposing of self-contained commercial ice machines, very low temperature refrigeration equipment, and water coolers.
EPA is aware of equipment that can be used to recover HC refrigerants. To the extent that propane is recovered rather than vented in specific end-uses and equipment, EPA recommends the use of recovery equipment designed specifically for flammable refrigerants in accordance with applicable safe handling practices. See section VI.A.1.b.iii for further discussion.
In the provision establishing the exemption from the venting prohibition, EPA is also establishing that the exemption will apply as of January 3, 2017, the same as the effective date of the SNAP listing of propane in commercial ice machines, water coolers, and very low temperature refrigeration equipment.
EPA received comments from organizations and individuals with various interests in the refrigeration industry on the proposal to exempt propane in water coolers, commercial ice machines, and very low temperature freezers from the venting prohibition under section 608. Commenters included the Alliance for Responsible Atmospheric Policy (the Alliance), an industry organization; Chemours and Honeywell, two chemical producers; Hudson Technologies Company (Hudson), a refrigerant reclaimer; NEDA/CAP, an organization representing manufacturers of a variety of refrigeration and AC equipment; and an anonymous citizen.
We have grouped comments together and responded to the issues raised by the comments in the sections that follow, or in a separate Response to Comments document which is included in the docket for this rule (EPA-HQ-OAR-2015-0663).
EPA can minimize confusion about whether the refrigerant may or may not be vented and can also make technicians and the public aware of the flammability of a refrigerant through the use of red coloration for hoses and labeling use conditions so that they can take appropriate precautions. Together these markings clearly distinguish an appliance containing propane or other HC refrigerants which may be vented, from HFCs or other refrigerants that may not.
EPA has reviewed the potential environmental impacts of propane in the three specific end-uses in this action, as well as the authorities, controls, and practices in place for that substitute. EPA also considered the public comments on the proposal for
In light of these conclusions and those described or identified above in this section, EPA is determining that based on current evidence and risk analyses, the venting, release, or disposal of propane in these end-uses during the maintenance, servicing, repairing, or disposing of the relevant appliances does not pose a threat to the environment.
EPA is therefore exempting from the venting prohibition at 40 CFR 82.154(a)(1) these additional end-uses for which these HCs are being listed as acceptable, subject to use conditions, under the SNAP program.
Existing unitary split AC systems and heat pumps were not designed to use a flammable refrigerant. People and property have been harmed by the retrofit or so-called `drop-in' use of certain flammable refrigerants in existing unitary split AC and heat pump equipment designed to use a nonflammable refrigerant. For new room AC equipment, we have listed certain flammable refrigerants as acceptable on the basis that flammability risks can be addressed in designing the equipment and mitigated through use conditions. In contrast, existing equipment has not been designed for flammable refrigerants and we have not identified appropriate use conditions that can manage the flammability risk for retrofits such that these flammable refrigerants would pose similar or lower risk than other available refrigerants in this end-use.
The residential and light commercial AC and heat pumps end-use includes equipment for cooling air in individual rooms, in single-family homes, and sometimes in small commercial buildings. This end-use differs from commercial comfort AC, which uses chillers that cool water that is then used to cool air throughout a large commercial building, such as an office building or hotel. This rule specifically concerns unitary split AC systems and heat pumps, commonly called central AC. These systems include an outdoor unit with a condenser and a compressor, refrigerant lines, an indoor unit with an evaporator, and ducts to carry cooled air throughout a building. Unitary split heat pumps are similar but offer the choice to either heat or cool the indoor space. This action applies to certain flammable refrigerants for retrofit use in this type of equipment.
The unacceptability determination for certain flammable refrigerants in this action does not apply to other types of residential and light commercial AC and heat pump equipment, but may do so in the future. Other types of residential and light commercial AC and heat pump equipment not included in this unacceptability determination include:
• Multi-split air conditioners and heat pumps;
• Mini-split air conditioners and heat pumps;
• Packaged outdoor air conditioners and heat pumps;
• Window air conditioners and heat pumps;
• Packaged terminal air conditioners (PTACs) and packaged terminal heat pumps (PTHP); and
• Portable room air conditioners and heat pumps.
For a description of these types of equipment, see section VI.A.3.a.i in the proposed rule (81 FR 22833; April 18, 2016).
As proposed, EPA is listing the following flammable refrigerants as unacceptable for retrofits in unitary split AC systems and heat pumps:
• All refrigerants identified as flammability Class 3 in ANSI/ASHRAE Standard 34-2013. These include the HCs R-1150 (ethylene), R-170 (ethane), R-1270 (propylene), R-290 (propane), R-50 (methane), R-600 (n-butane), R-600a (isobutane), R-601 (n-pentane), and R-601a (isopentane); the HC blends R-433A, R-433B, R-433C, R-436A, R-436B, R-441A, and R-443A; and the refrigerant blends R-429A, R-430A, R-431A, R-432A, R-435A, and R-511A. All of these refrigerants except R-435A contain HCs, with some also containing the flammable compounds dimethyl ether and HFC-152a.
• All refrigerants meeting the criteria for flammability Class 3 in ANSI/ASHRAE Standard 34-2013. These include, but are not limited to, refrigerant products sold under the names R-22a, 22a, Blue Sky 22a refrigerant, Coolant Express 22a, DURACOOL-22a, EC-22, Ecofreeez EF-22a, Envirosafe 22a, ES-22a, Frost 22a, HC-22a, Maxi-Fridge, MX-22a, Oz-Chill 22a, Priority Cool, and RED TEK 22a.
For background on the flammability classes and their criteria in ANSI/ASHRAE Standard 34-2013, see section VI.A.1.b.i.(b).
EPA is aware of a number of situations where companies have sold highly flammable refrigerants for use in residential AC that have not been submitted to SNAP for review. EPA has conducted enforcement actions against companies that have sold such substitutes in violation of EPA's regulations. EPA is also aware of multiple instances where people and property using one of the numerous refrigerants marketed as “22a” in a residential AC system were harmed in explosions and fires, in part because the person servicing the AC system was not aware that the system contained a highly flammable refrigerant. Considering this demonstration of the flammability risks of retrofitting residential AC systems as well as the lack of risk mitigation available for existing equipment (
In addition to refrigerants specifically identified in the ASHRAE 34-2013 standard as having a flammability classification of 3, EPA is listing refrigerants meeting the criteria of that standard as unacceptable. In other words, refrigerants are unacceptable if they exhibit flame propagation and either have a heat of combustion of 19,000 kJ/kg (8,174 BTU/lb) or greater or an LFL of 0.10 kg/m
EPA has listed a number of alternatives as acceptable for retrofit usage in unitary split AC systems and heat pumps. All of the listed alternatives are HFC blends, with some containing small percentages (approximately five percent or less) of HCs. Specific blends include R-125/134a/600a (28.1/70/1.9), R-125/290/134a/600a (55.0/1.0/42.5/1.5), R-404A, R-407C, R-407F, R-417A, R-417C, R-421A, R-422B, R-422C, R-422D, R-424A, R-427A, R-434A, R-438A, R-507A, and RS-44 (2003 composition). These blends are all non-ozone-depleting. As shown in Table 3, they have GWPs ranging from approximately 1,770 for R-407C to 3,990 for R-507A. Knowingly venting or releasing these refrigerants is prohibited under section 608(c)(2) of the CAA, codified at 40 CFR 82.154(a)(1). The HFC components of these refrigerant blends are excluded from the definition of VOC under CAA regulations (see 40 CFR 51.100(s)) addressing the development of SIPs to attain and maintain the NAAQS, while the HC components are VOC.
In the proposed rule (81 FR 22835; April 18, 2016), EPA provided information on the risk to human health and the environment presented by the alternatives that are being found unacceptable as compared with other available alternatives listed as acceptable for this end-use. In addition, a technical support document
As discussed in section VI.A.3.a.ii in the proposed rule (81 FR 22835-36; April 18, 2016), EPA's SNAP program evaluated the flammability and toxicity risks from the flammable refrigerants in the end-use in this rule. EPA is providing some of that information in this section as well. All refrigerants currently listed as acceptable in this end-use are nonflammable, resulting in no risk of fire or explosion from flammability of the refrigerant. In comparison, ASHRAE Class 3 refrigerants are highly flammable. As discussed in section VI.A.4.b.i, EPA analyzed the flammability impacts of one ASHRAE Class 3 refrigerant, R-443A, and found that a release of the entire refrigerant charge inside a building from a larger unitary split AC system or heat pump could result in surpassing the LFL.
Both the acceptable refrigerants and the unacceptable refrigerants are able to be used in this end-use in accordance with their respective 8-hr or 10-hr workplace exposure limits. However, acute exposure may also be of concern during use in unitary split AC systems and heat pumps because of possible exposure to consumers in the event of a sudden release. For instance, as discussed below in section VI.A.4.b.i, EPA analyzed the acute toxicity of the propylene component of one ASHRAE Class 3 refrigerant, R-443A, and found that a release of the entire refrigerant charge inside a building from a larger unitary split AC system or heat pump could result in surpassing the acute exposure limit.
For these end-uses, although use of the highly flammable refrigerants would result in a reduced climate impact, the safety risks of using these refrigerants in existing equipment that was designed for nonflammable refrigerants creates a more significant and imminent risk. In addition to flammability risk, in at least some cases, the likelihood for an exceedance of acute exposure limits of the unacceptable refrigerants also supports a determination that those refrigerants pose significantly greater risk than other available alternatives. The Agency is open to revisiting this listing decision if we receive information on how risks from the refrigerants listed as unacceptable can be sufficiently mitigated. Further information on these analyses and EPA's risk assessments are available in the docket for this rulemaking (EPA-HQ-OAR-2015-0663).
EPA is establishing a listing date as of January 3, 2017, the same as the effective date of this regulation. To date, none of these substitutes have been submitted to EPA for this end-use for retrofit use. Under 40 CFR 82.174, manufacturers are prohibited from introducing them into interstate commerce for this end-use for retrofit use. Thus, manufacturers and service technicians should not be currently using these substitutes in the manner that would be prohibited by this listing decision.
EPA received several comments from individuals and organizations with various interests in residential AC. Comments were in reference to the proposed listing status of ASHRAE Class 3 flammable refrigerants, extending the proposal to other end-uses, and use of unique fittings with flammable refrigerants. Most commenters supported the proposed listing decisions and effective date of 30 days after date of publication of the rule in the
Commenters included AHRI, the Japan Refrigeration and Air Conditioning Industry Association (JRAIA), and the Alliance, three industry organizations; Whitmyre Equipment Company and Whitmyre Research, consultants for A.S. Trust & Holdings; United Technologies Climate Controls & Security (UTC CCS and hereafter “UTC”); Hudson, a refrigerant reclaimer; Chemours, a chemical producer; and environmental organizations NRDC and IGSD.
We have grouped comments together and responded to the issues raised by the comments in the sections that follow, or in a separate Response to Comments document which is included in the docket for this rule (EPA-HQ-OAR-2015-0663).
The refrigeration and AC end-uses addressed in this action include:
• Centrifugal chillers;
• positive displacement chillers;
• residential and light commercial AC and heat pumps, including both self-contained units (
• cold storage warehouses.
Propylene, also known as propene or R-1270, is a HC with three carbons, the chemical formula C
DOE has indicated its intent to issue a proposed energy conservation standard for portable air conditioners, a subset of the residential and light commercial air conditioning and heat pumps end-use. For further information on the relationship between this action and other federal rules, see section VI.A.3.b.v of the proposed rule (81 FR 22841; April 18, 2016).
As proposed, EPA is listing the refrigerants propylene (R-1270) and R-443A as unacceptable in new equipment in residential and light commercial AC and heat pumps, cold storage warehouses, and centrifugal and positive displacement chillers for commercial comfort AC. EPA's concerns about propylene and R-443A are primarily due to the effect of these refrigerants on local air quality, although for some equipment with higher charge sizes, flammability and toxicity are also a concern. Other acceptable refrigerants are available in the same end-uses that pose overall lower risk than R-443A and propylene.
EPA has listed a number of alternatives as acceptable in new equipment in residential and light commercial AC and heat pumps, cold
Propylene and R-443A have an ODP of zero. Many acceptable substitutes in the refrigeration and AC end-uses addressed in this rule also have an ODP of zero (
Propylene and the components of R-443A have relatively low GWPs of less than ten. As shown in Table 4, GWPs of acceptable refrigerants in these end-uses range from zero (NIK) to 3,990 (R-507A) in new residential and light commercial AC and heat pumps; zero (ammonia and not-in-kind technologies) to 630 (R-513A) in new chillers, and zero (ammonia) to approximately 1,830 (R-407F) for new cold storage warehouses.
In addition to ODP and GWP, EPA evaluated potential impacts of propylene and the components of R-443A on local air quality. Propylene and the three components of R-443A, propylene, propane, and isobutane meet the definition of VOC under CAA regulations (see 40 CFR 51.100(s)) and are not excluded from that definition for the purpose of developing SIPs to attain and maintain the NAAQS. However, there is a significant difference in the photochemical reactivity between propylene and the other two HCs. Propylene, because it has an unsaturated double bond between two carbons, is significantly more reactive in the atmosphere than propane, the saturated HC with the same number of carbon atoms, and isobutane. For example, the Maximum Incremental Reactivity (MIR) of propylene, in gram ozone per gram of the substance, is 11.57 while the MIR of propane is 0.56 g O
EPA analyzed a number of scenarios to consider the potential impacts on local air quality if HC refrigerants were used widely. We used EPA's Vintaging Model to estimate the HC emissions from these scenarios and EPA's Community Multiscale Air Quality (CMAQ) model to assess their potential incremental contributions to ground-level ozone concentrations.
EPA also performed less conservative analyses that considered the end-uses where these refrigerants would more likely be used, based upon submissions received and upon end-uses where there are industry standards addressing the use of flammable refrigerants. Propylene was previously listed as an acceptable substitute in industrial process refrigeration. EPA has received submissions for use of R-443A in residential and light commercial AC and heat pumps and window air conditioners. We have received a SNAP submission for use of propylene in cold storage warehouses and in commercial comfort AC in chillers, and have received inquiries about using propylene in retail food refrigeration. In addition, EPA is aware that UL has developed standards addressing use of flammable refrigerants in stand-alone retail food refrigeration equipment and coolers; vending machines; water coolers; commercial ice machines; household refrigerators and freezers; and room air conditioners; and is currently developing revisions to UL 1995 for residential AC equipment. Thus, we considered scenarios where propylene would be used and emitted (1) in all stationary AC and refrigeration end-uses, but excluding MVAC, (2) in all refrigeration end-uses and all AC end-uses except for MVAC and chillers for commercial comfort AC. For further details on the scenarios and end-uses in the analysis, see the docket for this rulemaking.
Based on this still conservative assessment of refrigerant use, we found that if all the refrigerant in appliances in the end-uses analyzed were to be emitted, there would be a worst-case impact of 4.47 ppb ozone in the Los Angeles area. In the other cities examined in the analysis, Houston and Atlanta, which have also had historically high levels of ambient ozone, impacts were smaller (as much as 0.67 and 0.39 ppb, respectively).
An analysis we performed to support the proposed rule specifically examining use of R-443A and propylene in residential and light commercial AC and heat pumps, cold storage warehouses, and commercial comfort AC (centrifugal and positive displacement chillers) found noticeable impacts from these end-uses. If propylene were the only refrigerant in these end-uses and it was emitted from residential and light commercial AC and heat pumps and cold storage warehouses,
Based on these analyses, EPA estimates that potential emissions of saturated HCs, if used as refrigerant substitutes in all end-uses in the refrigeration and AC sector would have little impact on local air quality. However, emissions of propylene, an unsaturated HC, whether used as propylene or as part of the blend R-443A, could have a significant negative impact, whether for all refrigeration and AC uses or for the uses in which we are listing these refrigerants as unacceptable.
In response to public comments, EPA reevaluated these substitutes, assuming a prohibition on venting propylene and R-443A. However, even that additional analysis showed that there was still a potential for significant negative impacts on air quality. Assuming that propylene were used in all cold storage warehouses and centrifugal and positive displacement chillers; room air conditioners could use either R-443A or the currently listed VOC refrigerants propane or R-441A; other residential and light commercial AC and heat pumps all used R-443A; and these refrigerants were subject to the venting prohibition, there would be a worst-case impact of 2.09 ppb ozone in the Los Angeles area, 0.54 ppb in Houston, and 0.28 ppb in Atlanta, respectively.
Ecosystem effects, primarily effects on aquatic life, of the substitutes we are listing as unacceptable are expected to be small as are the effects of other acceptable substitutes. Propylene, propane and isobutane are all highly volatile and would evaporate or partition to air, rather than contaminate surface waters. Neither propylene nor R-443A pose a greater risk of aquatic or ecosystem effects than those of other substitutes for these uses.
As discussed in section VI.A.3.b.iii in the proposed rule (81 FR 22839-41; April 18, 2016), EPA's SNAP program evaluated the flammability and toxicity risks from propane in the end-uses in this rule. Risk screens containing these evaluations are provided in the docket, but EPA is providing some of that information in this section as well. Propylene and R-443A are both designated as A3 refrigerants according to ASHRAE 34-2013 and subsequent addenda. Thus, their flammability is comparable to that of ethane, propane, isobutane, and R-441A, other refrigerants that EPA has listed as acceptable, subject to use conditions, in a number of end-uses (76 FR 78832, December 20, 2011; 80 FR 19454, April 10, 2015). Due to their flammable nature, propylene and R-443A could pose a significant safety concern for workers and consumers if they are not properly handled. In the presence of an ignition source (
In evaluating potential toxicity impacts of propylene and R-443A on human health, EPA considered occupational risk for all end-uses, and also considered consumer risk for the residential and light commercial AC and heat pump end-use. EPA investigated the risk of asphyxiation and of exposure to toxic levels of refrigerant for a plausible worst-case scenario and a typical use scenario for each refrigerant in each end-use.
To evaluate toxicity of both refrigerants, EPA estimated the maximum TWA exposure both for a short-term exposure scenario, with a 30-minute TWA exposure, and for an 8-hour TWA that would be more typical of occupational exposure for a technician servicing the equipment. We compared these short-term and long-term exposure values to relevant industry and government workplace exposure limits for propylene and the components of R-443A (including potential impurities). The modeling results indicate that both the short-term (30-minute) and long-term (8-hour) worker exposure concentrations would be below the relevant workplace exposure limits in cold storage warehouses, centrifugal and positive displacement chillers, and residential and light commercial AC and heat pumps.
For equipment with which consumers might come into contact, such as residential AC and heat pumps, EPA also performed a consumer exposure analysis. EPA considered toxicity limits for consumer exposure that reflect a short-term or acute exposure such as might occur at home or in a store or other public setting where a member of the general public could be exposed and could then escape. In EPA's initial risk screen used to support the proposal, the estimated 30-minute consumer exposures to the refrigerants exceeded the toxicity limits for the propylene component of R-443A in all cases but the least conservative, for a room air conditioner. In response to public comments on the proposal, EPA reconsidered the toxicity profile and the toxicity limit for consumer exposure for propylene and determined that its acute toxicity was not significantly different from that of propane. We reanalyzed the modeled exposures against the same exposure threshold we used for analyzing acute toxicity of propane (
The currently acceptable refrigerants such as HFCs, HFC blends, or HFOs, are able to achieve their acute exposure limits, which are generally higher than that for propylene. Because of the relatively low acute exposure limit for propylene and the potential for exceedances of that limit, acute exposure may be a greater concern than for many other acceptable refrigerants in residential and light commercial AC systems and heat pumps with larger charge sizes. Further information on these analyses, EPA's risk assessments, as well as information from the submitters of the substitutes are in the docket for this rulemaking (EPA-HQ-OAR-2015-0663).
EPA is establishing a listing date as of January 3, 2017, the same as the effective date of this regulation. To our knowledge, manufacturers and service technicians are not currently using these substitutes in the end-uses in this rule. We note that EPA has only recently found submissions complete for these substitutes, and under the SNAP program regulations, a substitute may not be introduced into interstate commerce prior to 90 days after EPA receives a complete submission.
EPA received several comments from individuals and organizations with various interests in R-443A and propylene. Comments were in reference to the proposed listing status of R-443A and propylene and the environmental, flammability, and toxicity impacts of R-443A and propylene. Some commenters supported the proposed listing decisions and effective date of 30 days after date of publication of the rule in the
Commenters included Whitmyre Research and Whitmyre Equipment Corporation, consultants for A.S. Trust & Holdings; UTC; Chemours, a chemical producer; Refrigerants, Naturally!, an industry organization supporting the use of HC refrigerants; NRDC, IGSD, and EIA; and a number of anonymous commenters.
We have grouped comments together and responded to the issues raised by the comments in the sections that follow, or in a separate Response to Comments document which is included in the docket for this rule (EPA-HQ-OAR-2015-0663).
Refrigerants, Naturally! commented that propylene has particular advantages over propane such as the same or better efficiency, a larger cooling capacity giving more compact systems, higher LFL and also a distinctive smell. The commenter claimed that combined, these lead to more compact and safer systems (in terms of lower charge sizes per kW of cooling, smaller flammable volumes in event of a leak and pre-warning to technicians working on systems). Both commenters noted that propylene is already safely used in Europe and the United States, particularly in stand-alone retail food refrigeration equipment, as well as in positive displacement chillers and remote condensing units. Refrigerants, Naturally! recommended that EPA reconsider its proposed decision and stated that it would be significantly preferable to impose a ban on venting propylene than to introduce a ban on its use.
EPA repeated its local air quality analysis assuming use of propylene in chillers for commercial air conditioning and in cold storage warehouses and use of R-443A in residential air conditioning and heat pumps.
The scenario suggested by the first commenter, Scenario 4, would not consider impacts from use of propylene and R-443A in all of the end-uses for which they have been submitted—R-443A in residential split system AC and heat pumps and propylene in cold storage warehouses and centrifugal and positive displacement chillers for commercial comfort AC. Under the scenarios where EPA also considered the four end-uses for which R-443A and propylene were submitted result in most of the emissions, and thus, the scenario suggested by the commenter would likely underestimate the impact of emissions of these two substitutes on air quality. EPA analyzed additional Scenarios 5, 6, 7, and 8 to evaluate potential impacts of propylene and R-443A in the end-uses addressed in this action.
With respect to EPA's leak assumptions in our risk screens for purposes of assessing flammability and toxicity impacts, we first conducted a worst-case analysis that assumed a release of 95 percent of the refrigerant charge within one minute. This was an initial screen to determine whether the refrigerant would ever potentially exceed the LFL or relevant exposure limits. Since there were some potential exceedances with the most conservative assumptions, EPA then considered additional, less conservative assumptions concerning ventilation rates, charge sizes, and stratification or complete mixing of release refrigerant, and did not evaluate smaller leaks. EPA agrees with the commenter that slow, small leaks are likely to be far more common than large leaks. However, EPA must consider the possibility of a complete release because that is a possible, if less frequent, situation.
For equipment with larger charge sizes, such as some unitary split AC systems and heat pumps or most centrifugal and positive displacement chillers, the flammability risk is a greater concern than for equipment with smaller sizes, such as self-contained room air conditioners. However, by stating the flammability risk is greater for equipment with larger charge sizes, EPA is not implying that such risks could never be mitigated. ASHRAE, AHRI, and DOE are investing $5.2 million in research with the goal of using the results to update industry standards, subject to the ANSI consensus process, to address flammability risks. Such updates to standards would address risks in a broader range of equipment than the current UL standards.
We agree that the modeled exposure levels are below the level at which toxicity has actually been observed. However, it is standard practice to use more conservative values in evaluating toxicity risk than the no observed adverse effect level (NOAEL) seen in studies to account for uncertainty, such as variability within the general population or differences between species. Concerning the toxicity benchmark used by EPA—an excursion limit of three times the ACGIH TLV—EPA agrees that there could be other, less conservative benchmarks that could be used. We reviewed the available toxicity data for propylene and also considered how the toxicity profile of propylene differs from that of propane to determine what might be an appropriate, less conservative benchmark. We concluded that there were not major differences between the two HCs that warranted using a much lower acute exposure limit for propylene than for propane.
In the proposed rule, EPA described two chiller end-uses, specifically centrifugal chillers and positive displacement chillers. We draw attention to the fact that, as discussed there, in some cases the same refrigerant is used in both end-uses. Of note is the fact that HFC-134a is used for some centrifugal chillers, namely “high-pressure” centrifugal chillers, as well as in some positive displacement chillers, such as screw chillers. In addition, as discussed below, at least two alternatives—HFO-1234ze(E) and R-513A—have been used in both types of chillers. EPA received many comments concerning chillers that did not specifically say whether the comment was referencing centrifugal chillers, positive displacement chillers, or both. Therefore, in today's rule, we are addressing both end-uses in this section.
Centrifugal chillers are equipment that utilize a centrifugal compressor in a vapor-compression refrigeration cycle. They are typically used for commercial comfort AC although other uses do exist. Centrifugal chillers tend to be used in larger buildings, such as office buildings, hotels, arenas, convention halls, airport terminals, and other buildings.
For commercial comfort and some other applications, centrifugal chillers typically cool water that is then pumped to fan coil units or other air handlers to cool the air that is supplied to the occupied spaces transferring the heat to the water. The heat absorbed by the water can then be used for heating purposes, and/or can be transferred directly to the air (“air-cooled”), to a cooling tower or body of water (“water-cooled”) or through evaporative coolers (“evaporative-cooled”). See section VI.A.4.a.i of the proposed rule for additional information on the centrifugal chiller end-use (81 FR 22841-42; April 18, 2016).
Positive displacement chillers are vapor compression cycle chillers that utilize positive displacement compressors, such as reciprocating, screw, scroll or rotary types. Positive displacement chillers are applied in similar situations as centrifugal chillers, primarily for commercial comfort AC, except that positive displacement chillers tend to be used for smaller capacity needs such as in mid- and low-rise buildings. See section VI.A.4.b.i of the proposed rule for additional information on the positive displacement chiller end-use (81 FR 22841-42; April 18, 2016).
Other equipment including packaged rooftop units and split system air conditioners, both of which fall under the SNAP end-use “residential and light commercial air conditioning,” can also be used for commercial comfort AC, typically for even smaller capacity needs than positive displacement chillers. These equipment types are not centrifugal or positive displacement chillers and hence are not covered under this section of the rule. EPA responds to comments regarding the scope of chillers—both centrifugal and positive displacement—end-uses in section VI.A.5.c.i.
EPA discussed historical and recent use of refrigerants in centrifugal chillers in section VI.A.4.a.i.(c) of the proposed rule (81 FR 22842; April 18, 2016). Since then, EPA has become aware of numerous additional demonstrations, availability, and announcements regarding alternative refrigerants for use in centrifugal chillers. For example, Honeywell stated in their comments that “[s]everal manufacturers currently offer high-efficiency chillers, air-cooled (outdoor) and water-cooled (indoor), using HFO-1234ze(E) in sizes ranging from tens of tons to hundreds of tons” and listed some examples, including some centrifugal chillers. Multiple companies have introduced chillers using HFO-1234ze(E), including Star Refrigeration,
Centrifugal chillers using the alternative R-1233zd(E) have also been offered, from at least three manufacturers: Trane (a brand of Ingersoll Rand),
A fourth alternative that is already available for some centrifugal chillers is R-513A. For instance, Johnson Controls announced this year that the centrifugal (and screw) chillers they offer, originally designed for HFC-134a, are compatible with R-513A.
EPA discussed historical and recent use of refrigerants in positive
Since then, EPA has become aware of additional demonstrations, availability and announcements regarding alternative refrigerants for use in positive displacement chillers. For example, in their comments, Ingersoll Rand noted their commitment to transition its entire chiller portfolio, including positive displacement screw and scroll chillers, before the end of 2018. They separately announced their intention to use R-452B in “small chillers” as well as other products.
Next Generation, Low Global Warming Refrigerant, R-452B.” This document is accessible at
For new centrifugal chillers, EPA proposed to change the status as of January 1, 2024, of the following refrigerants from acceptable to unacceptable: FOR12A, FOR12B, HFC-134a, HFC-227ea, HFC-236fa, HFC-245fa, R-125/134a/600a (28.1/70/1.9), R-125/290/134a/600a (55.0/1.0/42.5/1.5), R-404A, R-407C, R-410A, R-410B, R-417A, R-421A, R-422B, R-422C, R-422D, R-423A, R-424A, R-434A, R-438A, R-507A, RS-44 (2003 composition), and THR-03. We also proposed narrowed use limits for HFC-134a and R-404A for certain centrifugal chillers. In this action, we are finalizing the status changes and narrowed use limits that we proposed with no changes. The change of status determinations for new centrifugal chillers are summarized in Table 5.
For new positive displacement chillers, EPA proposed to change as of January 1, 2024 the status of the following refrigerants from acceptable to unacceptable: FOR12A, FOR12B, HFC-134a, HFC-227ea, KDD6, R-125/134a/600a (28.1/70/1.9), R-125/290/134a/600a (55.0/1.0/42.5/1.5), R-404A, R-407C, R-410A, R-410B, R-417A, R-421A, R-422B, R-422C, R-422D, R-424A, R-434A, R-437A, R-438A, R-507A, RS-44 (2003 composition), SP34E, and THR-03. We also proposed narrowed use limits for HFC-134a and R-404A for certain positive displacement chillers. In this action, we are finalizing the status changes and narrowed use limits that we proposed with no changes. The change of status determinations for new positive displacement chillers are summarized in Table 6.
Other refrigerants for new centrifugal chillers not subject to this action are HFO-1234ze(E), HFO-1336mzz(Z), IKON A, IKON B, R-450A, R-513A, R-514A,
For new centrifugal chillers, the refrigerants we are listing as unacceptable have an insignificant ODP. Acceptable refrigerants HFO-1234ze(E), HFO-1336mzz(Z), IKON A, IKON B, R-1233zd(E), R-450A, R-513A, R-514A, R-717 (ammonia), R-744 (carbon dioxide), and THR-02 also have an insignificant ODP. The alternative refrigerant R-1233zd(E) has an ODP of 0.00024 to 0.00034.
The refrigerants we are listing as unacceptable through this action have GWPs ranging from about 920 to 9,810. As shown in Table 7, alternatives acceptable for this end-use not subject to this action have GWPs ranging from zero to 630.
One of the refrigerant blends not subject to this action (THR-02), as well as several of the substitutes for which we are changing the listing from acceptable to unacceptable, include small amounts of R-290 (propane), R-600 (n-butane), or other substances that are VOCs. These amounts are small and for this end-use are not expected to contribute significantly to ground level ozone formation.
The refrigerants listed as acceptable and not subject to this action are highly volatile and typically evaporate or partition to air, rather than contaminating surface waters. Their effects on aquatic life are expected to be small and pose no greater risk of aquatic or ecosystem effects than those of the refrigerants for which we are changing the listing from acceptable to unacceptable for this end-use.
With the exceptions of HFO-1234ze(E) and R-717, all other refrigerants listed as acceptable and those we are listing as unacceptable, are not flammable. HFO-1234ze(E) is nonflammable at standard temperature and pressure using the standard test method ASTM E681; however, at higher temperatures it is mildly flammable. It is classified as a Class 2L (mild flammability, low burning velocity) refrigerant under the standard ASHRAE 34 (2013). Our assessment and listing decision (77 FR 47768; August 10, 2012) found that the overall risk, including the risk due to this mild flammability at elevated temperature, is not significantly greater than for other refrigerants or for the refrigerants we are listing as unacceptable.
The toxicity of the refrigerants we are listing as unacceptable is comparable to that of other alternatives that are acceptable in this end-use, with the exception of R-717 and R-514A. R-717 is of a higher toxicity than the other acceptable refrigerants and is classified as a B refrigerant under ASHRAE 34 (2013). See section VI.A.4.a.iii.(b) of the proposed rule (81 FR 22843; April 18, 2016) for a discussion on the long history of use of R-717 and our original decision finding it acceptable in new centrifugal chillers. The use of R-717, also known as ammonia, and the risks it might present are controlled through industry standards, code requirements and other regulations. In the original SNAP rule, EPA noted “[a]mmonia [R-717] has been used as a medium to low temperature refrigerant in vapor compression cycles for more than 100 years. Ammonia [R-717] has excellent refrigerant properties, a characteristic pungent odor, no long-term atmospheric risks, and low cost. It is, however, mildly flammable and toxic, although it is not a cumulative poison. OSHA standards specify a 15 minute short-term exposure limit of 35 ppm for ammonia [R-717].” (53 FR 13072; March 18, 1994). In that rule, we found R-717 acceptable for use in centrifugal chillers, concluding that its overall risk to human health and the environment was not significantly greater than the other alternatives found acceptable. This conclusion was based on the assumption that the regulated community adheres to OSHA regulations on such use as well as standard refrigeration practices, such as the adherence to ASHRAE Standard 15 and the International Institute of Ammonia Refrigeration (IIAR) Standard 2,
R-514A is designed for use in low-pressure centrifugal chillers and has the same toxicity rating as HCFC-123, which has and continues to be used safely in such chillers. Because these refrigerants operate in low-pressure chillers only, any leaks are more likely to cause air to enter the chiller, rather than refrigerant to escape. Exposure is further reduced by requirements set forth in ASHRAE Standard 15, which is often cited in building codes. Specifically, Occupant Exposure Limits and Refrigerant Concentration Limits for B1 refrigerants—specified in ASHRAE Standard 34-2013 and mandated by ASHRAE Standard 15 and building codes—are lower than for A1 refrigerants, and these limits must be observed in chiller operations. EPA's risk screen
In summary, for new centrifugal chillers, because the risks other than GWP are not significantly different for the other available alternatives than for those we proposed to list as unacceptable, and because the GWPs for the refrigerants we proposed to list as unacceptable are significantly higher and thus pose significantly greater risk, we are listing the following refrigerants as unacceptable: FOR12A, FOR12B, HFC-134a, HFC-227ea, KDD6, R-125/134a/600a (28.1/70/1.9), R-125/290/134a/600a (55.0/1.0/42.5/1.5), R-404A, R-407C, R-410A, R-410B, R-417A, R-421A, R-422B, R-422C, R-422D, R-424A, R-434A, R-437A, R-438A, R-507A, RS-44 (2003 composition), SP34E, and THR-03.
For new positive displacement chillers, other alternatives that are listed as acceptable and not subject to this action pose lower overall risk to human health and the environment than the refrigerants we are listing as unacceptable. Acceptable refrigerants for new positive displacement chillers include: HFO-1234ze(E), HFO-1336mzz(Z), IKON B, R-450A, R-513A, R-514A, R-717, R-744, and THR-02. In the proposed rule and SNAP Acceptability Determination 31, EPA provided information on the environmental and health risks presented by the alternatives that are being found unacceptable compared with other available alternatives listed as acceptable (81 FR 22846; April 18, 2016 and 81 FR 32242-32245; May 23, 2016). In addition, a technical support document
For new positive displacement chillers, the refrigerants that we are listing as unacceptable have insignificant ODPs and have GWPs ranging from about 920 to 3,990. As shown in Table 8, other alternatives that we are not listing as unacceptable in this end-use have GWPs ranging from zero to 630.
One of the refrigerant blends not subject to this action (THR-02), as well as several of the substitutes for which we are changing the listing from acceptable to unacceptable, include small amounts of R-290 (propane), R-600 (butane), or other substances that are VOCs. These amounts are small and for this end-use are not expected to contribute significantly to ground level ozone formation.
The refrigerants not subject to this action are highly volatile and typically evaporate or partition to air, rather than contaminating surface waters. Their effects on aquatic life are expected to be small and pose no greater risk of aquatic or ecosystem effects than those of the refrigerants that are subject to the status change for this end-use.
With the exception of HFO-1234ze(E) and R-717, all other refrigerants that have been listed as acceptable, including those for which we are now changing the status to unacceptable, are not flammable. HFO-1234ze(E) is nonflammable at standard temperature and pressure using the standard test method ASTM E681; however, at higher temperatures it is mildly flammable. It is classified as a Class 2L (mild flammability, low burning velocity) refrigerant under the standard ASHRAE 34 (2013). Our assessment and listing decision (77 FR 47768; August 10, 2012) found that the overall risk, including the risk due to this mild flammability at elevated temperature, is not significantly greater than for other refrigerants or for the refrigerants we are listing as unacceptable.
R-717 (ammonia) is mildly flammable with a low flame speed; it is classified as a 2L refrigerant under ASHRAE 34 (2013). R-717 has a long history of use as a refrigerant in positive displacement chillers, especially in water-cooled screw chillers, and other applications. In our evaluation finding R-717 acceptable in this end-use, EPA noted “[a]mmonia [R-717] has been used as a medium to low temperature refrigerant in vapor compression cycles for more than 100 years. Ammonia [R-717] has excellent refrigerant properties, a characteristic pungent odor, no long-term atmospheric risks, and low cost. It is, however, mildly flammable and toxic, although it is not a cumulative poison. Ammonia [R-717] may be used safely if existing OSHA and ASHRAE standards are followed” (61 FR 47015).
With the exception of R-717, the toxicity of the refrigerants we are listing as unacceptable is comparable to that of other alternatives that are acceptable in this end-use. R-717, a refrigerant we are not listing as unacceptable, is of a higher toxicity than some other refrigerants and is classified as a B refrigerant under ASHRAE 34 (2013). See section VI.A.4.b.iii.(b) of the proposed rule (81 FR 22847; April 18, 2016) for a discussion on the long history of use of R-717 and our original decision finding it acceptable in new positive displacement chillers. However, as we provided in listing it as acceptable, if used consistent with OSHA regulations, as well as standard refrigeration practices, such as the adherence to ASHRAE Standard 15 and the International Institute of Ammonia Refrigeration (IIAR) Standard 2, which are utilized by local authorities when setting their own building and safety requirements, it does not pose significantly greater risk than other available refrigerants in this end-use. For further information, including EPA's risk screens and risk assessments as well as information from the submitters of the substitutes, see docket EPA-HQ-OAR-2015-0663.
In summary, for positive displacement chillers, because the risks other than GWP are not significantly different for the other available alternatives than for those we proposed to list as unacceptable, and because the GWPs for the refrigerants we proposed to list as unacceptable are significantly higher and thus pose significantly greater risk, we are listing the following refrigerants as unacceptable: FOR12A, FOR12B, HFC-134a, HFC-227ea, KDD6, R-125/134a/600a (28.1/70/1.9), R-125/290/134a/600a (55.0/1.0/42.5/1.5), R-404A, R-407C, R-410A, R-410B, R-417A, R-421A, R-422B, R-422C, R-422D, R-424A, R-434A, R-437A, R-438A, R-507A, RS-44 (2003 composition), SP34E, and THR-03.
EPA is establishing a narrowed use limit that would allow continued use of HFC-134a in centrifugal and positive displacement chillers for military marine vessels as of January 1, 2024. EPA is also establishing a narrowed use limit that would allow continued use of HFC-134a and R-404A in centrifugal and positive displacement chillers for human-rated spacecraft and related support equipment applications as of January 1, 2024. See section VI.A.4.a.iv and VI.A.4.b.iv of the proposed rule (81 FR 22844; April 18, 2016) for a discussion of the reasons for these narrowed use limits. EPA responds to comments regarding the narrowed use limits in section VI.A.5.c.v.
Under these narrowed use limits, the end users will need to ascertain that other alternatives are not technically feasible due to performance or safety requirements, and they would also need to document the results of their
• Process or product in which the substitute is needed;
• Substitutes examined and rejected;
• Reason for rejection of other alternatives,
• Anticipated date other substitutes will be available and projected time for switching.
EPA proposed and is finalizing a status change date of January 1, 2024, for new centrifugal chillers and new positive displacement chillers, except as otherwise allowed under a narrowed use limit. The status change date is based on comments and our understanding of the needs for industry standards, model codes, and adoption of those items to allow for a range of alternatives, including flammable alternatives, in both types of chillers addressed. As pointed out by AHRI and NRDC in their joint comment on the proposed rule, for chillers with alternatives not subject to a status change to be used “effectively and safely, the appropriate mitigation must be developed, proven, and finally adopted by safety standards. Only then can states and municipalities adopt building codes reflecting the updated safety standards.” The Agency understands that relevant industry standards and model building codes are likely to change in the 2017 to 2021 timeframe, and that such changes will be a necessary step for the acceptable alternatives feasibly to be used in the chiller market. These standards and codes include ASHRAE 15, UL 1995, UL 60335-2-40, and the International Building Code (IBC). EPA also recognizes that even once standards and model building codes are changed, time will be required for locations to adopt such codes allowing for the use of chillers using the alternative refrigerants, many of which may not currently be allowed to be used based on existing codes. While some non-flammable, code-acceptable refrigerants are available for some of the chiller market, the use of other acceptable alternatives would require code changes or exceptions made by code officials. Comments indicated that there is a progression from the release of a model code until adoption by State authorities, and that the majority of States are currently using either the most recent (2015) model code or are only one cycle behind (2012). While EPA does not believe the status change date must occur after all such authorities have adopted a new model code, we are allowing a reasonable time to provide that opportunity where such code adoption would facilitate the introduction of chillers with alternative refrigerants. Comments also indicate that, if the appropriate codes are not adopted, there are alternative means and measures that may be taken to allow the use of alternatives otherwise not allowed. A change of status date of January 1, 2024, is necessary to provide an expeditious yet reasonable time for this process to occur. The status change date is also necessary to allow continued development of designs of new centrifugal and positive displacement chillers using an acceptable alternative, covering the wide range of capacity and design types (low/medium pressure, indoor/outdoor, etc.) that exist in the market, and allow those chillers to be tested and certified. EPA is aware that some equipment has been introduced with acceptable alternatives, as discussed above in section VI.A.5.a.ii, and that additional research and development is underway with these and other possible alternatives. EPA responds to comments regarding the status change date in section VI.A.5.c.ii.
Some commenters suggested an earlier date for all or parts of the centrifugal and positive displacement chiller market, suggesting status change dates as early as 2019. While EPA noted that multiple chillers with alternative refrigerants are already available on the market now, and we expect more to become so by that date, we did not find evidence that a significant portion of the chiller market could transition at an earlier date than the date we are finalizing. Further, EPA did not receive enough technical detail to support dividing the centrifugal chiller end-use or the positive displacement chiller end-use so that different change of status dates could apply to different portions of the end-uses.
Commenters who suggested a later status change date had concerns regarding their ability to maintain current energy efficiency levels with alternative refrigerants. The data provided by commenters, however, showed only minor theoretical losses of efficiency for some alternatives, up to about four percent. These commenters suggested more time is needed to recover these losses by redesigning and recertifying centrifugal chillers. These losses are considered small and only pertain to “drop-in” conditions; it is expected that any losses can be recovered by designing new chillers to utilize those refrigerants, as commenters indicate they expect to do. Furthermore, several alternatives were found to exceed current efficiency levels even in these theoretical conditions. While some commenters provided a general description of the steps that must be taken in this redesign process, none provided a detailed timeline of how long each step would take and how multiple models can be redesigned in parallel during the proposed timeframe. Therefore, we disagree that efficiency concerns would support a later change of status date.
Commenters who suggested a later status change date were also concerned about the need to update industry standards and building codes, and adoption of those codes, specifically for flammable alternatives. For centrifugal chillers, they stated such changes must take place for HFO-1234ze(E), a mildly flammable A2L refrigerant, to be used. They also identified that refrigerant and several other A2L refrigerants for positive displacement chillers, and likewise indicated that standards and codes actions hindered the availability of chillers with those alternatives. EPA found several examples where acceptable alternatives have been used in both centrifugal and positive displacement chillers, and received information that indicates that industry standards are expected to be updated as early as 2017 and that model building codes would be updated possibly in the 2018 cycle or most likely the 2021 cycle. By establishing a 2024 status change, we allow time for adoption of those model codes by States and other jurisdictional authorities. In addition, commenters noted that there are other alternative means and measures by which the use of a flammable refrigerant, if so chosen by the manufacturer, in a centrifugal or positive displacement chiller may be permitted, even if that refrigerant were not otherwise allowed under a particular State or locality's existing code requirements.
EPA received several comments from individuals and organizations with various interests in the refrigerants industry. Comments addressed EPA's proposed status change date of January 1, 2024, for new centrifugal chillers and new positive displacement chillers. Some commenters, including Chemours, EIA, Honeywell, and Ingersoll Rand
Commenters included Boeing, Eastman Chemical Company, Honeywell, Chemours, Johnson Controls, Ingersoll Rand, UTC, PSEG Services Corporation, Arkema, the Alliance, National Association of Manufacturers (NAM), AHRI, EIA, NRDC, IGSD, NASA, and DoD.
As stated above, EPA received many comments discussing “chillers” or “HFC-134a alternatives” that did not specify whether the comments applied specifically to centrifugal chillers, positive displacement chillers, or both. We have grouped comments together and responded to the issues raised by the comments in the sections that follow, or in a separate Response to Comments document which is included in the docket for this rule (EPA-HQ-OAR-2015-0663). Our responses should be considered as equally applicable to both end-uses unless otherwise specified.
We also recognize that it is important under the SNAP program to not limit end users to a single choice. EPA has identified several alternatives that are acceptable for centrifugal chillers and likewise positive displacement chillers. By establishing the same change of status date for all chillers, manufacturers will be able to choose from the full list of acceptable alternatives the refrigerant(s) and chiller type(s) that best meet their specific needs, and customers will be able to apply the particular type(s) of chillers using the particular acceptable alternative that best meet their needs. Individual manufacturers may determine for themselves which alternative(s) to use in their particular equipment and given the variety of alternatives available there may not be a single “widely-accepted” replacement, even for a specific type of chiller; there may be several refrigerants and chiller types competing in the market. For additional comments regarding building codes and standards, please see section VI.A.c.iv.
UTC said that typical development projects would require two to three years to complete but also indicated that this time frame could be delayed due to the availability of manufacturer and test labs for certification, Johnson Controls indicated a project duration of two to nine years for low-pressure and medium-pressure chillers. AHRI also estimated it would take two to nine years to commercialize including time to reengineer and re-optimize chillers to use alternative refrigerants. Ingersoll Rand noted their commitment to transition its entire chiller portfolio, including positive displacement screw and scroll chillers, before the end of 2018.
The information from these commenters did not provide sufficient detail to determine the time it would take to transition all chillers to acceptable alternatives to serve its current market. For instance, UTC did not indicate whether the two to three year product development timeframe applied to just one or multiple products, and if the latter, whether those development projects could overlap and occur simultaneously. Johnson Controls and AHRI did not address these situations either. However, the January 1, 2024, change of status date for both centrifugal and positive displacement chillers that EPA is establishing in the final rule should provide sufficient time for the activities described by the commenters to occur in order to meet that date.
Further, as the table of approvals provided showed, various states are adopting different cycles of codes, some dating back to 2003 and others adopting the latest 2015 codes. In section VI.A.5.c.iv below, EPA points to the concerted effort by DOE, AHRI, and ASHRAE to fund vital research that will establish a more robust fact base about the properties and uses of flammable refrigerants. The results from this work will help provide the technical knowledge needed to facilitate and accelerate the safe use of flammable refrigerants. EPA finds that conditioning a status change on code adoption would not only be unnecessary, but would create the “balkanization” or patchwork of regulations that UTC said it wanted to avoid.
UTC stated that “the primary environmental impact (~95 percent) of HVAC systems stems from the electric power needed to operate them, not from refrigerant leaks (which constitute about five percent of the overall impact).” Johnson Controls and AHRI both stated that 98 percent of the CO
While we agree with the commenters who suggest that certain refrigerants may have a lower energy efficiency if used as “drop-ins,” (
It is unclear what the commenter is referencing when it states that “minimum efficiency of chillers is mandated.” EPA does not mandate energy efficiency and, as we noted in the proposal (81 FR 22845; April 18, 2016), there are no specific DOE requirements for minimum energy efficiency for chillers apart from those used in federal government-owned buildings.
EPA also addresses energy efficiency in section VII.D.3 in this action and in sections V.B.6.a, V.C.7, V.D.3.c, and VII.C.3 of the preamble to the July 2015 rule (80 FR 42870; July 20, 2015).
With respect to UTC's comment that reduced energy efficiency may drive decisions to repair rather than replace existing equipment, EPA does not dictate through the SNAP program when a chiller must be replaced rather than repaired. Instead, EPA allows the user to determine when to repair and when to replace their system.
Cold storage warehouses are temperature-controlled facilities used to store meat, produce, dairy and other products that are delivered to other locations for sale to the ultimate consumer. This end-use within the SNAP program describes an application of refrigeration equipment for an intended purpose, and hence the listings of acceptable and unacceptable refrigerants for this end-use apply regardless of the type of refrigeration system used.
As explained in the proposed rule (81 FR 22849; April 18, 2016), cold storage warehouses are usually deemed “private” or “public,” and some may be both, describing the relationship between the owner or operator of the cold storage warehouse and the owner of the products stored within.
Cold storage warehouses are also often divided into two general uses: “coolers” that store products at temperatures above 32 °F (0 °C) and “freezers” that store products below this temperature. Some subdivisions of these types were also provided in the proposed rule (81 FR 22849; April 18, 2016).
We explained that several other end-uses under the SNAP program cover other parts of the food (and product) cold chain and are distinct from the cold storage warehouse end-use. We
EPA understands that existing cold storage warehouses may undergo expansion to handle needs such as increased production, consolidation of distribution points, or increased population or other reasons for increased demands of the products stored. Such expansions could include a physical expansion of the storage space or using racking techniques to increase the amount of product within a given facility. The owner of cold storage warehouses undergoing such expansions (or the owner's designer) may determine that a new system needs to be added. That new system could be a complete newly manufactured system separate from the existing system, or it could be equipment and refrigerant added to the existing system increasing the capacity of the existing system. In both cases, EPA considers these actions as the manufacturing of a new system and hence that equipment is affected by the changes of status in this final rule.
A commenter stated that cold storage warehouses are “typically designed with planned expansions” and that the change of status should not apply to any future expansion of such warehouses. EPA addressed the definition of a “new” system as used in the SNAP program in a previous rule (80 FR 42902-03; July 20, 2015). As explained there, consistent with the definition in 40 CFR part 82, subparts A and I, EPA considers a system to be new for purposes of these SNAP determinations as of the date upon which the refrigerant circuit is complete, the system can function, the system holds a full refrigerant charge, and the system is ready for use for its intended purposes. Therefore, as used in the SNAP program, “new” refers to the manufacture and often installation of a refrigeration system for an intended purpose, which may occur on a newly manufactured or an existing cold storage warehouse. The status changes in this action would apply to the expansion of the refrigeration system in an existing cold storage warehouse if the capacity of that existing refrigeration system is increased to handle the expansion. Because the existing system capacity was inadequate to provide the necessary cooling for the expanded load, the existing system did not meet the intended purpose of the expanded capacity, and therefore if it were expanded to hand that load it would be considered “new” with respect to SNAP. On the other hand, if an existing refrigeration system is extended (for instance, by adding additional refrigerant lines and evaporators to a newly manufactured or newly commissioned building, to a portion of the existing facility previously not used for cold storage, or to an extension of the previous building), without requiring an increase in capacity and while only needing the same full refrigerant charge as before, the system is not considered “new” and hence may continue its operations with the existing refrigerant. Likewise, a facility may increase the amount of products it handles while at the same time providing better sealing around infiltration points and/or increasing the insulation on walls and roofs, and thereby avoid the need to increase the refrigeration capacity of the equipment serving the cold storage warehouse.
Commenters suggested divisions in the cold storage warehouse market by which EPA should finalize separate decisions. One suggestion was to distinguish between indirect and direct systems. In today's action, EPA is not subdividing the cold storage warehouse end-use based on whether a direct or indirect system is used. As addressed below, the commenter suggesting this subdivision, and different change of status decisions for the two subdivisions, did not provide evidence how any of the SNAP criteria varied between the two subdivisions, instead only addressing energy efficiency and economic burden.
Another comment suggested a distinction between those cold storage warehouses with a footprint of 3,000 square feet (279 square meters) or less, noting they are covered by DOE energy conservation standards for walk-in coolers and freezers, a point brought out in the proposed rule (81 FR 22853; April 18, 2016). A commenter stated that EPA should consider all such cold storage warehouses to be part of the retail food refrigeration end-use because manufacturers make equipment that could be used for retail food refrigeration or could be used in a manner that would be classified as a cold storage warehouse within SNAP. In today's action, EPA is not changing the definition of the cold storage warehouse end-use such that some types are considered a different end-use by virtue of their size. As addressed below, comments suggesting this subdivision did not provide evidence how any of the SNAP criteria varied between these two subdivisions. Although comments as well as the proposed rule noted that such types of cold storage warehouses are subject to DOE energy conservation regulations, the comments did not indicate how this fact would change the availability of acceptable alternatives by the change of status date proposed.
An equipment manufacturer commented that many industrial processors have multiple cold storage warehouses on the same campus and that these may be cooled from a system that also provides cooling to other applications, such as an industrial process refrigeration system. The manufacturer stated that EPA should “treat campuses with multiple building and processing areas as one complete industrial process.” EPA notes, however, that SNAP decisions are on an end-use basis, and therefore any cold storage warehouse may only use a refrigerant listed as acceptable for that end-use. While through today's action EPA is not changing the status of refrigerants in the industrial process refrigeration end-use, we are doing so for new cold storage warehouses, and as such some refrigerants in this end-use will be listed as unacceptable as of the change of status date.
EPA is not aware of other federal rules applying to efficiency of cold storage warehouses (
EPA has found several not-in-kind systems (
In section VI.A.4.c.i of the proposed rule, EPA indicated that R-717 is believed to be the most common refrigerant used in cold storage warehouses and provided information on equipment types and system designs that facilitate the use of that refrigerant (81 FR 22850-22851; April 18, 2016).
We noted that limitations on the use of R-717 do exist. For example, it is reported that charge sizes exceeding 10,000 pounds of R-717 “may require government-mandated process safety management (PSM) and [a] risk management plan (RMP).”
One commenter, AHRI, indicated manufacturers are developing R-407A condensing units that could be used in cold storage warehouses, particularly those less than 3,000 square feet which, as noted in section VI.A.4.c.v of the proposed rule (81 FR 22853; April 18, 2016), are subject to DOE energy conservation standards for walk-in coolers and freezers.
For new cold storage warehouses, EPA proposed to change as of January 1, 2023, the status of the following refrigerants from acceptable to unacceptable: HFC-227ea, R-125/290/134a/600a (55.0/1.0/42.5/1.5), R-404A, R-407A, R-407B, R-410A, R-410B, R-417A, R-421A, R-421B, R-422A, R-422B, R-422C, R-422D, R-423A, R-424A, R-428A, R-434A, R-438A, R-507A, and RS-44 (2003 composition). In this action, we are finalizing the status changes that we proposed with no changes. The change of status determinations for new cold storage warehouses are summarized in Table 9.
Other refrigerants for new cold storage warehouse not subject to this action are FOR12A, FOR12B, HFC-134a, IKON A, IKON B, KDD6, R-407C, R-407F, R-437A, R-450A, R-513A, R-717, R-744, RS-24 (2002 composition), SP34E, THR-02, and THR-03. In the proposed rule, EPA provided information on the environmental and health risks presented by the alternatives that are being found unacceptable compared with other available alternatives that are listed as acceptable (81 FR 22851-52; April 18, 2016). In addition, a technical support document
One commenter requested that EPA clarify which refrigerants in the R-407 series were subject to a change in status, while others specifically requested that we not change the status of R-407A and R-407B in cold storage warehouses. We are finalizing a change of status for the refrigerants we proposed. With respect to the R-407 series refrigerants in this end-use, EPA only proposed a change of status for R-407A and R-407B based on our analysis that these two blends posed a higher overall risk to human health and the environment than other available refrigerants for this end use. EPA did not propose and is not taking action in this rule to change the status of R-407C and R-407F in cold storage warehouses; those refrigerants remain acceptable in this end-use. EPA has not listed others in the R-407 series, including R-407D, R-407E and R-407G, and R-407H, acceptable in this end-use.
For cold storage warehouses, the refrigerants we are listing as unacceptable have insignificant ODPs, but they have GWPs ranging from 2,090 to 3,990. As shown in Table 10, acceptable alternatives have GWPs ranging from zero to 1,820.
Some of the refrigerant blends not subject to this action, as well as several of the substitutes for which we are changing the listing from acceptable to unacceptable, include small amounts of R-290, R-600, or other substances that are VOCs. These amounts are small and for this end-use, are not expected to contribute significantly to ground-level ozone formation.
The refrigerants listed as acceptable and not subject to this action are highly volatile and typically evaporate or partition to air, rather than contaminating surface waters. Their effects on aquatic life are expected to be small and pose no greater risk of aquatic or ecosystem effects than those of the refrigerants that are subject to the status change for this end-use.
With the exception of R-717, all other acceptable refrigerants, as well as those that we are listing as unacceptable, are not flammable and are of low toxicity (
In summary, because the risks other than GWP are not significantly different for the other available alternatives than for those we proposed to list as unacceptable, and because the GWPs for the refrigerants we proposed to list as unacceptable are significantly higher and thus pose significantly greater risk, we are listing the following refrigerants as unacceptable: HFC-227ea, R-125/290/134a/600a (55.0/1.0/42.5/1.5), R-404A, R-407A, R-407B, R-410A, R-410B, R-417A, R-421A, R-421B, R-422A, R-422B, R-422C, R-422D, R-423A, R-424A, R-428A, R-434A, R-438A, R-507A, and RS-44 (2003 composition).
EPA is establishing a change of status date for the above-listed refrigerants new cold storage warehouses of January 1, 2023, which the Agency finds is a reasonable yet expeditious date by which the technical challenges can be met for a safe and smooth transition to alternatives. This amount of time is needed particularly considering the various equipment types that could be employed to provide the cooling necessary for new cold storage warehouses and the requirement for many of these equipment types to meet energy conservation standards while undergoing such a transition. Although acceptable alternatives, particularly R-717, are widely used, EPA recognizes based on comment that R-717 is not an option due to technical or compliance constraints at some facilities. For these facilities, the user would need the time to investigate the use of other alternatives and to design, and possibly certify to DOE energy conservation standards, equipment using the chosen alternative. As discussed in the proposed rule (81 FR 22850; April 18, 2016), in some cases, R-717 may not have been chosen based on building code and regulatory restrictions that might have eliminated its use. As also discussed there, and as supported by comment, technologies are under development that can overcome some such limitations; for example, newly-developed low-charge R-717 systems
EPA received comments on various topics including, the proposed status change date of January 1, 2023, the refrigerants proposed for status change, the acceptability of other refrigerants, and requests for subdividing the category and limiting the status changes based on those subdivisions.
Commenters included AHRI, an industry organization; CARB, a state agency; Daikin and Zero Zone, equipment manufacturers; Chemours, Honeywell, and National Refrigerants, three chemical producers; and NRDC, IGSD, and EIA, three environmental organizations.
We have grouped comments together and responded to the issues raised by the comments in the sections that follow, or in a separate Response to Comments document which is included in the docket for this rule (EPA-HQ-OAR-2015-0663).
Further, we disagree that to eliminate confusion, ease compliance, or provide flexibility we should list all R-407 series refrigerants as acceptable. EPA reviews refrigerants individually and is aware that manufacturers, users, and owners make it their business to know the exact refrigerant they are using, since they currently are aware that not all R-407 series refrigerants are acceptable in this or any other end-use. Just because two or more refrigerants are made up of the same components
In response to the suggestion that we list additional specific refrigerants as unacceptable, we note that at least two—R-407C and R-407F—are currently used in cold storage warehouses. In addition to considering the SNAP criteria in determining whether to propose action to change the status of an acceptable substitute, we also need to consider whether there are other alternatives available. Although we recognize that alternatives such as R-717 and R-744 are available for certain types of equipment in certain applications in the cold storage warehouses end-use, the information available at this time does not indicate that there are available alternatives for all types of equipment in all types of applications.
In the SNAP July 2015 rule (80 FR 42902), EPA clarified that “equipment designed to make or process cold food and beverages that are dispensed via a nozzle, including soft-serve ice cream machines, `slushy' iced beverage dispensers, and soft-drink dispensers” was not included as part of the retail food refrigeration end-use categories specifically identified in that final rule. EPA clarified that this equipment is part of a separate end-use category within the retail food refrigeration end-use. This end-use category, “refrigerated food processing and dispensing equipment,” is covered in this section of the final rule. For an overview of this end-use category, please refer to section VI.A.4.d.i of the proposed rule (81 FR 22854-55; April 18, 2016).
One commenter, UTC, pointed out that certain soft-serve and other frozen dairy treats may not fall within the technical definition of ice-cream due to milk fat content, but that such products “are handled like ice-cream and shake products from an operational point of view.” UTC also stated that a creamer dispenser (refrigerated unit dispensing creamer in a dosed amount) and bulk milk dispensers (refrigerated unit holding a container of milk that dispenses through a small nozzle when the handle is lifted) would fit in this category as well. EPA's use of “including” in its description of the type of equipment that falls under this end use indicates that the list was not intended to be exclusive. EPA considers the types of equipment identified by UTC, which dispense products through a nozzle, to fit within the end-use.
As noted in section VI.A.4.d.i of the proposed rule (81 FR 22854; April 18, 2016) certain types of equipment, including water coolers and stand-alone retail food refrigeration units, do not fall within this end-use category.
EPA discussed which refrigerants were acceptable in the refrigerated food processing and dispensing equipment end-use category in section VI.A.4.d.i of the proposed rule (81 FR 22855; April 18, 2016). While numerous refrigerants are acceptable in this end use, as noted by the comments from UTC, R-404A is typically used for freezing applications and HFC-134a for refrigerated applications.
In comments submitted on the proposal, AHRI and UTC discussed the potential use of R-448A and R-449A in this end-use category, and AHRI urged EPA to find these blends acceptable. Other information claimed as CBI indicated the potential to transition R-404A applications within this end-use category to those refrigerants. Tecumseh also urged EPA to list these two refrigerants acceptable as well as R-452A. EPA has received submissions for these three refrigerants. Concurrent with this rule, EPA is listing R-448A, R-449A, and R-449B as acceptable without use conditions for new refrigerated food processing and dispensing equipment. We are currently reviewing R-452A for this end-use.
For new refrigerated food processing and dispensing equipment, EPA proposed to change as of January 1, 2021, the status of the following refrigerants from acceptable to unacceptable: HFC-227ea, KDD6, R-125/290/134a/600a (55.0/1.0/42.5/1.5), R-404A, R-407A, R-407B, R-407C, R-407F, R-410A, R-410B, R-417A, R-421A, R-421B, R-422A, R-422B, R-422C, R-422D, R-424A, R-428A, R-434A, R-437A, R-438A, R-507A, RS-44 (2003 formulation). In this action, we are finalizing the status changes we proposed with no changes. The change of status determinations for new refrigerated food processing and dispensing equipment are summarized in Table 11.
For new refrigerated food processing and dispensing equipment, the substitutes that will remain listed as acceptable pose lower overall risk to human health and the environment than the refrigerants we are listing as unacceptable. Acceptable refrigerants include: FOR12A, FOR12B, HFC-134a, IKON A, IKON B, R-426A, RS-24 (2002 formulation), R-450A, R-513A, R-744, SP34E, THR-02 and THR-03. In the proposed rule (81 FR 22855-22856; April 18, 2016) and SNAP Notice 31 (81 FR 32241; May 23, 2016), EPA provided information on the environmental and health risks presented by the alternatives that are being found unacceptable compared with other available alternatives that are listed as acceptable. Also, concurrent with this rule, EPA is listing R-448A, R-449A and R-449B acceptable for new refrigerated food processing and dispensing equipment. A technical support document
The refrigerants we are listing as unacceptable have GWPs ranging from 1,770 to 3,990. As shown in Table 12, acceptable alternatives have GWPs ranging from one to 1,510.
Some of the refrigerant blends not subject to this action, as well as several of the substitutes for which we are changing the listing from acceptable to unacceptable, include small amounts of VOC such as R-290 (propane) and R-600 (n-butane). These amounts are small, and for this end-use category are not expected to contribute significantly to ground-level ozone formation.
The refrigerants not subject to this action are highly volatile and typically evaporate or partition to air, rather than contaminating surface waters. Their effects on aquatic life are expected to be small and pose no greater risk of aquatic or ecosystem effects than those of the refrigerants that are subject to the proposed status change for this end-use.
For this end-use category, all of the refrigerants, including those which we are listing as unacceptable, are not flammable (
In summary, because the risks other than GWP are not significantly different for the other available alternatives than for those we proposed to list as unacceptable, and because the GWPs for the refrigerants we proposed to list as unacceptable are significantly higher and thus pose significantly greater risk, we are listing the following refrigerants as unacceptable: HFC-227ea, KDD6, R-125/290/134a/600a (55.0/1.0/42.5/1.5), R-404A, R-407A, R-407B, R-407C, R-
EPA proposed and is establishing a change of status date for refrigerated food processing and dispensing equipment of January 1, 2021, which the Agency finds is a reasonable yet expeditious date by which the technical challenges can be met for a safe and smooth transition to alternatives particularly considering the need for equipment to comply with any sanitation and safety standards while continuing to maintain the properties, characteristics and quality of the food or beverage provided by the equipment. As discussed below and in our response to comments, EPA relied on information from an equipment manufacturer claimed as CBI that estimated different conversion periods based on two refrigerants—specifically three years for R-448A and five years for R-744—and the technical hurdles posed by those refrigerants. While current efforts are focused on using those two refrigerants, there are a number of other refrigerants listed as acceptable for this end-use that manufacturers may also choose to use. However, there is no information that suggests that a conversion period for these other refrigerants would be any quicker than that for R-448A and R-744.
To address what alternatives might be available and when, comments were provided by manufacturers and an association representing manufacturers regarding certain refrigerants not currently acceptable in this end-use category. Information was provided for R-448A and R-449A, two HFC/HFO blends designed to mimic the properties of R-404A, and one manufacturer and an association representing manufacturers requested we find them acceptable for this end-use category. As noted above, concurrent with this rule EPA is listing R-448A, R-449A, and R-449B acceptable in this end-use. EPA views the interest expressed by comments to be indicative of the progress being made in this end-use category and the likely future use of R-448A, R-449A, or R-449B. As noted above, information claimed as CBI indicates a transition to one of these refrigerants could occur by January 1, 2021, and was being planned by a manufacturer of equipment for this end-use category. EPA discussed the status of these HFC/HFO blends and the availability of their HFO components in a previous action (80 FR 42870; July 20, 2015). For instance, we concluded then that there was ample supply of these refrigerants and we pointed out that Emerson, a major supplier of compressors and other components, was qualifying these refrigerants for use in its products. Others have followed suit. For instance, Tecumseh has approved R-449A as an acceptable alternative to R-404A and was in the process of releasing R-449A compressors for use in remote condensing units.
Information was also supplied by equipment manufacturers regarding the use of R-290 specifically or HCs generically in this equipment. An environmental organization indicated that equipment using R-290 is already being used in markets outside the United States and recommended finding R-290 and R-600a acceptable subject to use conditions. EPA has not received a submission for these refrigerants specifically for the refrigerated food processing and dispensing equipment end-use category. If in the future we decide to list these as acceptable, they would be included in a Notice of Acceptability published in the
Equipment manufacturers also submitted comments on some but not all of the acceptable refrigerants not proposed for status change. One manufacturer deemed HFC-134a as not appropriate for their equipment while a second manufacturer indicated that refrigerant is typically used for refrigerated (as opposed to freezing) applications in this end-use category. Based on these comments, EPA recognizes that HFC-134a is available for a portion of this end-use category, but additional time would be required for it, or other acceptable alternatives, to be considered available for all of this end-use category.
One manufacturer provided technical information regarding the challenges with using R-744 although as mentioned above information claimed as CBI indicated at least one equipment manufacturer was planning to transition to that refrigerants. A state agency indicated that low-GWP refrigerants including R-744 “are currently available for refrigeration in retail food.” Also, a group of companies, Refrigerants, Naturally!, stated that “there are natural refrigerant alternatives available on the market” for dispensing equipment. The former comment discussed retail food refrigeration generally, rather than the refrigerated food processing and dispensing equipment category specifically. The latter comment only mentioned “dispensing equipment” and did not mention equipment that may also process food and beverages as well as dispensing it. As such EPA views these statements as indicative of the availability of alternatives for a portion but not necessarily all of the equipment within this end-use category.
EPA finds however that the progress using R-744 is far enough along to consider that it will be available for the vast majority, if not all, of the equipment in this end-use category that are using refrigerants subject to status change by January 1, 2021. As noted in the proposal (81 FR 22856; April 18, 2016), the Coca-Cola Company, which purchases equipment in this and other retail food refrigeration end-use categories, has announced their plans to convert to non-HFC technologies for all new cold-drink equipment by 2015, and selected R-744 as its refrigerant of choice.
Based on this information claimed as CBI and other comments as discussed above, we find that a January 1, 2021, change of status date is necessary to provide a reasonable yet expeditious time for the transition to acceptable alternatives to occur.
EPA received several comments from individuals and organizations with various interests in the refrigerants industry. Comments addressed the proposed status change date of January 1, 2021, the refrigerants proposed for status change, the technical challenges of using refrigerants remaining acceptable and other refrigerants that may be listed as acceptable in the future, energy efficiency, and other rules and standards that may apply to equipment in this end-use category.
Commenters included AHRI, an industry organization; Arkema and Chemours, chemical producers; CARB, a state agency; EIA, NRDC and IGSD, environmental organizations; and Stoelting, Tecumseh and UTC, equipment and component manufacturers. Additional comments claimed as CBI were submitted.
We have grouped comments together and responded to the issues raised by the comments in the sections that follow, or in a separate Response to Comments document which is included in the docket for this rule (EPA-HQ-OAR-2015-0663).
With respect to the other issues concerning R-448A discussed by UTC, concurrent with this rule, EPA is listing R-448A as acceptable in this end-use. As noted above, information provided and claimed as CBI indicates a transition to R-448A is feasible by the change of status date established.
Household refrigerators, freezers and combination refrigerator/freezers are intended primarily for residential use, although they may be used outside the home. The designs and refrigeration capacities of equipment vary widely. Household refrigerators and freezers are composed of three main categories of equipment. Household freezers only offer storage space at freezing temperatures, while household refrigerators only offer storage space at non-freezing temperatures. Products with both a refrigerator and freezer in a single unit are most common. In addition to the three main categories of equipment, other small refrigerated household appliances exist (
The 2014 ASHRAE Handbook of Refrigeration provides an overview of food preservation in regards to household refrigerators and freezers. Generally, a storage temperature between 32 and 39 °F (0 to 3.9 °C) is desirable for preserving fresh food. Humidity and higher or lower temperatures are more suitable for certain foods and beverages. Wine chillers, for example, are frequently used for storing wine, and have slightly higher optimal temperatures from 45 to 65 °F (7.2 to 18.3 °C). Freezers and combination refrigerator-freezers that are designed to store food for long durations have temperatures below 8 °F (−13.3 °C) and are designed to hold temperatures near 0 to 5 °F (−17.7 to −15 °C). In single-door refrigerators, the optimum conditions for food preservation are typically warmer than this due to the fact that food storage is not intended for long-term storage.
DOE energy conservation standards apply to household refrigerators and freezers, as discussed in section VI.A.9.b.ii.
The following alternatives are currently acceptable for new household refrigerators and freezers: FOR12A, FOR12B, HFC-134a, HFC-152a, IKON A, IKON B, KDD6, R-125/290/134a/600a (55.0/1.0/42.5/1.5), R-290, R-404A, R-407C, R-407F, R-410A, R-410B, R-417A, R-421A, R-421B, R-422A, R-422B, R-422C, R-422D, R-424A, R-426A, R-427A, R-428A, R-434A, R-437A, R-438A, R-441A, R-450A, R-513A, R-507A, R-600a, RS-24 (2002 formulation), RS-44 (2003 formulation), SP34E, THR-02 and THR-03. Of those, R-290, R-441A and R-600a are acceptable, subject to use conditions.
Currently, the most commonly used refrigerant in the United States for household refrigerators and freezers is R-134a, an HFC with a GWP of 1,430. However, throughout many parts of the world, R-600a with a GWP of approximately four is the most commonly used refrigerant and there are ongoing efforts to help facilitate the adoption and continued use of R-600a in this industry globally.
In addition to R-600a, EPA previously found a number of other flammable HC refrigerants including R-290 and R-441A and R-600a as acceptable, subject to use conditions in household refrigerators and freezers (76 FR 78832, December 20, 2011; 80 FR 19454, April 10, 2015).
For new household refrigerators and freezers, EPA proposed to change as of January 1, 2021, the status of the following refrigerants from acceptable to unacceptable: FOR12A, FOR12B, HFC-134a, KDD6, R-125/290/134a/600a (55.0/1.0/42.5/1.5), R-404A, R-407C, R-407F, R-410A, R-410B, R-417A, R-421A, R-421B, R-422A, R-422B, R-422C, R-422D, R-424A, R-426A, R-428A, R-434A, R-437A, R-438A, R-507A, RS-24 (2002 formulation), RS-44 (2003 formulation), SP34E, and THR-03. In this action, we are finalizing the status changes as proposed. The change of status determinations for new household refrigerators and freezers:
Other refrigerants for new household refrigerators and freezers are HFC-152a, IKON A, IKON B, THR-02; R-513A, R-450A, R-290, R-441A and R-600a. In the proposed rule, EPA provided information on the environmental and health risks presented by the alternatives that are being found unacceptable compared with other alternatives listed as acceptable (81 FR 22858; April 18, 2016). In addition, a technical support document
The refrigerants we are listing as unacceptable through this action have insignificant ODP and they have GWPs ranging from 920 to 3,990. As shown in Table 14, the other alternatives, listed as acceptable or as acceptable, subject to use conditions, have GWP ranging from three to 630.
Three substitutes that remain acceptable, subject to use conditions, R-290, R-600a, and R-441A, are HCs or a blend of HCs. R-290 and R-600a are VOCs while R-441A is a blend composed primarily of compounds that are VOC. EPA's analysis indicates that their use as refrigerants in this end-use is not expected to contribute significantly to ground level ozone formation.
The refrigerants not subject to this action are highly volatile and typically evaporate or partition to air, rather than contaminating surface waters. Their effects on aquatic life are expected to be small and pose no greater risk of aquatic or ecosystem effects than those of the refrigerants that are subject to the status change for this end-use.
With the exception of HFC-152a, R-290, R-600a and R-441A, all other refrigerants listed as acceptable, including those we are listing as unacceptable, are not flammable. R-290 and R-600a, which are HCs, and R-441A, which is a blend of HCs, are classified as A3 refrigerants by ASHRAE Standard 34-2013, indicating that they have low toxicity and high flammability, while HFC-152a is classified as an A2 refrigerant, indicating that it has low toxicity and low flammability. To address flammability, EPA listed these R-290, R-441A and R-600a as acceptable, subject to use conditions. The use conditions include conditions consistent with industry standards, limits on charge size, and requirements for warnings and markings on equipment to inform consumers and technicians of potential flammability hazards. Our assessment and listing decisions (76 FR 78832; December 20, 2011 and FR 80 19454; April 10, 2015) found that the overall risk, including the risk due to flammability with the use conditions, is not significantly greater than for other refrigerants listed as acceptable at that time. EPA found HFC-152a acceptable for new household refrigerators and freezers in the original SNAP rule indicating “[a]lthough HFC-152a is flammable, a risk assessment demonstrated it could be used safely in this end-use” (59 FR 13081; March 18, 1994). Toxicity is not a significant concern for the refrigerants we are listing as unacceptable. Their toxicity is comparable to that of other alternatives that are acceptable in this end-use. The refrigerants subject to the status change and the refrigerants not subject to the status change, if listed under ASHRAE 34 (2013), are classified as Class A refrigerants (lower toxicity).
In summary, because the risks other than GWP are not significantly different for the other available alternatives than for those we proposed to list as unacceptable, and because the GWPs for the refrigerants we proposed to list as unacceptable are significantly higher and thus pose significantly greater risk, we are listing the following refrigerants as unacceptable: FOR12A, FOR12B, HFC-134a, KDD6, R-125/290/134a/600a (55.0/1.0/42.5/1.5), R-404A, R-407C, R-407F, R-410A, R-410B, R-417A, R-421A, R-421B, R-422A, R-422B, R-422C, R-422D, R-424A, R-426A, R-428A, R-434A, R-437A, R-438A, R-507A, RS-24 (2002 formulation), RS-44 (2003 formulation), SP34E, and THR-03.
As proposed, EPA is establishing a change of status date for new household refrigerators and freezers of January 1, 2021. There are technical challenges that must be met for a safe and smooth transition to alternatives, particularly considering the likely use of one or more of the flammable alternatives. The primary step that must occur for a transition is product design work for alternative refrigerants, drawing from current models used both in the United States and elsewhere. For those designing with flammable refrigerants, this would include complying with the use conditions EPA established when listing those refrigerants as acceptable (76 FR 78832; December 20, 2011, and FR 80 1954; April 10, 2015). Although some models have recently and others are currently transitioning,
EPA recognizes that manufacturers will need time to continue product design work for alternative refrigerants, drawing from current models used both in the United States and elsewhere.
Household refrigerators are subject to DOE energy conservation standards and will need to be tested to demonstrate compliance with those standards.
With a change of status date of 2021, the evidence presented indicates that current models—already meeting the current DOE standards—when redesigned for alternative refrigerants are expected to continue to meet those existing standards. In fact, comments indicate an increase in energy efficiency with some of the acceptable alternatives, some of which have been implemented in products both in the U.S. market and globally. See for example comments from Electrolux and NRDC. Furthermore, as the typical compliance period for DOE energy efficiency regulations is three years from the date issued, a status change date over four years from today gives manufacturers should provide a more than adequate period of time to redesign models to meet such standards with an alternative refrigerant. This time frame also allows manufacturers time to redesign models considering the use conditions that must be met if a flammable acceptable alternative is chosen, as discussed above.
We understand however that there may be limitations with regard to the availability of testing facilities in the event that, in the midst of this implementation of new models with alternative refrigerants, the energy efficiency requirements were to change in a manner that required redesigning models to meet the new efficiency standards DOE has not initiated the process under which new energy efficiency standards would be promulgated. Commenters have suggested that this process could begin as early as 2017 with an eventual compliance date of 2024 or 2025. Therefore, at this point in time it is not evident that there will be any constraint on laboratory availability to meet the January 1, 2021, status change date in this rule. Should DOE finalize new energy efficiency standards for household refrigerators-freezers in the next few years, EPA could consider at that time whether laboratory availability
EPA received several comments from organizations with various interests in the household refrigerators and freezers end-use. Several commenters commented on the proposed January 1, 2021, change of status date. Other comments focused on substitutes and end-use proposed, industry standards and codes, and general comments such as the need for technician training.
Commenters included AHAM, a trade association; and three equipment manufacturers, Whirlpool, Sub Zero, and Electrolux. EPA also received comments from Arkema and Chemours, chemical producers; NRDC, IGSD and EIA, environmental organizations; UL, a safety consulting and certification company; and CARB, a state agency.
We have grouped comments together and responded to the issues raised by the comments in the sections that follow, or in a separate Response to Comments document which is included in the docket for this rule (EPA-HQ-OAR-2015-0663).
We agree with NRDC, IGSD, and EIA that a status change date of January 1, 2021, can be met, and will allow sufficient time for manufacturers to redesign any products that require additional engineering to meet this rule. EPA notes that R-600a is currently being used in more than 500 million household refrigerator and freezer units worldwide, including some units in the United States.
Regarding the comment that there would be little environmental impact by delaying the change of status date until 2024, we do not consider that as part of the analysis for determining the appropriate change of status date. We consider environmental effects, as part of the SNAP review criteria for determining whether safer alternatives are available. Once we have determined that other alternatives can be used that pose less risk we look at the technical challenges of a transition and the availability of alternatives to identify a reasonable but expeditious change of status date that reflects when alternatives can be used broadly within the end-use. Regarding Arkema's specific suggestion for a change of status date of 2025, EPA does not agree that equipment being hermetically sealed justifies a later change of status date. As noted, EPA has determined that other alternatives pose less risk than those for which the status is being changed can reasonably be used earlier than 2025. Even assuming that the commenter is correct that alternatives may be used in a manner that would pose even less risk at a later date, such an assumption would not justify delaying the change of status date. Manufacturers could still choose to manufacture new equipment that is hermetically sealed in 2025 and beyond.
The vehicle types that are addressed in this action include limited types of HD vehicles, specifically, MDPVs,
The types of HD vehicles addressed in this action are in many ways more similar to LD vehicles than they are to the HD vehicles with a higher gross vehicle weight rating (GVWR), which is a measure of the combined curb (empty) weight and cargo carrying capacity of the truck. Table 15 outlines the HD vehicle weight classifications commonly used. MDPVs,
All types of HD vehicles can be sold as “complete” or “incomplete” vehicles (76 FR 57259-60; September 15, 2011). Complete vehicles are sold by vehicle manufacturers to end-users with no secondary manufacturer making substantial modifications prior to registration and use. Incomplete vehicles are sold by vehicle manufacturers to secondary manufacturers without the primary load-carrying device or container attached. See section VI.B.1 of the proposed rule for additional information on HD vehicles and the vehicle types within the MVAC end-use that are addressed in this action.
Section 608(c) of the CAA prohibits the knowing venting, release or disposal of all refrigerants by any person maintaining, servicing, repairing or disposing of an appliance or IPR in a manner which permits the refrigerant to enter the environment, except for certain substitute refrigerants that have been specifically exempted from this venting prohibition under CAA section 608(c)(2). MVAC end-of-life disposal and recycling specifications are also covered under section 608 of the CAA and our regulations issued under that section of the Act, which are codified at subpart F of 40 CFR part 82. Additionally, CAA section 609 establishes standards and requirements regarding servicing of MVAC systems. Under section 609, no person repairing or servicing motor vehicles for consideration
As proposed, EPA is listing HFO-1234yf as acceptable, subject to use conditions, in MVAC systems for newly manufactured MDPVs, HD pickup trucks, and complete HD vans. The use conditions are detailed in section VI.B.2.b, “What are the final use conditions?”. EPA sought comment and information on listing HFO-1234yf as acceptable subject to use conditions for some incomplete HD vans. One commenter provided information to EPA and EPA will consider that information to determine whether to take further action regarding the listing of HFO-1234yf for use in incomplete HD vans.
As explained in section VI.B.1, section 608 of the CAA prohibits the knowing venting, release or disposal of all refrigerants by any person maintaining, servicing, repairing or disposing of an appliance or IPR in a manner which permits the refrigerant to enter the environment, except for certain substitute refrigerants that have been specifically exempted from this venting prohibition. Because HFO-1234yf has not been exempted from the venting prohibition in any end use, such knowing releases of HFO-1234yf in the course of maintaining, servicing, repairing or disposing of MVAC systems of MDVPs, HD pickup trucks, and complete HD vans addressed in this action is prohibited.
Available refrigerants for newly manufactured MDPVs, HD pickup trucks, and complete HD vans include HFC-134a, HFC-152a,
In section VI.B.3 of the proposed rule (81 FR at 22860-65; April 18, 2016), EPA provided information on the environmental and health properties of HFO-1234yf and the available alternative in this end-use in this action. In addition, EPA's risk assessments for HFO-1234yf and a technical support document
HFO-1234yf does not deplete the ozone layer. Likewise, HFC-134a, HFC-152a, CO
A potential environmental impact of HFO-1234yf is its atmospheric decomposition to trifluoroacetic acid (TFA, CF
In support of the 2011 listing decision for HFO-1234yf in LD vehicles, EPA analyzed potential TFA concentrations from a full transition to HFO-1234yf in all MVAC applications, not limited to LD vehicles.
Taking into consideration the analysis conducted in support of the 2011 listing decision, which was based on conservative emissions assumptions and a transition from HFC-134a to HFO-1234yf for all MVAC systems (not limited to LD vehicles), and the research that has been conducted since, EPA concludes that the use of HFO-1234yf in the HD vehicle types addressed in this action will not pose a significant risk to the environment from atmospheric decomposition to TFA.
HFO-1234yf is a flammable refrigerant classified as A2L under ASHRAE 34-2013. HFC-134a and CO
EPA compared worker exposures to a workplace exposure limit of 250 ppm
As explained in section VI.B.3 of the proposed rule (81 FR at 22860-65; April 18, 2016), to evaluate environmental, flammability, and toxicity risks resulting from the use of HFO-1234yf in new MDPVs, HD pickup trucks, and complete HD vans, the Agency relied on EPA's analysis conducted in support of the 2011 listing decision for HFO-1234yf for LD vehicles. EPA was able to rely on the 2011 analysis of HFO-1234yf in LD vehicles in support of this rule because the MVAC systems, vehicle designs, and the potential for exposure for the HD vehicle types for which EPA is listing HFO-1234yf as acceptable, subject to use conditions, in this action are identical or very similar to those of LD vehicles. In addition, we considered risk assessments performed by OEMs and independent consultants on the use of HFO-1234yf in LD vehicles through SAE Cooperative Research Programs (CRPs) and found these were consistent with our analysis. Based on that analysis, at proposal, EPA concluded HFO-1234yf did not pose a significantly greater due to environmental effects, flammability or toxicity than the other alternatives when used in accordance with use conditions established as part of the listing decision. The refrigerants to which HFO-1234yf was compared in the 2011 action for LD vehicles are the same refrigerants available for use in the vehicle types included in this action.
Based on the consideration of all of SNAP criteria, EPA has determined that HFO-1234yf does not pose significantly greater risk than the other alternatives, when used in accordance with use conditions, for use in newly manufactured MDPVs, HD pickup trucks, and complete HD vans. Further information on these analyses and EPA's risk assessments are available in the docket for this rulemaking (EPA-HQ-OAR-2015-0663).
All MVAC refrigerants listed as acceptable are subject to use conditions requiring labeling and the use of unique fittings. EPA is listing HFO-1234yf as acceptable, subject to use conditions, because the use conditions are necessary to ensure that use of HFO-1234yf will not have a significantly greater overall impact on human health and the environment than other alternatives for use in MDPVs, HD pickup trucks, and complete HD vans. EPA is requiring the same use conditions for HFO-1234yf in these HD vehicle types as are required for the use of HFO-1234yf in newly manufactured LD vehicles. Because of the similarities in the MVAC systems used for these vehicles, these use conditions will ensure use of HFO-1234yf in MDPVs, HD pickup trucks, and complete HD vans does not pose significantly greater risk than use of other alternatives.
The first use condition requires that MVAC systems designed to use HFO-1234yf must meet the requirements of SAE J639, “Safety Standards for Motor Vehicle Refrigerant Vapor Compression Systems.” This standard sets safety standards that include unique fittings; a warning label indicating the refrigerant's identity and that it is a flammable refrigerant; and requirements for engineering design strategies that include a high-pressure compressor cutoff switch and pressure relief devices. This use condition also requires that for connections with refrigerant containers for use in professional servicing, use fittings must be consistent with SAE J2844 (revised January 2013), which specifies quick-connect fittings that are different from those for any other refrigerant. The low-side service port and connections will have an outside diameter of 14 mm (0.551 inches) and the high-side service port will have an outside diameter of 17 mm (0.669 inches), both accurate to within 2 mm. Under SAE J2844 (revised January 2013), containers of HFO-1234yf for use in professional servicing of MVAC systems must have a left-handed screw valve with a diameter of 0.5 inches and Acme (trapezoidal) thread with 16 threads per inch. The SAE standards did not include and EPA did not receive a submission for unique fittings for small containers of HFO-1234yf refrigerant prior to the publication of the proposed rule.
Based on EPA's analysis of the safety study and consistent with the conclusion EPA drew at the time of EPA's listing decision for HFO-1234yf in LD vehicles relied, EPA believes that the safety requirements that are included in SAE J639 sufficiently mitigate risks of both HF generation and refrigerant ignition (
The second use condition requires the manufacturer of MVAC systems and vehicles to conduct Failure Mode and Effects Analysis (FMEA) as provided in SAE J1739 (adopted 2009) and keep records of the FMEA on file for three years from the date of creation. SAE J1739 (adopted 2009) describes a FMEA as “a systematic group of activities intended to: (a) Recognize and evaluate the potential failure of a product/process and the effects and causes of that failure, (b) identify actions that could eliminate or reduce the change of the potential failure occurring, and (c) document the process.” Through the FMEA, OEMs determine the appropriate protective strategies necessary to ensure the safe use of HFO-1234yf across their vehicle fleet. It is standard industry practice to perform the FMEA and to keep it on file while the vehicle is in production and for several years afterwards. As with the previous use condition, this use condition is intended to ensure that new MDPVs, HD pickup trucks, and complete HD vans manufactured with HFO-1234yf MVAC systems are specifically designed to minimize release of the refrigerant into the passenger cabin or onto hot surfaces that might result in ignition or in generation of HF.
EPA is establishing a listing date as of January 3, 2017. Based on information the Agency possessed at the time of the proposal and additional information submitted during the comment period regarding the technical feasibility of transitioning the fleet of HD vehicles and refrigerant supply, we conclude that this date, the same as the effective date of this regulation, allows for the safe use of this substitute at the earliest opportunity.
EPA received comments from organizations with various interests in the MVAC industry on the proposed listing of HFO-1234yf as acceptable, subject to use conditions, in newly manufactured MDPVs, HD pickup trucks, and complete HD vans. All commenters supported the proposed listing decision and effective date of 30 days after date of publication of the rule in the
The Alliance of Automobile Manufacturers (AAM), a trade association, submitted comments on behalf of twelve car and light truck manufacturers including BMW Group (BMW), FCA, Ford Motor Company, General Motors Company, Jaguar Land Rover, Mazda, Mercedes‐Benz USA, Mitsubishi Motors, Porsche Cars, Toyota, Volkswagen Group and Volvo Cars. EPA also received comments from two chemical producers, Chemours and Honeywell; three environmental organizations, NRDC, IGSD, and EIA; and a state agency, CARB.
We have grouped comments together and responded to the issues raised by the comments in the sections that follow, or in a separate Response to Comments document which is included in the docket for this rule (EPA-HQ-OAR-2015-0663).
Research on TFA has been conducted since the 2011 final rule listing HFO-1234yf as acceptable for LD vehicles and the information shows no greater risk than our earlier analysis. As EPA indicated in their comments, the 2015 study by Zhai et al. reported a 17-fold increase in TFA concentration in landscape waters in Beijing, China, over the period 2002-2012. The authors associated the increase of TFA concentrations with the increased HFC-134a emissions in China (factor of 5.5 from 2005 to 2015) although no model evaluation was conducted. In an earlier combined observation and modeling study in China, only 14 percent of annual total TFA deposition flux was attributable to HFC-134a, with the balance from unknown sources.
Additionally, a 2014 study by Kazil, et al. analyzed TFA deposition in the United States assuming 100 percent of all MVAC systems use HFO-1234yf. The results indicated that rainwater TFA concentrations, while varying strongly geographically, will on average be low compared to the levels at which toxic effects are observed in aquatic systems. The UNEP Ozone Secretariat also provided a summary of key information pertaining to TFA based on the 2014 Assessment Reports of the Environmental Effects Assessment Panel (EEAP) and the Scientific Assessment Panel (SAP) of the Montreal Protocol. The brief states, “While it is well established that TFA is a ubiquitous natural component in rivers, lakes, and other surface water bodies, uncertainties remain regarding anthropogenic sources, long-term fate and abundances as these are linked to current and future use and emissions of HFCs, HCFCs, and HFOs. Based on estimates to 2040, increases are predicted to remain relatively low and are therefore not expected to be a significant risk to human health or detrimental to the environment. Projected future increased loadings of TFA to playas, land-locked lakes, and the oceans due to continued use of HCFCs, HFCs, and replacement products such as HFOs are still judged to present negligible risks for aquatic organisms and humans.” The UNEP background document also states that TFA and its salts “do not bioconcentrate in aquatic organisms, and do not biomagnify in the food chain. Thus they present negligible risk to organisms higher on the food chain, including humans.” See the docket for this rulemaking for additional information on TFA projections in the environment.
In the NPRM published on August 6, 2014, EPA proposed to change the listings from acceptable to unacceptable for HFC-134a and blends thereof, and the HFC blend Formacel TI for spray foam as of January 1, 2017 (79 FR 46149). After considering the comments received on the proposed rule, EPA deferred taking final action on spray foam in the final rule. See sections V.D.2.a and V.D.3.b of the preamble to the final rule (80 FR 42870; July 20, 2015).
In the past, EPA combined spray foam, commercial refrigeration foam, sandwich panels, and marine flotation foam within a single end-use: Rigid PU commercial refrigeration, spray, and sandwich panels. However, because of differences in the exposure and fire safety characteristics of these uses as well as the fact that different alternatives are generally used for each of these applications, EPA more recently created separate end-use listings for each of these applications. See 80 FR 42870; July 20, 2015. Commercial refrigeration and sandwich panels include insulation for walls, pipes (including “pipe-in-pipe”), metal doors, vending machines, refrigerated and unrefrigerated coolers, refrigerated transport vehicles, and other laboratory and commercial refrigeration equipment, as well as foam for taxidermy. These foams may be injected or applied using “pour-in-place” equipment, depending on the agent used and on whether the formulation is pressurized. Marine flotation foam includes buoyancy or flotation foam used in construction of boats and ships. These foams typically are injected into a cavity in the boat wall from a two-canister (A- and B-side) system under lower pressures and they provide structure as well as buoyancy. The end-use affected here, rigid PU spray foam, hereafter called “spray foam,” includes insulation for roofing, walls, doors, and other construction uses, as well as foam for building breakers for pipelines. These foams are rigid with closed cells that still contain the foam blowing agent, which can contribute to the foam's ability to insulate. Spray foam may have similar chemistry to other rigid PU end-uses, but it differs by being sprayed onto a surface in the location where it is to be used, either when constructing a new building or when adding insulation to an existing building, rather than being injected or poured or being produced in a manufacturing facility. As a result, it may be more difficult to provide engineered ventilation during application of spray foam than for other foam end-uses. In addition to federal rules and guidance applying to the application of spray foam, insulation foam used in construction (
We have identified three distinct and separate spray foam applications for this end-use: (1) High-pressure two-component, (2) low-pressure two-component, and (3) one-component foam sealants.
High-pressure two-component spray foam products are pressurized 800-1600 psi during manufacture, are sold in pressurized containers as two parts (
Low-pressure two-component spray foam products are pressurized to less than 250 psi during manufacture, are
One-component foam sealants are packaged in aerosol cans and are applied
EPA proposed to change the status of the following HFCs and HFC blends that have previously been listed as acceptable foam blowing agents for use in spray foam: HFC-134a, HFC-245fa, and blends thereof; blends of HFC-365mfc with at least four percent HFC-245fa; commercial blends of HFC-365mfc with seven to 13 percent HFC-227ea and the remainder HFC-365mfc; and Formacel TI.
Over the past ten years, the number of available alternative blowing agents for spray foam has increased. A number of new foam blowing agents with low GWPs, both fluorinated and non-fluorinated, have been introduced during the past several years.
In the proposed rule, EPA provided information on the environmental and health risks presented by the alternatives that are being found unacceptable compared with other available alternatives that are listed as acceptable (81 FR 22869-71; April 18, 2016). In addition, a technical support document
Acceptable alternatives for all three spray foam applications include CO
All of the HFCs and HFC blends we are listing as unacceptable consist of compounds that are non-ozone-depleting. Only one of the alternatives in these three spray foam applications—
All of the HFCs and HFC blends we are listing as unacceptable consist of compounds that are excluded from the definition of VOC under CAA regulations (see 40 CFR 51.100(s)) addressing the development of SIPs to attain and maintain the NAAQS. The other alternatives, with the exception of light saturated HCs (for one-component foam sealants only),
All of the HFCs and HFC blends with specific compositions that we are listing as unacceptable are nonflammable. There has been use of blends of HFC-134a and HFC-152a, composition unspecified, in the past; those blends may be flammable depending on the exact composition. Such blends are unacceptable under this final rule as blends of HFC-134a.
Of the other alternatives, ecomate is the only one that is flammable. The manufacturers of ecomate
Toxicity must be considered and addressed with all of the alternatives in this end-use, with the possible exception of water. Both the HFC substitutes we are listing as unacceptable and the other alternatives have workplace exposure limits, either as regulatory requirements (
EPA is establishing a time-limited exception to the unacceptability determination for military or space- and aeronautics-related applications when used in low pressure two-component and high pressure two-component spray foam. Specifically, EPA is finalizing a narrowed use limit that expires on January 1, 2025. As provided in section VI.C.1.b.iii, the vast majority of applications for spray foams are anticipated to be able to transition to acceptable alternatives by January 1, 2020, for high-pressure two-component spray foam and as of January 1, 2021, for low-pressure two-component spray foam. However, for the military, there are several unique performance requirements related to weapon systems that require extensive testing and qualification prior to adoption of alternatives for the currently used foams. The same is true for other specialty applications with unique military requirements such as undersea; aerospace; and chemical, biological, and radiological warfare systems. In the case of space- and aeronautics-related applications, the challenging operational environment and the lengthy requalification process associated with human-rated space flight systems require a longer transition time than would otherwise apply.
Users of a restricted agent within the narrowed use limits category must make a reasonable effort to ascertain that other substitutes or alternatives are not technically feasible. Users are expected to undertake a thorough technical investigation of alternatives to the otherwise restricted substitute. Although users are not required to report the results of their investigations to EPA, users must document these results, and retain them in their files for the purpose of demonstrating compliance.
Users should include the following documentation to demonstrate compliance with the narrowed use applications. This information includes descriptions of:
• Process or product in which the substitute is needed;
• Substitutes examined and rejected;
• Reason for rejection of other alternatives,
• Anticipated date other substitutes will be available and projected time for switching.
Except for the narrow use limits addressed above, EPA is changing the listings from acceptable to unacceptable (1) in high-pressure two-component spray foam and in one-component foam sealants as of January 1, 2020, and (2) in low-pressure two-component spray foam as of January 1, 2021. The change of status applies to the following blowing agents: HFC-134a, HFC-245fa, and blends thereof; blends of HFC-365mfc with at least four percent HFC-245fa, and commercial blends of HFC-365mfc with seven to 13 percent HFC-227ea and the remainder HFC-365mfc and Formacel TI. The Agency is aware of several companies that have begun to transition.
To allow sufficient time for manufacturers of low-pressure two-component spray foam kits to complete working through the technical challenges of alternatives, as well as time for existing kits to be distributed, purchased, and used by the end user, we are establishing a change of status date of January 1, 2021. A change of status date of January 1, 2021, is necessary for low-pressure two-component to address the technical issues associated with using a different foam blowing agent. Based on information from several companies developing low-pressure two-component spray foam products, the process of reformulation has been more difficult than for high-pressure two-component spray, because it must have a significantly longer shelf life. The product manufacturer must have time to determine a workable reformulation, a process that is expected to last up to two years. The products then need to be tested, which is expected to take approximately one to one and a half years. This includes testing both the formulation in separate containers (A- and B-side) and ensuring the long-term stability of the final blown foam once the two parts are mixed to blow the foam. Based on those technical hurdles, we are establishing a reasonable but expeditious change of status date of January 1, 2021 for low-pressure two-component spray foam.
For one-component foam sealants, we believe a reasonable time for reformulation is one year and for testing is one to two years. Testing for this application should be shorter than that required for low-pressure two-
EPA received several comments from individuals and organizations with various interests in foam blowing agents and spray foam in particular. Comments were in reference to the descriptions of the applications in the preamble to the proposed rule, the proposed change of status dates, and the narrowed use limits for military and space- and aeronautics uses of certain HFC blowing agents. Most commenters supported the proposed listing decisions, with some opposing or suggesting different change of status dates. Commenters supported the narrowed use exemption for military and space- or aeronautics-related uses. Some commenters suggested a similar narrowed use limit for a polyurethane preformed composites, and suggested either providing a separate listing for this specific use or as including it under the low pressure two-component spray foam application.
Commenters included the American Chemistry Council's Center for the Polyurethanes Industry (CPI) and Spray Foam Coalition (SFC), organizations representing the foam industry; BASF and Dow, two major systems houses; Foam Supplies, Honeywell and Chemours, suppliers of alternative foam blowing agents; Clayton Corporation, a manufacturer of low-pressure two-component spray polyurethane foam kits; Structural Composites and Compsys, manufacturers of a specialized composite foam product for boats and refrigerated trailers; the National Marine Manufacturing Association (NMMA), an organization representing manufacturers of boats; the National Aeronautics and Space Administration (NASA); and environmental organizations, NRDC and IGSD.
We have grouped comments together and responded to the issues raised by the comments in the sections that follow, or in a separate Response to Comments document which is included in the docket for this rule (EPA-HQ-OAR-2015-0663).
Pentane based blowing agents are strong candidates due to their insulation performance, but require all foam fixtures and processes to be redeveloped due to the flammable nature of the refrigerant. Water-based blowing agents are environmentally friendly, but suffer from poorer insulation performance and also are more affected by processing temperature which requires improved control of fixture temperatures. Methyl formate is also environmentally friendly, but has had significant shrinkage issues once units have been placed in the field. This agent requires very specific foaming processes to be developed to ensure proper stability of the foam over time. While viable alternatives do exist, the amount of testing and factory/process upgrades required make it impossible to transition to any replacement by January 1, 2017.
In the July 2015 final rule, EPA established narrowed use limits for certain HFCs and HFC blends for military and space- and aeronautics-related uses in all end-uses except for rigid PU spray foam, allowing continued use of those blowing agents until January 1, 2022. The specific foam blowing agents and end-uses are codified in appendix U to subpart G of 40 CFR part 82. Based on recent discussions with other government agencies, the most recent U.S. space flight program is still being developed, and it now appears that it may not be possible to qualify all foams needed with alternative foam blowing agents by the January 1, 2022, change of status date established in the July 2015 final rule. The qualification process is necessary to ensure the safety of space vehicles.
As proposed, EPA is revising the date upon which certain HFCs and HFC blend foam blowing agents for space- and aeronautics-related applications change status from acceptable, subject to narrowed use limits, to unacceptable. EPA is revising the change of status date to January 1, 2025, for space- and aeronautics-related applications. Military uses will continue to have a January 1, 2022, change of status date.
EPA received comments from NASA and Boeing, two end-users of foams used in space- and aeronautics uses, addressing the descriptions of the applications in the preamble to the proposed rule, the proposed change of status dates, and the narrowed use limits for military and space- and aeronautics uses of certain HFC blowing agents. Both commenters supported the proposed modification to the change of status date for space and aeronautics.
We have grouped comments together and responded to the issues raised by the comments in the sections that follow, or in a separate Response to Comments document which is included in the docket for this rule (EPA-HQ-OAR-2015-0663).
Methylene chloride, also known as dichloromethane, has the chemical formula CH
Since EPA's initial listing decision for methylene chloride in flexible PU foam, the Agency has separately issued a residual risk standard under section 112 of the CAA for flexible PU foam production. (
As provided in Table 20, EPA is changing the status of methylene chloride from acceptable to unacceptable when used as a blowing agent in the production of flexible PU foam. At this time, we are not finalizing a change of status for integral skin PU foam and polyolefin foam.
EPA initially proposed to change the listing status of methylene chloride from acceptable to unacceptable in flexible PU foam in order to be consistent with the revisions to the MACT that prohibited the use of HAP in slabstock flexible PU foam production operations at major sources. EPA is relying on the risk analysis performed as part of the risk review for the MACT, and which served as the basis for its decision to revise the MACT, to support its determination in this rule that the toxicity risk from methylene chloride in this end-use is significant and that there are other alternatives that pose an overall lower risk based on our analysis under the SNAP review criteria. See 81 FR at 22876, April 18, 2016. As a policy matter, the Agency considers it inappropriate to continue to list as acceptable a substitute that is prohibited in this end-use under other environmental regulations. At best, continuing to list a prohibited substance as acceptable is misleading to the public as to whether the substitute is available and may be used; it also may lead to a misallocation of resources if there are any users of HFCs in this end-use that are transitioning away by January 1, 2017, as required under appendix U to 40 CFR part 82 subpart G.
For integral skin PU and polyolefin foams, we also proposed to change the listing status of methylene chloride from acceptable to unacceptable on the basis that methylene chloride poses significantly greater risks than the other alternatives available for this end-use because it is the only acceptable alternative in these end-uses that is a carcinogen and thus poses a significantly greater toxicity risk. Based on public comments urging EPA to do additional risk assessment before reaching such a conclusion for these two end-uses that are not subject to the MACT standard and were not part of the risk review of the MACT standard, we are not finalizing a change of status for methylene chloride in integral skin PU and polyolefin foams in this action.
In the proposed rule, EPA provided information on environmental and health risks of methylene chloride and other available alternatives (81 FR 22875-76; April 18, 2016). In addition, a technical support document
Methylene chloride contains chlorine and thus could have an ODP. We are unaware of a calculated ODP for methylene chloride in the peer-reviewed literature, but it has historically been considered negligibly small.
Methylene chloride has a GWP of approximately nine. As shown in Table 21, other acceptable alternatives have GWPs that are comparable or lower than methylene chloride's GWP of nine except for HFC-152a, which has a GWP of 124.
Methylene chloride does not meet the definition of VOC under CAA regulations (see 40 CFR 51.100(s)) and is excluded from that definition for the purpose of developing SIPs to attain and maintain the NAAQS. With the exception of HCs, HFO-1336mzz(Z), and methylal, the other alternatives also contain compounds that are excluded from the definition of VOC. The manufacturer of HFO-1336mzz(Z) has petitioned EPA to exclude HFO-1336mzz(Z) from the definition of VOC under those regulations. As provided in our decisions listing these substitutes as acceptable, we determined that emissions of these alternatives in this end-use would not pose a significantly greater risk than that posed by other available alternatives.
Methylene chloride exhibits no flash point under standard testing conditions and thus is considered nonflammable, although it does exhibit lower and upper flammability limits of 13 percent and 23 percent, respectively. Of the various alternatives, ecomate, HFC-152a, HCs, and methylal are flammable, and the others are nonflammable. The flammability hazards of the flammable compounds in this end-use can be adequately addressed in the process of meeting OSHA regulations and fire codes.
Health effects of concern with methylene chloride include cancer, liver, and kidney effects (longer-term exposure) and neurotoxic effects (acute exposure), in addition to irritation to the skin, eyes, and respiratory tract. Other alternatives for this end-use have potential health effects such as impacts on body weight, mononuclear infiltration of heart tissue, neurotoxic effects, and irritation to the skin, eyes, and respiratory tract; no other alternatives in this end-use have evidence of cancer as a health effect. Toxicity is not a significant concern in the workplace for methylene chloride or for the other available alternatives because they may be used for blowing flexible PU foam consistent with required or recommended workplace exposure limits. In the initial SNAP rulemaking, EPA listed methylene chloride as acceptable in this end-use, citing the presence of the OSHA regulations as sufficient to address workplace risk.
Information regarding general population risk indicated the highest cancer risk for methylene chloride of all the alternatives for this end-use and provided no summary information on non-cancer risks for methylene chloride. Since that time, as part of the CAA section 112 HAP program, EPA performed a risk analysis for the flexible polyurethane foam production source category to determine the risk from emissions of hazardous air pollutants, primarily methylene chloride. Based on that risk analysis, EPA determined that although methylene chloride emissions did not pose an unacceptable health risk within the meaning of section 112(f) for the general population, there was a both a cancer and a non-cancer health risk that could be reduced at low cost. Specifically, EPA determined to ban the use of HAP blowing agents containing methylene chloride in order to protect public health with an ample margin of safety. 79 FR 48073; August 15, 2014. None of the other alternative blowing agents are regulated as hazardous air pollutants under the CAA. Based on the analysis and the conclusions from the section 112 HAP program analysis and in light of the toxicity information for other available substitutes, EPA has determined that methylene chloride poses significantly greater risk than other available substitutes in this end use. We note that we are not aware of any use of this blowing agent in this end-use and no commenters indicated that it was currently being used in this end-use.
The status of methylene chloride in flexible PU foam is changing to unacceptable as of 30 days after this final rule is published in the
EPA received comments from the Halogenated Solvents Industry Alliance (HSIA), a trade group representing the chlorinated solvents industry. Comments were in reference to EPA's authority generally for the changing the status of a substitute (responded to in section VII.B in this document) and the significance of the risk of methylene chloride. HSIA opposed EPA's proposed changes of status for methylene chloride in three foam end-uses.
We have grouped comments together and responded to the issues raised by the comments in the sections that follow, or in a separate Response to Comments document which is included in the docket for this rule (EPA-HQ-OAR-2015-0663).
The foam sector includes both closed cell and open cell foams. Closed cell foams are specifically designed to retain the foam blowing agent in the cells; in insulation foam products, the foam blowing agent continues to perform a function in providing thermal insulation, once the foam has already been blown. With open cell foams, the foam blowing agent completes its function once the foam is blown; almost all of the foam blowing agent escapes from the open cells prior to import, and any vestigial amounts remaining do not perform a function.
Foam blowing end-uses that contain closed-cell foams include rigid PU spray foam (all three applications described in section VI.C.1); rigid PU commercial refrigeration and sandwich panels; rigid PU marine flotation foam; rigid PU appliance foam; rigid PU slabstock and other; rigid PU and polyisocyanurate laminated boardstock; polystyrene: extruded boardstock and billet; polystyrene: extruded sheet; polyolefin; and phenolic insulation board and bunstock. Foam blowing end-uses containing open cell foams include flexible PU and integral skin PU. Open cell phenolic, and some other open cell foams also exist within the SNAP foam blowing end-uses that include closed cell foams. Integral skin foam may include a rigid surface with an interior flexible core.
Several provisions of CAA Title VI and EPA's implementing regulations are relevant to HCFC foam products. Under regulations implementing CAA section 611, EPA requires labeling of products that contain an ODS and those that are manufactured with an ODS. EPA determined that open cell foams blown with an ODS must be labeled as a product manufactured with an ODS. (58 FR 8136, 8143-8150, February 11, 1993; 79 FR 64253, 64258-64259, October 28, 2014). In contrast, closed cell foam products blown with an ODS must be labeled as a product
Section 610 restricts sale and distribution and offers of sale and distribution of certain products containing or manufactured with CFCs and HCFCs.
CAA section 605(a) prohibits the introduction into interstate commerce or use of any class II substance effective January 1, 2015, unless such substance—
(1) has been used, recovered, and recycled;
(2) is used and entirely consumed (except for trace quantities) in the production of other chemicals;
(3) is used as a refrigerant in appliances manufactured prior to January 1, 2020; or
(4) is listed as acceptable for use as a fire suppression agent for nonresidential applications in accordance with section 612(c).
The section 605(a) implementing regulations codified at 40 CFR part 82, subpart A restrict the use of virgin HCFCs to air conditioning, refrigeration, and fire suppression applications, with minor exceptions. Thus, while the Nonessential Products Ban does not apply to HCFC insulating foams, section 605(a) and its implementing regulations prohibit the use of HCFCs for blowing foam in the United States. The combined effect of the Nonessential Products Ban and the section 605(a) implementing regulations is that HCFC foam insulation products may be imported, sold, and distributed in the United States but cannot be manufactured in the United States.
In the preamble to a July 11, 2000, SNAP proposed rule, EPA reviewed its authority under CAA section 610 and noted that HCFC insulating foams were exempt from regulation under that section of the statute. EPA stated that “Title VI of the Act thus does not provide EPA with the authority to prevent imports of products containing those foams” (65 FR 42653, 42656). EPA did not, however, base this statement on a full examination of the various authorities under Title VI. In taking final action on that proposal, EPA noted that while under section 610 it could not ban the
As proposed, EPA is applying the unacceptability determinations in this action for foam blowing agents to closed cell foam products and products containing closed cell foam. In addition, EPA is applying all listings for foam blowing agents codified in the appendices to 40 CFR part 82 subpart G to such products. Use of closed cell foam products (
Section 612 requires EPA to promulgate regulations prohibiting the replacement of ODS with certain substitutes and to publish lists of the substitutes prohibited for specific uses as well as those found acceptable for those uses. EPA's implementing regulations at 40 CFR 82.174 state, in part: “No person may use a substitute after the effective date of any
With respect to other sectors, EPA has treated use of a product manufactured with or containing a substance as constituting use of the substance where the product holds some amount of the substance, the substance continues to perform its intended function, and the substance is likely to be emitted in the United States either during use of the product or at the time of its disposal. For example, an aerosol can is manufactured to contain a substance as a propellant, and then that propellant leaks, is released by the end user during use of the aerosol can's contents, or is emitted at the time of disposal if it has not already been used up. In the July 2015 rule, in changing the status of certain substances with respect to aerosols, EPA prohibited use of aerosol products containing those substances, while stating that products manufactured prior to the change of status date could still be used after that date (80 FR 42883). By analogy, we are now interpreting “use” of a foam blowing agent to include use of a closed cell foam product manufactured after the specified date. For such products, the foam blowing agent remains in the cells and continues to be used for the purpose of insulation during the lifetime of the product. Furthermore, emissions of the foam blowing agent occur at the time of disposal of the closed cell foam product. Thus, emissions from a closed cell product used in the United States can be expected to occur in the United States regardless of whether the product was manufactured domestically or abroad. This action ensures that products manufactured abroad and subsequently imported will be treated the same as products manufactured domestically. However, as noted above in section VI.C.1, the use prohibition does not apply to use of rigid PU one-component foam sealant cans or low pressure two-component spray foam kits that are manufactured prior to the change of status dates for those applications.
EPA is not treating use of an open cell foam product as constituting use of the foam blowing agent. The foam blowing agent in an open cell foam product does not continue to perform its intended function during the lifetime of the product. Except for insignificant amounts remaining in the cells, emissions of the foam blowing agent occur at the time and place of manufacture. Therefore, we are differentiating between closed cell and open cell foam products for this purpose. This is consistent with the different treatment of closed and open cell foam products under the section 611 labeling regulations.
For changes of status finalized in this rule (section VI.C.1 and VI.C.2), the unacceptability determination applies to use of closed cell foam products and products that contain closed cell foam where the products are manufactured on or after the change of status date. As noted in the July 2015 rule with respect to MVAC and stand-alone refrigeration equipment (80 FR 42884), it is reasonable to allow use of products manufactured before the change of status date to avoid market disruption, creation of stranded inventory, and perverse incentives for releasing these substances to the environment. This applies also to products that are manufactured outside the United States before the change of status date and imported afterwards. Buyers should obtain documentation from importers that the imported products were manufactured or in inventory before the change of status date.
For alternatives that have already been listed as unacceptable with a change of status date of January 1, 2017,
EPA received several comments from individuals and organizations with various interests in foam blowing agents. Comments were in reference to EPA's proposed application of unacceptability determinations of foam blowing agents to closed cell foam products and products containing closed cell foam manufactured with unacceptable blowing agents, to EPA's authority for the proposed new interpretation, to the proposed change of status dates, and to questions about a specific application. Some commenters supported EPA's proposed application of unacceptability to products, while others opposed that interpretation. Two commenters suggested different change of status dates from those EPA proposed, one suggesting an earlier date and the other suggesting a later date.
Commenters included CPI, an organization commenting on behalf of the polyurethanes industry; Honeywell and Chemours, suppliers of alternative foam blowing agents; Whirlpool, a manufacturer of appliances using foam insulation; Structural Composites and Compsys, manufacturers of a specialized composite foam product for boats and refrigerated trailers; NMMA, an organization representing manufacturers of boats; and environmental organizations, NRDC and IGSD.
We have grouped comments together and responded to the issues raised by the comments in the sections that follow, or in a separate Response to Comments document which is included in the docket for this rule (EPA-HQ-OAR-2015-0663).
In contrast, CPI opposed EPA's proposal and urged EPA to reconsider or redefine its interpretation of use. This commenter raised concerns about potential unintended consequences and inconsistency in the treatment of foams produced domestically and overseas. CPI believed this interpretation leads to the possibility of prohibiting the import of products manufactured prior to the change of status date and thus treating imported products inconsistently with domestically-produced products manufactured prior to the change of status date. CPI believed that this inconsistency suggests that EPA's proposed action is beyond its authority under the CAA or contrary to the intent of the statute. CPI stated that they were unaware of any precedent or authority that would allow EPA to interpret “use” differently based on the location of a manufacturer's facility, and thus opposed EPA's reinterpretation of use for foam products. In addition, CPI elsewhere had suggested that EPA should consider the change of status date to be the date a manufacturer packages polyol resin blends, including the blowing agent, into a drum, canister, or can, and believed EPA's interpretation of “use” for products was inconsistent with that suggestion.
The fire suppression and explosion protection end-uses addressed in this action are total flooding and streaming. Total flooding systems, which historically employed halon 1301 as a fire suppression agent, are used in both normally occupied and unoccupied areas. In the United States, approximately 90 percent of installed total flooding systems protect anticipated hazards from ordinary combustibles (
EPA is listing 2-BTP as acceptable, subject to use conditions, for the total flooding end-use. The use condition requires that 2-BTP be used only in engine nacelles and APUs on aircraft in total flooding fire suppression systems. In addition, EPA is listing 2-BTP as acceptable, subject to use conditions for the streaming end use. The use condition requires that 2-BTP be used as a streaming agent only for handheld extinguishers in aircraft.
EPA has listed a number of alternatives as acceptable for the total flooding end-use. In the proposed rule (81 FR at 22824; April 18, 2016) EPA provided information on the environmental and health properties of 2-BTP and the various substitutes in this end-use. Additionally, EPA's risk assessments for 2-BTP and a technical support document that provides the
In addition to ODP and GWP, EPA evaluated potential impacts of emissions of 2-BTP on local air quality. 2-BTP meets the definition of VOC under CAA regulations (see 40 CFR 51.100(s)) and is not excluded from that definition for the purpose of SIPs to attain and maintain the NAAQS. EPA compared the annual VOC emissions from the use of 2-BTP as a total flooding agent to other anthropogenic sources of VOC emissions considering both worst-case and more realistic scenarios. Under either scenario, emissions are a small fraction of a percentage (5.6 × 10
EPA evaluated the risks associated with potential exposures to 2-BTP during production operations and the filling of fire extinguishers as well as in the case of an inadvertent discharge of the system during maintenance activities on the fire extinguishing system. EPA's review of the human health impacts of 2-BTP, including the summary of available toxicity studies, is in the docket for this rulemaking (EPA-HQ-OAR-2015-0663).
Exposure to 2-BTP is not likely during installation or servicing of 2-BTP total flooding systems for engines and APUs on aircraft. These are both considered to be unoccupiable areas, meaning personnel cannot physically occupy these spaces, thus reducing the risk from exposure to an inadvertent discharge. The risk of accidental activation of the fire extinguishing system while personnel are present near the protected space is low if proper procedures, including those of the 2-BTP system manufacturer as well as the aircraft manufacturer, are followed. Instructions on system installation and servicing included in manuals for the 2-BTP systems should be followed. In the case of an inadvertent discharge of the system during maintenance activities on the fire extinguishing system or surrounding equipment, the cowl doors that would be open to allow access to the area will allow personnel to immediately egress and avoid exposure. Protective gloves and tightly sealed goggles should be worn for installation and servicing activities, to protect workers in any event of potential discharge of the proposed substitute, accidental or otherwise. Filling or servicing operations should be performed in well-ventilated areas. EPA's evaluation indicates that the use of 2-BTP is not expected to pose a significant toxicity risk to personnel or the general population. The risks after exposure are common to many total flooding agents, including those already listed as acceptable under SNAP for this same end-use such as C6-perfluoroketone.
EPA is listing 2-BTP acceptable, subject to use conditions, as a total flooding agent for use in engine nacelles and APUs on aircraft because the overall environmental and human health risk posed by the substitute is lower than or comparable to the overall risk posed by other alternatives listed as acceptable in the same end-use.
EPA has listed a number of alternatives as acceptable for the streaming end-use. In the proposed rule (81 FR at 22824; April 18, 2016) EPA provided information on the environmental and health properties of 2-BTP and the various substitutes in this end-use. Additionally, EPA's risk assessments for 2-BTP and a technical support document that provides the
Regarding local air quality impacts, EPA compared the annual VOC emissions from the use of 2-BTP as a streaming agent to other anthropogenic sources of VOC emissions considering both worst-case and more realistic scenarios, as described in the previous section. Other acceptable fire suppression agents currently in use as streaming agents are also VOC (
EPA evaluated occupational and general population exposure at manufacture and at end-use to ensure that the use of 2-BTP as a streaming agent will not pose unacceptable risks to workers or the general public as discussed in the previous section. Also
The risks after exposure are common to many streaming agents, including those already listed as acceptable under SNAP for this same end-use, such as C6-perfluoroketone.
EPA is listing 2-BTP acceptable, subject to use conditions, as a streaming agent on aircraft because the overall environmental and human health risk posed by the substitute is lower than or comparable to the overall risk posed by other alternatives listed as acceptable in the same end-use.
In the “Further Information” column of the regulatory listings for total flooding agents, EPA is providing the following information:
• This fire suppressant has a relatively low GWP of 0.23-0.26 and a short atmospheric lifetime of approximately seven days.
• This agent is subject to requirements contained in a TSCA section 5(e) Consent Order and any subsequent TSCA section 5(a)(2) SNUR.
• For establishments manufacturing, installing, and servicing engine nacelles and auxiliary power units on aircraft using this agent:
(1) This agent should be used in accordance with the safety guidelines in the latest edition of the National Fire Protection Association (NFPA) 2001 Standard for Clean Agent Fire Extinguishing Systems;
(2) In the case that 2-BTP is inhaled, person(s) should be immediately removed and exposed to fresh air; if breathing is difficult, person(s) should seek medical attention;
(3) Eye wash and quick drench facilities should be available. In case of ocular exposure, person(s) should immediately flush the eyes, including under the eyelids, with fresh water and move to a non-contaminated area.
(4) Exposed person(s) should remove all contaminated clothing and footwear to avoid irritation, and medical attention should be sought if irritation develops or persists;
(5) Although unlikely, in case of ingestion of 2-BTP, the person(s) should consult a physician immediately;
(6) Manufacturing space should be equipped with specialized engineering controls and well ventilated with a local exhaust system and low-lying source ventilation to effectively mitigate potential occupational exposure; regular testing and monitoring of the workplace atmosphere should be conducted;
(7) Employees responsible for chemical processing should wear the appropriate PPE, such as protective gloves, tightly sealed goggles, protective work clothing, and suitable respiratory protection in case of accidental release or insufficient ventilation;
(8) All spills should be cleaned up immediately in accordance with good industrial hygiene practices;
(9) Training for safe handling procedures should be provided to all employees that would be likely to handle containers of the agent or extinguishing units filled with the agent;
(10) Safety features that are typical of total flooding systems such as pre-discharge alarms, time delays, and system abort switches should be provided, as directed by applicable OSHA regulations and NFPA standards; use of this agent should also conform to relevant OSHA requirements, including 29 CFR 1910, subpart L, sections 1910.160 and 1910.162.
In the “Further Information” column of the regulatory listing for the streaming agent end use, EPA is providing the following information:
• This fire suppressant has a relatively low GWP of 0.23-0.26 and a short atmospheric lifetime of approximately seven days.
• This agent is subject to requirements contained in a Toxic Substance Control Act (TSCA) section 5(e) Consent Order and any subsequent TSCA section 5(a)(2) Significant New Use Rule (SNUR).
• For establishments manufacturing, installing and maintaining handheld extinguishers using this agent:
(1) Use of this agent should be used in accordance with the latest edition of NFPA Standard 10 for Portable Fire Extinguishers;
(2) In the case that 2-BTP is inhaled, person(s) should be immediately removed and exposed to fresh air; if breathing is difficult, person(s) should seek medical attention;
(3) Eye wash and quick drench facilities should be available. In case of ocular exposure, person(s) should immediately flush the eyes, including under the eyelids, with fresh water and move to a non-contaminated area.
(4) Exposed person(s) should remove all contaminated clothing and footwear to avoid irritation, and medical attention should be sought if irritation develops or persists;
(5) Although unlikely, in case of ingestion of 2-BTP, the person(s) should consult a physician immediately;
(6) Manufacturing space should be equipped with specialized engineering controls and well ventilated with a local exhaust system and low-lying source ventilation to effectively mitigate potential occupational exposure; regular testing and monitoring of the workplace atmosphere should be conducted;
(7) Employees responsible for chemical processing should wear the appropriate PPE, such as protective gloves, tightly sealed goggles, protective work clothing, and suitable respiratory protection in case of accidental release or insufficient ventilation;
(8) All spills should be cleaned up immediately in accordance with good industrial hygiene practices;
(9) Training for safe handling procedures should be provided to all employees that would be likely to handle containers of the agent or extinguishing units filled with the agent; and
(10) 2-BTP use as a streaming fire extinguishing agent in handheld extinguishers in aircraft should be in accordance with UL 711, Rating and Testing of Fire Extinguishers, the Federal Aviation Administration (FAA) Minimum Performance Standard for Hand-Held Extinguishers (DOT/FAA/AR-01/37), with regard to the size and number of extinguishers depending on the size of aircraft, and FAA Stratification and Localization of Halon 1211 Discharged in Occupied Aircraft Compartments (DOT/FAA/TC-14/50).
EPA is establishing a listing date as of January 3, 2017, the same as the effective date of this regulation, to allow for the safe use of this substitute at the earliest opportunity.
EPA received several comments from organizations with various interests in the fire protection industry on the proposed listing of 2-BTP as acceptable, subject to use conditions, as a total flooding and streaming agent in certain aircraft applications. Comments were in reference to EPA's approach to the end-use categories for fire suppression, an expedited listing for 2-BTP based on international halon replacement deadline for handheld extinguishers on new aircraft, conditions for use including minimum volumes for aircraft compartments for safe handheld extinguisher use and labeling of extinguishers, and broadening the acceptable applications for 2-BTP. All commenters supported the proposed
Commenters included the International Coordinating Council of Aerospace Industries Associations (ICCAIA) representing Aerospace Industries Associations of the United States, Europe, Canada, Brazil, Russia, and Japan; the Halon Alternatives Research Corporation, Inc. (HARC), a trade association; NAM; NEDA/CAP; Boeing; Airbus also representing the aircraft manufacturers Bombardier, Dassault Aviation, and Embraer; and P3Group.
We have grouped comments together and responded to the issues raised by the comments in the sections that follow, or in a separate Response to Comments document which is included in the docket for this rule (EPA-HQ-OAR-2015-0663).
While EPA proposed and requested comments on listing the PFCs (C
Powdered Aerosol D is a pyrotechnic particulate aerosol and explosion suppressant that also is marketed under the trade names of Aero-K® and Stat-X®. This fire suppressant is supplied to users as a solid housed in a double-walled hermetically-sealed steel container. When the unit is triggered by heat (300 °C), the product is pyrotechnically activated to produce gases and aerosol particles from a mixture of chemicals. EPA listed Powdered Aerosol D as acceptable subject to use conditions as a total flooding agent (71 FR 56359; September 7, 2006). The use conditions required that Powdered Aerosol D be used only in areas that are not normally occupied, because the Agency did not have sufficient information at that time supporting its safe use in areas that are normally occupied. Based on a review of additional information from the submitter to support the safe use of Powdered Aerosol D in normally occupied spaces, EPA subsequently determined that Powdered Aerosol D is also acceptable for use in total flooding systems for normally occupied spaces (79 FR 62863; October 21, 2014). The listing provides that Powdered Aerosol D is acceptable for total flooding uses, which includes both unoccupied and occupied spaces. In the October 2014 listing action, EPA noted that in a subsequent rulemaking, the Agency would remove the previous listing of acceptable subject to use conditions.
As proposed, EPA is removing the previous listing in appendix O to subpart G of 40 CFR part 82 for Powdered Aerosol D as acceptable subject to use conditions as a total flooding agent (71 FR 56359; September 7, 2006). This has been superseded by the listing of October 21, 2014 (79 FR 62863) listing Powdered Aerosol D as acceptable for total flooding uses, which includes both unoccupied and occupied spaces.
EPA received additional comments on topics not addressed in other sections of this document. These comments address a host of issues, including EPA's CAA authority to change the status of alternatives; perceived inconsistencies with the SNAP program's “guiding principles;” perceived inconsistency with other actions; and interactions with other rules. Additionally, some commenters requested status changes for end-uses or alternatives that were not included in the proposed rule.
We have grouped comments together and responded to the issues raised by the comments in the sections that follow, or in a separate Response to Comments document which is included in the docket for this rule (EPA-HQ-OAR-2015-0663).
This action does not require retrofitting existing equipment. EPA is confident there will be adequate supply to service existing equipment either based on continued production or based on recovery and reuse of existing supplies of the refrigerants undergoing a change of status. EPA bases this judgment on our historical experience. For example, CFC chillers can still be serviced even though we have had no production or import of newly produced CFCs since 1996. Similarly, halons continued to be used even though we ceased production and import of newly produced halons in 1994. HCFC-22 was phased out of production for new equipment as of 2010, but is still being produced and used for existing equipment.
EPA's action does not ban production of any HFC and as noted above, some of the HFCs will be blended with HFOs to develop new refrigerants. While there may be a shift between chemical or refrigerant producers, it is not clear that there will be a loss for these companies and demand may increase in other global markets. It is possible that the price of refrigerants undergoing a status change will increase if supplies decrease relative to demand. End users with existing equipment may take steps to reduce the impact of price changes on the open market such as recovering and recycling their refrigerant, as many supermarkets currently do with HCFC-22.
As noted throughout this rule, we anticipate many refrigerants will be available and not just propane. Propane is only acceptable for a limited number of refrigeration and AC end-uses, including household refrigerators and freezers, and is not currently listed as acceptable for chillers, cold storage warehouses, or retail food refrigeration—refrigerated food processing and dispensing equipment. EPA has listed a number of HFO and HFO/HFC refrigerants as acceptable with no use conditions for use in each of the refrigeration and AC end-uses undergoing a change of status in this rule (
Chemical producers may continue to produce the HFCs undergoing a change of status for uses that are acceptable including for servicing of existing equipment and for end-uses that are not subject to a change of status. In the case of propylene, that refrigerant has only been listed as acceptable as a refrigerant in IPR, and EPA has not proposed to change that status. Nothing in this action calls for retrofitting. However, we note that EPA has published lists of acceptable refrigerants for new equipment and retrofits, and these are available at
For the reasons provided in section VI.A.6 and in our proposal, we have determined that January 1, 2023 is a reasonable but expeditious date for the change of status for new cold storage warehouses. For new refrigerated food processing and dispensing equipment, the recommended 2021 date for the R-407 series refrigerants matched our proposal and for the reasons provided in section VI.A.7 and our proposal we have finalized that change of status date.
The commenter did not otherwise provide any support for why a bifurcated 2021 and 2025 change of status date was sufficient and needed to address the technical challenges for either the cold storage warehouse end-use or the refrigerated food processing and dispensing equipment end-use category. For the 2025 date, the commenter provided no justification for why the supply or suitability of existing alternatives was not sufficient to support the proposed January 1, 2023, status change date for cold storage warehouses but would be to support a January 1, 2025, date. The commenter did not provide any evidence that supply of alternatives was lacking to justify their proposed 2025 status change date for HFC-134a in both end-uses. EPA had already determined that not to be true in a previous rulemaking (80 FR 42904; July 20, 2015). Further, the commenter did not indicate why the supply for HFC-134a alternatives in either end-use would not be available until 2025 yet the supply of alternatives for the R-407 series refrigerants would be available by 2021, or why the set of alternatives would be different.
Concerning differences in GWP values and how EPA decided to change the status of certain alternatives while other alternatives remained acceptable, EPA did not establish bright-line cutoffs but rather considered which substitutes are available on an end-use by end-use basis. For the example of refrigerants in the cold storage warehouse end-use that Arkema cites, we considered that R-407F has the lowest GWP of the refrigerant blends that are both widely commercially available and can be used for those situations and types of equipment where HCFC-22 is used. R-407A has a higher GWP and otherwise is comparable to R-407F, and thus results in higher overall risk to human health and the environment.
See also section VII.A.3 of the preamble to the July 2015 rule and section 6.3.3 of the Response to Comments for the NPRM for that rule for additional information on GWP considerations under the SNAP program.
In response to comments that EPA failed to assess and account for indirect climate impacts, we note that we do not have a practice in the SNAP program of including indirect climate impacts in the overall risk analysis. EPA initially contemplated such considerations in the initial SNAP rule, but our experience has been that it is impractical to perform a detailed analysis of indirect global warming impacts associated with a particular substitute. For example, the inherent energy efficiency of the substitute is not the same as the energy efficiency of equipment using that substitute. To analyze energy efficiency and other indirect climate impacts would require EPA to identify not only every type of equipment but also each model, identify or predict the amount of each available substitute that might be used in each type of equipment, make assumptions about how the equipment would be operated, assess what type of electricity was used to both manufacture the substance and power the equipment or manufacturing process, and so on. See the July 2015 rule, 80 FR at 42921 and section 6.4.2 of the response to comments document for that rule. We do, however, consider issues such as technical needs for energy efficiency (
1. First guiding principle:
2. Second guiding principle:
3. Third guiding principle:
4. Fourth guiding principle:
5. Fifth guiding principle:
6. Sixth guiding principle:
7. Seventh guiding principle:
Concerning consideration of all relevant information as defined by regulation, we note that it is within the discretion of the Agency to determine which information is relevant out of the total set of information in EPA's possession. The specific information that must be provided to EPA for review under the SNAP regulations at 40 CFR 82.178 informs, but does not govern, EPA's decisional criteria for review of substitutes under 40 CFR 82.180(a)(7).
Concerning Arkema's quotation from the proposed rule, it states that we do not use the same “bright line” risk threshold for all substances. This is consistent with EPA's guiding principles, where we consider comparative risk of the available substitutes within an end-use. From a scientific point of view, it would be inappropriate, and potentially not protective, for EPA to use the same concentration in ppm to determine flammability risks or toxic concentrations for different substitutes, rather than considering the LFL or exposure limit for the specific substitute.
EPA did not base the narrowed use limits for centrifugal and positive displacement compressor chillers for military marine vessels or for human-rated spacecraft and related support equipment applications on the relative significance of the associated emissions; rather, for informational purposes, we indicated that emissions were not expected to be significant. EPA's decisions are based on the comparative risk of various alternatives considering the SNAP criteria, not based on achieving a specific climate benefit. EPA provided information concerning the estimated climate benefits associated with the proposed and final rule. EPA did not calculate the benefits or atmospheric impacts from every possible scenario.
With regard to specific quantification of reductions in overall risk to human health and the environment, in the 1994 rulemaking, we considered and rejected comments suggesting that we develop an index to rank all substitutes based on risk. In the preamble to the rule, we specifically noted that “a strict quantitative index would not allow for sufficient flexibility in making appropriate risk management decisions” (59 FR 13044, March 18, 1994). See July 2015 SNAP rule at 80 FR 42940. Concerning NEDA/CAP's comment about the frequency of recent rulemakings and listings, EPA notes that we have the authority to change the status of a previously listed alternative and mentioned this as a possibility in the initial SNAP rulemaking. See the preamble to the July 2015 rule at 80 FR 42939-40. Further, the CAP has guided EPA in our decision to issue more frequent listings as well as rulemakings including changes of status. We also note that some of our recent decisions mentioned by NEDA/CAP have provided additional alternatives for both new and retrofits of existing equipment, which would have no impact on the production of other alternatives or on existing equipment manufactured with other alternatives. Concerning NEDA/CAP's comment about the potential impact of the rule on existing equipment, see the discussion in section VII.A.1.
The reader is referred to sections VII.B.2 above and VII.D.3. As discussed in response to other comments in section VII.D.3 below, energy efficiency is not a specific criterion under SNAP, and indirect GHG emissions may vary based on energy efficiency of the appliance. As discussed in response to comment in section VII.B.2 above, EPA initially contemplated considering indirect climate impacts as part of our overall risk analysis in the initial SNAP rule, but our experience has been that it is impractical to perform a detailed analysis of indirect global warming impacts associated with a particular substitute.
EPA received comments from Arkema, NAFEM, Structural Composites and Compsys, AHAM, and UTC in which commenters provided data on the cost and economic impacts of the proposed rule. These comments are summarized in the response to comments sections for the end-uses addressed in this final rule. We summarize and respond to the more general cost comments in this section.
The transition timelines in this final rule are based on information concerning the availability of alternatives. While EPA does not consider the cost of transition in its analysis, EPA recognizes that later dates allow industry time to plan and to spread out capital costs over longer time
More broadly, for purposes of E.O. 12866, we performed an analysis of the costs of the proposed rule on all-sized businesses and estimated the total annualized upfront compliance costs to range from $59.2-$71.3 million, using a 7% discount rate, and $58.8-$70.6 million, using a 3% discount rate.
Alternatives used in Refrigeration and Air Conditioning, Foams, and Fire Suppression. ICF International. September, 2016.
Both the screening analysis for purposes of determining whether there was a SISNOSE and the analysis for purposes of E.O. 12866 were conducted based on the best market and cost information available to the Agency.
EPA also disagrees with the comment regarding the inability to sell existing supply as the status changes in the rule relate to new manufacturing and do not limit the sale of existing supply.
The Agency agrees with the commenters that energy efficiency can have significant impacts on the GHG emissions. However, we disagree that this action will have unintended detrimental effects on energy efficiency. As described in the July 2015 rule (80 FR 42902), the energy efficiency actually achieved will depend on both the refrigerant used and the design and settings of the equipment. It is impractical for EPA to evaluate all possible equipment design and refrigerant combinations. As part of its consideration of whether available alternatives exist in particular end-uses, SNAP considers as part of its evaluation whether use of potential alternatives is feasible. For example, if use of a particular alternative made it impossible for end users to comply with DOE energy conservation standards, that chemical would not be considered a truly available substitute, and this would be considered in decisions on the status of other alternatives in that end-use. In fact, many substitutes that remain acceptable can lead to better energy efficiency in that end-use than the alternatives that are having their status changed in this rule.
Additional information about these statutes and Executive Orders can be found at
This action is a significant regulatory action that was submitted to the Office of Management and Budget (OMB) for review. It raises novel legal or policy issues arising out of legal mandates, the President's priorities, or the principles set forth in the Executive Order. Any changes made in response to OMB recommendations have been documented in the docket. EPA prepared analyses of the potential costs and benefits associated with this action. These are available in docket EPA-HQ-OAR-2015-0663 under the titles, “Climate Benefits of the SNAP Program Status Change Rule” and “Cost Analysis for Regulatory Changes to the Listing Status of High-GWP Alternatives used in Refrigeration and Air Conditioning, Foams, and Fire Suppression.”
This action does not impose any new information collection burden under the PRA. OMB has previously approved the information collection requirements contained in the existing regulations and has assigned OMB control number 2060-0226. This rule contains no new requirements for reporting or recordkeeping.
I certify that this action will not have a significant economic impact on a substantial number of small entities under the RFA. The small entities subject to the requirements of this action are small businesses. For purposes of assessing the impacts of this rule on small entities, EPA evaluated small businesses as defined by the Small Business Administration's (SBA) regulations at 13 CFR 121.201. The Agency has determined that about 90 small businesses could be subject to the rulemaking, and roughly 76 percent of the small businesses subject to this rulemaking would be expected to experience compliance costs of less than one percent of annual sales revenue. Details of this analysis are presented in the document entitled, “Economic Impact Screening Analysis for Regulatory Changes to the Listing Status of High-GWP Alternatives used in Refrigeration and Air Conditioning, Motor Vehicle Air Conditioners, Foams, and Fire Suppression.”
The requirements of this rule with respect to HFCs would impact small businesses that manufacture food processing and dispensing equipment, household refrigerators and freezers, cold storage refrigeration systems, and polyurethane foams; operators of cold storage refrigeration systems, including refrigerated warehouses, wholesalers, and food manufacturers; and manufacture and use cold storage warehouses, and small businesses that import products containing closed cell phenolic, polyisocyanurate, polyolefin, PU, and polystyrene foams manufactured with HFC or HCFC foam blowing agents. The prohibition of methylene chloride as a foam blowing agent is not anticipated to impact small businesses because this substance is not expected to be used currently as a blowing agent. This rule's provisions do not create enforceable requirements for refrigeration and AC technicians, but they would indirectly affect technicians servicing motor vehicle AC systems, certain types of retail food refrigeration equipment, cold storage warehouses, and commercial AC equipment where the technician, rather than the refrigeration or AC equipment owner, purchases servicing equipment for different refrigerants. EPA expects these indirect impacts on technicians are minimal, because the transitions to different refrigerants required by this rule are already occurring due to corporate social responsibility initiatives (
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 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. EPA is aware that the California Air Resources Board has proposed regulation of a number of the substitutes and end-uses in this rule.
This action does not have tribal implications as specified in Executive Order 13175. It will not have substantial direct effects on tribal governments, on the relationship between the Federal government and Indian tribes, or on the distribution of power and responsibilities between the Federal government and Indian tribes, as specified in Executive Order 13175. Thus, Executive Order 13175 does not apply to this action.
This action is not subject to Executive Order 13045 because it is not economically significant as defined in Executive Order 12866, and because EPA does not believe the environmental health or safety risks addressed by this action present a disproportionate risk to children. This rule restricts the use of certain substitutes that have greater overall risks for human health and the environment, primarily due to their high GWP. The reduction in GHG emissions would provide climate benefits for all people, including benefits for children and future generations. The risk screens are in the docket for this rulemaking.
This action is not a “significant energy action” because it is not likely to have a significant adverse effect on the supply, distribution or use of energy. For the end-uses that are related to energy effects such as refrigeration and AC, a number of alternatives are available to replace those refrigerants that are listed as unacceptable in this action; many of the alternatives are as energy efficient or more energy efficient than the substitutes being listed as unacceptable. Thus, we have concluded that this rule is not likely to have any adverse energy effects.
This action involves technical standards. EPA is using standards from UL in the use conditions for propane and standards from SAE for HFO-1234yf. Additionally, EPA is incorporating by reference a standard from SAE that EPA already requires in a use condition for HFC-152a in MVAC. These use conditions will ensure that these new substitutes for very low temperature refrigeration equipment, commercial ice machines, and water coolers, do not present significantly greater risk to human health or the environment than other alternatives.
EPA is incorporating by reference portions of current editions of the UL Standard 399, “Standard for Drinking-Water Coolers”; UL Standard 471, “Standard for Commercial Refrigerators and Freezers”; and UL Standard 563, “Standard for Ice Makers”, which includes requirements for the safe use of refrigerants. Specifically, these standards are:
1.
2.
3.
EPA is also incorporating by reference the list of refrigerants that ASHRAE designates as flammability Class 3 according to ASHRAE Standard 34-2013,
In addition, EPA is using standards from SAE in the use conditions for HFO-1234yf. These standards are:
1.
2.
3.
These standards may be purchased by mail at: SAE Customer Service, 400 Commonwealth Drive, Warrendale, PA 15096-0001; by telephone: 1-877-606-7323 in the United States or 724-776-4970 outside the United States or in Canada. The cost of SAE J639, SAE J1739, and SAE 2844 is $74 each for an electronic or hardcopy. The cost of obtaining these standards is not a significant financial burden for manufacturers of MVAC systems and purchase is not required for those selling, installing and servicing the systems. Therefore, EPA concludes that the use of SAE J639, SAE J1739, and SAE J2844 are reasonably available.
In addition, in today's rule, we are incorporating by reference a standard that EPA already requires in a use condition for HFC-152a in MVAC:
4.
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's health and risk assessments are contained in the comparisons of toxicity for the various substitutes, as well as risk screens for the substitutes that are listed as acceptable, subject to use conditions, or are newly listed as unacceptable.
This action is subject to the CRA, and EPA will submit a rule report to each House of the Congress and to the
Environmental protection, Administrative practice and procedure, Air pollution control, Incorporation by reference, Recycling, Reporting and recordkeeping requirements, Stratospheric ozone layer.
For the reasons set forth in the preamble, EPA amends 40 CFR part 82 as follows:
42 U.S.C. 7414, 7601, 7671-7671q.
(a) * * * (1) No person maintaining, servicing, repairing, or disposing of an appliance or industrial process refrigeration may knowingly vent or otherwise release into the environment any refrigerant from such appliances. Notwithstanding any other provision of this subpart, the following substitutes in the following end-uses are exempt from this prohibition and from the requirements of this subpart:
(viii) Propane (R-290) in retail food refrigerators and freezers (stand-alone units only); household refrigerators, freezers, and combination refrigerators and freezers; self-contained room air conditioners for residential and light commercial air-conditioning and heat pumps; vending machines; and effective January 3, 2017, self-contained commercial ice machines, very low temperature refrigeration equipment, and water coolers;
The revisions and additions to read as follows:
The Director of the Federal Register approves the incorporation by reference of the material under “Conditions” in the table “REFRIGERANTS—ACCEPTABLE SUBJECT TO USE CONDITIONS” (5 U.S.C. 552(a) and 1 CFR part 51). You may obtain a copy from SAE Customer Service, 400 Commonwealth Drive, Warrendale, PA 15096-0001 USA; email:
Office of Personnel Management (OPM).
Proposed rule.
This action would amend Federal Employees Health Benefits (FEHB) Program rules. This proposed rule is in response to enrollee requests to remove family members from existing enrollments. The intended effect of this action is to allow certain eligible family members to be removed from self and family or self plus one enrollments.
Comments are due on or before January 30, 2017.
Send written comments to Padma Shah, Senior Policy Analyst, Planning and Policy Analysis, U.S. Office of Personnel Management, Room 4316, 1900 E Street NW., Washington, DC. You may also submit comments identified by the RIN number stated above using the Federal eRulemaking Portal (
Padma Shah at (202) 606-0004.
Currently under 5 CFR 890.302, all eligible family members are covered under a self and family enrollment. Subject to a temporary extension of coverage and conversion, a family member's coverage terminates on the day he or she ceases to be an eligible family member, as provided by 5 CFR 890.304. Existing regulations allow enrollees to change enrollment from self and family to self plus one or self only based on a qualifying life event or during Open Season. However, there is no provision in the existing regulations addressing the voluntary removal of an eligible covered family member under an existing self and family or self plus one enrollment.
The Office of Personnel Management has experienced a number of requests to remove eligible family members since OPM implementated FEHB coverage for children up to age 26 for plan year 2011 pursuant to the Patient Protection and Affordable Care Act, Public Law 111-148, as amended by the Health Care and Education Reconciliation Act, Public Law 111-152 (the Affordable Care Act). In accordance with this law, OPM issued guidance to FEHB carriers in Carrier Letter No. 2010-18 and to agency benefit officers in Benefits Administration Letter No. 2010-201. In these guidance documents, OPM advised that for the upcoming plan year and beyond married children were eligible for coverage without dependency requirements, residency requirements, or requirements that a child be a student or have prior or current insurance coverage under their parent's FEHB Program enrollment. On October 30, 2013, OPM published a final rule codifying this change in eligibility in 5 CFR 890.302 (78 FR 64873).
With the extension of FEHB coverage to children up to age 26, including the addition of coverage for married and non-dependent children, there are more circumstances where eligible family members have their own coverage and are either not in need of coverage under a parent's FEHB self and family enrollment or do not wish to be covered under that enrollment. In addition, some FEHB-enrolled parents do not wish to provide health insurance coverage for their adult children. In light of the number of FEHB enrollees who have communicated to us that they do not wish to maintain coverage for their adult child and adult children who have communicated that they want to be removed from their parent's FEHB self and family enrollment, OPM has re-examined its previous policy not to allow removal of eligible family members under any circumstances. Our review of this issue also indicated that there may be circumstances where covered spouses would also seek to be removed from an existing enrollment. Accordingly, this proposed change attempts to provide appropriate removal opportunities for covered family members, including spouses and adult children. Though the availability of the new self plus one enrollment type will alleviate this issue somewhat, we anticipate that enrollees may still wish to remove family members from existing enrollments, especially in situations where there are more than three family members covered under a self and family enrollment.
The Office of Personnel Management proposes to add a new paragraph, 5 CFR 890.308(h), that allows eligible family members to be removed from a self and family or a self plus one enrollment in certain limited circumstances. A request for removal under this proposed rule can be submitted and effectuated anytime during the plan year if the individual provides all needed documentation. The proposed rule also includes amendments to § 890.302 requiring that proof of family member eligibility must be provided upon request by a carrier, employing office, or OPM and updating paragraph numbering. For more information on these changes, see proposed rule Federal Employees Health Benefits Program: Removal of Ineligible Individuals from Existing Enrollments, publishing elsewhere in this issue of the
In a majority of cases, there appears to be no detriment to an eligible family member covered under a self and family or a self plus one enrollment, even if the family member has other coverage. Health insurance plans can coordinate coverage and provide what, in most cases, amounts to more generous benefits to a family member who has double coverage. However, in a minority of circumstances, it may be beneficial for a family member to be removed from an enrollment. For example, if a family member covered under an FEHB enrollment is eligible for their own employer's high deductible health plan with a health savings account, under Internal Revenue Service (IRS) regulations, the family member may not be able to take advantage of the employer's offer unless he or she is not covered under another health plan. Accordingly, the regulation proposes to allow spouses and adult children to be removed from a self and family or a self plus one enrollment if certain requirements are met.
In the case of a self plus one enrollment, it would, in most cases, be beneficial for the enrollee to decrease his or her enrollment to a self only enrollment or cancel the enrollment in accordance with § 890.302 for a family member to no longer be covered. Similarly, in the case of a self and family enrollment with two eligible family members, it would in most cases be beneficial for the enrollee to decrease to a self plus one enrollment. However, if the enrollee is enrolled in premium conversion, IRS rules would prohibit the decrease in or cancellation of the enrollment mid-year in the absence of a qualifying life event. Therefore, the regulation allows an enrollee or a family member to choose removal with no decrease in enrollment at any time mid-year.
This regulation also addresses situations where an enrollee has more than two eligible family members covered under a self and family enrollment, and one of the eligible family members may wish to no longer
In contemplating circumstances for removal, OPM sought to balance the interests of eligible family members with the interests of FEHB enrollees. For example, under this proposed rule, spouses may be removed if both the enrollee and the spouse provide a notarized request for removal to their agency. This ensures that both the enrollee and family member are aware of and agree to the request and avoids agencies receiving conflicting requests as to whether a spouse should be covered where the spouses disagree, for instance where they are nearing or seeking divorce.
Adult children may be removed from a self plus one or self and family enrollment by the enrollee without the consent of the child if the enrollee provides proof that the child is no longer a dependent. Consistent with the Affordable Care Act, the proposed rule “continue[s] to make [FEHB] coverage available for an adult child” but permits an enrollee to reject the offer of coverage for adult children who are no longer dependents. OPM plans to provide subregulatory guidance defining how an individual may demonstrate that a child is no longer a dependent.
Adult children who request removal from a self and family or self plus one enrollment will be removed if the child submits a notarized request for removal. OPM recognizes that with the extension of coverage to married and non-dependent children to age 26, there are more eligible adult children covered under the program who have their own independent means for obtaining health insurance coverage or who wish for other reasons, such as an interest in privacy, not to be covered under their parent's enrollment. However, under the proposed rule, minor children may not be removed from an enrollment without a court order to protect the interests of children who are not yet at an age where they are ready to be responsible for their own health insurance coverage.
To submit a notarized request for removal, the proposed rule instructs that the request must be submitted to the employing agency and that the effective date of the removal be the first day of the pay period following the agency's approval of the request. When an enrollee requesting removal of an adult child has submitted proof that the adult child is no longer a dependent, the proposed effective date is the first day of the second pay period following the agency's approval of the request. This proposed effective date gives a child being removed without his or her consent a pay period to receive notice of the removal and to procure other health coverage.
If an eligible family member is removed from an enrollment, he or she may only regain coverage under the applicable self plus one or self and family enrollment during the annual Open Season or within 60 days of the eligible family member losing other coverage. Enrollees must provide the written consent of the family member and demonstrate their continued eligibility as a spouse or child under this section. This proposed policy avoids family members making multiple changes throughout the plan year and allows FEHB carriers to properly administer needed services. OPM will publish subregulatory guidance through a Benefits Administration Letter providing specific guidance to agencies on processes for removals.
Family members removed under this proposed regulation will not be eligible for temporary extension of coverage and conversion under § 890.401 or temporary continuation of coverage (TCC) under § 890.1103. The FEHB governing statute does not allow removed family members to be eligible for TCC or a temporary extension of coverage and conversion as such removal does not result in the child ceasing to meet the requirements for being considered a child within the meaning of 5 U.S.C. 8905a and 8901(1).
The Regulatory Flexibility Act of 1980 (Pub. L. 96-354) (RFA) establishes “as a principle of regulatory issuance that agencies shall endeavor, consistent with the objectives of the rule and of applicable statutes, to fit regulatory and informational requirements to the scale of the businesses, organizations, and governmental jurisdictions subject to regulation.” To achieve this principle, agencies are required to solicit and consider flexible regulatory proposals and to explain the rationale for their actions to assure that such proposals are given serious consideration.” The RFA covers a widerange of small entities, including small businesses, not-for-profit organizations, and small governmental jurisdictions.
Agencies must perform a review to determine whether a rule will have a significant economic impact on a substantial number of small entities. If the agency determines that it will, the agency must prepare a regulatory flexibility analysis as described in the RFA. I certify that this regulation will not have a significant economic impact on a substantial number of small entities because the regulation only affects health insurance benefits of Federal employees and annuitants.
This rule has been reviewed by the Office of Management and Budget in accordance with Executive Orders 13563 and 12866.
The Office of Personnel Management has examined this proposed rule in accordance with Executive Order 13132, Federalism. The agency has determined that this proposed rule will not have any negative impact on the rights, roles, and responsibilities of State, local, or Tribal governments.
The Paperwork Reduction Act of 1995 (44 U.S.C. chapter 3507(d); see 5 CFR part 1320) requires that the U.S. Office of Management and Budget (OMB) approve all collections of information by a Federal agency from the public before they can be implemented. Respondents are not required to respond to any collection of information unless it displays a current valid OMB control number. OPM is not proposing any additional collections in this rule.
Administrative practice and procedure, Government employees, Health insurance.
U.S. Office of Personnel Management.
For the reasons set forth in the preamble, OPM proposes to amend Part 890 of Title 5 of the Code of Federal Regulations as follows:
5 U.S.C. 8913; Sec 890.301 also issued under sec. 311 of Pub. L. 111-03, 123 Stat. 64; Sec. 890.111 also issued under section 1622(b) of Pub. L. 104-106, 110 Stat. 521; Sec. 890.112 also issued under section 1 of Pub. L. 110-279, 122 Stat. 2604; 5 U.S.C. 8913; Sec. 890.803 also issued under 50 U.S.C. 403p, 22 U.S.C. 4069c and 4069c-1; subpart L also issued under sec. 599C of 101, 104 Stat. 2064, as amended; Sec. 890.102 also issued under sections 11202(f), 11232(e), 11246(b) and (c) of Pub. L. 105-33, 111 Stat. 251; and section 721 of Pub. L. 105-261, 112 Stat. 2061; Pub. L. 111-148, as amended by Pub. L. 111-152.
(a)(1) An enrollment for self plus one includes the enrollee and one eligible family member. An enrollment for self and family includes all family members who are eligible to be covered by the enrollment except as provided in section 890.308(h). Proof of family member eligibility may be required, and must be provided upon request, to the carrier, the employing office or OPM. Except as provided in paragraph (a)(2) of this section, no employee, former employee, annuitant, child, or former spouse may enroll or be covered as a family member if he or she is already covered under another person's self plus one or self and family enrollment in the FEHB Program.
(h)
(i) In the case of a spouse, if the enrollee and his or her spouse provide a notarized request for removal.
(ii) In the case of a child who has reached the age of majority in the child's state of residence (the enrollee's state of residence if the child's is not known), if the enrollee provides proof that the child is no longer his or her dependent. The enrollee shall also provide the last known contact information for the child.
(iii) In the case of a child who has reached the age of majority in the child's state of residence, if the child provides a notarized request for removal.
(2) For removals under paragraphs (h)(1)(i) and (h)(1)(iii) of this section, the effective date is the first day of the pay period following the date that the request is approved by the employing office. For removals under paragraph (h)(1)(ii), the effective date is the first day of the second pay period following the date the request is approved by the employing office.
(3) The family member's removal under this paragraph is considered a cancellation under § 890.304(d) and removed family members are not eligible for temporary extension of coverage and conversion under section 890.401or temporary continuation of coverage under § 809.1103 of this chapter.
(4) If an eligible family member is removed under this paragraph, he or she may only regain coverage under the applicable self plus one or self and family enrollment if requested by the enrollee during the annual open season or within 60 days of the family member losing other health insurance coverage. The enrollee must also provide written consent to reinstatement of coverage from the family member and demonstrate eligibility of the spouse or child as a family member.
(5) If an employing office approves a request for removal, the employing office must notify the enrollee and the carrier of the removal immediately. For removals under paragraph (h)(1)(ii) of this section, the employing office must also immediately notify the child of the removal using the last known contact provided by the enrollee.
Office of Personnel Management.
Proposed rule.
The United States Office of Personnel Management (OPM) is issuing a notice of proposed rulemaking to amend Federal Employees Health Benefits (FEHB) Program regulations to provide a process for removal from FEHB enrollments of certain identified individuals who are found not to be eligible as family members. This process would apply to individuals for whom there is a failure to provide adequate documentation of eligibility when requested.
Comments are due on or before January 30, 2017.
Send written comments to Padma Shah, Senior Policy Analyst, Planning and Policy Analysis, U.S. Office of Personnel Management, Room 4312, 1900 E Street NW., Washington, DC; or FAX to (202) 606-0004 Attn: Padma Shah. You may also submit comments using the Federal eRulemaking Portal:
Padma Shah at (202) 606-0004.
OPM is proposing to amend the Federal Employees Health Benefits (FEHB) Program regulations to (1) provide that proof of family member eligibility may be required for coverage under an FEHB Program self plus one or self and family enrollment and (2) to establish the circumstances under which individuals covered under an existing self plus one or self and family FEHB enrollment will be removed from such enrollment and the processes for removal, where the enrollee does not provide adequate documentation of eligibility. Currently, under § 890.302 of title 5, all eligible family members are covered under a self and family enrollment. A family member's coverage terminates, subject to a temporary extension of coverage, on the day he or she ceases to be an eligible family member, as provided by § 890.304. For example, if an enrollee's child reaches age 26, coverage terminates. Currently, the regulations do not address the removal of an erroneously-covered ineligible individual from an existing self plus one or self and family enrollment.
The proposed regulation amends § 890.302 to provide that proof of family member eligibility must be provided upon request by a carrier, employing office, or OPM. OPM plans to provide further guidance on requirements for proof of family member eligibility through sub-regulatory guidance, including Benefits Administration Letters and Carrier Letters.
The proposed regulation also updates § 890.308 of title 5 to provide processes for removal of individuals who are determined to be ineligible as family members. This change reflects OPM's enhanced effort to ensure that individuals covered under existing FEHB enrollments meet legal and regulatory eligibility requirements.
The proposed process for removal of erroneously-covered ineligible family members from an existing enrollment is modeled on the process for removal of ineligible enrollees in § 890.308(a). The proposed regulation allows the removal to be initiated by the FEHB insurance carrier that operates the enrollee's plan, OPM as administrator of the FEHB Program, or the enrollee's employing office. If an enrollee disagrees with an initial determination of ineligibility, the enrollee may request reconsideration and submit appropriate documentation of eligibility to either the employing office or OPM depending on the circumstances.
In the case of a carrier-initiated removal, an enrollee's reconsideration request must be filed with the enrollee's employing office. The proposed rule provides that the employing office shall provide notice to the carrier that the enrollee is seeking reconsideration of the carrier's initial determination.
The proposed regulation provides that if OPM, the employing office, or the carrier, as applicable, finds the documentation to establish eligibility, the individual will continue to be covered as a family member under the enrollment without a gap in coverage, as appropriate. The proposed regulation provides that appropriate documentation of an enrollment includes, but is not limited to, copies of birth certificates, marriage certificates and, if applicable, other proof such as that the individual lives with and is supported by the enrollee. OPM plans to provide more specific information on what constitutes adequate documentation in forthcoming sub-regulatory guidance. OPM solicits comments on what may constitute appropriate documentation of family member eligibility.
If the enrollee does not submit appropriate documentation within the required timeframe, or the documentation is determined to be inadequate to establish eligibility, the removal of the family member will be prospective with limited exceptions. The proposed regulation provides that in the case of fraud or intentional misrepresentation of material fact on the part of the enrollee as prohibited by the terms of the FEHB plan, removals may be retroactive to the date of ineligibility.
The regulation also provides that temporary extension of coverage and conversion and temporary continuation of coverage will be administered in accordance with § 890.401 and Subparts H and K of this part and that any eligibility under these regulations will not extend beyond the date the entitlement would have ended if the individual had been removed on the date of loss of eligibility. Subparts H and K state that family members have 60 days from the date of the event causing the loss of coverage to enroll. Those timeframe are applicable to individuals who are removed from an enrollment under this regulation.
The regulation also provides that if acceptable proof of eligibility of an individual removed under this regulation is subsequently provided and a family member is found to have been eligible, coverage will be reinstated retroactively so that there is no gap in coverage, as appropriate.
I certify that this regulation will not have a significant economic impact on a substantial number of small entities because the regulation only affects health insurance benefits of Federal employees and annuitants.
This rule has been reviewed by the Office of Management and Budget in accordance with Executive Orders 13563 and 12866.
We have examined this rule in accordance with Executive Order 13132, Federalism, and have determined that this rule will not have any negative impact on the rights, roles, and responsibilities of State, local, or Tribal governments.
The Paperwork Reduction Act of 1995 (44 U.S.C. chapter 35; see 5 CFR part 1320) requires that the U.S. Office of Management and Budget (OMB) approve all collections of information by a Federal agency from the public before they can be implemented. Respondents are not required to respond to any collection of information unless it displays a current valid OMB control number. OPM is not proposing any additional collections in this rule.
Administrative practice and procedure, Government employees, Health insurance.
For the reasons set forth in the preamble, OPM proposes to amend part 890 of Title 5 of the Code of Federal Regulations as follows:
5 U.S.C. 8913; Sec. 890.301 also issued under sec. 311 of Public Law 111-03, 123 Stat. 64; Sec. 890.111 also issued under section 1622(b) of Public Law 104-106, 110 Stat. 521; Sec. 890.112 also issued under section 1 of Public Law 110-279, 122 Stat. 2604; 5 U.S.C. 8913; Sec. 890.803 also issued under 50 U.S.C. 403p, 22 U.S.C. 4069c and 4069c-1; subpart L also issued under sec. 599C of 101, 104 Stat. 2064, as amended; Sec. 890.102 also issued under sections 11202(f), 11232(e), 11246(b) and (c) of Public Law 105-33, 111 Stat. 251; and section 721 of Public Law 105-261, 112 Stat. 2061; Public Law 111-148, as amended by Public Law 111-152.
(a)(1) An enrollment for self plus one includes the enrollee and one eligible family member. An enrollment for self and family includes all family members who are eligible to be covered by the enrollment. Proof of family member eligibility may be required, and must be provided upon request, to the carrier, the employing office or OPM. Except as provided in paragraph (a)(2) of this section, no employee, former employee, annuitant, child or former spouse may enroll or be covered as a family member if he or she is already covered under another person's self plus one or self and family enrollment in the FEHB Program.
(a)
(b)
(c)
(d)
(e)
(2) Appropriate documentation includes, but is not limited to, copies of birth certificates, marriage certificates, and, if applicable, other proof including that the individual lives with the enrollee and the enrollee is the individual's primary source of financial support.
(3) The effective date of a removal shall be prospective unless the record shows that the enrollee or the individual has committed fraud or made an intentional misrepresentation of material fact as prohibited by the terms of the plan.
(4) A request for reconsideration of the carrier's initial decision must be filed with the enrollee's employing office within 60 calendar days after the date of the initial decision. The employing office must notify the carrier when a request for reconsideration of the decision to remove the individual from the enrollment is made. The time limit for filing may be extended when the enrollee shows that he or she was not notified of the time limit and was not otherwise aware of it, or that he or she was prevented by circumstances beyond his or her control from making the request within the time limit. The request for reconsideration must be made in writing and must include the enrollee's name, address, Social Security Number or other personal identification number, the family member's name, the name of carrier, reason(s) for the request, and, if applicable, retirement claim number.
(5) The employing office must issue a written notice of its final decision to the enrollee, and notify the carrier of the decision, within 30 days of receipt of the request for reconsideration. The notice must fully set forth the findings and conclusions on which the decision was based.
(6) If an enrollee or individual provides acceptable proof of eligibility of an individual subsequent to removal, coverage under the enrollment shall be reinstated retroactively so that there is no gap in coverage, as appropriate.
(f)
(2) Appropriate documentation includes, but is not limited to, copies of birth certificates, marriage certificates, and, if applicable, other proof including that the individual lives with the enrollee and that the enrollee is the individual's primary source of financial support.
(3) The effective date of the removal shall be prospective unless the record shows that the enrollee or the individual has committed fraud or made an intentional misrepresentation of material fact as prohibited by the terms of the plan.
(4) The enrollee may request reconsideration of an employing office or OPM's decision to remove the individual from the enrollment within 60 days of the initial decision. The enrollee may request reconsideration of an employing office decision to the employing office or an OPM decision to OPM. The employing office or OPM must notify the carrier when a request for reconsideration of the decision to remove the individual from the enrollment is made. The time limit for filing may be extended when the enrollee shows that he or she was not notified of the time limit and was not otherwise aware of it, or that he or she was prevented by circumstances beyond his or her control from making the request within the time limit. The request for reconsideration must be made in writing and must include the enrollee's name, address, Social Security Number or other personal identification number, the family member's name, the name of carrier, reason(s) for the request, and, if applicable, retirement claim number. The employing office or OPM must notify the carrier when a request for reconsideration of the decision to remove the individual from the enrollment is made.
(5) The employing office or OPM must issue a written notice of its final decision to the enrollee, and notify the carrier of the decision, within 30 days of receipt of the request for reconsideration. The notice must fully set forth the findings and conclusions on which the decision was based.
(6) If an enrollee or family member provides acceptable proof of eligibility of an individual subsequent to removal, coverage under the enrollment shall be reinstated retroactively so that there is no gap in coverage, as appropriate.
(g) If an individual is removed from an enrollment pursuant to paragraph (e) or (f) of this section, the individual may be eligible for a 31-day temporary extension of coverage, conversion and/or temporary continuation of coverage in accordance with § 890.401 and subparts H and K of this part. Any entitlement to coverage under § 890.401 and subparts H and K shall not extend beyond the date that entitlement would have ended if the individual had been removed on the date of loss of eligibility.
| 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 |