| Page Range | 15613-16051 | |
| FR Document |
| Page and Subject | |
|---|---|
| 81 FR 15744 - Notice of Receipt of Complaint; Solicitation of Comments Relating to the Public Interest | |
| 81 FR 15754 - Notice of Funds Availability for Calendar Year 2017 Grant Awards | |
| 81 FR 15729 - Agency Information Collection Activities; Proposed Collection; Submission for Office of Management and Budget Review; Comment Request; Environmental Impact Considerations | |
| 81 FR 15727 - Agency Information Collection Activities; Submission for Office of Management and Budget Review; Comment Request; Guidance on Reagents for Detection of Specific Novel Influenza A Viruses | |
| 81 FR 15728 - Medical Devices; Exemption From Premarket Notification: Method, Metallic Reduction, Glucose (Urinary, Non-Quantitative) Test System in a Reagent Tablet Format | |
| 81 FR 15722 - Proposed Data Collection Submitted for Public Comment and Recommendations | |
| 81 FR 15725 - Proposed Data Collection Submitted for Public Comment and Recommendations | |
| 81 FR 15724 - Proposed Data Collection Submitted for Public Comment and Recommendations | |
| 81 FR 15734 - 30-Day Notice of Proposed Information Collection: Public Housing Operating Subsidy-Appeals | |
| 81 FR 15734 - 30-Day Notice of Proposed Information Collection: Request for Acceptance of Changes in Approved Drawings and Specifications | |
| 81 FR 15702 - New York State Prohibition of Discharges of Vessel Sewage; Notice of Proposed Determination | |
| 81 FR 15705 - National and Governmental Advisory Committees to the U.S. Representative to the Commission for Environmental Cooperation | |
| 81 FR 15641 - Modification of Regulations Regarding Price Adjustments in Antidumping Duty Proceedings | |
| 81 FR 15777 - Notice of Availability of the Draft Supplemental Environmental Assessment and Draft Finding of No Significant Impact for the NuStar Dos Laredos Pipeline Presidential Permit Application Review | |
| 81 FR 15780 - Orders Limiting Operations at John F. Kennedy International Airport, LaGuardia Airport and Newark Liberty International Airport | |
| 81 FR 15779 - Twenty-Second Meeting: RTCA Special Committee (225) Rechargeable Lithium Batter and Battery Systems | |
| 81 FR 15779 - Commercial Space Transportation Advisory Committee-Open Meeting | |
| 81 FR 15633 - Temporary General License | |
| 81 FR 15650 - Fisheries of the Exclusive Economic Zone Off Alaska; Pacific Cod in the Central Regulatory Area of the Gulf of Alaska | |
| 81 FR 15683 - Magnuson-Stevens Act Provisions; General Provisions for Domestic Fisheries; Application for Exempted Fishing Permits | |
| 81 FR 15650 - Fisheries of the Exclusive Economic Zone Off Alaska; Reallocation of Pacific Cod in the Central Regulatory Area of the Gulf of Alaska | |
| 81 FR 15649 - Expanding the Economic and Innovation Opportunities of Spectrum Through Incentive Auctions | |
| 81 FR 15706 - Information Collection Being Reviewed by the Federal Communications Commission | |
| 81 FR 15647 - Technology Transitions, Policies and Rules Governing Retirement of Copper Loops by Incumbent Local Exchange Carriers and Special Access for Price Cap Local Exchange Carriers | |
| 81 FR 15684 - Endangered Species; File No. 19697 | |
| 81 FR 15694 - Request for Information Related to Intellectual Property, Genetic Resources and Associated Traditional Knowledge | |
| 81 FR 15757 - New Postal Product | |
| 81 FR 15756 - New Postal Product | |
| 81 FR 15759 - New Postal Product | |
| 81 FR 15758 - New Postal Product | |
| 81 FR 15684 - Takes of Marine Mammals Incidental to Specified Activities; Seabird Monitoring and Research in Glacier Bay National Park, Alaska, 2016 | |
| 81 FR 15682 - Fisheries of the South Atlantic; Southeast Data, Assessment, and Review (SEDAR); SEDAR Data Best Practices Standing Panel Webinar | |
| 81 FR 15697 - Proposed Collection; Comment Request | |
| 81 FR 15755 - Memorandum of Understanding Between the U.S. Nuclear Regulatory Commission and the U.S. Department of Homeland Security/Federal Emergency Management Agency | |
| 81 FR 15739 - Agency Information Collection Activities: Request for Comments | |
| 81 FR 15754 - Agency Information Collection Activities: Proposed Collection; Comment Request; Central Liquidity Facilities, 12 CFR Part 725 | |
| 81 FR 15652 - National Poultry Improvement Plan and Auxiliary Provisions | |
| 81 FR 15788 - Agency Request for Renewal of a Previously Approved Information Collection: Prioritization and Allocation Authority Exercised by the Secretary of Transportation Under the Defense Production Act | |
| 81 FR 15701 - Orders Granting Authority To Import and Export Natural Gas, To Import and Export Liquefied Natural Gas, To Vacate Authorization, and To Dismiss Application During February 2016 | |
| 81 FR 15787 - Extension of a Previously Approved Collection: Public Charters | |
| 81 FR 15677 - Asian Longhorned Beetle Eradication Program; Record of Decision | |
| 81 FR 15677 - Notice of Request for Revision to and Extension of Approval of an Information Collection; Importation of Live Poultry, Poultry Meat, and Other Poultry Products From Specified Regions | |
| 81 FR 15679 - Availability of an Environmental Assessment for the Biological Control of Cape Ivy | |
| 81 FR 15678 - Environmental Impact Statement; Animal Carcass Management: Record of Decision | |
| 81 FR 15700 - Environmental Management Site-Specific Advisory Board, Hanford | |
| 81 FR 15720 - Privacy Act of 1974; Notice of Amended System of Records | |
| 81 FR 15742 - Certain Beverage Brewing Capsules, Components Thereof, and Products Containing the Same; Commission's Final Determination Finding No Violation of Section 337 by Solofill LLC or DongGuan Hai Rui Precision Mould Co., Ltd.; Issuance of a Limited Exclusion Order and Cease and Desist Orders to Defaulted Respondents; Termination of the Investigation | |
| 81 FR 15699 - Notice of Availability of Government-Owned Inventions; Available for Licensing | |
| 81 FR 15735 - Endangered and Threatened Wildlife and Plants; Availability of Proposed Low-Effect Habitat Conservation Plan, Palmas Home Owners Association, Palmas Del Mar, Humacao, Puerto Rico | |
| 81 FR 15740 - Meeting of the Tri-State Fuel Break Joint Subcommittee of the Boise and Southeast Oregon Resource Advisory Councils to the Boise and Vale Districts | |
| 81 FR 15680 - Proposed Information Collection; Comment Request; Quarterly Summary of State and Local Government Tax Revenue | |
| 81 FR 15706 - Agency Information Collection Activities: Proposed Collection Renewal; Comment Request (3064-0169) | |
| 81 FR 15680 - Hiawatha East Resource Advisory Committee Meeting | |
| 81 FR 15741 - Yakima River Basin Conservation Advisory Group Charter Renewal | |
| 81 FR 15789 - Proposed Information Collection-Claim for One Sum Payment Government Life Insurance (VA Form 29-4125) and Claim for Monthly Payments Government Life Insurance (29-4125a); Activity: Comment Request | |
| 81 FR 15720 - Formations of, Acquisitions by, and Mergers of Bank Holding Companies | |
| 81 FR 15774 - Agency Information Collection Activities: Proposed Request and Comment Request | |
| 81 FR 15695 - Privacy Act of 1974; System of Records | |
| 81 FR 15743 - Notice of Receipt of Complaint; Solicitation of Comments Relating to the Public Interest | |
| 81 FR 15699 - Proposed Collection; Comment Request | |
| 81 FR 15772 - Self-Regulatory Organizations; BOX Options Exchange LLC; Notice of Filing and Immediate Effectiveness of a Proposed Rule Change To Comply With the Requirements of the Amended and Restated Limited Liability Company Agreement of BOX Holdings, and To Permit Certain Ownership Changes Pursuant Thereto | |
| 81 FR 15660 - Notice of Proposed Commission Interpretation Regarding Automated Quotations Under Regulation NMS | |
| 81 FR 15765 - Investors' Exchange LLC; Notice of Filing of Amendment Nos. 2, 3, and 4 to, and Order Instituting Proceedings To Determine Whether To Grant or Deny, and Notice of Designation of Longer Period for Commission Action on Proceedings To Determine Whether To Grant or Deny, an Application for Registration as a National Securities Exchange Under Section 6 of the Securities Exchange Act of 1934, as Modified by Amendment Nos. 1, 2, 3, and 4 Thereto | |
| 81 FR 15740 - Notice of June 2-3, 2016, Meeting of the National Park System Advisory Board | |
| 81 FR 15737 - Proposed Template Candidate Conservation Agreement With Assurances for the Fisher in Oregon and a Draft Environmental Action Statement | |
| 81 FR 15761 - Market Test of Experimental Product: Global eCommerce Marketplace (GeM) Merchant Solution | |
| 81 FR 15745 - Notice of Determinations Regarding Eligibility To Apply for Worker Adjustment Assistance | |
| 81 FR 15733 - National Heart, Lung, and Blood Institute Notice of Closed Meetings | |
| 81 FR 15733 - Center for Scientific Review; Notice of Closed Meeting | |
| 81 FR 15753 - Honeywell International, Inc., Aerospace Order Management Division, and Customer Service Division, Including On-Site Leased Workers From Tapfin-Manpower Group Solutions and Optiscan, Inc., Tempe, Arizona; Amended Certification Regarding Eligibility To Apply for Worker Adjustment Assistance | |
| 81 FR 15760 - Market Test of Experimental Product-Customized Delivery | |
| 81 FR 15750 - Investigations Regarding Eligibility To Apply for Worker Adjustment Assistance | |
| 81 FR 15753 - Walter Kidde Portable Equipment, Inc., Edwards Division; a Subsidiary of UTC Building and Industrial Systems, Including On-Site Leased Workers From Adecco, PDI, Digital Intelligence Systems (DISYS) and Randstad Engineering; Pittsfield, Maine; Amended Certification Regarding Eligibility To Apply for Worker Adjustment Assistance | |
| 81 FR 15752 - Notice of Availability of Funds and Funding Opportunity Announcement for Reentry Demonstration Projects for Young Adults Grants | |
| 81 FR 15753 - Notice of Availability of Funds and Funding Opportunity Announcement for the National Farmworker Jobs Program (NFJP) Employment and Training Grants and Housing Assistance Grants | |
| 81 FR 15745 - Notice of Availability of Funds and Funding Opportunity Announcement for the Senior Community Service Employment Program (SCSEP) National Grants for Program Year (PY) 2016 | |
| 81 FR 15774 - Self-Regulatory Organizations; NYSE Arca, Inc.; Notice of Designation of a Longer Period for Commission Action on Proposed Rule Change To Adopt NYSE Arca Equities Rule 8.900 To Permit Listing and Trading of Managed Portfolio Shares and To Permit Listing and Trading of Shares of Fifteen Issues of the Precidian ETFs Trust | |
| 81 FR 15770 - Self-Regulatory Organizations; Financial Industry Regulatory Authority, Inc.; Notice of Filing and Immediate Effectiveness of a Proposed Rule Change To Modify the Dissemination Protocols for TRACE-Eligible Securities | |
| 81 FR 15761 - Self-Regulatory Organizations; NASDAQ PHLX LLC; Notice of Filing and Immediate Effectiveness of Proposed Rule Change To Amend Rebates and Fees for Adding and Removing Liquidity in SPY | |
| 81 FR 15785 - Hazardous Materials: Information Collection Activities | |
| 81 FR 15698 - Judicial Proceedings Since Fiscal Year 2012 Amendments Panel (Judicial Proceedings Panel); Notice of Federal Advisory Committee Meeting | |
| 81 FR 15681 - Proposed Information Collection; Comment Request; Interim Procedures for Considering Requests Under the Commercial Availability Provision of the United States-Peru Trade Promotion Agreement (US-PERU TPA) | |
| 81 FR 15776 - Social Security Ruling 16-3p; Titles II and XVI: Evaluation of Symptoms in Disability Claims | |
| 81 FR 15777 - Projects Approved for Consumptive Uses of Water | |
| 81 FR 15732 - Agency Information Collection Activities; Submission to OMB for Review and Approval; Public Comment Request | |
| 81 FR 15736 - Endangered and Threatened Wildlife and Plants; Recovery Permit Applications | |
| 81 FR 15707 - Proposed Collection; Comment Request | |
| 81 FR 15699 - Agency Information Collection Activities; Comment Request; Federal Perkins Loan Program Regulations | |
| 81 FR 15835 - Energy Conservation Program: Energy Conservation Standards for Commercial Packaged Boilers | |
| 81 FR 15681 - Foreign-Trade Zone (FTZ) 7-Mayaguez, Puerto Rico, Notification of Proposed Production Activity, Lilly Del Caribe, Inc., Subzone 7K (Pharmaceutical Products), Carolina and Guayama, Puerto Rico | |
| 81 FR 15781 - Proposed Agency Information Collection Activities; Comment Request | |
| 81 FR 15718 - Agency Information Collection Activites; New Information Collection Request | |
| 81 FR 15719 - Notice of Agreement Filed | |
| 81 FR 15776 - In the Matter of the Designation of Santoso Also Known as Abu Wardah as-Syarqi Also Known as Abu Warda Also Known as Abu Yahya as a Specially Designated Global Terrorist Pursuant to Section 1(b) of Executive Order 13224, as Amended | |
| 81 FR 15613 - Supplemental Nutrition Assistance Program (SNAP): Employment and Training Program Monitoring, Oversight and Reporting Measures | |
| 81 FR 15635 - Relay Performance During Stable Power Swings Reliability Standard | |
| 81 FR 15721 - Federal Management Regulation; Best Practices in Warehouse Asset Management | |
| 81 FR 15646 - Compliance Supplement for Audits of LSC Recipients | |
| 81 FR 15665 - Equity Assistance Centers (Formerly Desegregation Assistance Centers) | |
| 81 FR 15623 - Standard Instrument Approach Procedures, and Takeoff Minimums and Obstacle Departure Procedures; Miscellaneous Amendments | |
| 81 FR 15627 - Standard Instrument Approach Procedures, and Takeoff Minimums and Obstacle Departure Procedures; Miscellaneous Amendments | |
| 81 FR 15630 - Standard Instrument Approach Procedures, and Takeoff Minimums and Obstacle Departure Procedures; Miscellaneous Amendments | |
| 81 FR 15631 - Standard Instrument Approach Procedures, and Takeoff Minimums and Obstacle Departure Procedures; Miscellaneous Amendments | |
| 81 FR 15923 - Interpretation of the “Advice” Exemption in Section 203(c) of the Labor-Management Reporting and Disclosure Act | |
| 81 FR 15791 - Rules Regarding the Emergency Alert System and Wireless Emergency Alerts |
Animal and Plant Health Inspection Service
Food and Nutrition Service
Forest Service
Census Bureau
Foreign-Trade Zones Board
Industry and Security Bureau
International Trade Administration
National Oceanic and Atmospheric Administration
Patent and Trademark Office
Army Department
Navy Department
Federal Energy Regulatory Commission
Centers for Disease Control and Prevention
Food and Drug Administration
National Institutes of Health
Fish and Wildlife Service
Geological Survey
Land Management Bureau
National Park Service
Reclamation Bureau
Employment and Training Administration
Labor-Management Standards Office
Federal Aviation Administration
Federal Railroad Administration
Pipeline and Hazardous Materials Safety Administration
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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Food and Nutrition Service, USDA.
Interim rule.
Section 4022 of the Agricultural Act of 2014 requires that, not later than 18 months after the date of enactment, USDA (the Department) shall issue an interim final rule implementing the amendments made by subsection (a)(2). Pursuant to that requirement, this rule implements the employment and training (E&T) provisions of section 4022(a)(2) of the Agricultural Act of 2014. Section 4022(a)(2) of the Agricultural Act of 2014 provides the Department additional oversight authority of State agencies' administration of the Supplemental Nutrition Assistance Program (SNAP) E&T program. In addition, it requires the Department to develop national reporting measures and for State agencies to report outcome data to the Department. It also requires that the Department monitor and assess State agencies' E&T programs, and provides the Department with the authority to require State agencies to make improvements to their programs as necessary. Finally, State agencies are required to submit reports on the impact of certain E&T components and, in certain States, the E&T services provided to able-bodied adults without dependents (ABAWDs).
The Food and Nutrition Service (FNS) invites interested persons to submit comments on this interim rule. Comments may be submitted by any of the following methods:
Moira Johnston, Director, Office of Employment and Training, at the above address or by telephone at (703) 305-2515.
In the discussion of the provisions in this rule, the following acronyms or other abbreviations stand in for certain words or phrases:
Section 6(d)(4) of the FNA requires that each State agency implement an E&T program designed to help members of SNAP households gain skills, training, employment, or experience that increase participants' ability to obtain regular employment. State agencies may include one or more of the following components in their E&T program: Job search, job search training, workfare, work experience, work training, basic education programs, self-employment training programs, job retention services, and other programs as approved by the Secretary. State agencies submit E&T plans that outline planned components and budgets to FNS for approval annually.
The Department funds SNAP E&T programs through $90 million in E&T grants and an additional $20 million in grants for State agencies that pledge to serve all ABAWDs at-risk of losing eligibility due to time-limited
SNAP work registrants not otherwise exempted by the State agency must participate in a SNAP E&T component if referred by the State agency. E&T programs may be mandatory or voluntary. In a mandatory program, failure to comply without good cause, results in disqualification from SNAP for a minimum sanction period which can vary depending upon State policy. Except in the case of permanent disqualification, an individual may resume SNAP participation after the sanction period expires and/or the individual complies with work requirements (whichever is later). State agencies may also serve voluntary E&T participants. Voluntary E&T participants are not subject to disqualification from SNAP for failure to comply with a SNAP E&T component.
This interim rule implements section 4022(a)(2) of the Agricultural Act of 2014. Even though the reporting requirements of this rule must be implemented by the beginning of first full fiscal year 180 days after publication of this rule, the Department is soliciting comments on this rule. The Department believes that it would benefit from the public's comments before publishing a final rule.
Section 4022(a)(3)(A) of the Agricultural Act of 2014 requires that “Not later than 18 months after the date of enactment of this Act, the Secretary shall issue interim final regulations implementing the amendments made by subsection (a)(2).”
Section 4022 of the Agricultural Act of 2014 amends section 16(h)(5) of the FNA, to provide that:
• The Department develop standardized reporting measures for E&T programs;
• States agencies' annual E&T plans must identify additional reporting measures for each E&T component that is intended to serve at least 100 participants a year;
• The Department monitor State E&T programs and assess their effectiveness;
• State agencies submit an annual report on their E&T programs that includes the number of participants who have gained skills, training, work, or experience that will increase their ability to obtain regular employment;
• The Department may require a State agency to make modifications to its E&T plan if it determines that the State agencies' E&T outcomes are inadequate.
These provisions will provide the Department with more information about the States with effective SNAP E&T programs and promising practices, and help identify those States that need technical assistance to improve their programs.
Section 4022 of the Agricultural Act of 2014 also requires the Department to carry out up to 10 SNAP E&T pilot projects and to evaluate the SNAP E&T program nationally at least once every five years. This interim rule does not address these last two issues.
Section 4022(a)(2) amended section 16(h)(5)(B)(i) and (ii) of the FNA to require the Department to develop national reporting measures for States within the following requirements:
• The Department, in consultation with the Secretary of Labor, must develop State reporting measures that identify improvements in the skills, training, education, or work experience of members of households participating in SNAP;
• The measures must be based on common measures of performance for Federal workforce training programs; and
• The measures must include additional indicators that reflect the challenges facing the types of members of households participating in SNAP who participate in a specific E&T component.
Yes. In addition to consulting with and reviewing DOL's current performance measures, the Department examined and discussed the performance indicators included in WIOA (visit
After consultation with the DOL, the Department is establishing the following national reporting measures and requiring State agencies to report outcome data based on these measures. These reporting measures are similar to the performance indicators for the core programs in WIOA, but reflect the intent of the Agricultural Act of 2014, the unique characteristics of the SNAP E&T program and its participants, the required frequency of reporting, and how the Department will use the data. The reporting measures include:
• The number and percentage of E&T participants and former participants who are in unsubsidized employment during the second quarter after completion of participation in E&T;
• The number and percentage of E&T participants and former participants who are in unsubsidized employment during the fourth quarter after completion of participation in E&T;
• The median quarterly earnings of all the E&T participants and former participants who are in unsubsidized employment during the second quarter after completion of participation in E&T; and
• The number and percentage of participants that completed a training, educational, work experience or an on-the-job training component.
Section 4022(a)(2) amended section 16(h)(5)(B)(ii) of the FNA to require each State agency's E&T plan to identify appropriate reporting measures for each proposed component that serves a threshold number of participants of at least 100 per year. State agencies will report the outcome data in their annual reports to FNS. The Department has adopted 100 per year because this is consistent with the minimum in the Agricultural Act of 2014. The Department is particularly interested in receiving comments about the reporting measures themselves, as well as the appropriateness of this threshold.
Because State agencies have broad flexibility in what E&T components they offer and how they structure their activities, the Department is not prescribing national reporting measures for specific components. Instead, the Department encourages State agencies, in designing their E&T component measures, consider the measures that are suggested in the Agricultural Act of 2014, which may include:
• The percentage and number of program participants who received E&T services and are in unsubsidized employment subsequent to the receipt of those services;
• The percentage and number of participants who obtain a recognized credential, including a registered apprenticeship, or a regular secondary school diploma or its recognized equivalent, while participating in, or within 1 year after receiving, E&T services;
• The percentage and number of participants who are in an education or training program that is intended to lead to a recognized credential, including a registered apprenticeship or on-the-job training program, a regular secondary school diploma or its recognized equivalent, or unsubsidized employment;
• Measures developed by each State agency to assess the skills acquisition of employment and training program participants that reflect the goals of the specific employment and training program components of the State agency, which may include:
○ The percentage and number of participants who are meeting program requirements in each component of the education and training program of the State agency;
○ The percentage and number of participants who are gaining skills likely to lead to employment as measured through testing, quantitative or qualitative assessment, or other method; and
○ The percentage and number of participants who do not comply with employment and training requirements and who are ineligible under section 6(b); and
○ Other indicators approved by the Secretary.
Yes. FNS will work with State agencies to identify appropriate reporting measures for each component. State agencies must include the reporting measures for individual components in their E&T plans, which must be submitted and approved by FNS on an annual basis.
The SNAP work registrant population, like the general SNAP population, is very diverse and faces a myriad of challenges to employment, such as measurable educational attainment and employment history, or intangibles such as substance abuse or mental health problems. The Department is interested in understanding the effectiveness of certain approaches with populations facing different barriers; however, this can be difficult to ascertain given that the complex nature of these challenges.
The Department believes that to have a better understanding of the effectiveness of SNAP E&T it must have a more complete picture of the population it is serving. The Department has very little detailed information on the characteristics of SNAP E&T participants. There are no existing reporting requirements or other mechanisms to collect this information. Therefore, in order to better serve SNAP E&T participants, this rule requires State agencies to report the following six characteristics for
• Are voluntary vs. mandatory;
• have achieved a high school degree (or GED) prior to being provided with E&T services;
• are ABAWDs;
• speak English as a second language;
• are male vs. female; and
• belong in the following age ranges: 16-17, 18-35, 36-49, 50-59, 60 or older.
For example, if a State had 10,000 E&T participants in a year, 2,000 of which were voluntary and 8,000 mandatory, these numbers would be reported along with the 20 and 80 percentages. State agencies currently collect most of this information as part of the application and it should be available through their eligibility systems or SNAP E&T tracking systems. This will not require additional reporting on the part of the SNAP recipient.
Of the above six characteristics required to be reported of all SNAP E&T participants, the Department has identified three that it believes are most important to understanding the challenges to employment faced by those SNAP E&T participants and former participants who are included in the four national reporting measures described above. These characteristics are: Voluntary or mandatory participation in E&T, those with low education attainment, and those who are ABAWDs. A participant may have more than one characteristic (
• Individuals who are or were voluntary vs. mandatory participants;
• participants having achieved a high school degree (or GED) prior to being provided with E&T services; and
• participants who are or were ABAWDs;
Thus, to illustrate, States will be required to report the total number and percentage of E&T participants and former participants in unsubsidized employment during Q2 after participation in E&T and the number and percentage of those participants who were mandatory and voluntary. If the State had 1,000 out of 10,000 E&T participants and former participants employed in the second quarter following completion of E&T (10 percent) and of the 1,000, 300 were voluntary and 700 were mandatory, these numbers would be reported along with the percentages.
Furthermore, in addition to reporting the median quarterly earnings of all the E&T participants and former participants, States will be required to report this outcome measure for the following subgroups: Voluntary participants, mandatory participants, those who have achieved a high school degree (or GED) prior to being provided with E&T services, and ABAWDs.
WIOA established primary indicators of performance for the core programs related to employment, earnings, credential attainment/measureable skills gains as they relate to gaining/retaining employment, and serving employers. The SNAP E&T reporting measures required by this rule are closely aligned with, but not identical to, those in WIOA. The variations can be attributed to: (1) Difference in the required
DOL published proposed regulations regarding WIOA in the “Workforce Innovation and Opportunity Act; Joint Rule for Unified and Combined State Plans, Performance Accountability, and the One-Stop System Joint Provisions” proposed rule on April 16, 2015. The Department views DOL as the leader in employment policy and will look for ways to be consistent with any changes made to its performance measures in the final E&T rulemaking. The Department is interested in comments pertaining to the variance between the WIOA performance indicators and the SNAP E&T reporting measures.
The Department will use outcome data to monitor the effectiveness of SNAP E&T programs. The Department will also share this information with policy makers, State agencies, and other stakeholders. In combination with the current data State agencies report to FNS regarding SNAP E&T, outcome data will help the Department identify E&T programs and components that produce a higher number and percentage of participants that obtain unsubsidized employment. The Department will use the data on median earnings to evaluate the cost-effectiveness of E&T programs and the components States have implemented. The Department will also use this data to assess and identify the most promising practices for State agencies that want to improve their SNAP E&T programs. The Department will use the data on educational attainment in a similar way, while the data regarding the characteristics of E&T participants will help the Department and States better understand the relative challenges different groups face.
Pursuant to section 16(h)(5)(D) of the FNA, as amended by the Agricultural Act of 2014, this rule requires State agencies to submit an annual report to FNS by January 1 of each year, to include outcome data on the reporting measures outlined above for the Federal fiscal year ending the previous September 30. FNS may specify a standard format for the annual report.
Data will be measured within the fiscal year for which the State agency is reporting using the most recent data available during the reporting period for each measure and additional characteristics for the participants and former participants included in the reporting measures. Therefore, if an individual completed participation in E&T in the fourth quarter of FY 2018, information from the second quarter of FY 2019 concerning their employment would be included in reporting for FY 2019, even if that individual was no longer participating in SNAP.
Reporting for a fiscal year will include the characteristics of each E&T participant that participated in E&T during that fiscal year.
No, there is no minimum amount of earnings from unsubsidized employment in a quarter for an individual to be included in a reporting measure.
States that have committed to offering all at-risk ABAWDs a slot in a qualifying activity and have received an additional allocation of funds as specified in 7 CFR 273.7(d)(3) must include in their annual reports the following information:
• The monthly average number of individuals in the State who meet the conditions of § 273.7(d)(3)(i);
• The number of individuals to whom the State offers a position in a program described in § 273.24(a)(3)and (4);
• The number of individuals who participate in such programs; and
• A description of the types of employment and training programs the State agency offered to at-risk ABAWDs, and the availability of those programs throughout the State.
The Agricultural Act of 2014 amended section 16(h)(5)(A) of the FNA to require the Department to monitor SNAP E&T programs and assess their effectiveness in terms of preparing members of households for employment, including the acquisition of basic skills necessary for employment, and increasing the number of household members who obtain and retain employment subsequent to participation in E&T. The Agricultural Act of 2014 also amended section 16(h)(5)(C) of the FNA to require that the Department evaluate State agencies' E&T programs on a periodic basis to ensure:
• Compliance with Federal E&T program rules and regulations;
• that program activities are appropriate to meet the needs of the individuals referred by the State agency to an E&T program component; and
• that reporting measures are appropriate to identify improvements in skills, training, work and experience for participants in an employment and training program component.
SNAP regulations at 7 CFR 275.3(a) already require FNS to conduct management evaluation (ME) reviews of designated, or “target”, areas of program operation each fiscal year. FNS identifies target areas each year based upon a number of considerations, including recent policy changes, risk to Federal funds, and risk to program access. For example, FNS may identify program access as an area that the regional offices are required to review in every State, and nutrition education as an area to be reviewed on an at-risk basis, as necessary. This affords FNS maximum flexibility to target its resources to those current areas of vulnerability or agency priorities. In past years, FNS has not required its regional offices to perform an ME of each State agency's E&T program; many operate very small job-search only programs. However, FNS has required its regional offices to review E&T programs in States that operate third party matching programs, or that have
In addition, through its current authority, FNS is required to review and approve State agencies' E&T plans and budgets. Through this process, FNS will ensure that individual components are structured to meet the needs of participants and that the reporting measures for individual components with more than 100 participants, required by this rule, are appropriate to measure the impact of the components on participants.
Yes. Section 16(h)(5)(E) of the FNA, as amended by the Agricultural Act of 2014, gives the Department the authority to require a State agency to make modifications to its SNAP E&T plan to improve outcomes if the Department determines that the E&T outcomes are inadequate.
The Government Performance and Results Act of 1993 (GPRA) requires that performance indicators be used to measure the outcome of government programs. The national reporting measures in this rule will provide data that be used to evaluate the effectiveness of E&T programs in moving SNAP recipients toward self-sufficiency.
Additionally, the USDA Office of Inspector General (OIG) performed an audit of the SNAP E&T program and, in its final report, entitled “Food Stamp Employment and Training Program” (OIG #27601-16-At), released April 29, 2008, concluded that the data to evaluate the SNAP E&T program's impact was lacking. The chief recommendation of this audit report was that FNS establish reporting measures for the SNAP E&T program and require State agencies to submit outcome data, which FNS could then use to determine whether the program improves employability and helps participants prepare for or obtain jobs. FNS agrees with this recommendation and, through this rule, is establishing standardized reporting measures that capture the impact of E&T programs. As noted above, FNS will use data to help identify the most effective E&T programs and best practices, and will share this information with State agencies looking to improve or expand their E&T programs.
Currently, thirty-six State agencies have reporting measures and report E&T program outcome data in their E&T plans. State agencies use a variety of reporting measures, and the outcome data reported cannot be compared or summarized on a national level. Additionally, other work programs, such as those funded under the Workforce Innovation and Opportunity Act (WIOA) and the Wagner-Peyser Act (WPA), require State agencies to track, collect, and report outcome data. The measures in this rule are designed to be similar to the common measures used by these other work programs. The Department recommends that State agencies consult with State workforce and other agencies on data collection strategies and technical requirements.
A SNAP applicant or recipient who is placed in and begins an E&T component is considered a “participant” for reporting purposes. E&T participants who are placed in a component but do not show up for the first training appointment will not be counted in the base of participants for reporting measures. Individuals that complete an E&T component are also considered to be participants for reporting purposes, even if they are no longer participating in SNAP. The Department recognizes that some State agencies provide E&T services to SNAP participants who are under-employed and it does not wish to discourage this practice. As such, State agencies may include E&T participants who are already employed as countable participants, if placed in a component.
Yes. State agencies must count all E&T participants, both mandatory and voluntary, in the base for reporting measures. The Department recognizes that some State agencies have shifted the focus of their E&T programs to voluntary participants because these participants are often more motivated to work and seek training that will make them more employable. The interim reporting measures will reflect the effectiveness of the program for both mandatory and voluntary participants.
Unsubsidized employment means the E&T participant does not receive wages subsidized by a Federal, State or local government program, such as the TANF subsidized employment program or a SNAP work supplementation program. This is consistent with the definition of unsubsidized employment used by other Federal work programs. Participants who enter unsubsidized employment may still be receiving job retention services such as transportation reimbursements and dependent care.
The definition of unsubsidized employment is not limited to jobs with paid benefits, such as health care coverage. Although the Department recognizes the value of such benefits for SNAP households, it would add complexity to data collection and the Department believes it is not an essential reporting requirement for the purpose of the interim rule.
This rule requires that State agencies report the median average quarterly earnings for all E&T participants who had earnings from unsubsidized employment in the second quarter following completion of E&T. Median earnings will capture wage levels, and is consistent with the similar DOL reporting measure under WIOA. The “median” is determined by ranking participants' incomes from lowest to highest and identifying the middle income amount so that there are an equal number of incomes higher and lower. The median income is the amount in the middle—half the income amounts are higher, and half are lower. For example, for three participants earning $1,000, $1,500 and $3,500, the median income is $1,500 even though the average (or mean) would be $2,000. Using the median income can provide a more meaningful measure since it shows the halfway point, rather than the average, which can be significantly influenced by the larger incomes at the top or very small incomes at the bottom of the scale.
No. Outcome data will not affect Federal 100 percent grant funding for E&T programs. However, the Department retains the authority at § 273.7(d)(1)(i)(D) to consider outcome data as part of the scope of impact for a State's E&T program when evaluating requests for additional 100 percent funds.
State agencies may use E&T administrative funds provided by § 273.7(d)(1) and (2) to pay for development of reporting systems as necessary. E&T administrative funds may also be used to meet staffing requirements that result from reporting measure tracking, the cost of follow-up with E&T participants and other aspects of the measures.
The Department will not factor unemployment rates into the raw outcome data. Reporting measures are meant to reflect whether E&T programs are effective in moving participants toward employment and self-sufficiency. However, the Department will consider unemployment rates together with other important factors when looking at the unique challenges SNAP E&T participants face.
No. Workfare and work experience are defined as E&T components at section 6(d)(4) of the FNA, and participation in these components is captured in the FNS-583. Currently, many State agencies offer workfare and work experience as E&T components to provide participants with experience or training that will move them promptly into employment. As State agencies already report these activities on the FNS-583 as E&T components, the Department will not consider placement in such activities as unsubsidized employment to be included in the reporting measures.
The Department will not verify this information on a regular basis. However, FNS will review data collection methods and verify data as part of the ME review of States' E&T programs. This will help to ensure that reported data is accurate.
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 interim rule has been designated a “significant regulatory action,” although not economically significant, under section 3(f) of Executive Order 12866. Accordingly, the rule has been reviewed by the Office of Management and Budget (OMB). Consistent with the requirements of Executive Orders 12866 and 13563, a Regulatory Impact Analysis (RIA) was developed for this interim rule.
As required for all rules that have been designated as significant by OMB, a RIA was developed for this interim rule. The RIA for this rule was published as part of the docket to this rule on
State agencies are also required to identify appropriate reporting measures for each proposed component that serves a threshold number of participants of at least 100 a year. The reporting measures for these components will be identified in State agencies' E&T plans and the outcome data will be reported to FNS in State agencies' annual reports.
Thirty-six State agencies currently have reporting measures and collect outcome data. However, the interim rule requires the addition of several data elements that none of these States are currently collecting.
While it is expected that, in the first-year, State agencies will expend time and effort to establish reporting systems, the ongoing burden as shown below in the Paperwork Reduction Act section of the preamble is relatively moderate—about one and one-half staff-month per State.
The Department has reviewed this interim rule in accordance with Departmental Regulation 4300-4, “Civil
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 will minimize any significant impacts on small entities. Pursuant to that review, it is certified that this interim rule will not have a significant impact on small entities. The provisions of this interim rule apply to State agencies, which are not small entities as defined by the Regulatory Flexibility Act.
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, 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 rules with Federal mandates that may result in expenditures to State, local, or tribal governments in the aggregate, or to the private sector, of $100 million or more in any one year. When such a statement is needed for a rule, Section 205 of the UMRA generally requires the Department to identify and consider a reasonable number of regulatory alternatives and adopt the least costly, more cost-effective or least burdensome alternative that achieves the objectives of the rule.
This interim rule contains no Federal mandates (under the regulatory provisions of Title II of the UMRA) for State, local and tribal governments or the private sector of $100 million or more in any one year. Thus, the rule is not subject to the requirements of sections 202 and 205 of the UMRA.
SNAP is listed in the Catalog of Federal Domestic Assistance under No. 10.551. For the reasons set forth in the final rule in 7 CFR 3015, Subpart V and related Notice (48 FR 29115), the 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. 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 the Executive Order 13132. This rule does not have Federalism impacts.
Currently, the Department, through FNS, has encouraged State agencies to establish reporting measures and to report outcome data in their State E&T plans. FNS informally consulted with State agencies to identify what E&T reporting measures and outcome data they collect in the absence of required reporting measures. An informal review of State agencies in FY 2007 showed that twenty-three State agencies had reporting measures and gathered outcome data on the number of E&T participants who entered employment. This review revealed wide variability in how State agencies' aggregate data, how employment was defined, and whether a direct link to participation in E&T was established. FNS reviewed FY 2013 State agency E&T plans and found that thirty-six State agencies track the number of E&T participants that enter employment. The interim rule will standardize the reporting measures that State agencies use and what outcome data State agencies report.
As modified by the Agricultural Act of 2014, section 16(h)(5) of the FNA requires that the Department monitor SNAP E&T programs and measure their effectiveness. In addition, the Government Performance and Results Act of 1993 (GPRA) requires that performance indicators be used to measure the outcome of government programs. Finally, a 2008 audit by the USDA Office of Inspector General (OIG) found that FNS had sufficient systems in place to monitor State agency compliance and administration with laws and regulations, but recommended FNS establish reporting measures for the SNAP E&T program and require State agencies to submit outcome data to determine the Program's effectiveness.
This rule establishes standardized reporting measures and requires State agencies to report outcome data for the SNAP E&T program. The Department published a proposed rule establishing performance measures in 1991 (FR 43152, August 30, 1991). At that time, many State agencies and advocates responded that the rule would impose an unreasonable burden on State agencies. The Department did not codify that proposed rule. While State agencies may have similar concerns today, other Federal work programs, such as the Workforce Innovation and Opportunity Act (WIOA) and the Wagner-Peyser Act (WPA), have established standardized performance indicators and State workforce investment boards have more experience tracking entered employment, retention and earnings. By implementing Section 16(h)(5) of the FNA, the Department is following the lead of other Federal agencies and establishing standardized reporting measures and requiring State agencies to report outcome data in order to evaluate the effectiveness of E&T programs.
The Department has considered the impact of the interim rule on State and local agencies. This rule will implement reporting measures that are required by law and require the reporting of outcome data. The provisions in this rule are similar to the current practice of at least thirty-six State agencies. FNS will work with the remaining State agencies to provide guidance and technical assistance in meeting the requirements of this rule.
This rule has been reviewed in accordance with the requirements of Executive Order 13175, “Consultation and Coordination with Indian Tribal Governments.” 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
Currently, only two State SNAP E&T programs include partnerships or activities with Tribal organizations. On February 29, 2012, during a Tribal consultation, the Department explained the existing section 16(h)(5) of the FNA which required the Department to monitor and measure the effectiveness of E&T programs, and FNS's intention to write a proposed rule on E&T reporting measures and the reporting of outcome data. The Department invited Tribal officials or their designees to ask questions about the impact of a proposed rule on Tribal governments, communities, and individuals. The Department did not receive any comments or questions on its intention to write that rule. (Subsequently, the Agricultural Act of 2014 passed, which expanded the requirements and authority under section 16(h)(5) of the FNA, and included a requirement that the Department publish an interim rule identifying national reporting measures.) This session established a baseline of consultation for future actions, should any be necessary, regarding this rule. Reports from the Tribal consultation session will be made part of the Department's annual reporting on Tribal Consultation and Collaboration. The Department will provide additional venues, such as webinars and teleconferences, to periodically host collaborative conversations with Tribal leaders and their representatives concerning ways to improve this rule in Indian country. FNS has assessed the impact of this rule on Indian tribes and determined that this rule has tribal implications that require tribal consultation under E.O. 13175 and has consulted with Tribes as described above. If a Tribe requests consultation, FNS will work with the Office of Tribal Relations to ensure meaningful consultation is provided where changes, additions and modifications identified herein are not expressly mandated by Congress.
This 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 that conflict with its provisions or that will otherwise impede its full implementation. This rule is not intended to have retroactive effect unless so specified in the “Effective Date” paragraph of this rule. Prior to any judicial challenge to the provisions of this rule or the application of its provisions, all applicable administrative procedures must be exhausted.
The Department is committed to complying with the E-Government Act, to promote the use of the Internet and other information technologies to provide increased opportunities for citizen access to Government information and services, and for other purposes.
The Paperwork Reduction Act of 1995 (44 U.S.C. Chapter 35; see 5 CFR part 1320) requires that 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. This interim rule contains new provisions that will affect reporting and recordkeeping burdens. Section 271.8 has been amended to reflect the new reporting requirements. The changes in burden that will result from the provisions in the interim rule are described below, and are subject to review and approval by OMB. When the information collection requirements have been approved, the Department will publish a separate action in the
Written comments on the information collection in this interim rule must be received by May 23, 2016. Comments are invited on: (1) Whether the collection of information is necessary for the proper performance of the Agency's functions, including whether the information will have practical utility; (2) the accuracy of the Agency's estimate of the information collection burden, including the validity of the methodology and assumptions used; (3) ways to enhance the quality, utility and clarity of the information to be collected; and (4) ways to minimize the burden of the collection of information on those who are to respond, including use of appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology.
Comments may be sent to Moira Johnston, at the address listed in the
All responses to this request for comments will be summarized and included in the request for OMB approval. All comments will also become a matter of public record.
The rule also requires State agencies to identify appropriate reporting measures for each proposed component that serves a threshold number of participants of at least 100 a year. The reporting measures for each component will be identified in States' E&T plans and the outcome data will be reported to FNS in their annual reports. Additionally, the rule requires that State agencies that have committed to offering all ABAWDs at risk of losing eligibility due to time-limited participation a slot in a qualifying activity and have received an additional allocation of funds, to report information regarding the use of those funds.
Given the different size and complexity of States' E&T programs, variations in their E&T data systems, capabilities of their SNAP eligibility systems, and experience with reporting measures, it is not possible to develop a reliable estimate of the burden this rule places on State agencies to implement. Because of the uncertainties surrounding the exact methods States will use to collect and submit outcome data, we are requesting that States comment specifically on their potential capital start-up and operating and maintenance costs based upon consultation with potential data sources. After internal discussions with FNS regional office and State systems staff, FNS assumes an estimate of three staff-months (520 hours) per State to establish data collection and reporting systems to implement this rule, at a cost of approximately $1.2 million. This estimate of initial burden is a placeholder until FNS receives comments from States on their estimate of the time it will take to implement.
In addition to potential capital start-up and operating and maintenance costs, we are requesting that States comment specifically on our burden estimates.
Food stamps, Grant programs—social programs, Reporting and recordkeeping requirements.
Administrative practice and procedure, Aliens, Claims, Education and employment, Fraud, Grant programs—social programs, Reporting and recordkeeping requirements, Supplemental Nutrition Assistance Program.
For reasons set forth in the preamble, 7 CFR parts 271 and 273 are amended as follows:
7 U.S.C. 2011-2036.
The additions read as follows:
(c) * * *
(6) * * *
(xvii) For each component that is expected to include 100 or more participants, reporting measures that the State will collect and include in the annual report in paragraph (c)(17) of this section. Such measures may include:
(A) The percentage and number of program participants who received E&T services and are in unsubsidized employment subsequent to the receipt of those services;
(B) The percentage and number of participants who obtain a recognized credential, a registered apprenticeship, or a regular secondary school diploma (or its recognized equivalent), while participating in, or within 1 year after receiving E&T services;
(C) The percentage and number of participants who are in an education or training program that is intended to lead to a recognized credential, a registered apprenticeship an on-the-job training program, a regular secondary school diploma (or its recognized equivalent), or unsubsidized employment;
(D) Measures developed to assess the skills acquisition of E&T program participants that reflect the goals of the specific components including the percentage and number of participants who are meeting program requirements or are gaining skills likely to lead to employment; and
(E) Other indicators approved by FNS in the E&T State plan.
(16) FNS may require a State agency to make modifications to its SNAP E&T plan to improve outcomes if FNS determines that the E&T outcomes are inadequate.
(17) The State agency shall submit an annual E&T report by January 1 each year that contains the following information for the Federal fiscal year ending the preceding September 30.
(i) The number and percentage of E&T participants and former participants who are in unsubsidized employment during the second quarter after completion of participation in E&T.
(ii) The number and percentage of E&T participants and former participants who are in unsubsidized employment during the fourth quarter after completion of participation in E&T.
(iii) Median average quarterly earnings of the E&T participants and former participants who are in unsubsidized employment during the second quarter after completion of participation in E&T.
(iv) The total number and percentage of participants that completed an educational, training work experience or an on-the-job training component.
(v) The number and percentage of E&T participants who:
(A) Are voluntary vs. mandatory participants;
(B) Have received a high school degree (or GED) prior to being provided with E&T services;
(C) Are ABAWDs;
(D) Speak English as a second language;
(E) Are male vs. female
(F) Are within each of the following age ranges: 16-17, 18-35, 36-49, 50-59, 60 or older.
(vi) Of the number and percentage of E&T participants reported in paragraphs (c)(17)(i) through (iv) of this section, a disaggregation of the number and percentage of those participants and former participants by the characteristics listed in paragraphs (c)(17)(v)(A), (B), and (C) of this section.
(vii) Reports for the measures identified in a State's E&T plan related to components that are designed to serve at least 100 participants a year; and
(viii) States that have committed to offering all at-risk ABAWDs participation in a qualifying activity and have received an additional allocation of funds as specified in § 273.7(d)(3) shall include:
(A) The monthly average number of individuals in the State who meet the conditions of § 273.7(d)(3)(i);
(B) The monthly average number of individuals to whom the State offers a position in a program described in § 273.24(a)(3) and (4);
(C) The monthly average number of individuals who participate in such programs; and
(D) A description of the types of employment and training programs the State agency offered to at risk ABAWDs and the availability of those programs throughout the State.
(ix) States may be required to submit the annual report in a standardized format based upon guidance issued by FNS.
Federal Aviation Administration (FAA), DOT.
Final rule.
This rule amends, suspends, or removes Standard Instrument Approach Procedures (SIAPs) and associated Takeoff Minimums and Obstacle Departure Procedures for operations at certain airports. These regulatory actions are needed because of the adoption of new or revised criteria, or because of changes occurring in the National Airspace System, such as the commissioning of new navigational facilities, adding new obstacles, or changing air traffic requirements. These changes are designed to provide for the safe and efficient use of the navigable airspace and to promote safe flight operations under instrument flight rules at the affected airports.
This rule is effective March 24, 2016. The compliance date for each SIAP, associated Takeoff Minimums, and ODP is specified in the amendatory provisions.
The incorporation by reference of certain publications listed in the regulations is approved by the Director of the Federal Register as of March 24, 2016.
Availability of matter incorporated by reference in the amendment is as follows:
1. U.S. Department of Transportation, Docket Ops-M30, 1200 New Jersey Avenue SE., West Bldg., Ground Floor, Washington, DC 20590-0001;
2. The FAA Air Traffic Organization Service Area in which the affected airport is located;
3. The office of Aeronautical Navigation Products, 6500 South MacArthur Blvd., Oklahoma City, OK 73169 or,
4. The National Archives and Records Administration (NARA). For information on the availability of this material at NARA, call 202-741-6030, or go to:
All SIAPs and Takeoff Minimums and ODPs are available online free of charge. Visit the National Flight Data Center online at
Thomas J. Nichols, Flight Procedure Standards Branch (AFS-420) Flight Technologies and Procedures Division, Flight Standards Service, Federal Aviation Administration, Mike Monroney Aeronautical Center, 6500 South MacArthur Blvd., Oklahoma City, OK 73169 (Mail Address: P.O. Box 25082, Oklahoma City, OK 73125) telephone: (405) 954-4164.
This rule amends Title 14, Code of Federal Regulations, Part 97 (14 CFR part 97) by amending the referenced SIAPs. The complete regulatory description of each SIAP is listed on the appropriate FAA Form 8260, as modified by the National Flight Data Center (NFDC)/Permanent Notice to Airmen (P-NOTAM), and is incorporated by reference under 5 U.S.C. 552(a), 1 CFR part 51, and 14 CFR 97.20. The large number of SIAPs, their complex nature, and the need for a special format make their verbatim publication in the
The material incorporated by reference is publicly available as listed in the
The material incorporated by reference describes SIAPs, Takeoff Minimums and ODPs as identified in the amendatory language for part 97 of this final rule.
This amendment to 14 CFR part 97 is effective upon publication of each
The SIAPs and Takeoff Minimums and ODPs, as modified by FDC permanent NOTAM, and contained in this amendment are based on the criteria contained in the U.S. Standard for Terminal Instrument Procedures (TERPS). In developing these changes to SIAPs and Takeoff Minimums and ODPs, the TERPS criteria were applied only to specific conditions existing at the affected airports. All SIAP amendments in this rule have been previously issued by the FAA in a FDC NOTAM as an emergency action of immediate flight safety relating directly to published aeronautical charts.
The circumstances that created the need for these SIAP and Takeoff Minimums and ODP amendments require making them effective in less than 30 days.
Because of the close and immediate relationship between these SIAPs, Takeoff Minimums and ODPs, and safety in air commerce, I find that notice and public procedure under 5 U.S.C. 553(b) are impracticable and contrary to the public interest and, where applicable, under 5 U.S.C. 553(d), good cause exists for making these SIAPs effective in less than 30 days.
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 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. For the same reason, the FAA certifies that this amendment will not have a significant economic impact on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.
Air Traffic Control, Airports, Incorporation by reference, Navigation (air).
Accordingly, pursuant to the authority delegated to me, Title 14, Code of Federal regulations, Part 97, (14 CFR part 97), is amended by amending Standard Instrument Approach Procedures and Takeoff Minimums and ODPs, effective at 0901 UTC on the dates specified, as follows:
49 U.S.C. 106(f), 106(g), 40103, 40106, 40113, 40114, 40120, 44502, 44514, 44701, 44719, 44721-44722.
By amending: § 97.23 VOR, VOR/DME, VOR or TACAN, and VOR/DME or TACAN; § 97.25 LOC, LOC/DME, LDA, LDA/DME, SDF, SDF/DME; § 97.27 NDB, NDB/DME; § 97.29 ILS, ILS/DME, MLS, MLS/DME, MLS/RNAV; § 97.31 RADAR SIAPs; § 97.33 RNAV SIAPs; and § 97.35 COPTER SIAPs, Identified as follows:
Federal Aviation Administration (FAA), DOT.
Final rule.
This rule amends, suspends, or removes Standard Instrument Approach Procedures (SIAPs) and associated Takeoff Minimums and Obstacle Departure Procedures for operations at certain airports. These regulatory actions are needed because of the adoption of new or revised criteria, or because of changes occurring in the National Airspace System, such as the commissioning of new navigational facilities, adding new obstacles, or changing air traffic requirements. These changes are designed to provide for the safe and efficient use of the navigable
This rule is effective March 24, 2016. The compliance date for each SIAP, associated Takeoff Minimums, and ODP is specified in the amendatory provisions.
The incorporation by reference of certain publications listed in the regulations is approved by the Director of the Federal Register as of March 24, 2016.
Availability of matter incorporated by reference in the amendment is as follows:
1. U.S. Department of Transportation, Docket Ops-M30, 1200 New Jersey Avenue SE., West Bldg., Ground Floor, Washington, DC, 20590-0001;
2. The FAA Air Traffic Organization Service Area in which the affected airport is located;
3. The office of Aeronautical Navigation Products, 6500 South MacArthur Blvd., Oklahoma City, OK 73169 or,
4. The National Archives and Records Administration (NARA). For information on the availability of this material at NARA, call 202-741-6030, or go to:
All SIAPs and Takeoff Minimums and ODPs are available online free of charge. Visit the National Flight Data Center online at
Thomas J. Nichols, Flight Procedure Standards Branch (AFS-420) Flight Technologies and Procedures Division, Flight Standards Service, Federal Aviation Administration, Mike Monroney Aeronautical Center, 6500 South MacArthur Blvd., Oklahoma City, OK 73169 (Mail Address: P.O. Box 25082, Oklahoma City, OK 73125) telephone: (405) 954-4164.
This rule amends Title 14, Code of Federal Regulations, Part 97 (14 CFR part 97) by amending the referenced SIAPs. The complete regulatory description of each SIAP is listed on the appropriate FAA Form 8260, as modified by the National Flight Data Center (NFDC)/Permanent Notice to Airmen (P-NOTAM), and is incorporated by reference under 5 U.S.C. 552(a), 1 CFR part 51, and 14 CFR 97.20. The large number of SIAPs, their complex nature, and the need for a special format make their verbatim publication in the
This amendment provides the affected CFR sections, and specifies the SIAPs and Takeoff Minimums and ODPs with their applicable effective dates. This amendment also identifies the airport and its location, the procedure and the amendment number.
The material incorporated by reference is publicly available as listed in the
The material incorporated by reference describes SIAPs, Takeoff Minimums and ODPs as identified in the amendatory language for part 97 of this final rule.
This amendment to 14 CFR part 97 is effective upon publication of each separate SIAP and Takeoff Minimums and ODP as amended in the transmittal. For safety and timeliness of change considerations, this amendment incorporates only specific changes contained for each SIAP and Takeoff Minimums and ODP as modified by FDC permanent NOTAMs.
The SIAPs and Takeoff Minimums and ODPs, as modified by FDC permanent NOTAM, and contained in this amendment are based on the criteria contained in the U.S. Standard for Terminal Instrument Procedures (TERPS). In developing these changes to SIAPs and Takeoff Minimums and ODPs, the TERPS criteria were applied only to specific conditions existing at the affected airports. All SIAP amendments in this rule have been previously issued by the FAA in a FDC NOTAM as an emergency action of immediate flight safety relating directly to published aeronautical charts.
The circumstances that created the need for these SIAP and Takeoff Minimums and ODP amendments require making them effective in less than 30 days.
Because of the close and immediate relationship between these SIAPs, Takeoff Minimums and ODPs, and safety in air commerce, I find that notice and public procedure under 5 U.S.C. 553(b) are impracticable and contrary to the public interest and, where applicable, under 5 U.S.C. 553(d), good cause exists for making these SIAPs effective in less than 30 days.
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 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. For the same reason, the FAA certifies that this amendment will not have a significant economic impact on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.
Air Traffic Control, Airports, Incorporation by reference, Navigation (air).
Accordingly, pursuant to the authority delegated to me, Title 14, Code of Federal regulations, Part 97, (14 CFR part 97), is amended by amending Standard Instrument Approach Procedures and Takeoff Minimums and ODPs, effective at 0901 UTC on the dates specified, as follows:
49 U.S.C. 106(f), 106(g), 40103, 40106, 40113, 40114, 40120, 44502, 44514, 44701, 44719, 44721-44722.
By amending: § 97.23 VOR, VOR/DME, VOR or TACAN, and VOR/DME or TACAN; § 97.25 LOC, LOC/DME, LDA, LDA/DME, SDF, SDF/DME; § 97.27 NDB, NDB/DME; § 97.29 ILS, ILS/DME, MLS, MLS/DME, MLS/RNAV; § 97.31 RADAR SIAPs; § 97.33 RNAV SIAPs; and § 97.35 COPTER SIAPs, Identified as follows:
Federal Aviation Administration (FAA), DOT.
Final rule.
This rule establishes, amends, suspends, or removes Standard Instrument Approach Procedures (SIAPs) and associated Takeoff Minimums and Obstacle Departure Procedures (ODPs) for operations at certain airports. These regulatory actions are needed because of the adoption of new or revised criteria, or because of changes occurring in the National Airspace System, such as the commissioning of new navigational facilities, adding new obstacles, or changing air traffic requirements. These changes are designed to provide safe and efficient use of the navigable airspace and to promote safe flight operations under instrument flight rules at the affected airports.
This rule is effective March 24, 2016. The compliance date for each SIAP, associated Takeoff Minimums, and ODP is specified in the amendatory provisions.
The incorporation by reference of certain publications listed in the regulations is approved by the Director of the Federal Register as of March 24, 2016.
Availability of matters incorporated by reference in the amendment is as follows:
1. U.S. Department of Transportation, Docket Ops-M30, 1200 New Jersey Avenue SE., West Bldg., Ground Floor, Washington, DC, 20590-0001.
2. The FAA Air Traffic Organization Service Area in which the affected airport is located;
3. The office of Aeronautical Navigation Products, 6500 South MacArthur Blvd., Oklahoma City, OK 73169 or,
4. The National Archives and Records Administration (NARA). For information on the availability of this material at NARA, call 202-741-6030, or go to:
All SIAPs and Takeoff Minimums and ODPs are available online free of charge. Visit the National Flight Data Center at
Thomas J. Nichols, Flight Procedure Standards Branch (AFS-420), Flight Technologies and Programs Divisions, Flight Standards Service, Federal Aviation Administration, Mike Monroney Aeronautical Center, 6500 South MacArthur Blvd. Oklahoma City, OK. 73169 (Mail Address: P.O. Box 25082, Oklahoma City, OK 73125) Telephone: (405) 954-4164.
This rule amends Title 14 of the Code of Federal Regulations, Part 97 (14 CFR part 97), by establishing, amending, suspending, or removes SIAPS, Takeoff Minimums and/or ODPS. The complete regulatory description of each SIAP and its associated Takeoff Minimums or ODP for an identified airport is listed on FAA form documents which are incorporated by reference in this amendment under 5 U.S.C. 552(a), 1 CFR part 51, and 14 CFR part § 97.20. The applicable FAA forms are FAA Forms 8260-3, 8260-4, 8260-5, 8260-15A, and 8260-15B when required by an entry on 8260-15A.
The large number of SIAPs, Takeoff Minimums and ODPs, their complex nature, and the need for a special format make publication in the
The material incorporated by reference is publicly available as listed in the
The material incorporated by reference describes SIAPS, Takeoff Minimums and/or ODPS as identified in the amendatory language for part 97 of this final rule.
This amendment to 14 CFR part 97 is effective upon publication of each separate SIAP, Takeoff Minimums and ODP as Amended in the transmittal. Some SIAP and Takeoff Minimums and textual ODP amendments may have been issued previously by the FAA in a Flight Data Center (FDC) Notice to Airmen (NOTAM) as an emergency action of immediate flight safety relating directly to published aeronautical charts.
The circumstances that created the need for some SIAP and Takeoff Minimums and ODP amendments may require making them effective in less
Further, the SIAPs and Takeoff Minimums and ODPs contained in this amendment are based on the criteria contained in the U.S. Standard for Terminal Instrument Procedures (TERPS). In developing these SIAPs and Takeoff Minimums and ODPs, the TERPS criteria were applied to the conditions existing or anticipated at the affected airports. Because of the close and immediate relationship between these SIAPs, Takeoff Minimums and ODPs, and safety in air commerce, I find that notice and public procedure under 5 U.S.C. 553(b) are impracticable and contrary to the public interest and, where applicable, under 5 U.S.C 553(d), good cause exists for making some SIAPs effective in less than 30 days.
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 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. For the same reason, the FAA certifies that this amendment will not have a significant economic impact on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.
Air Traffic Control, Airports, Incorporation by reference, Navigation (air).
Accordingly, pursuant to the authority delegated to me, Title 14, Code of Federal Regulations, Part 97 (14 CFR part 97) is amended by establishing, amending, suspending, or removing Standard Instrument Approach Procedures and/or Takeoff Minimums and Obstacle Departure Procedures effective at 0901 UTC on the dates specified, as follows:
49 U.S.C. 106(f), 106(g), 40103, 40106, 40113, 40114, 40120, 44502, 44514, 44701, 44719, 44721-44722.
Federal Aviation Administration (FAA), DOT.
Final rule.
This rule establishes, amends, suspends, or removes Standard Instrument Approach Procedures (SIAPs) and associated Takeoff Minimums and Obstacle Departure Procedures (ODPs) for operations at certain airports. These regulatory actions are needed because of the adoption of new or revised criteria, or because of changes occurring in the National Airspace System, such as the commissioning of new navigational facilities, adding new obstacles, or changing air traffic requirements. These changes are designed to provide safe and efficient use of the navigable airspace and to promote safe flight operations under instrument flight rules at the affected airports.
This rule is effective March 24, 2016. The compliance date for each SIAP, associated Takeoff Minimums, and ODP is specified in the amendatory provisions.
The incorporation by reference of certain publications listed in the regulations is approved by the Director of the Federal Register as of March 24, 2016.
Availability of matters incorporated by reference in the amendment is as follows:
1. U.S. Department of Transportation, Docket Ops-M30, 1200 New Jersey Avenue SE., West Bldg., Ground Floor, Washington, DC, 20590-0001.
2. The FAA Air Traffic Organization Service Area in which the affected airport is located;
3. The office of Aeronautical Navigation Products, 6500 South MacArthur Blvd., Oklahoma City, OK 73169 or,
4. The National Archives and Records Administration (NARA). For information on the availability of this material at NARA, call 202-741-6030, or go to:
All SIAPs and Takeoff Minimums and ODPs are available online free of charge. Visit the National Flight Data Center at
Thomas J. Nichols, Flight Procedure Standards Branch (AFS-420), Flight Technologies and Programs Divisions, Flight Standards Service, Federal Aviation Administration, Mike Monroney Aeronautical Center, 6500 South MacArthur Blvd., Oklahoma City, OK 73169 (Mail Address: P.O. Box 25082, Oklahoma City, OK 73125) Telephone: (405) 954-4164.
This rule amends Title 14 of the Code of Federal Regulations, Part 97 (14 CFR part 97), by establishing, amending, suspending, or removes SIAPS, Takeoff Minimums and/or ODPS. The complete regulatory description of each SIAP and its associated Takeoff Minimums or ODP for an identified airport is listed on FAA form documents which are incorporated by reference in this amendment under 5 U.S.C. 552(a), 1 CFR part 51, and 14 CFR part § 97.20. The applicable FAA forms are FAA Forms 8260-3, 8260-4, 8260-5, 8260-15A, and 8260-15B when required by an entry on 8260-15A.
The large number of SIAPs, Takeoff Minimums and ODPs, their complex nature, and the need for a special format make publication in the
The material incorporated by reference is publicly available as listed in the
The material incorporated by reference describes SIAPS, Takeoff Minimums and/or ODPS as identified in the amendatory language for part 97 of this final rule.
This amendment to 14 CFR part 97 is effective upon publication of each separate SIAP, Takeoff Minimums and ODP as Amended in the transmittal. Some SIAP and Takeoff Minimums and textual ODP amendments may have been issued previously by the FAA in a Flight Data Center (FDC) Notice to Airmen (NOTAM) as an emergency action of immediate flight safety relating directly to published aeronautical charts.
The circumstances that created the need for some SIAP and Takeoff Minimums and ODP amendments may require making them effective in less than 30 days. For the remaining SIAPs and Takeoff Minimums and ODPs, an effective date at least 30 days after publication is provided.
Further, the SIAPs and Takeoff Minimums and ODPs contained in this amendment are based on the criteria contained in the U.S. Standard for Terminal Instrument Procedures (TERPS). In developing these SIAPs and Takeoff Minimums and ODPs, the TERPS criteria were applied to the conditions existing or anticipated at the affected airports. Because of the close and immediate relationship between these SIAPs, Takeoff Minimums and ODPs, and safety in air commerce, I find that notice and public procedure under 5 U.S.C. 553(b) are impracticable and contrary to the public interest and, where applicable, under 5 U.S.C 553(d), good cause exists for making some SIAPs effective in less than 30 days.
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 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. For the same reason, the FAA certifies that this amendment will not have a significant economic impact on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.
Air Traffic Control, Airports, Incorporation by reference, Navigation (air).
Accordingly, pursuant to the authority delegated to me, Title 14, Code of Federal Regulations, Part 97 (14 CFR part 97) is amended by establishing, amending, suspending, or removing Standard Instrument Approach Procedures and/or Takeoff Minimums and Obstacle Departure Procedures effective at 0901 UTC on the dates specified, as follows:
49 U.S.C. 106(f), 106(g), 40103, 40106, 40113, 40114, 40120, 44502, 44514, 44701, 44719, 44721-44722.
RESCINDED: On February 19, 2016 (81 FR 8394), the FAA published an Amendment in Docket No. 31058, Amdt No. 3679, to Part 97 of the Federal Aviation Regulations, under section 97.23. The following entries for Greenville, MS, Rochester, NY, and Aiken, SC, effective March 3, 2016, are hereby rescinded in their entirety:
Bureau of Industry and Security, Commerce.
Final rule.
This final rule creates a temporary general license that temporarily restores the licensing requirements and policies under the Export Administration Regulations (EAR) for exports, reexports, and transfers (in-country) to two entities added to the Entity List on March 8, 2016. BIS is issuing this rule in connection with a request to remove or modify the listing.
This rule is effective March 24, 2016 through June 30, 2016.
Chair, End-User Review Committee, Office of the Assistant Secretary, Export Administration, Bureau of Industry and Security, Department of Commerce,
The Entity List (Supplement No. 4 to Part 744) identifies entities and other persons reasonably believed to be involved, or to pose a significant risk of being or becoming involved, in activities contrary to the national security or foreign policy interests of the United States. The End-User Review Committee (ERC), composed of representatives of the Departments of Commerce (Chair), State, Defense, Energy and, where appropriate, the Treasury, makes all decisions regarding additions to, removals from, or other modifications to the Entity List. The ERC makes all decisions to add an entry to the Entity List by majority vote and all decisions to remove or modify an entry by unanimous vote.
This final rule does not amend the Entity List, but modifies an entry on the Entity List as described further below by adding a temporary general license for two entities recently added to the Entity List.
BIS added Zhongxing Telecommunications Equipment (ZTE) Corporation (ZTE Corporation), ZTE Kangxun Telecommunications Ltd. (ZTE Kangxun), and two other entities to the Entity List on March 8, 2016. Details regarding the scope of the listing are at 81 FR 12004 (Mar. 8, 2016), (“Additions to the Entity List”). Each person on the Entity List has the right to request that its listing on the Entity List be removed or modified. Instructions on the request for removal or modification process are found at § 744.16 of the EAR.
The ERC reviews such requests in accordance with the procedures set forth in Supplement No. 5 to part 744. Specifically, as part of its review of requests to remove or modify a listing, the ERC will consider whether the circumstances that led to the decision to add the entity to the Entity List continue to exist. This includes reviewing whether there continues to be reasonable cause to believe, based on specific and articulable facts, that the entity has been involved, is involved, or poses a significant risk of being or becoming involved in activities that are contrary to the national security or foreign policy interests of the United States—the standard for revising the Entity List established in § 744.11(b) of the EAR. In connection with a request by ZTE Corporation and ZTE Kangxun to remove or modify their listings on the Entity List submitted to BIS pursuant to the foregoing provisions, and binding commitments made by these entities to the U.S. Government, BIS is modifying the effect of their entries on the Entity List by adding a temporary general license to restore temporarily the
Specifically, this final rule makes the following change to the EAR:
This final rule amends the EAR by adding Supplement No. 7 to Part 744 to create a Temporary General License that returns until June 30, 2016 the licensing and other policies of the EAR regarding exports, reexports, and transfers (in-country) to Zhongxing Telecommunications Equipment (ZTE) Corporation and ZTE Kangxun to that which was in effect just prior to their having been added to the Entity List on March 8, 2016. For example, the authority of NLR or a License Exception that was available as of March 7, 2016, may be used as per this temporary general license. The temporary general license is renewable if the U.S. Government determines, in its sole discretion, that ZTE Corporation and ZTE Kangxun are timely performing their undertakings to the U.S. Government and otherwise cooperating with the U.S. Government in resolving the matter.
The impact of this temporary general license is that the license and other requirements specified in § 744.11 and Supplement No. 4 to part 744 pertaining to exports, reexports, and transfers (in-country) to ZTE Corporation and ZTE Kangxun do not apply during the period the temporary general license is in effect. This means that the license requirements, license review policies, and license exceptions that applied on March 7, 2016, are applicable regarding exports, reexports, and transfers (in-country) to ZTE Corporation and ZTE Kangxun until June 30, 2016, unless amended. However, the temporary general license does not relieve persons of other obligations under part 744 of the EAR or under other parts of the EAR, such as those specified in §§ 744.2, 744.3 and 744.4 of the EAR. For example, this temporary general license does not relieve persons of their obligations under General Prohibition 5 in § 736.2(b)(5) of the EAR which provides that, “you may not, without a license, knowingly export or reexport any item subject to the EAR to an end-user or end-use that is prohibited by part 744 of the EAR.” Additionally, this temporary general license does not relieve persons of their obligation to apply for export, reexport, or in-country transfer licenses required by other provisions of the EAR. BIS strongly urges the use of Supplement No. 3 to part 732 of the EAR, “BIS's `Know Your Customer' Guidance and Red Flags,” when persons are involved in transactions that are subject to the EAR.
Although the Export Administration Act 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 7, 2015, 80 FR 48233 (August 11, 2015), has continued the Export Administration Regulations 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, as amended by Executive Order 13637.
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 purposes of Executive Order 12866.
2. Notwithstanding any other provision of law, no person is required to respond to nor be 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
Total burden hours associated with the PRA and OMB control number 0694-0088 are not expected to increase as a result of this rule. You may send comments regarding the collection of information associated with this rule, including suggestions for reducing the burden, to Jasmeet K. Seehra, Office of Management and Budget (OMB), by email to
3. This rule does not contain policies with Federalism implications as that term is defined in Executive Order 13132.
4. The provisions of the Administrative Procedure Act (5 U.S.C. 553) requiring notice of proposed rulemaking, the opportunity for public comment, and a delay in effective date are inapplicable because this regulation involves a military or foreign affairs function of the United States. (
Exports, Reporting and recordkeeping requirements, Terrorism.
Accordingly, part 744 of the Export Administration Regulations (15 CFR parts 730 through 774) is amended as follows:
50 U.S.C. 4601
Notwithstanding the requirements and other provisions of supplement 4 to part 744, which became effective on March 8, 2016, the licensing and other requirements in the EAR as of March 7, 2016, pertaining to exports, reexports, and transfers (in-country) of items “subject to the EAR” to Zhongxing Telecommunications Equipment (ZTE) Corporation, ZTE Plaza, Keji Road South, Hi-Tech Industrial Park, Nanshan District, Shenzhen, China, and ZTE Kangxun Telecommunications Ltd., 2/3 Floor, Suite A, ZTE Communication Mansion Keji (S) Road, Hi-New Shenzhen, 518057 China, are restored as of March 24, 2016 and through June 30, 2016. Thus, for example, the authority of NLR or a License Exception that was available as of March 7, 2016, may be used as per this temporary general license. The temporary general license is renewable if the U.S. Government determines, in its sole discretion, that ZTE Corporation and ZTE Kangxun are timely performing their undertakings to the U.S. Government and otherwise cooperating with the U.S. Government in resolving the matter.
Federal Energy Regulatory Commission, DOE.
Final rule.
The Federal Energy Regulatory Commission approves Reliability Standard PRC-026-1 (Relay Performance During Stable Power Swings), submitted by the North American Electric Reliability Corporation. Reliability Standard PRC-026-1 is designed to ensure that applicable entities use protective relay systems that can differentiate between faults and stable power swings.
This rule will become effective May 23, 2016.
1. Pursuant to section 215 of the Federal Power Act (FPA), the Commission approves Reliability Standard PRC-026-1 (Relay Performance During Stable Power Swings).
2. The Commission determines that Reliability Standard PRC-026-1 satisfies the directive in Order No. 733 concerning undesirable relay operation due to power swings.
3. The Commission approves NERC's assigned violation risk factors, violation
4. Section 215 of the FPA requires a Commission-certified ERO to develop mandatory and enforceable Reliability Standards, subject to Commission review and approval.
5. On March 18, 2010, the Commission approved Reliability Standard PRC-023-1 (Transmission Relay Loadability) in Order No. 733. The Commission also directed NERC to develop a new Reliability Standard that required the use of protective relay systems that can differentiate between faults and stable power swings and, when necessary, the retirement of protective relay systems that cannot meet this requirement.
6. On February 17, 2011, the Commission denied rehearing in Order No. 733-A, stating that “[w]e continue to believe that not addressing stable power swings constitutes a gap in the current Reliability Standards and must be addressed.”
7. On December 31, 2014, NERC submitted a petition seeking approval of Reliability Standard PRC-026-1, as well as the associated violation risk factors, violation severity levels and implementation plan.
8. According to NERC, Reliability Standard PRC-026-1 is “directly responsive” to the Order No. 733 directive that NERC develop a Reliability Standard addressing undesirable relay operation due to stable power swings.
9. Reliability Standard PRC-026-1 has four requirements and two attachments. NERC explains that Attachment A “provides clarity on which load-responsive protective relay functions are applicable” under the standard.
According to NERC, the 15 cycle time delay “is representative of an expected power swing having a slow slip rate of 0.67 Hertz (Hz) and is the average time that a stable power swing with that slip rate would enter the relay's characteristic, reverse direction, and then exit the characteristic before the time delay expired.”
10. Under NERC's proposed implementation plan for Reliability Standard PRC-026-1, Requirement R1 would become effective 12 months after Commission approval, and Requirements R2, R3 and R4 become effective 36 months after Commission approval.
11. On September 17, 2015, the Commission issued a Notice of Proposed Rulemaking (NOPR) proposing to approve Reliability Standard PRC-026-1 as just, reasonable, not unduly discriminatory or preferential and in the public interest.
12. In the NOPR, the Commission also expressed concern that NERC's exclusion of load responsive relays with a time delay of 15 cycles or greater, as proposed in Attachment A to Reliability Standard PRC-026-1, could result in a gap in reliability. The Commission explained that, pursuant to Attachment A, Reliability Standard PRC-026-1 applies to “any protective functions which could trip instantaneously or with a time delay of less than 15 cycles on load current (
13. The NOPR requested comments on the potential burden of modifying the applicability of Reliability Standard PRC-026-1 to include relays with a time delay of 15 cycles or greater in instances where either: (1) An element has been identified by a planning coordinator as potentially susceptible to power swings; or (2) an entity becomes aware of a bulk electric system element that tripped in response to a stable or unstable power swing due to the operation of its protective relay(s), even if the element was not previously identified by the planning coordinator. The Commission stated that it may direct NERC to develop modifications to Reliability Standard PRC-026-1 depending on the response to the questions on the applicability of Reliability Standard PRC-026-1.
14. In response to the NOPR, seven entities submitted comments. A list of commenters appears in Appendix A. The comments have informed our decision making in this Final Rule.
15. Pursuant to section 215(d)(2) of the FPA, we approve Reliability Standard PRC-026-1 as just, reasonable, not unduly discriminatory or preferential, and in the public interest. We also approve NERC's proposed violation risk factors, violation severity levels and implementation plan. While Reliability Standard PRC-026-1 does not prohibit the use of relays that cannot differentiate between faults and stable power swings, Reliability Standard PRC-026-1 addresses the prevention of unnecessary tripping of bulk electric system elements in response to stable power swings. Accordingly, we approve NERC's approach as an equally effective and efficient method to achieve the reliability goal underlying the Commission's directive in Order No. 733.
16. As discussed below, based on the NOPR comments, we conclude that the potential reliability gap identified in the NOPR, resulting from the exclusion of load responsive relays with a time delay of 15 cycles or greater as proposed in Attachment A to Reliability Standard PRC-026-1, is adequately addressed by the provisions of Reliability Standards TPL-001-4 and PRC-004-4.
17. NERC, Luminant, NAGF, Tri-State, Idaho Power and EEI support the Commission's proposal to approve Reliability Standard PRC-026-1. In response to the NOPR's question regarding the burden of expanding the applicability of Reliability Standard PRC-026-1 to include load responsive relays with a time delay of 15 cycles or greater, NERC and other commenters offer two responses. First, commenters maintain that the 15 cycle limitation in Reliability Standard PRC-026-1 does not result in a reliability gap because of how Reliability Standard PRC-026-1 interacts with other Reliability Standards to address the Commission's concern. Second, commenters assert that expanding the applicability of Reliability Standard PRC-026-1 would result in an unnecessary, significant burden or risk to reliability.
18. NERC, EEI, Tri-State and Luminant claim that no reliability gap results from the 15 cycle limitation in Reliability Standard PRC-026-1 because planning assessments required by Reliability Standard TPL-001-4 already address the Commission's concerns regarding relays with a time delay of 15 cycles or greater in instances where an element has been identified by a planning coordinator as potentially susceptible to power swings.
19. In addition, NERC and industry commenters state that Reliability Standard PRC-004-4 addresses the Commission's concern regarding situations where a bulk electric system element trips in response to a stable or unstable power swing due to the operation of its protective relay(s).
20. Regarding the potential burden of expanding the applicability of Reliability Standard PRC-026-1 to cover relays with a time delay of 15 cycles or greater, NERC and industry commenters state that expanding the applicability of Requirement R1, Criteria 4 (element has been identified by a planning coordinator) would increase the burden on transmission owners and generator owners.
21. NERC, however, states that expanding the applicability of Reliability Standard PRC-026-1 to cover relays with a time delay of 15 cycles or greater would “place additional burden on the Generator Owner and Transmission Owner for any Elements that are identified using Requirement R1, Criteria 4.”
22. EEI contends that the additional burden would “vary greatly by entity size and asset configuration, however, the work associated with this effort would not be inconsequential and would consume significant dollars for large entities while tying up critical and often scarce engineering resources across the industry.”
23. ITC, while not taking a position on the merits of the particular requirements of Reliability Standard PRC-026-1, argues “that studies and information now available concerning relay performance during stable power swings controvert the Commission's at-the-time reasonable determination in Order No. 733 that a Standard to address relay performance during stable power swings was warranted.”
24. We find that Reliability Standard PRC-026-1 addresses the Commission's directive in Order No. 733 by providing measures to mitigate the unnecessary tripping of bulk electric system elements in response to stable power swings. While it does not prohibit the use of relays that cannot differentiate between faults and stable power swings, we conclude that Reliability Standard PRC-026-1's approach is an equally effective and efficient method to achieve the reliability goal underlying the Commission's directive in Order No. 733.
25. While ITC asks that the Commission reconsider the necessity of PRC-026-1 in light of the SPSC Report, the Commission continues to believe in the necessity of a Reliability Standard that addresses the performance of relays during stable power swings. In response to ITC's comments, the recommendations from the 2013 SPSC Report were used in the development of Reliability Standard PRC-026-1. As noted by NERC, Reliability Standard PRC-026-1 “is based on and is consistent with the recommendations found in the [SPSC] Report.”
26. Based on the NOPR comments, we are persuaded that the potential reliability gap identified in the NOPR, resulting from the exclusion of load responsive relays with a time delay of 15 cycles or greater as proposed in Attachment A to Reliability Standard PRC-026-1, is adequately addressed by requirements of Reliability Standards TPL-001-4 (Transmission System Planning Performance Standards) and PRC-004-4 (Protection System Misoperation Identification and Correction). We agree with commenters that these Reliability Standards adequately address the risk posed by load responsive relays with a time delay of 15 cycles or greater in the two cases identified in the NOPR. Accordingly, we do not direct any modifications to Reliability Standard PRC-026-1 at this time.
27. First, where an element has been identified by a planning coordinator as potentially susceptible to power swings, Reliability Standard TPL-001-4 addresses the NOPR's concern by requiring applicable entities to both (1) identify elements with load-responsive protective relays having time delays of 15 cycles or greater that trip due to power swings and (2) mitigate through a corrective action plan where Reliability Standard TPL-001-4 performance criteria are not met. Specifically, Reliability Standard TPL-001-4 sets forth the parameters for
28. Second, where an entity becomes aware of a bulk electric system element that tripped in response to a stable or unstable power swing due to the operation of its protective relay(s), we agree with commenters that the tripping would be classified as a misoperation under Reliability Standard PRC-004-4.
29. Finally, concerns with the potential burden of expanding the applicability of Reliability Standard PRC-026-1 to cover relays with a time delay of 15 cycles or greater in order to address the potential reliability gap identified in the NOPR are moot given our determination above that the potential reliability gap identified in the NOPR is adequately addressed by existing Reliability Standard requirements.
30. The FERC-725G
31. The Commission solicited comments on the need for this information, whether the information will have practical utility, the accuracy of the burden estimates, ways to enhance the quality, utility, and clarity of the information to be collected or retained, and any suggested methods for minimizing respondents' burden, including the use of automated information techniques. Specifically, the Commission asked that any revised burden or cost estimates submitted by commenters be supported by sufficient detail to understand how the estimates are generated. The Commission did not receive any comments on the estimates in the NOPR.
Average Burden Hours per Response * $60.66 per Hour = Average Cost per Response. The hourly average of $60.66 assumes equal time is spent by the manager, electrical engineer, and information and record clerk. The average hourly cost (salary plus benefits) is: $37.50 for information and record clerks (occupation code 43-4199), $78.04 for a manager (occupation code 11-0000), and $66.45 for an electrical engineer (occupation code 17-2071). (The figures are taken from the Bureau of Labor Statistics, May 2014 figures at
32.
33. Interested persons may obtain information on the reporting requirements by contacting the Federal Energy Regulatory Commission, Office of the Executive Director, 888 First Street, NE., Washington, DC 20426 [Attention: Ellen Brown, email:
34. Comments concerning the information collections approved in this Final Rule and the associated burden estimates, should be sent to the Commission in this docket and may also be sent to the Office of Management and Budget, Office of Information and Regulatory Affairs [Attention: Desk Officer for the Federal Energy Regulatory Commission, phone: (202) 395-0710, fax: (202) 395-7285]. For security reasons, comments should be sent by email to OMB at the following email address:
35. The Regulatory Flexibility Act of 1980 (RFA)
36. As discussed above, Reliability Standard PRC-026-1 will serve to enhance reliability by imposing mandatory requirements governing generator relay loadability, thereby reducing the likelihood of premature or unnecessary tripping of generators during system disturbances. The Commission estimates that each of the small entities to whom the Reliability Standard PRC-026-1 applies will incur paperwork and record retention costs of $935.28 per entity (annual ongoing).
37. The Commission does not consider the estimated costs per small entity to have a significant economic impact on a substantial number of small entities. Accordingly, the Commission certifies that Reliability Standard PRC-026-1 will not have a significant economic impact on a substantial number of small entities. Accordingly, no regulatory flexibility analysis is required.
38. 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.
39. This Final Rule is effective May 23, 2016. The Commission has determined, with the concurrence of the Administrator of the Office of Information and Regulatory Affairs of OMB, that this rule is not a “major rule” as defined in section 351 of the Small Business Regulatory Enforcement Fairness Act of 1996. This Final Rule is being submitted to the Senate, House, and Government Accountability Office.
40. In addition to publishing the full text of this document in the
41. 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 of this document, excluding the last three digits, in the docket number field.
42. User assistance is available for eLibrary and the Commission's Web site during normal business hours from the Commission's Online Support at 202-502-6652 (toll free at 1-866-208-3676) or email at
By the Commission.
The following Appendix will not appear in the
Enforcement and Compliance, International Trade Administration, Department of Commerce.
Final rule.
The Department of Commerce (the Department) is modifying its regulations pertaining to price adjustments in antidumping duty proceedings. These modifications clarify that the Department does not intend to accept a price adjustment that is made after the time of sale unless the interested party demonstrates, to the satisfaction of the Department, its entitlement to such an adjustment. The Department has further adopted in this final rule a non-exhaustive list of factors that it may consider in determining whether to accept a price adjustment that is made after the time of sale.
Jessica Link at (202) 482-1411, James Ahrens at (202) 482-3558, or Melissa Skinner at (202) 482-0461.
Section 731 of the Tariff Act of 1930, as amended (the Act) provides that when a company is selling foreign merchandise into the United States at less than fair value, and material injury or threat of material injury is found by the International Trade Commission, the Department shall impose an antidumping duty. An antidumping duty analysis involves a comparison of the company's sales price in the United States (known as the export price or constructed export price) with the price or cost in the foreign market (known as the normal value).
The Department also enacted 19 CFR 351.401(c) that explains how the Department will use a price net of price
The Department also addressed the following comment received on the
One commenter suggested that, at least for purposes of normal value, the regulations should clarify that the only rebates Commerce will consider are ones that were contemplated at the time of sale. This commenter argued that foreign producers should not be allowed to eliminate dumping margins by providing “rebates” only after the existence of margins becomes apparent.
The Department has not adopted this suggestion at this time. We do not disagree with the proposition that exporters or producers will not be allowed to eliminate dumping margins by providing price adjustments “after the fact.” However, as discussed above, the Department's treatment of price adjustments in general has been the subject of considerable confusion. In resolving this confusion, we intend to proceed cautiously and incrementally. The regulatory revisions contained in these final rules constitute a first step at clarifying our treatment of price adjustments. We will consider adding other regulatory refinements at a later date.
On March 25, 2014, the Court of International Trade issued
On December 31, 2014, the Department published a proposed modification of its regulations, 19 CFR 351.102(b)(38) and 19 CFR 351.401(c), which concern price adjustments in antidumping duty proceedings.
The Department received numerous comments on the
The Department is modifying two of its regulations relating to price adjustments in antidumping duty proceedings: the definition of the term “price adjustment” in 19 CFR 351.102(b)(38), and the Department's explanation of its use of prices net of price adjustments in 19 CFR 351.401(c).
In the
Prior to the
In the final rule, as discussed below, in light of comments received from interested parties, the Department is modifying 19 CFR 351.401(c) to clarify that the Department does not intend to accept a price adjustment that is made after the time of sale unless the interested party demonstrates, to the satisfaction of the Department, its entitlement to such an adjustment. The Department has further provided in this
The Department received numerous comments on its
Several commenters argue that the
One commenter argues that the
Several commenters state that the
This same commenter argues that the
We disagree with the commenter's contention that the
The
Finally, the Department disagrees with those commenters that argue that the
Several commenters argue that the
One commenter argues that the
Several commenters argue that the Department should adopt the
One commenter argues that the Department should clarify that the
Other commenters argue that the
One commenter proposes modifying 19 CFR 351.401(c) to allow for a price adjustment if the party seeking the adjustment can demonstrate that the adjustment at issue is within the party's standard business practice that existed prior to the initiation of the proceeding.
With respect to 19 CFR 351.401(c), in light of concerns that the modifications in the
In determining whether a party has demonstrated its entitlement to such an adjustment, the Department may consider: (1) Whether the terms and conditions of the adjustment were
As demonstrated above, the Department is expressly referencing in this final rule certain of the factors suggested by one commenter. Other factors which are not expressly adopted here might fall under the last category we identify,
We have not adopted the one commenter's suggestion, either in the regulation itself, or in this final rule, to accept post-sale price adjustments if a company can demonstrate that the adjustment at issue is part of its standard business practice that existed prior to the initiation of the proceeding. We believe that the list we have identified above provides adequate factors for the Department to consider in determining whether a company has demonstrated its entitlement to an adjustment. We also note that the timing of the adjustment is one of those criteria. However, we believe that allowing a company to simply show that certain adjustments are part of its standard business practice might permit certain adjustments, such as those at issue in
One commenter agrees with the Department's proposal in the
In the final rule, the Department has added further refinements to the definition of price adjustment in 19 CFR 351.102(b)(38) to clarify that a price adjustment is not limited to discounts or rebates, but encompasses other adjustments as well. The Department has also made certain modifications to the new second sentence of 19 CFR 351.401(c) to clarify that the Department does not intend to accept a price adjustment that is made after the time of sale unless the interested party demonstrates, to the satisfaction of the Department, its entitlement to such an adjustment.
It has been determined that this rule is not significant for purposes of Executive Order 12866.
This rule contains no new collection of information subject to the Paperwork Reduction Act, 44 U.S.C. Chapter 35.
This rule does not contain policies with federalism implications as that term is defined in section 1(a) of Executive Order 13132, dated August 4, 1999 (64 FR 43255 (August 10, 1999)).
In accordance with the Regulatory Flexibility Act, 5 U.S.C. 601
Administrative practice and procedure, Antidumping, Business and industry, Cheese, Confidential business information, Countervailing duties, Freedom of information, Investigations, Reporting and recordkeeping requirements.
For the reasons stated, 19 CFR part 351 is amended as follows:
5 U.S.C. 301; 19 U.S.C. 1202 note; 19 U.S.C. 1303 note; 19 U.S.C. 1671
(b) * * *
(38)
(c)
Legal Services Corporation.
Notice of final changes to Compliance Supplement for Audits of LSC Recipients.
The Legal Services Corporation (“LSC”) Office of Inspector General (“OIG”) is updating its Compliance Supplement for Audits of LSC Recipients for fiscal years ending April 30, 2016, and thereafter. The revisions primarily affect certain regulatory requirements to be audited pursuant to LSC regulations. In addition, the LSC OIG has included for audit certain regulatory requirements which impact recipient staff's involvement in the outside practice of law. Finally, suggested audit procedures for several regulations have been updated and revised for clarification and simplification purposes.
The Compliance Supplement for Audits of LSC Recipients will be effective on April 25, 2016.
Anthony M. Ramirez, Director of Planning, Policy & Reporting, Legal Services Corporation Office of Inspector General, 3333 K Street NW., Washington, DC 20007; (202) 295-1668 (phone), (202) 337-6616 (fax), or
The purpose of the Compliance Supplement for Audits of LSC Recipients is to set forth the LSC regulatory requirements to be audited by the Independent Public Accountants (“IPA”) as part of the recipients' annual financial statement audit and to provide suggested guidance to the IPAs in accomplishing this task. Pursuant to 45 CFR part 1641, IPAs are subject to suspension, removal, and/or debarment for not following OIG audit guidance as set out in the Compliance Supplement for Audits of LSC Recipients. Since the last revision of the LSC OIG's Compliance Supplement for Audits of LSC Recipients, LSC has significantly revised and updated several regulations. By revising the Compliance Supplement for Audits of LSC Recipients, the LSC OIG intends that the Compliance Supplement accurately reflects these regulatory revisions and updates, including the corresponding changes to suggested audit guidance provided to the IPAs. A summary of the proposed changes follows.
The LSC OIG has included regulatory requirements under 45 CFR part 1604 in the Compliance Supplement for Audits of LSC Recipients. The inclusion sets forth the requirements dealing with the permissibility of recipient staff engaged in the outside practice of law along with suggested audit guidance for use by the IPAs.
The LSC OIG made major revisions to several regulatory summaries to reflect LSC's revisions to its regulations. Revised summaries include those for 45 CFR parts 1609 (fee generating cases); 1611 (eligibility); 1614 (private attorney involvement); 1626 (restrictions on legal assistance to aliens); and to a lesser extent, 1635 (timekeeping requirement). The summaries now follow the existing law and LSC regulations. The suggested audit procedures for each of these sections have been revised and updated to incorporate and take into consideration the regulatory changes.
The LSC OIG revised the case sampling methodology by reducing criteria utilized in the case selection process to clarify and simplify the process.
The LSC OIG updated and revised suggested audit procedures for the regulations. The updates and revisions are intended for clarification and simplification purposes and to provide added emphasis on internal controls.
The LSC OIG received ten comments during the public comment period. Four comments were submitted by LSC funded recipients: Prairie State Legal Services (PSLS), Colorado Legal Services (CLS), Land of Lincoln Legal Assistance Foundation, Inc. (LOLLAF) and Legal Assistance Foundation of Metropolitan Chicago (LAF). Three comments were submitted by IPAs. One comment was submitted by the Lawyers Trust Fund of Illinois (LTFI), separately joined by LAF. One comment was submitted by the Standing Committee on Legal Aid & Indigent Defendants (SCLAID) of the American Bar Association. One comment was submitted by the non-LSC funded non-profit National Legal Aid and Defender Association (NLADA) through its Civil Policy Group and its Regulations and Policy Committee, which was also separately joined by LAF. All commenters appeared generally supportive of the changes the LSC OIG proposed to the Compliance Supplement for Audits of LSC Recipients.
The LSC OIG proposed making the Compliance Supplement for Audits of LSC Recipients effective for audits of fiscal years ending on or after December 31, 2015. Four commenters (PSLS, NLADA, CLS, LTFI) expressed concern over retroactive application of the revised Compliance Supplement for Audits of LSC Recipients which they believed would result in additional audit costs, delays in submission and impact the current audit process that may be underway. The LSC OIG will make the Compliance Supplement for Audits of LSC Recipients effective for audits of fiscal years ending on or after April 30, 2016.
As part of finalizing the Compliance Supplement for Audits of LSC Recipients, typos were corrected and formatting problems were resolved in both the regulatory summaries and in the suggested audit procedures. One commenter (SCLAID) identified a formatting issue and typos in separate regulatory summaries that were all corrected.
The LSC OIG proposed inclusion of 45 CFR part 1604 in the Compliance Supplement for Audits of LSC Recipients and provided a regulatory summary of the applicable compliance requirements.
The LSC OIG proposed revisions to update the regulatory summary for 45 CFR part 1611 in order to follow the current LSC regulation. The LSC OIG also proposed what it believed to be clarifying language relating to Older Americans Act (OAA) funds.
(5) the issuance, amendment or revocation of any executive
The LSC OIG proposed revisions to update the regulatory summary for 45 CFR part 1614 in order to follow the current LSC regulation.
Activities undertaken by the recipient to meet the requirements of this Part may also include, but are not limited to: (1) support provided by private attorneys to the recipient or a subrecipient as part of its delivery of legal assistance. . . .
Comments provided by all three IPAs related to non-audit questions, satisfaction with improved procedures and commentary on utilizing the suggested audit procedures. No additional changes were made.
For the reasons stated above, the Legal Services Corporation Office of Inspector General revises the Compliance Supplement for Audits of LSC Recipients. The Revised Compliance Supplement for Audits of LSC Recipients is available on the LSC OIG Web site at:
Federal Communications Commission.
Final rule; announcement of effective date.
In this document, the Commission announces that the Office of Management and Budget (OMB) has approved, for a period of three years, the information collection associated with the Commission's network change disclosure rules pertaining to copper retirement notices. This document is consistent with the
The amendments to 47 CFR 51.325(a)(4) and (e), 51.332, and
Michele Levy Berlove, Attorney Advisor, Wireline Competition Bureau, at (202) 418-1477, or by email at
This document announces that, on March 17, 2016, OMB approved, for a period of three years, the information collection requirements relating to the network change disclosure rules pertaining to copper retirement notices contained in the Commission's
The OMB Control Number is 3060-0741. The Commission publishes this notice as an announcement of the effective date of the rules. If you have any comments on the burden estimates listed below, or how the Commission can improve the collections and reduce any burdens caused thereby, please contact Nicole Ongele, Federal Communications Commission, Room A-C620, 445 12th Street SW., Washington, DC 20554. Please include the OMB Control Number, 3060-0741, in your correspondence. The Commission will also accept your comments via email at
To request materials in accessible formats for people with disabilities (Braille, large print, electronic files, audio format), send an email to
As required by the Paperwork Reduction Act of 1995 (44 U.S.C. 3507), the FCC is notifying the public that it received final OMB approval on March 17, 2016, for the information collection requirements contained in the modifications to the Commission's rules in 47 CFR part 51. Under 5 CFR part 1320, an agency may not conduct or sponsor a collection of information unless it displays a current, valid OMB Control Number.
No person shall be subject to any penalty for failing to comply with a collection of information subject to the Paperwork Reduction Act that does not display a current, valid OMB Control Number. The OMB Control Number is 3060-0741.
The foregoing notice is required by the Paperwork Reduction Act of 1995, Public Law 104-13, October 1, 1995, and 44 U.S.C. 3507.
The total annual reporting burdens and costs for the respondents are as follows:
Federal Communications Commission.
Final rule; announcement of effective date.
In this document, the Federal Communications Commission (Commission) announces that the Office of Management and Budget (OMB) has approved, for a period of three years, certain information collection requirements associated with the Commission's Expanding the Economic and Innovation Opportunities of Spectrum Through Incentive Auctions Report and Order (
47 CFR 73.3700(e)(2) through (6) and FCC Form 2100, Schedule 399, published at 79 FR 48442, August 15, 2014, are effective March 24, 2016.
For additional information contact Cathy Williams,
This document announces that, on March 17, 2016, OMB approved the information collection requirements contained in the Commission's
To request materials in accessible formats for people with disabilities (Braille, large print, electronic files, audio format), send an email to
As required by the Paperwork Reduction Act of 1995 (44 U.S.C. 3507), the FCC is notifying the public that it received OMB approval on March 17, 2016, for the information collection requirements contained in 47 CFR 73.3700(e)(2) through (6).
Under 5 CFR 1320, an agency may not conduct or sponsor a collection of information unless it displays a current, valid OMB Control Number.
No person shall be subject to any penalty for failing to comply with a collection of information subject to the Paperwork Reduction Act that does not display a current, valid OMB Control Number. The OMB Control Number is 3060-1178. The foregoing document is required by the Paperwork Reduction Act of 1995, Public Law 104-13, October 1, 1995, and 44 U.S.C. 3507.
The total annual reporting burdens and costs for the respondents are as follows:
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Temporary rule; reallocation.
NMFS is reallocating the projected unused amount of Pacific cod from catcher vessels less than 50 ft. length overall (LOA) using hook-and line gear and catcher vessels greater than or equal to 50 ft. LOA using hook-and-line gear to vessels using pot gear and vessels using jig gear in the Central Regulatory Area of the Gulf of Alaska (GOA). This action is necessary to allow the A season apportionment of the 2016 total allowable catch of Pacific cod to be harvested.
Effective March 21, 2016 through 1200 hours, Alaska local time (A.l.t.), June 10, 2016.
Obren Davis, 907-586-7228.
NMFS manages the groundfish fishery in the GOA exclusive economic zone according to the Fishery Management Plan for Groundfish of the Gulf of Alaska (FMP) prepared by the North Pacific Fishery Management Council under authority of the Magnuson-Stevens Fishery Conservation and Management Act. Regulations governing fishing by U.S. vessels in accordance with the FMP appear at subpart H of 50 CFR part 600 and 50 CFR part 679.
The A season allowance of the 2016 Pacific cod total allowable catch (TAC) apportioned to catcher vessels less than 50 ft. LOA using hook-and-line gear in the Central Regulatory Area of the GOA is 3,411 metric tons (mt), as established by the final 2016 and 2017 harvest specifications for groundfish of the GOA (81 FR 14740, March 18, 2016).
The A season allowance of the 2016 Pacific cod total allowable catch (TAC) apportioned to catcher vessels greater than or equal to 50 ft. LOA using hook-and-line gear in the Central Regulatory Area of the GOA is 2,054 mt, as established by the final 2016 and 2017 harvest specifications for groundfish of the GOA (81 FR 14740, March 18, 2016).
The Administrator, Alaska Region, NMFS, (Regional Administrator) has determined that catcher vessels using hook-and-line gear will not be able to harvest 1,700 mt of the A season apportionment of the 2016 Pacific cod TAC allocated to those vessels under § 679.20(a)(12)(i)(B)(
The harvest specifications for Pacific cod included in the final 2016 and 2017 harvest specifications for groundfish of the GOA (81 FR 14740, March 18, 2016) are revised as follows: 2,411 mt to the A season apportionment and 4,347 mt to the annual amount for catcher vessels less than 50 ft. LOA using hook-and-line gear, 1,354 mt to the A season apportionment and 1,756 mt to the annual amount for catcher vessels equal to or greater than 50 ft. LOA using hook-and-line gear, 8,028 mt to the A season apportionment and 11,680 mt to the annual amount to vessels using pot gear, and 422 mt to the A season apportionment and 570 mt to the annual amount to vessels using jig gear.
This action responds to the best available information recently obtained from the fishery. The Assistant Administrator for Fisheries, NOAA (AA), finds good cause to waive the requirement to provide prior notice and opportunity for public comment pursuant to the authority set forth at 5 U.S.C. 553(b)(B) as such requirement is impracticable and contrary to the public interest. This requirement is impracticable and contrary to the public interest as it would prevent NMFS from responding to the most recent fisheries data in a timely fashion and would delay the reallocation of Pacific cod specified from catcher vessels using hook-and-line gear to vessels using pot or jig gear. Since the fishery is currently open, it is important to immediately inform the industry as to the revised allocations. Immediate notification is necessary to allow for the orderly conduct and efficient operation of this fishery, to allow the industry to plan for the fishing season, and to avoid potential disruption to the fishing fleet as well as processors. NMFS was unable to publish a notice providing time for public comment because the most recent, relevant data only became available as of March 18, 2016.
The AA also finds good cause to waive the 30-day delay in the effective date of this action under 5 U.S.C. 553(d)(3). This finding is based upon the reasons provided above for waiver of prior notice and opportunity for public comment.
This action is required by § 679.20 and is exempt from review under Executive Order 12866.
16 U.S.C. 1801
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Temporary rule; opening.
NMFS is opening directed fishing for Pacific cod by vessels using jig gear in the Central Regulatory Area of the Gulf of Alaska (GOA). This action is necessary to fully use the A season allowance of the 2016 total allowable catch of Pacific cod apportioned to vessels using jig gear in the Central Regulatory Area of the GOA.
Effective 1200 hours, Alaska local time (A.l.t.), March 21, 2016, through 1200 hours, A.l.t., June 10, 2016.
Comments must be received at the following address no later than 4:30 p.m., A.l.t., April 8, 2016.
You may submit comments on this document, identified by FDMS Docket Number NOAA-NMFS-2015-0110 by any of the following methods:
•
•
Obren Davis, 907-586-7228.
NMFS manages the groundfish fishery in the GOA exclusive economic zone according to the Fishery Management Plan for Groundfish of the Gulf of Alaska (FMP) prepared by the North Pacific Fishery Management Council under authority of the Magnuson-Stevens Fishery Conservation and Management Act. Regulations governing fishing by U.S. vessels in accordance with the FMP appear at subpart H of 50 CFR part 600 and 50 CFR part 679.
The A season allowance of the 2016 Pacific cod total allowable catch (TAC) apportioned to vessels using jig gear in the Central Regulatory Area of the GOA is 222 metric tons (mt), as established by the final 2016 and 2017 harvest specifications for groundfish of the GOA (81 FR 14740, March 18, 2016).
NMFS closed directed fishing for Pacific cod by vessels using jig gear in the Central Regulatory Area of the GOA under § 679.20(d)(1)(iii) on March 1, 2016 (81 FR 11452, March 4, 2016).
As of March 18, 2016, NMFS has determined that approximately 200 mt of Pacific cod remain in the A season directed fishing allowance for Pacific cod apportioned to vessels using jig gear in the Central Regulatory Area of the GOA. Therefore, in accordance with § 679.25(a)(1)(i), (a)(2)(i)(C), and (a)(2)(iii)(D), and to fully utilize the A season allowance of the 2016 TAC of Pacific cod in the Central Regulatory Area of the GOA, NMFS is terminating the previous closure and is reopening directed fishing for Pacific cod by vessels using jig gear in the Central Regulatory Area of the GOA. The Administrator, Alaska Region (Regional Administrator) considered the following factors in reaching this decision: (1) The current catch of Pacific cod in the Central Regulatory Area of the GOA and, (2) the harvest capacity and stated intent on future harvesting patterns of vessels in participating in this fishery.
This action responds to the best available information recently obtained from the fishery. The Assistant Administrator for Fisheries, NOAA (AA), finds good cause to waive the requirement to provide prior notice and opportunity for public comment pursuant to the authority set forth at 5 U.S.C. 553(b)(B) as such requirement is impracticable and contrary to the public interest. This requirement is impracticable and contrary to the public interest as it would prevent NMFS from responding to the most recent fisheries data in a timely fashion and would delay the opening of directed fishing for Pacific cod in the Central Regulatory Area of the GOA. NMFS was unable to publish a notice providing time for public comment because the most recent, relevant data only became available as of March 18, 2016.
The AA also finds good cause to waive the 30-day delay in the effective date of this action under 5 U.S.C. 553(d)(3). This finding is based upon the reasons provided above for waiver of prior notice and opportunity for public comment.
Without this inseason adjustment, NMFS could not allow the fishery for Pacific cod by vessels using jig gear in the Central Regulatory Area of the GOA to be harvested in an expedient manner and in accordance with the regulatory schedule. Under § 679.25(c)(2), interested persons are invited to submit written comments on this action to the above address until April 8, 2016.
This action is required by § 679.25 and is exempt from review under Executive Order 12866.
16 U.S.C. 1801
Animal and Plant Health Inspection Service, USDA.
Proposed rule.
We are proposing to amend the National Poultry Improvement Plan (NPIP, the Plan), its auxiliary provisions, and the indemnity regulations for the control of H5 and H7 low pathogenic avian influenza to clarify participation in the NPIP and amend participation requirements, amend definitions for poultry and breeding stock, amend the approval process for new diagnostic tests, and amend laboratory inspection and testing requirements. These changes would align the regulations with international standards and make them more transparent to Animal and Plant Health Inspection Service stakeholders and the general public. The proposed changes were voted on and approved by the voting delegates at the Plan's 2014 National Plan Conference.
We will consider all comments that we receive on or before May 23, 2016.
You may submit comments by either of the following methods:
•
•
Supporting documents and any comments we receive on this docket may be viewed at
Dr. Denise Brinson, DVM, Director, National Poultry Improvement Plan, VS, APHIS, USDA, 1506 Klondike Road, Suite 101, Conyers, GA 30094-5104; (770) 922-3496.
The National Poultry Improvement Plan (NPIP, also referred to below as “the Plan”) is a cooperative Federal-State-industry mechanism for controlling certain poultry diseases. The Plan consists of a variety of programs intended to prevent and control poultry diseases. Participation in all Plan programs is voluntary, but breeding flocks, hatcheries, and dealers must first qualify as “U.S. Pullorum-Typhoid Clean” as a condition for participating in the other Plan programs.
The Plan identifies States, flocks, hatcheries, dealers, and slaughter plants that meet certain disease control standards specified in the Plan's various programs. As a result, customers can buy poultry that has tested clean of certain diseases or that has been produced under disease-prevention conditions.
The regulations in 9 CFR parts 145, 146, and 147 (referred to below as the regulations) contain the provisions of the Plan. The Animal and Plant Health Inspection Service (APHIS, also referred to as “the Service”) of the U.S. Department of Agriculture (USDA, also referred to as “the Department”) amends these provisions from time to time to incorporate new scientific information and technologies within the Plan. In addition, the regulations in 9 CFR part 56 set out conditions for the payment of indemnity for costs associated with poultry that are infected with or exposed to H5/H7 low pathogenic avian influenza (LPAI) and provisions for a cooperative control program for the disease.
The proposed amendments discussed in this document are consistent with the recommendations approved by the voting delegates to the last National Plan Conference, which was held on July 10 through 12, 2014. Participants in the National Plan Conference represented flockowners, breeders, hatcherymen, slaughter plants, poultry veterinarians, laboratory personnel, Official State Agencies from cooperating States, and other poultry industry affiliates. The proposed amendments are discussed in the order they would appear in the regulations.
The NPIP regulations in 9 CFR parts 145 and 146 contain requirements that must be observed by flocks that participate in the Plan. Currently, § 145.3 details the process by which a person becomes eligible to participate in the Plan. Any person producing or dealing in products may participate when he/she has demonstrated, to the satisfaction of the Official State Agency, that his/her facilities, personnel, and practices are adequate for carrying out the applicable provisions of the Plan, and has signed an agreement with the Official State Agency to comply with the general and the applicable specific provisions of the Plan and any regulations of the Official State Agency under § 145.2. Affiliated flockowners may participate in the plan without signing an agreement with the Official State Agency. We are proposing to add additional language to this section to clarify that the NPIP is a cooperative Federal-State-Industry program through which new or existing diagnostic technology can be effectively applied to improve poultry and poultry products by controlling or eliminating specific poultry diseases. Because the Plan consists of programs that identify States, flocks, hatcheries, dealers, and slaughter plants that meet specific disease control standards specified in the Plan, we also propose to clarify that recordkeeping is important to demonstrate that participants adhere to the disease control programs in which they participate. We are proposing to add this language to paragraph (a) of § 145.3.
The regulations in § 145.12 contain requirements for the retention and
The regulations in § 145.14 contain requirements for conducting official tests for pullorum-typhoid,
Paragraph (b) outlines specific testing requirements for
In a final rule
The regulations in § 145.42 outline the requirements with which turkey flocks, and the eggs and poults produced from them, must comply in order to participate in the Plan. Due to the same restrictions and concerns for staff safety for workers in the turkey industry and the same standard practice and benefits of requiring nest clean eggs, we are proposing to make the same changes to paragraph (b) of this section that were made in the July 2014 final rule for §§ 145.22(b), 145.32(b), 145.72(b), and 145.82(b).
We are also proposing to amend the definition of
The regulations in § 145.53 set out classifications for hobbyist and exhibition waterfowl, exhibition poultry, and game bird breeding flocks and products. Paragraph (c) in § 145.53 sets out the U.S.
We are proposing to require targeted bird sampling of the choanal palatine cleft/fissure area using appropriate swabs as an alternative to the random serum or egg yolk sampling currently required for retention of the U.S.
We are also proposing to change the size of the sample for U.S.
Because
Assuming a normal distribution and an infection rate of 1 percent, changing the sample sizes as proposed does not greatly affect the chance of detecting a positive sample (confidence interval approximately 95 percent). These proposed sample size changes would allow us to increase the efficiency of the NPIP program by allowing resources to be used elsewhere.
The regulations in § 145.83 set out the requirements for the classification of participating flocks, and the eggs and chicks produced from them, with respect to certain diseases. Paragraph (f) of § 145.83 sets out requirements for preventing and controlling
The regulations in §§ 145.91 and 145.92 set out special provisions for meat-type waterfowl and the eggs and baby poultry produced from them. Currently, paragraph (b) of § 145.92 requires that hatching eggs produced by primary breeding flocks be fumigated in accordance with part 147 or otherwise sanitized. We are proposing to remove the requirement for fumigation and instead state that hatching eggs should be “nest clean” and that they “may be” fumigated or otherwise sanitized. We would also extend these requirements to multiplier breeding flocks, as these proposed requirements are meant to mirror the changes made to the provisions for multiplier egg-type and meat-type chicken breeding flocks and primary egg-type and meat-type breeding flocks, following the 2010 NPIP conference as well as the changes we are proposing to the regulations for breeding turkeys in § 145.42.
The regulations in § 145.93 set out requirements for the classification of participating flocks of meat-type waterfowl and the eggs and baby poultry produced from them, with respect to certain diseases. Paragraph (c) of § 145.93 sets out requirements for the classification of such flocks as U.S. H5/H7 Avian Influenza Clean. Currently, the regulations state that, in order for multiplier breeding flocks to retain this classification, a sample of at least 30 birds must either be tested negative for avian influenza at intervals of 180 days, a sample of fewer than 30 birds may be tested and found negative for avian influenza at any one time if all pens are equally represented and a total of 30 birds are tested within each 180-day period, or a sample of at least 30 birds are tested and found negative to H5/H7 avian influenza within 21 days prior to movement to slaughter.
In the July 2014 final rule, we amended the regulations by changing the number of breeding birds required to be tested for avian influenza prior to movement to slaughter in §§ 145.23, 145.33, and 145.73. Rather than requiring 30 spent fowl to be tested, we now require the testing of a sample of 11 birds prior to movement to slaughter. This change was necessary because, generally, the entire flock of egg-type breeding chickens will be moved to slaughter at one time. Testing 11 birds per flock is also consistent with the testing requirements for meat-type commercial chickens moved to slaughter under the U.S. H5/H7 Avian Influenza Monitored program in § 146.33, and provides adequate assurance that the flock is free of avian influenza. We are proposing to make the same change for meat-type waterfowl breeding flocks. Aligning sample numbers across similar flocks simplifies plan participation.
Part 146 of the regulations contains the NPIP provisions for commercial poultry. Section 146.3 provides requirements for participation in the Plan by commercial table-egg producers, raised-for-release upland game bird or waterfowl premises, commercial upland game bird or waterfowl slaughter plants, and meat-type chicken or turkey slaughter plants. We propose to amend the regulations to add commercial table-egg layer pullet flocks to the list of Plan participants in paragraph (c)(1) of § 146.2 and paragraph (a) in § 146.3. A
Finally, we are proposing to amend the definition of
Section 146.11 of the regulations sets out the audit process for participating slaughter plants. Paragraph (b) states that flocks slaughtered at a slaughter plant will be considered to be not conforming to the required protocol of the classifications if there are no test results available, if the flock was not tested within 21 days before slaughter, or if the test results for the flocks were not returned before slaughter. We are
The regulations in §§ 146.51 through 146.53 contain special provisions related to the participation in the NPIP program by commercial upland game birds, commercial waterfowl, raised-for-release upland game birds, and raised-for-release waterfowl and the classification of such flocks as U.S. H5/H7 Avian Influenza Monitored. Commercial upland game birds and waterfowl are sometimes grown for the primary purpose of producing eggs for human consumption, notably in specialty markets, restaurants, and health food outlets. Because a significant number of these flocks are large in size, we believe that the creation of a mechanism for NPIP participation and avian influenza surveillance for such flocks would be beneficial to the poultry industry as a whole. Therefore, we are proposing to amend the definition for
We are also proposing to add commercial upland game birds and commercial waterfowl producing eggs for human consumption to the list of Plan participants in paragraphs (a) and (c) of § 146.52. We would also change the word “purpose” under both the definition for
Paragraph (a) of § 146.53 contains the U.S. H5/H7 Avian Influenza Monitored classification for commercial waterfowl and commercial upland game birds. Currently, the commercial waterfowl and commercial upland game bird industry may earn U.S. H5/H7 Influenza Monitored classification by participating in routine surveillance for H5/H7 avian influenza through participating slaughter plants. We are proposing to add provisions for the regular surveillance of commercial waterfowl and game bird egg-producing flocks for avian influenza in new paragraphs (a)(4) and (a)(5). These provisions would require that a minimum of 11 birds per flock be tested negative to H5/H7 avian influenza as provided in § 146.13 within 30 days of disposal or within a 12 month period or that the participating flock has an on-going active and passive surveillance program for H5/H7 avian influenza approved by the Official State Agency and the Service.
Subpart F of part 147 contains provisions for authorized laboratories and approved test and sanitation procedures under the NPIP. Section 147.52 contains the current provisions for approving authorized laboratories. While these provisions currently require laboratories to undergo an annual site visit and recordkeeping audit by their Official State Agency in order to maintain authorization, laboratory procedures and personnel generally do not change on a yearly basis. In addition, the need for Official State Agencies to inspect laboratories in other States serving industry members within their own States has proven to unnecessarily consume time and travel funds best utilized in other areas of the Plan. Therefore, we are proposing to amend the regulations to require that site visits take place at least once every 2 years.
Section 147.54 outlines the required procedures for the approval of diagnostic test kits that are not licensed by APHIS. Current paragraph (a) states that the sensitivity of the kit will be estimated by testing known positive samples, as determined by official NPIP procedures found in the NPIP program standards or via other procedures approved by the Administrator. Because it is difficult to define a minor test modification versus a major test modification and to determine what data might be needed beforehand for a new test, we are proposing to allow the conditional use of a modified test side by side with the approved versions using field samples. This would make it easier for laboratories to participate in the test validation process. Field samples would have to be composed of those samples for which the presence or absence of the target organism or analyte has been determined by the current NPIP test rather than spiked samples or pure cultures. In addition, samples would have to come from a variety of field cases representing a range of low, medium, and high analyte concentrations. Spiked samples should only be used in the event that no other sample types are available. These changes would ensure that samples used for validation represent real samples and contain the same analytes and extraneous material that would be found in clinical samples. Realistic samples are critical to ensuring that a test will perform adequately with normal use. We are also proposing to clarify that laboratories should only be selected for their experience with testing for the target organism or analyte with the current NPIP approved test. Finally, we are proposing to remove the requirement that authorized laboratories be selected by the Service and clarify that the specificity of the kit will be “evaluated” rather than “estimated” in both current paragraphs (a) and (b) to provide more specific information on test performance. We are proposing this change because authorized NPIP laboratories use the same standards and guidelines. Therefore, any NPIP-authorized laboratory should be able to be utilized by any company seeking approval of a new test.
We are also proposing to revise the regulations in current paragraph (c) to remove the requirement for clinical samples to be supplied by the manufacturer of the test kit. Further, we propose to require that at least 50 known negative samples be tested by each laboratory rather than the currently required 50 known negative clinical samples. Because it can be difficult to find clinical samples and to share clinical samples for logistical reasons, removing the requirements for clinical samples and for samples to be supplied by the test kit manufacturer would allow any entity to provide clinical samples. However, the negative samples would have to contain relevant sample matrices/extraneous material which would be found in clinical samples. In addition, requiring at least 50 known negative samples rather than 50 known negative samples is necessary because, in the past, we have received fewer than 50 samples from a company when more samples were unavailable. This change would make it clearer that we view any sample sets consisting of fewer than 50 samples as incomplete and that we
Paragraph (d) states that laboratories must submit assay response data to the kit manufacturer along with the official NPIP procedure. We are proposing to require that a worksheet for diagnostic test evaluation be submitted along with the raw data from the assay response and that the data and completed worksheet be submitted to the NPIP Senior Coordinator 4 months before the next General Conference Committee meeting, which is when test approval would be sought. Worksheets would be obtained by contacting the NPIP Senior Coordinator. The diagnostic test evaluation worksheet is intended to provide a standardized template to ensure that all needed data for test evaluation has been prepared and that the data is available in a uniform manner. This would make review of the data easier for the NPIP Technical Committee, which would facilitate the test approval process.
Paragraph (e) puts forth the process by which the NPIP Technical Committee will make their decision about whether to approve a new diagnostic test. We propose to clarify that a majority of the members of the Technical Committee would have to recommend whether to approve the test kit and that this recommendation would have to occur at the next scheduled General Conference Committee meeting.
Currently, the regulations do not provide procedures for modifying or removing diagnostic tests. Therefore, we are proposing to redesignate the introductory paragraph for § 147.54 as paragraph (a) and the following paragraphs (a) through (f) as paragraphs (a)(1) through (6) and add a new paragraph (b) to describe how diagnostic tests may be modified or removed. The proposed requirements would require the submission of data in support of modifying or removing the test in question to the NPIP Technical Committee in a manner similar to that in place for the approval of new test kits in current paragraph (e).
This proposed rule has been determined to be not significant for the purposes of Executive Order 12866 and, therefore, has not been reviewed by the Office of Management and Budget.
In accordance with the Regulatory Flexibility Act, we have analyzed the potential economic effects of this action on small entities. The analysis is summarized below. Copies of the full analysis are available by contacting the person listed under
The changes in this proposed rule are recommended by the NPIP General Conference Committee, which represents cooperating State agencies and poultry industry members and advises the Secretary of Agriculture on issues pertaining to poultry health. The proposed amendments to these regulations would improve the regulatory environment for poultry and poultry products.
This rulemaking would result in various changes to 9 CFR parts 56 and 145-147, modifying provisions of the NPIP. The proposed rule would clarify participation in the NPIP and amend participation requirements, amend definitions for poultry and breeding stock, amend the approval process for new diagnostic tests, and amend inspection and laboratory testing requirements. The proposed amendments to these regulations would improve the regulatory environment for poultry and poultry products.
The establishments that would be affected by the proposed rule—principally entities engaged in poultry production and processing—are predominantly small by Small Business Administration standards. In those instances in which an addition or modification could potentially result in a cost to certain entities, we do not expect the costs to be significant. This rule embodies changes decided upon by the NPIP General Conference Committee on behalf of Plan members, that is, changes recognized by the poultry industry as in their interest. We note that NPIP membership is voluntary.
Under these circumstances, the Administrator of the Animal and Plant Health Inspection Service has determined that this action would not have a significant economic impact on a substantial number of small entities.
This program/activity is listed in the Catalog of Federal Domestic Assistance under No. 10.025 and is subject to Executive Order 12372, which requires intergovernmental consultation with State and local officials. (See 2 CFR chapter IV.)
In accordance with section 3507(d) of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501
We are proposing to amend the NPIP, its auxiliary provisions, and the indemnity regulations for the control of H5 and H7 low pathogenic avian influenza to clarify participation in the NPIP and amend participation requirements, amend definitions for poultry and breeding stock, amend the approval process for new diagnostic tests, and amend laboratory inspection and testing requirements. These changes would align the regulations with international standards and make them more transparent to APHIS stakeholders and the general public.
Implementing this rule will require certain new information collection activities such as Waterfowl and Game Bird Surveillance and Diagnostic Test Evaluation Worksheets. APHIS is asking OMB to approve, for 3 years, its use of these information collection activities in connection with APHIS' efforts to continually improve the health of the U.S. poultry population and the quality of U.S. poultry products. The NPIP has an existing information collection under OMB control number 0579-0007. At the next renewal of 0579-0007, we will merge the activities added by this proposed rule, subject to OMB approval.
We are soliciting comments from the public (as well as affected agencies) concerning our proposed information collection and recordkeeping requirements. These comments will help us:
(1) Evaluate whether the proposed information collection is necessary for the proper performance of our agency's functions, including whether the information will have practical utility;
(2) Evaluate the accuracy of our estimate of the burden of the proposed information collection, including the validity of the methodology and assumptions used;
(3) Enhance the quality, utility, and clarity of the information to be collected; and
(4) Minimize the burden of the information collection on those who are to respond (such as through the use of appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology;
Copies of this information collection can be obtained from Ms. Kimberly Hardy, APHIS' Information Collection Coordinator, at (301) 851-2727.
The Animal and Plant Health Inspection Service is committed to compliance with the E-Government Act to promote the use of the Internet and other information technologies, to provide increased opportunities for citizen access to Government information and services, and for other purposes. For information pertinent to E-Government Act compliance related to this proposed rule, please contact Ms. Kimberly Hardy, APHIS' Information Collection Coordinator, at (301) 851-2727.
Animal diseases, Indemnity payments, Low pathogenic avian influenza, Poultry.
Animal diseases, Poultry and poultry products, Reporting and recordkeeping requirements.
Accordingly, we propose to amend 9 CFR parts 56, 145, 146, and 147 as follows:
7 U.S.C. 8301-8317; 7 CFR 2.22, 2.80, and 371.4.
7 U.S.C. 8301-8317; 7 CFR 2.22, 2.80, and 371.4.
The addition reads as follows:
(a) The National Poultry Improvement Plan is a cooperative Federal-State-Industry program through which new or existing diagnostic technology can be effectively applied to improve poultry and poultry products by controlling or eliminating specific poultry diseases. The Plan consists of programs that identify States, flocks, hatcheries, dealers, and slaughter plants that meet specific disease control standards specified in the Plan. Participants shall maintain records to demonstrate that they adhere to the disease control programs in which they participate.
The revisions read as follows:
(a) * * *
(5) The official blood test shall include the testing of a sample of blood from each bird in the flock: Provided, That under specified conditions (see applicable provisions of §§ 145.23, 145.33, 145.43, 145.53, 145.63, 145.73, 145.83, and 145.93) the testing of a portion or sample of the birds may be used in lieu of testing each bird.
(b) * * *
(1) The official tests for
(b) Hatching eggs should be nest clean. They may be fumigated in accordance with part 147 of this subchapter or otherwise sanitized.
The revisions read as follows:
(c) * * *
(1) * * *
(i) It is a flock in which all birds or a sample of at least 300 birds has been tested for
(ii) It is a multiplier breeding flock which originated as U.S. M. Gallisepticum Clean baby poultry from primary breeding flocks and a random sample comprised of 50 percent of the birds in the flock, with a maximum of 200 birds and a minimum of 30 birds per flock or all birds in the flock if the flock size is less than 30 birds, has been tested for
(A) At intervals of not more than 90 days, a random sample of serum or egg yolk or a targeted bird sample of the choanal palatine cleft/fissure area using appropriate swabs from all the birds in the flock if flock size is less than 30, but at least 30 birds, shall be tested; or
(d) * * *
(1) * * *
(i) It is a flock in which all birds or a sample of at least 300 birds has been tested for
(ii) It is a multiplier breeding flock that originated as U.S. M. Synoviae Clean chicks from primary breeding flocks and from which a random sample comprised of 50 percent of the birds in the flock, with a maximum of 200 birds and a minimum of 30 birds per flock or all birds in the flock if the flock is less than 30 birds, has been tested for
(A) At intervals of not more than 90 days, a random sample of serum or egg yolk or a targeted bird sample of the choanal palantine cleft/fissure area using appropriate swabs from all the birds in the flock if the flock size is less than 30, but at least 30 birds shall be tested:
The revisions read as follows:
(f) * * *
(1) * * *
(i) Measures shall be implemented to control
(3) In order for a hatchery to sell products of paragraphs (f)(1)(i) through (f)(1)(vi) of this section, all products handled shall meet the requirements of the classification.
(b) Hatching eggs produced by primary and multiplier breeding flocks should be nest clean. They may be fumigated in accordance with part 147 of this subchapter or otherwise sanitized.
7 U.S.C. 8301-8317; 7 CFR 2.22, 2.80, and 371.4.
(c)(1) An Official State Agency may accept for participation a commercial table-egg layer pullet flock, commercial table-egg layer flock, or a commercial meat-type flock (including an affiliated flock) located in another participating State under a mutual understanding and
(2) An Official State Agency may accept for participation a commercial table-egg layer pullet flock, commercial table-egg layer flock, or a commercial meat-type flock (including an affiliated flock) located in a State that does not participate in the Plan under a mutual understanding and agreement, in writing, between the owner of the flock and the Official State Agency regarding conditions of participation and supervision.
(b) A flock will be considered to be conforming to protocol if it meets the requirements as described in § 145.33(a), § 146.43(a), or § 146.53(a) of this chapter.
(a) Participating commercial upland game bird slaughter plants, commercial waterfowl slaughter plants, raised-for-release upland game bird premises, raised-for-release waterfowl premises, and commercial upland game bird and commercial waterfowl producing eggs for human consumption premises shall comply with the applicable general provisions of subpart A of this part and the special provisions of this subpart E.
(c) Raised-for-release upland game bird premises, raised-for-release waterfowl premises, and commercial upland game bird and commercial waterfowl producing eggs for human consumption premises that raise fewer than 25,000 birds annually are exempt from the special provisions of this subpart E.
The additions read as follows:
(a) * * *
(4) It is a commercial upland game bird or waterfowl flock that produces eggs for human consumption where a minimum of 11 birds per flock have been tested negative to the H5/H7 subtypes of avian influenza as provided in § 146.13 (b) within 30 days of disposal or within a 12 month period.
(5) It is a commercial upland game bird or waterfowl flock that has an on-going active and passive surveillance program for H5/H7 subtypes of avian influenza that is approved by the Official State Agency and the Service.
7 U.S.C. 8301-8317; 7 CFR 2.22, 2.80, and 371.4.
(d)
(a) Diagnostic test kits that are not licensed by the Service (
(1) The sensitivity of the kit will be evaluated in at least three NPIP authorized laboratories by testing known positive samples, as determined by the official NPIP procedures found in the NPIP Program Standards or through other procedures approved by the Administrator. Field samples for which the presence or absence of the target organism or analyte has been determined by the current NPIP test should be used, not spiked samples or pure cultures. Samples from a variety of field cases representing a range of low, medium, and high analyte concentrations should be used. In some cases it may be necessary to utilize samples from experimentally infected animals. Spiked samples (clinical sample matrix with a known amount of pure culture added) should only be used in the event that no other sample types are available. Pure cultures should never be used. Additionally, laboratories should be selected for their experience with testing for the target organism or analyte with the current NPIP approved test. If certain conditions or interfering substances are known to affect the performance of the kit, appropriate samples will be included so that the magnitude and significance of the effect(s) can be evaluated.
(2) The specificity of the kit will be evaluated in at least three NPIP authorized laboratories by testing known negative samples, as determined by tests conducted in accordance with the NPIP Program Standards or other procedures approved by the Administrator in accordance with § 147.53(d)(1). If certain conditions or interfering substances are known to affect the performance of the kit, appropriate samples will be included so that the magnitude and significance of the effect(s) can be evaluated.
(3) The kit will be provided to the cooperating laboratories in its final form and include the instructions for use. The cooperating laboratories must perform the assay exactly as stated in the supplied instructions. Each laboratory must test a panel of at least 25 known positive samples. In addition, each laboratory will be asked to test at least 50 known negative samples obtained from several sources, to provide a representative sampling of the general population. The cooperating laboratories must perform a current NPIP procedure or NPIP approved test on the samples alongside the test kit for comparison.
(4) Cooperating laboratories will submit to the kit manufacturer all raw data regarding the assay response. Each
(5) The findings of the cooperating laboratories will be evaluated by the NPIP Technical Committee, and the Technical Committee will make a majority recommendation whether to approve the test kit to the General Conference Committee at the next scheduled General Conference Committee meeting. If the Technical Committee recommends approval, the final approval will be granted in accordance with the procedures described in §§ 147.46, 147.47, and 147.48.
(6) Diagnostic test kits that are not licensed by the Service (
(b)
(2) If the Technical Committee determines that only additional field data is needed at the time of submission for a modification of a previously approved test, allow for a conditional approval for 60 days for data collection side-by-side with a current test. The submitting party must provide complete protocol and study design, including criteria for pass/fail to the Technical Committee. The Technical Committee must review the data prior to final approval. This would only apply to the specific situation where a modified test needs additional field data with poultry to be approved.
(3) Approved diagnostic tests may be removed from the Plan by submission of a proposed change from a participant, Official State Agency, the Department, or other interested person or industry organization. The data in support of removing an approved test will be compiled and evaluated by the NPIP Technical Committee, and the Technical Committee will make a majority recommendation whether to remove the test kit to the General Conference Committee at the next scheduled General Conference Committee meeting. If the Technical Committee recommends removal, the final decision to remove the test will be granted in accordance with the procedures described in §§ 147.46, 147.47, and 147.48.
Securities and Exchange Commission.
Proposed interpretation; request for comment.
The Securities and Exchange Commission is publishing for comment a proposed interpretation with respect to the definition of automated quotation under Rule 600(b)(3) of Regulation NMS.
Comments should be received on or before April 14, 2016.
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.
Richard Holley III, Assistant Director, at (202) 551-5614, Michael Bradley, Special Counsel, at (202) 551-5594, or Michael Ogershok, Attorney-Advisor, at 202-551-5541, all in the Office of Market Supervision, Division of Trading and Markets, Securities and Exchange Commission, 100 F Street NE., Washington, DC 20549-7010.
On August 21, 2015, Investors' Exchange LLC (“IEX”) submitted to the Commission a Form 1 application seeking registration as a national securities exchange under Section 6 of the Securities Exchange Act of 1934 (“Act”).
The Commission has received extensive comments on IEX's Form 1 application,
As discussed more fully below and as highlighted by a number of commenters on IEX's Form 1 application,
In general, Rule 611 under Regulation NMS (the “Order Protection Rule,” or “Trade-Through Rule”) protects the best automated quotations of exchanges by obligating other trading centers to honor those quotes by not executing trades at inferior prices or “trading through” such best automated quotations.
When it adopted Regulation NMS, the Commission explained that the purpose of the Order Protection Rule was to incentivize greater use of displayed limit orders, which contribute to price discovery and market liquidity.
There are several provisions in Regulation NMS that impact whether the Order Protection Rule applies. First, Rule 600(b)(58) defines a “protected quotation” as a “protected bid or a protected offer.”
In order for an exchange to operate as an “automated trading center,” it must, among other things, have “implemented such systems, procedures, and rules as are necessary to render it capable of displaying quotations that meet the requirements for an `automated quotation' set forth in [Rule 600(b)(3) of Regulation NMS].”
i. Permits an incoming order to be marked as immediate-or-cancel;
ii. Immediately and automatically executes an order marked as immediate-or-cancel against the displayed quotation up to its full size;
iii. Immediately and automatically cancels any unexecuted portion of an order marked as immediate-or-cancel without routing the order elsewhere;
iv. Immediately and automatically transmits a response to the sender of an order marked as immediate-or-cancel indicating the action taken with respect to such order; and
v. Immediately and automatically displays information that updates the displayed quotation to reflect any change to its material terms.
In the Regulation NMS Adopting Release, the Commission elaborated on the meaning of the terms “immediate” and “automatic” as those terms are used in the Rule 600(b)(3) definition of an automated quotation. Specifically, with respect to the meaning of the term “immediate,” the Commission stated that “[t]he term `immediate' precludes any coding of automated systems or other type of intentional device that would delay the action taken with
The Commission provided context in the Regulation NMS Adopting Release as to the intent behind the Order Protection Rule and the distinction between “automated quotations” and “manual quotations.” At the time of the adoption of Regulation NMS, manual quotations and markets that primarily were centered around human interaction in a floor-based trading environment, including “hybrid” trading facilities that offer automatic execution of orders seeking to interact with displayed quotations while also maintaining a physical trading floor, experienced processing delays for inbound orders that were measured in multiple seconds.
In Rules 600 and 611, the Commission did not set a maximum response time for a quotation to be an “automated quotation.”
However, the Commission believed that “immediate” should not be construed in a way to frustrate the purposes of Rule 611 and crafted several exceptions to Rule 611, two of which use a one second standard.
IEX, which currently operates a trading platform as an alternative trading system, is seeking to register as a national securities exchange. If its registration is granted, IEX would operate an electronic order book for NMS stocks.
IEX has represented that access to IEX by all Users would be obtained through a POP located in Secaucus, New Jersey.
According to IEX, all
Several commenters on IEX's Form 1 application questioned whether IEX's operation of the proposed POP/coil would be consistent with the Order Protection Rule.
Several commenters urged the Commission not to decide this question in the context of IEX's Form 1 application.
Other commenters offered support for IEX's proposed access delay, and challenged the assertion that IEX's quotation would not meet the definition of “automated quotation” under Regulation NMS.
Several commenters noted that there is latency associated with the transmission of orders to protected quotations at existing market venues—and in some cases, those latencies are greater than that associated with transmitting orders to IEX even factoring in the proposed POP/coil delay.
IEX asserted that the language of the Order Protection Rule and the Regulation NMS Adopting Release, when considered in light of the context in which the Order Protection Rule was adopted, do not compel the conclusion that IEX's quotes should be considered “manual quotations” instead of “automated quotations.”
According to IEX, its POP/coil structure “represents a form of prescribed physical distance to which all users are subject when submitting orders to IEX's trading system” and “[i]n this sense, it is no different from means that all exchanges impose to set the terms by which users can connect to their systems.”
As discussed above, at the time Regulation NMS was adopted, the concept of an “automated quotation” was intended to address manual and hybrid automated-manual trading systems in relation to the trade-through requirements of Rule 611. Under Regulation NMS, a trading center must provide an “immediate” response for its quotation to be an “automated quotation.”
As the speed of trading technology has increased since the adoption of Regulation NMS,
Specifically, the Commission preliminarily believes that, in the current market, delays of less than a millisecond in quotation response times may be at a
Accordingly, the Commission today is proposing to interpret “immediate” when determining whether a trading center maintains an “automated quotation” for purposes of Rule 611 of Regulation NMS to include response time delays at trading centers that are
The Commission requests comment all aspects of this proposed interpretation, including:
1. Would delays of less than a millisecond in quotation response times impair a market participant's ability to access a quote or impair efficient compliance with Rule 611?
2. In the current market, should the Commission interpret “immediate” as including a
3. Should the Commission be concerned about market manipulation? If so, specifically, what should the Commission focus on?
4. Should the Commission consider an alternative interpretation? If so, what should it be?
By the Commission.
Office of Elementary and Secondary Education, Department of Education.
Notice of proposed rulemaking.
The Secretary proposes to revise the regulations that govern the Equity Assistance Centers (EAC) program, authorized under Title IV of the Civil Rights Act of 1964, and to remove the regulations that govern the State Educational Agency Desegregation (SEA) program, authorized under Title IV of the Civil Rights Act of 1964. Once final and effective, these amended EAC regulations would govern the application process for new EAC grant awards. The proposed regulations would update the definitions applicable to this program; remove the existing selection criteria; and provide the Secretary with flexibility to determine the number and composition of geographic regions for the program. Additionally, the proposed regulations would remove the regulations for the SEA program, which is no longer funded.
We must receive your comments on or before April 25, 2016.
Submit your comments through the Federal eRulemaking Portal or via postal mail, commercial delivery, or hand delivery. We will not accept comments submitted by fax or by email or those submitted after the comment period. To ensure that we do not receive duplicate copies, please submit your comments only once. In addition, please include the Docket ID at the top of your comments.
•
•
Britt Jung, U.S. Department of Education, 400 Maryland Avenue SW., Room 3E231, Washington, DC 20202-6135. Telephone: (202) 205-4513 or by email:
If you use a telecommunications device for the deaf (TDD) or a text telephone (TTY), call the Federal Relay Service (FRS), toll free, at 1-800-877-8339.
We invite you to assist us in complying with the specific requirements of Executive Orders 12866 and 13563 and their overall requirement of reducing regulatory burden that might result from these proposed regulations. Please let us know of any further ways we could reduce potential costs or increase potential benefits while preserving the effective and efficient administration of the Department's programs and activities.
In addition to your general comments, we are interested in your feedback on the proposed flexibility in selecting the number and boundaries of the geographic regions. The Department currently plans to reduce the number of regional centers in the first competition after these final regulations become effective. We are particularly interested in your feedback on the following questions:
• Do applicants or program beneficiaries support the proposed flexibility allowing the Secretary to choose the number of regional centers?
• What factors should the Secretary consider when determining the composition of States in each geographic region?
• Are there potential costs or benefits associated with the proposed approach that we have not addressed?
During and after the comment period, you may inspect all public comments about these proposed regulations by accessing Regulations.gov. You may also inspect the comments in person in room 3E231, 400 Maryland Avenue SW., Washington, DC, between 8:30 a.m. and 4 p.m., Washington, DC time, Monday through Friday of each week except Federal holidays. Please contact the person listed under
The Secretary proposes to revise the general regulations in 34 CFR part 270 that apply to both the EAC and the SEA programs and to revise the regulations in 34 CFR part 272 that apply only to the EAC program. We propose five key changes to these regulations. First, we propose to amend the section that governs the existing geographic regions to allow the Secretary flexibility in choosing the number and composition of geographic regions to be funded with each competition. Second, we propose to add religion to the areas of desegregation assistance, add a definition for “special educational problems occasioned by desegregation,” and amend the definition of “sex desegregation” to clarify the protected individuals identified by this term. Third, we propose to remove the existing selection criteria (to instead rely on the General Selection Criteria listed under the Education Department General Administrative Regulations (EDGAR) at 34 CFR 75.210). Fourth, we propose to remove the limitations and exceptions established in current 34 CFR 270.6 on providing desegregation assistance, to align these regulations with those of other technical assistance centers. Fifth, we propose to remove 34 CFR part 271, as the SEA program has not been funded in twenty years. We also propose to merge part 272 into part 270, so that a single part covers the EAC program.
We propose regulations that would permit the Secretary to establish the geographic regions for the EAC program with each competition, so the Department could respond to the magnitude of the need for desegregation assistance across the nation, taking into account funding levels and the circumstances that exist at the time of each competition. The Department currently plans to fund four regional centers in the first competition after these final regulations become effective.
The proposed regulations would allow the Department to reduce the current number of regional centers while still providing technical assistance to beneficiaries across the nation. Presuming funding levels for the program remain constant, this would increase the funding available for each center and enable the centers to operate in the most effective and efficient manner. Reducing the current number of regions would limit the duplication of effort for overhead costs (such as start-up costs, administrative support, rent, etc.), and redirect those funds to technical assistance and support using the latest technology available. Furthermore, reducing the number of regions would allow the Department to provide more thorough support and monitoring of those consolidated centers, while ensuring technical assistance is still available to reach beneficiaries across the country. However, the proposed regulations would provide the flexibility to change the number and the composition of the regions in the future, in the event that funding levels or technical assistance delivery platforms were to change significantly. These decisions would necessarily take into consideration the need for centers to continue to provide support for communities across the country.
The proposed regulations would add religion to the areas of desegregation assistance, as religion is specifically cited in Title IV of the Civil Rights Act of 1964 as an area of desegregation assistance, and add a definition for the term “religion desegregation” that is consistent with the terms describing race, sex, and national origin desegregation. The Department would amend the definition of a “Desegregation Assistance Center” to refer to it as an Equity Assistance Center. The proposed regulations would also amend the definition of “sex desegregation” to explain that the Department interprets sex discrimination under Title IX to include discrimination based on transgender status, gender identity, sex stereotypes, and pregnancy and related conditions. Finally, the proposed regulations would add a definition for “special educational problems occasioned by desegregation” to clarify that this term does not refer to the provision of special education and related services as defined by the
The proposed regulations would also eliminate the selection criteria and the prescribed point values under § 272.30. At present, the prescribed point values are unduly restrictive on the Secretary's ability to structure each grant competition. Furthermore, there is significant overlap between the existing selection criteria and 34 CFR 75.210. As such, this change would provide the Secretary with greater flexibility to address program needs at the time of each competition, by allowing the use of any of the General Selection Criteria listed in 34 CFR 75.210, while ensuring that the selected projects for any competition meet the highest standards of professional excellence.
The proposed regulations would remove current § 270.6(b) in its entirety and amend current § 270.6(a) to broaden this section to address all technical assistance activities under this program, rather than only those for race and national origin desegregation assistance. We propose to amend current § 270.6 for clarity, and to align these regulations with the limitations on developing curriculum that apply to other technical assistance centers, such as the Comprehensive Centers. Consistent with the General Education Provisions Act, 20 U.S.C. 1232(a), we cannot and do not authorize centers to exercise direction or control over the curriculum. As currently drafted, § 270.6(b) could be misconstrued to permit the development or implementation of activities for direct instruction; removing this provision will ensure clarity. Moreover, this approach is similar to that taken in the most recent notice of final requirements, priorities, and selection criteria for the Comprehensive Centers Program published in the
Finally, the proposed regulations would remove 34 CFR part 271, and merge current parts 270 and 272 into a single part under proposed 34 CFR part 270. The current regulations for the Desegregation of Public Education Programs under 34 CFR part 270 govern both the SEA Program and the EAC Program. The current regulations for part 272 govern the EAC program. The current regulations for part 271 govern the SEA program. We propose to remove 34 CFR part 271 (and any references to part 271 in current parts 270 and 272), because the SEA Program has not received funding in two decades and is no longer administered by the Department. As the only program currently administered under the Desegregation of Public Education Programs is the EAC Program, we propose to move sections in current part 272 into part 270 so that there is a single part governing the EAC program. As a result of merging parts 270 and 272, we would reorder the sections within proposed part 270. Additionally, we propose to remove current sections §§ 270.1 (desegregation of public education programs), 270.4 (types of projects funded by the desegregation of public education programs), 272.3 (applicable regulations), and 272.4 (definitions), as these sections would become redundant with the merger.
We discuss substantive issues under the sections of the proposed regulations to which they pertain. Generally, we do not address proposed regulatory changes that are technical or otherwise minor in effect.
We propose to change the name from Desegregation Assistance Centers to Equity Assistance Centers because the term “equity” better reflects the breadth of the types of desegregation issues faced in schools now, as students from different backgrounds and experiences are brought together. Ultimately, the purpose of the regional centers is to ensure access to educational opportunities for all students without regard to their race, sex, national origin, or religion. In the 21st century, issues related to desegregation include harassment, school climate, resource equity gaps, discrimination, and instructional practices designed to reach all students. The Department has for some time referred to the regional assistance centers as “Equity Assistance Centers” in the notices inviting applications, in cooperative agreements, and on OESE's Web page for the grant program. The majority of the current regional centers refer to themselves as “Equity Centers” or “Equity Assistance Centers.” Therefore, we believe it is appropriate to formally refer to the regional centers as “Equity Assistance Centers.”
This proposed change would allow the Secretary the flexibility to consider the amount of available funding for the EAC program and distribute it among an appropriate number of geographic regions. Since the Department was created, the amount of funding for the EAC program has dropped significantly, from $45 million in FY 1980 (for all Desegregation of Public Education programs) to $6.6 million in FY 2016 for EAC grants. In developing the proposed regulations for this section, the Department reasoned that limiting the number of centers may be appropriate at times to reduce overhead costs and to ensure that a greater percentage of funds are used to directly serve beneficiaries. We also believe this change would improve each individual center's capacity to carry out robust technical assistance. Consolidating the number of regional centers would also help the Department to award grants to the highest-quality applications in future grant cycles.
The proposed regulations would enable the centers to operate in the most effective and efficient manner by limiting the duplication of effort for overhead costs and redirecting those funds to technical assistance. In addition, providing each center with more resources would help each individual center attract and retain the highest-quality experts in the field. Similarly, flexibility to determine the boundaries of geographic regions may enable more effective responses to new or emerging issues in the field by allowing the Secretary to create geographic regions based on areas facing similar issues. Furthermore, the capabilities of technology have changed dramatically since this program's enactment; the Internet now allows EACs to provide effective and coordinated technical assistance across much greater geographic distances than would have been possible when the current regulations were promulgated in 1987. Finally, allowing the Secretary to establish the number of regional centers for each competition will allow the Department to try different numbers to reach the optimal number of regional centers, without undergoing rulemaking each time it is necessary to alter the regions served under this program.
• “Desegregation assistance” means the provision of technical assistance (including training) in the areas of race, sex, and national origin desegregation of public elementary and secondary schools.
• “Desegregation assistance areas” means the areas of race, sex, and national origin desegregation.
• “Desegregation Assistance Center” means a regional desegregation technical assistance and training center funded under 34 CFR part 272.
• “Limited English proficiency” has the same meaning under this part as the same term defined in 34 CFR 500.4 of the General Provisions regulations for the Bilingual Education Program.
• “National origin desegregation” means the assignment of students to public schools and within those schools without regard to their national origin, including providing students of limited English proficiency with a full opportunity for participation in all educational programs.
• “Race desegregation” means the assignment of students to public schools and within those schools without regard to their race including providing students with a full opportunity for participation in all educational programs regardless of their race. “Race desegregation” does not mean the assignment of students to public schools
• “Sex desegregation” means the assignment of students to public schools and within those schools without regard to their sex including providing students with a full opportunity for participation in all educational programs regardless of their sex.
We propose to update the definition of “sex desegregation” to clarify the protected individuals identified by this term. We propose to clarify that “sex desegregation” includes the treatment of students on the basis of pregnancy and related conditions, which include childbirth, false pregnancy, termination of pregnancy and recovery therefrom, consistent with Title IX of the Education Amendments of 1972, 20 U.S.C. 1681 (Title IX) and its implementing regulations at 34 CFR 106.40. We also propose to clarify that “sex desegregation” includes the treatment of students without regard to sex stereotypes, or their transgender status or gender identity, to highlight some emerging issues for which EACs may provide technical assistance in this area. This change reflects the Supreme Court's reasoning that discrimination based on “sex” includes differential treatment based on any “sex-based conditions,”
We propose to add a definition of “religion desegregation,” and to incorporate religion into the definitions of “desegregation assistance” and “desegregation assistance areas.” Sections 401 and 403 of Title IV of the Civil Rights Act of 1964 authorize the Secretary to render technical assistance to support the desegregation of public schools and the assignment of students to schools without regard to religion. While the current regulations do not address religion desegregation, the Secretary's authority to render technical assistance for the desegregation of public schools is clear under sections 401 and 403 of Title IV of the Civil Rights Act of 1964, and desegregation is therein defined to include the assignment of students to public schools and within such schools without regard to their religion. Given the increasing religious diversity in the United States, and the increased tension that has developed in many of our schools related to a student's actual or perceived religion, the Department believes it would be beneficial to provide resources for schools to assist in developing effective strategies to ensure all students have a full opportunity to participate in educational programs, regardless of religion. Further, adding religion desegregation to the desegregation assistance areas will allow the Department to build upon and support the work of the United States Department of Justice under Title IV to ensure compliance with Federal laws prohibiting discrimination on the basis of religion.
We propose to amend the current definition of “limited English proficiency (LEP)” so that this term is identical to, and has the same meaning as, “English Learner” under ESEA section 8101(20), as the statutory definition reflects the Department's current understanding of this target population. We also propose to amend the definition of “national origin desegregation” to clarify that this term includes providing students who are English learners with a full opportunity for participation in all educational
Lastly, we propose to add a definition of “special educational problems occasioned by desegregation.” This phrase is included within the statute and regulations, but could be confused with requirements to provide special education and related services under IDEA. The new definition clarifies the distinction between the term “special educational problems occasioned by desegregation” under Title IV and “special education and related services” under the IDEA. Under this proposed definition, children with disabilities or staff providing services to them would not be precluded from being potential beneficiaries of technical assistance if they are affected by desegregation efforts.
Under current § 272.30, the Secretary is required to use all of the established selection criteria and the associated point values for each competition. As a result, the Secretary has no flexibility to adjust the selection criteria in accordance with the needs of the program at the time of each competition. The current selection criteria also limit the opportunities to improve the selection process, based upon experience gained in running the program.
Using the general selection criteria listed in 34 CFR 75.210 would ensure that the program selection process can be refined over time, based upon the needs and concerns identified at the time of each competition. The general selection criteria have been vetted and tested across many Departmental programs, and provide a wide range of factors for evaluating applications in any competition.
Substantively, there is significant overlap between current § 272.30 and the general selection criteria of 34 CFR 75.210, which would allow the Secretary to continue to use some similar elements of the selection criteria, if those elements are deemed the most appropriate choices for ensuring high-quality applicants.
Similarly, allowing the Secretary to identify the point values for each selection criterion at the time of the competition would allow the Secretary to hone the selection process over time. The Secretary will have the flexibility to weight more heavily those selection criteria determined to be most important in identifying effective centers.
Finally, this change will bring the EAC regulations into alignment with many other Departmental regulations for discretionary grant programs.
An approach to technical assistance informed by data and evidence would promote comprehensive and preventative policies to combat segregation. Encouraging applicants to analyze needs of their geographic regions during the application process will jumpstart these efforts. Finally, a data-driven approach to geographic need will help potential applicants anticipate the future needs of their regions and make better use of existing resources.
Proposed § 270.30(c) would specify that a recipient of a grant under this part must coordinate assistance in its geographic region with appropriate SEAs, Comprehensive Centers, Regional Educational Laboratories and other Federal technical assistance centers. This change is meant to reflect two important updates: First, the EACs would not be required to coordinate with SEAs funded under the SEA program, because the SEA Program no longer exists and no SEAs are funded under this program. Second, the proposed regulations would highlight the centers' responsibilities to work with a variety of stakeholders by noting that they “must coordinate” with appropriate SEAs, Comprehensive Centers, Regional Educational Laboratories, and other Federal technical assistance centers. We propose to promote this coordination to prevent technical assistance centers from duplicating work and to encourage technical assistance centers to share expertise regarding equity and desegregation issues.
Under Executive Order 12866, the Secretary must determine whether this regulatory action is “significant” and, therefore, subject to the requirements of the Executive order and subject to review by the Office of Management and Budget (OMB). Section 3(f) of Executive Order 12866 defines a “significant regulatory action” as an action likely to result in a rule that may—
(1) Have an annual effect on the economy of $100 million or more, or adversely affect a sector of the economy, productivity, competition, jobs, the environment, public health or safety, or State, local, or tribal governments or communities in a material way (also referred to as an “economically significant” rule);
(2) Create serious inconsistency or otherwise interfere with an action taken or planned by another agency;
(3) Materially alter the budgetary impacts of entitlement grants, user fees, or loan programs or the rights and obligations of recipients thereof; or
(4) Raise novel legal or policy issues arising out of legal mandates, the President's priorities, or the principles stated in the Executive order.
This proposed regulatory action is a significant regulatory action subject to review by OMB under section 3(f) of Executive Order 12866.
We have also reviewed these regulations under Executive Order 13563, which supplements and explicitly reaffirms the principles, structures, and definitions governing regulatory review established in Executive Order 12866. To the extent permitted by law, Executive Order 13563 requires that an agency—
(1) Propose or adopt regulations only upon a reasoned determination that their benefits justify their costs (recognizing that some benefits and costs are difficult to quantify);
(2) Tailor its regulations to impose the least burden on society, consistent with obtaining regulatory objectives and taking into account—among other things and to the extent practicable—the costs of cumulative regulations;
(3) In choosing among alternative regulatory approaches, select those approaches that maximize net benefits (including potential economic, environmental, public health and safety, and other advantages; distributive impacts; and equity);
(4) To the extent feasible, specify performance objectives, rather than the behavior or manner of compliance a regulated entity must adopt; and
(5) Identify and assess available alternatives to direct regulation, including economic incentives—such as user fees or marketable permits—to encourage the desired behavior, or provide information that enables the public to make choices.
Executive Order 13563 also requires an agency “to use the best available techniques to quantify anticipated present and future benefits and costs as accurately as possible.” The Office of
We are issuing these proposed regulations only on a reasoned determination that their benefits would justify their costs. In choosing among alternative regulatory approaches, we selected those approaches that would maximize net benefits. Based on the analysis that follows, the Department believes that these proposed regulations are consistent with the principles in Executive Order 13563.
We have also determined that this regulatory action would not unduly interfere with State, local, and tribal governments in the exercise of their governmental functions.
In accordance with both Executive orders, the Department has assessed the potential costs and benefits, both quantitative and qualitative, of this regulatory action. The potential costs associated with this regulatory action are those resulting from statutory requirements and those we have determined as necessary for administering the Department's programs and activities.
For Equity Assistance Center grants, applicants may anticipate costs in developing their applications. Application, submission, and participation in a competitive discretionary grant program are voluntary. The proposed regulations would create flexibility for us to use general selection criteria listed in EDGAR 75.210. We believe that any criterion from EDGAR 75.210 that would be used in a future grant competition would not impose a financial burden that applicants would not otherwise incur in the development and submission of a grant application. Other losses may stem from the reduction of the number of regional centers for those applicants that do not receive a grant in future funding years, including the costs of eliminating those centers and associated job losses.
Notably, we do not believe that reducing the number of regions would prevent EACs from providing technical assistance to beneficiaries across the country. Technological advancements allow EACs to provide effective and coordinated technical assistance across much greater geographic distances than when the current regulations were promulgated in 1987.
The benefits include enhancing project design and quality of services to better meet the statutory objectives of the programs. These proposed changes would also allow more funds to be used directly for providing technical assistance to responsible governmental agencies for their work in equity and desegregation by reducing the amount of funds directed to overhead costs. The proposed flexibility of the geographic regions would increase the Department's ability to be strategic with limited resources. In addition, these changes would result in each center receiving a greater percentage of the overall funds for the program, and this greater percentage and amount of funds for each selected applicant would help to incentivize a greater diversity of applicants.
In addition, the Secretary believes that students covered under sex desegregation and religion desegregation would strongly benefit from the proposed regulations. The revised definition of “sex desegregation” would eliminate lost opportunities for assistance by providing clarification regarding the scope of issues covered under sex desegregation, thus removing any confusion for EACs and the beneficiaries they serve as to which parties are entitled to assistance under this term. For religion desegregation, grantees would need to provide technical assistance to responsible governmental agencies seeking assistance on this subject, but the costs associated with these new technical assistance activities would be covered by program funds.
Elsewhere in this section under
Executive Order 12866 and the Presidential memorandum “Plain Language in Government Writing” require each agency to write regulations that are easy to understand.
The Secretary invites comments on how to make these proposed regulations easier to understand, including answers to questions such as the following:
• Are the requirements in the proposed regulations clearly stated?
• Do the proposed regulations contain technical terms or other wording that interferes with their clarity?
• Does the format of the proposed regulations (grouping and order of sections, use of headings, paragraphing, etc.) aid or reduce their clarity?
• Would the proposed regulations be easier to understand if we divided them into more (but shorter) sections? (A “section” is preceded by the symbol “§ ” and a numbered heading; for example,
• Could the description of the proposed regulations in the
• What else could we do to make the proposed regulations easier to understand?
To send any comments that concern how the Department could make these proposed regulations easier to understand, see the instructions in the
The Secretary certifies that these proposed regulations would not have a significant economic impact on a substantial number of small entities. The U.S. Small Business Administration Size Standards define institutions as “small entities” if they are for-profit or nonprofit institutions with total annual revenue below $15,000,000, and defines “non-profit institutions” as small organizations if they are independently owned and operated and not dominant in their field of operation, or as small entities if they are institutions controlled by governmental entities with populations below 50,000. The Secretary invites comments from small entities as to whether they believe the proposed changes would have a significant economic impact on them and, if so, requests evidence to support that belief. The Secretary believes that the small entities which will be primarily affected by these regulations are public agencies and private, nonprofit organizations that would be eligible to receive a grant under this program. However, the Secretary believes that the proposed regulations would not have a significant economic impact on these small entities because the regulations do not impose excessive regulatory burdens or require unnecessary Federal supervision, and will not affect the current status quo for the burden imposed on these small entities under existing regulations. However, the Secretary specifically invites comments on the effects of the proposed regulations on small entities, and on whether there may be further opportunities to reduce any potential adverse impact or increase potential benefits resulting from these proposed regulations without impeding the effective and efficient administration of
These proposed regulations do not contain any information collection requirements.
This program is subject to Executive Order 12372 and the regulations in 34 CFR part 79. One of the objectives of the Executive order is to foster an intergovernmental partnership and a strengthened federalism. The Executive order relies on processes developed by State and local governments for coordination and review of proposed Federal financial assistance.
This document provides early notification of our specific plans and actions for these programs.
You may also access documents of the Department published in the
Elementary and secondary education, Equal educational opportunity, Grant programs—education, Reporting and recordkeeping requirements.
For the reasons discussed in the preamble, and under the authority of 20 U.S.C. 3474, the Secretary of Education proposes to amend parts 270, 271, and 272 of title 34 of the Code of Federal Regulations as follows:
42 U.S.C. 2000c-2000c-2, 2000c-5, unless otherwise noted.
This program provides financial assistance to operate regional Equity Assistance Centers (EACs), to enable them to provide technical assistance (including training) at the request of school boards and other responsible governmental agencies in the preparation, adoption, and implementation of plans for the desegregation of public schools, and in the development of effective methods of coping with special educational problems occasioned by desegregation.
A public agency (other than a State educational agency or a school board) or private, nonprofit organization is eligible to receive a grant under this program.
(a) The recipient of a grant under this part may provide assistance only if requested by school boards or other responsible governmental agencies located in its geographic region.
(b) The recipient may provide assistance only to the following persons:
(1) Public school personnel.
(2) Students enrolled in public schools, parents of those students, community organizations and other community members.
(a) The Secretary may award funds to EACs for projects offering technical assistance (including training) to school boards and other responsible governmental agencies, at their request, for assistance in the preparation, adoption, and implementation of plans for the desegregation of public schools.
(b) A project must provide technical assistance in all four of the desegregation assistance areas, as defined in § 270.7.
(c) Desegregation assistance may include, among other activities:
(1) Dissemination of information regarding effective methods of coping with special educational problems occasioned by desegregation;
(2) Assistance and advice in coping with these problems; and
(3) Training designed to improve the ability of teachers, supervisors, counselors, parents, community members, community organizations, and other elementary or secondary school personnel to deal effectively with special educational problems occasioned by desegregation.
(a) The Secretary awards a grant to provide race, sex, national origin, and religion desegregation assistance under this program to regional Equity Assistance Centers serving designated geographic regions.
(b) The Secretary announces in the
(c) The Secretary determines the number and boundaries of each geographic region for each competition
(1) Size and diversity of the student population;
(2) The number of LEAs;
(3) The composition of urban, city, and rural LEAs;
(4) The history of the Equity Assistance Center technical assistance activities, and other Department technical assistance activities, carried out in each geographic region; and
(5) The amount of funding available for the competition.
The following regulations apply to this program:
(a) The Education Department General Administrative Regulations (EDGAR) in 34 CFR part 75 (Direct Grant Programs), part 77 (Definitions That Apply to Department Regulations), part 79 (Intergovernmental Review of Department of Education Programs and Activities), and part 81 (General Education Provisions Act—Enforcement), except that 34 CFR 75.232 (relating to the cost analysis) does not apply to grants under this program.
(b) The regulations in this part.
(c) The Uniform Administrative Requirements, Cost Principles, and Audit Requirements for Federal Awards in 2 CFR part 200, as adopted in 2 CFR part 3474 and the OMB Guidelines to Agencies on Governmentwide Debarment and Suspension (Nonprocurement) in 2 CFR part 180, as adopted in 2 CFR part 3485.
In addition to the definitions in 34 CFR 77.1, the following definitions apply to the regulations in this part:
(a) The Secretary evaluates the application on the basis of the criteria in 34 CFR 75.210.
(b) The Secretary selects the highest ranking application for each geographic region to receive a grant.
The Secretary determines the amount of a grant on the basis of:
(a) The amount of funds available for all grants under this part;
(b) A cost analysis of the project (that shows whether the applicant will achieve the objectives of the project with reasonable efficiency and economy under the budget in the application), by which the Secretary:
(1) Verifies the cost data in the detailed budget for the project;
(2) Evaluates specific elements of costs; and
(3) Examines costs to determine if they are necessary, reasonable, and allowable under applicable statutes and regulations;
(c) Evidence supporting the magnitude of the need of the responsible governmental agencies for desegregation assistance in the geographic region and the cost of providing that assistance to meet those needs, as compared with the evidence supporting the magnitude of the needs for desegregation assistance, and the cost of providing it, in all geographic regions for which applications are approved for funding;
(d) The size and the racial, ethnic, or religious diversity of the student population of the geographic region for which the EAC will provide services; and
(e) Any other information concerning desegregation problems and proposed activities that the Secretary finds relevant in the applicant's geographic region.
(a) A recipient of a grant under this part must:
(1) Operate an EAC in the geographic region to be served; and
(2) Have a full-time project director.
(b) A recipient of a grant under this part must coordinate assistance in its geographic region with appropriate SEAs, Comprehensive Centers, Regional Educational Laboratories, and other Federal technical assistance centers. As part of this coordination, the recipient shall seek to prevent duplication of assistance where an SEA, Comprehensive Center, Regional Educational Laboratory, or other Federal technical assistance center may have already provided assistance to the responsible governmental agency.
(a) The recipient of an award under this program may pay:
(1) Stipends to public school personnel who participate in technical assistance or training activities funded under this part for the period of their attendance, if the person to whom the stipend is paid receives no other compensation for that period; or
(2) Reimbursement to a responsible governmental agency that pays substitutes for public school personnel who:
(i) Participate in technical assistance or training activities funded under this part; and
(ii) Are being compensated by that responsible governmental agency for the period of their attendance.
(b) A recipient may pay the stipends and reimbursements described in this section only if it demonstrates that the payment of these costs is necessary to the success of the technical assistance or training activity, and will not exceed 20 percent of the total award.
(c) If a recipient is authorized by the Secretary to pay stipends or reimbursements (or any combination of these payments), the recipient shall determine the conditions and rates for these payments in accordance with appropriate State policies, or in the absence of State policies, in accordance with local policies.
(d) A recipient of a grant under this part may pay a travel allowance only to a person who participates in a technical assistance or training activity under this part.
(e) If the participant does not complete the entire scheduled activity, the recipient may pay the participant's transportation to his or her residence or place of employment only if the participant left the training activity because of circumstances not reasonably within his or her control.
A recipient of a grant under this program may not use funds to assist in the development or implementation of activities or the development of curriculum materials for the direct instruction of students to improve their academic and vocational achievement levels.
Animal and Plant Health Inspection Service, USDA.
Notice.
We are advising the public that the Animal and Plant Health Inspection Service has prepared a record of decision for the final environmental impact statement for the Asian Longhorned Beetle Eradication Program.
Effective March 24, 2016.
You may read the documents referenced in this notice and any comments we received in our reading room. The reading room is located in room 1141 of the USDA South Building, 14th Street and Independence Avenue SW., Washington, DC. Normal reading room hours are 8 a.m. to 4:30 p.m., Monday through Friday, except holidays. To be sure someone is there to help you, please call (202) 799-7039 before coming. Those documents are posted with the comments we received on the Regulations.gov Web site at
For questions related to the Asian Longhorned Beetle Eradication Program, contact Dr. Robyn Rose, National Asian Longhorned Beetle Eradication Program Manager, PPQ, APHIS, 4700 River Road, Unit 26, Riverdale, MD 20737; (301) 851-2283. For questions related to the environmental impact statement, contact Dr. Jim E. Warren, Environmental Protection Specialist/Environmental Toxicologist, Environmental and Risk Analysis Services, PPD, APHIS, 4700 River Road, Unit 149, Riverdale, MD 20737; (202) 316-3216.
On August 16, 2013, the United States Department of Agriculture's (USDA) Animal and Plant Health Inspection Service (APHIS) published a notice in the
A notice of availability for the draft EIS was initially published by the Environmental Protection Agency (EPA) in the
The National Environmental Policy Act (NEPA) implementing regulations in 40 CFR 1506.10 require a minimum 30-day waiting period between the time a final EIS is published and the time an agency makes a decision on an action covered by the EIS. APHIS has reviewed the final EIS and comments received during the 30-day waiting period and has concluded that the final EIS fully analyzes the issues covered by the draft EIS and the comments and suggestions submitted by commenters. Based on our final EIS, the responses to public comments, and other pertinent scientific data, APHIS has prepared a record of decision.
The record of decision has been prepared in accordance with: (1) NEPA, as amended (42 U.S.C. 4321
Animal and Plant Health Inspection Service, USDA.
Revision to and extension of approval of an information collection; comment request.
In accordance with the Paperwork Reduction Act of 1995, this notice announces the Animal and Plant Health Inspection Service's intention to request approval of a revision to and extension of an information collection associated with regulations for the importation of live poultry, poultry meat, and other poultry products from specified regions.
We will consider all comments that we receive on or before May 23, 2016.
You may submit comments by either of the following methods:
•
•
Supporting documents and any comments we receive on this docket may be viewed at
For information on the importation of live poultry, poultry meat, and other poultry products from specified regions into the United States, contact Dr. Magde Elshafie, Senior Staff Veterinarian, National Import Export Services, VS, APHIS, 4700 River Road, Unit 40, Riverdale, MD 20737; (301) 851-3332. For copies of more detailed information on the information collection, contact Ms. Kimberly Hardy, APHIS' Information Collection Coordinator, at (301) 851-2727.
In part 94, § 94.33 allows the importation, subject to certain conditions, of live poultry, poultry meat, and other poultry products from certain regions, including Argentina and the Mexican States of Campeche, Quintana Roo, and Yucatan, that are free of Newcastle disease. The conditions for importation require, among other things, certification from a full-time salaried veterinary officer of the national government of the exporting region that poultry and poultry products exported from one of these regions originated in that region (or in another region recognized by APHIS as free of Newcastle disease) and that before the export to the United States, the poultry and poultry products were not commingled with poultry and poultry products from regions where Newcastle disease exists.
In addition, the regulations in § 94.6 include provisions that allow poultry meat that originates in the United States to be shipped, for processing purposes, to a region where Newcastle disease exists and then returned to the United States. These provisions require the use of four information collection activities: (1) A certificate of origin that must be issued, including serial numbers that must be recorded; (2) maintenance of records; (3) cooperative service agreements that must be signed; and (4) certificates for shipment back to the United States.
The information collection requirements above are currently approved by the Office of Management and Budget (OMB) for the importation of live poultry, poultry meat, and other poultry products from specified regions under number 0579-0228, and U.S. origin poultry meat shipped, for processing purposes, to a region where Newcastle disease exists and returned to the United States under number 0579-0141. After OMB approves and combines the burden for both collections under one collection (number 0579-0228), the Department will retire number 0579-0141.
We are asking OMB to approve our use of these information collection activities, as described, for an additional 3 years.
The purpose of this notice is to solicit comments from the public (as well as affected agencies) concerning our information collection. These comments will help us:
(1) Evaluate whether the collection of information is necessary for the proper performance of the functions of the Agency, including whether the information will have practical utility;
(2) Evaluate the accuracy of our estimate of the burden of the collection of information, including the validity of the methodology and assumptions used;
(3) Enhance the quality, utility, and clarity of the information to be collected; and
(4) Minimize the burden of the collection of information on those who are to respond, through use, as appropriate, of automated, electronic, mechanical, and other collection technologies;
All responses to this notice will be summarized and included in the request for OMB approval. All comments will also become a matter of public record.
Animal and Plant Health Inspection Service, USDA.
Notice.
We are advising the public that the Animal and Plant Health Inspection Service has prepared a record of decision for the programmatic environmental impact statement titled “Carcass Management During a Mass Animal Health Emergency.”
You may read the documents referenced in this notice and any comments we received in our reading room. The reading room is located in Room 1141 of the USDA South Building, 14th Street and Independence Avenue SW., Washington, DC. Normal reading room hours are 8 a.m. to 4:30 p.m., Monday through Friday, except holidays. To be sure someone is there to help you, please call (202) 799-7039 before coming. Those documents are also posted with the comments we received on the Regulations.gov Web site at
For questions related to the carcass management program, contact Ms. Lori P. Miller, PE, Senior Staff Officer, Science, Technology and Analysis Services, VS, APHIS, 4700 River Road, Unit 41, Riverdale, MD 20737; (301) 851-3512. For questions related to the
On October 25, 2013, the Animal and Plant Health Inspection Service (APHIS) published in the
On December 11, 2015, APHIS published and distributed the final PEIS, which included responses to all comments received by November 3, 2015. On December 18, 2015, EPA published in the
The National Environmental Policy Act (NEPA) implementing regulations in 40 CFR 1506.10 require a minimum 30-day waiting period between the time a final EIS is published and the time an agency makes a decision on an action covered by the EIS. APHIS has reviewed the final PEIS and comments received during the 30-day waiting period and has concluded that the final PEIS fully analyzes the issues covered by the draft PEIS and addresses the comments and suggestions submitted by commenters. This notice advises the public that the waiting period has elapsed, and APHIS has issued a record of decision (ROD) to implement the preferred alternative described in the final PEIS.
The ROD has been prepared in accordance with: (1) NEPA, as amended (42 U.S.C. 4321
Animal and Plant Health Inspection Service, USDA.
Notice of availability and request for comments.
We are advising the public that the Animal and Plant Health Inspection Service has prepared a draft environmental assessment relative to the control of Cape ivy,
We will consider all comments that we receive on or before April 25, 2016.
You may submit comments by either of the following methods:
•
•
Supporting documents and any comments we receive on this docket may be viewed at
Mr. Robert Tichenor, Senior Entomologist, Plant Health Programs, PPQ, APHIS, 4700 River Road, Unit 133, Riverdale, MD 20737-1231; (301) 851-2198.
Cape ivy (
APHIS' review and analysis of the proposed action are documented in detail in a draft environmental assessment (EA) entitled “Field Release of the Gall-forming Fly,
The EA may be viewed on the Regulations.gov Web site or in our reading room (see
The EA has been prepared in accordance with: (1) The National Environmental Policy Act of 1969 (NEPA), as amended (42 U.S.C. 4321
Forest Service, USDA.
Notice of meetings.
The Hiawatha East Resource Advisory Committee (RAC) will meet in Kincheloe, Michigan. The committee is authorized under the Secure Rural Schools and Community Self-Determination Act (the Act) and operates in compliance with the Federal Advisory Committee Act. The purpose of the committee is to improve collaborative relationships and to provide advice and recommendations to the Forest Service concerning projects and funding consistent with Title II of the Act. RAC information can be found at the following Web site:
The meeting will be held on April 28, 2016, at 5:00 p.m. All RAC meetings are subject to cancellation. For status of meeting prior to attendance, please contact the person listed under
The meeting will be held at Chippewa County 911 Center, 4657 West Industrial Park Drive, Kincheloe, Michigan.
Written comments may be submitted as described under
Janel Crooks, RAC Coordinator, by phone at 906-428-5800 or via email
Individuals who use telecommunication devices for the deaf (TDD) may call the Federal Information Relay Service (FIRS) at 1-800-877-8339 between 8:00 a.m. and 8:00 p.m., Eastern Standard Time, Monday through Friday.
The purpose of the meeting is to:
The meeting is open to the public. The agenda will include time for people to make oral statements of three minutes or less. Individuals wishing to make an oral statement should request in writing by April 8, 2016, to be scheduled on the agenda. Anyone who would like to bring related matters to the attention of the committee may file written statements with the committee staff before or after the meeting. Written comments and requests for time for oral comments must be sent to Hiawatha National Forest; Attention: RAC; 820 Rains Drive, Gladstone, Michigan 49837; by email to
U.S. Census Bureau, Commerce.
Notice.
The Department of Commerce, as part of its continuing effort to reduce paperwork and respondent burden, invites the general public and other Federal agencies to take this opportunity to comment on proposed and/or continuing information collections, as required by the Paperwork Reduction Act of 1995.
To ensure consideration, written comments must be submitted on or before May 23, 2016.
Direct all written comments to Jennifer Jessup, Departmental Paperwork Clearance Officer, Department of Commerce, Room 6616, 14th and Constitution Avenue NW., Washington, DC 20230 (or via the Internet at
Requests for additional information or copies of the information collection instrument(s) and instructions should be directed to Cheryl H. Lee, Chief, State Finance and Tax Statistics Branch, Economy-Wide Statistics Division, U.S. Census Bureau, Headquarters: 8K057, Washington, DC 20233; telephone: 301.763.5635; email:
The Census Bureau conducts the Quarterly Summary of State and Local Government Tax Revenue, using the F-71 (Quarterly Survey of Property Tax Collections), F-72 (Quarterly Survey of State Tax Collections), and F-73 (Quarterly Survey of Non-Property Taxes) forms. The Quarterly Summary of State and Local Government Tax Revenue provides quarterly estimates of state and local government tax revenue at the national level, as well as detailed tax revenue data for individual states. The information contained in this survey is the most current information available on a nationwide basis for state and local government tax collections.
The Census Bureau needs state and local tax data to publish benchmark statistics on taxes, to provide data to the Bureau of Economic Analysis for Gross Domestic Product (GDP) calculations and other economic indicators, and to provide data for economic research and comparative studies of governmental finances. Tax collection data are used to measure economic activity for the Nation as a whole, as well as for comparison among the various states. Economists and public policy analysts use the data to assess general economic conditions and state and local government financial activities.
The Census Bureau is requesting an extension of the approval of the current forms. No changes to the forms are being requested.
For the Quarterly Survey of Non-Property Taxes (Form F-73) we will mail letters quarterly to a sample of approximately 1,800 local tax collection agencies known to have substantial collections of local general sales and/or local individual/corporation net income
For the Quarterly Survey of Property Tax Collections (Form F-71) we will mail letters quarterly to a sample of approximately 5,500 local tax collection agencies known to have substantial collections of property tax requesting their online data submissions.
For the Quarterly Survey of State Tax Collections (F-72) we will mail letters to each of the 50 state governments quarterly requesting their online data submissions or continued coordinated submission through the state government revenue office.
F-71 and F-73 survey data will be collected via the Internet. Data for the F-72 survey are collected via the Internet or compilation of data in coordination with the state government revenue office.
In addition to reporting current quarter data, respondents may report data for the previous eight quarters or submit revisions to their previously submitted data. In the event that a respondent cannot report online, they may request a form as a last resort.
In those instances when we are not able to obtain a response, we conduct follow-up operations using email and phone calls. Nonresponse weighting adjustments are used to adjust for any unreported units in the sample from the latest available data.
Comments are invited on: (a) Whether the proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information shall have practical utility; (b) the accuracy of the agency's estimate of the burden (including hours and cost) of the proposed collection of information; (c) ways to enhance the quality, utility, and clarity of the information to be collected; and (d) ways to minimize the burden of the collection of information on respondents, including through the use of automated collection techniques or other forms of information technology.
Comments submitted in response to this notice will be summarized and/or included in the request for OMB approval of this information collection; they also will become a matter of public record.
The Puerto Rico Industrial Development Company, grantee of FTZ 7, submitted a notification of proposed production activity to the FTZ Board on behalf of Lilly Del Caribe, Inc. (Lilly), located within Subzone 7K in Carolina and Guayama, Puerto Rico. The notification conforming to the requirements of the regulations of the FTZ Board (15 CFR 400.22) was received on March 08, 2016.
Lilly already has FTZ authority for the production of finished pharmaceuticals and their intermediates, including the active ingredients humalog and duloxetine. The current request would add finished products and foreign-status materials/components to the scope of authority. Pursuant to 15 CFR 400.14(b), additional FTZ activity would be limited to the specific foreign-status materials/components and specific finished products described in the submitted notification (as described below) and subsequently authorized by the FTZ Board.
Production under FTZ procedures could exempt Lilly from customs duty payments on the foreign-status components used in export production. On its domestic sales, Lilly would be able to choose the duty rate during customs entry procedures that applies to finished abemaciclib capsules (breast cancer treatment) and barcitinib tablets (rheumatoid arthritis treatment) (duty free) for the foreign-status inputs noted below and in the existing scope of authority. Customs duties also could possibly be deferred or reduced on foreign-status production equipment.
The materials/components sourced from abroad include abemaciclib and barcitinib active ingredients (duty rate, 6.5%).
Public comment is invited from interested parties. Submissions shall be addressed to the FTZ Board's Executive Secretary at the address below. The closing period for their receipt is May 3, 2016.
A copy of the notification will be available for public inspection at the Office of the Executive Secretary, Foreign-Trade Zones Board, Room 21013, U.S. Department of Commerce, 1401 Constitution Avenue NW., Washington, DC 20230-0002, and in the “Reading Room” section of the FTZ Board's Web site, which is accessible via
For further information, contact Diane Finver at
International Trade Administration, Commerce.
Notice.
On behalf of the Committee for the Implementation of Textile Agreements (CITA), the Department of Commerce, as part of its continuing effort to reduce paperwork and respondent burden, invites the general public and other Federal agencies to take this opportunity to comment on proposed and/or continuing information collections, as required by the Paperwork Reduction Act of 1995.
Written comments must be submitted on or before May 23, 2016.
Direct all written comments to Jennifer Jessup, Departmental Paperwork Clearance Officer, Department of Commerce, Room 6616, 14th and Constitution Avenue NW.,
Requests for additional information or copies of the information collection instrument and instructions should be directed to Laurie Mease, Office of Textiles and Apparel, Telephone: 202-482-2043, Email:
The United States and Peru negotiated the U.S.-Peru Trade Promotion Agreement (the “Agreement”), which entered into force on February 1, 2009. Subject to the rules of origin in Annex 4.1 of the Agreement, and pursuant to the textile provisions of the Agreement, fabric, yarn, and fiber produced in Peru or the United States and traded between the two countries are entitled to duty-free tariff treatment. Annex 3-B of the Agreement also lists specific fabrics, yarns, and fibers that the two countries agreed are not available in commercial quantities in a timely manner from producers in Peru or the United States. The items listed are commercially unavailable fabrics, yarns, and fibers. Articles containing these items are entitled to duty-free or preferential treatment despite containing inputs not produced in Peru or the United States.
The list of commercially unavailable fabrics, yarns, and fibers may be changed pursuant to the commercial availability provision in Chapter 3, Article 3.3, Paragraphs 5-7 of the Agreement. Under this provision, interested entities from Peru or the United States have the right to request that a specific fabric, yarn, or fiber be added to, or removed from, the list of commercially unavailable fabrics, yarns, and fibers in Annex 3-B.
Chapter 3, Article 3.3, paragraph 7 of the Agreement requires that the President publish procedures for parties to exercise the right to make these requests. The President delegated the responsibility for publishing the procedures and administering commercial availability requests to the Committee for the Implementation of Textile Agreements (“CITA”), which issues procedures and acts on requests through the U.S. Department of Commerce, Office of Textiles and Apparel (“OTEXA”) (
The intent of the U.S.-Peru TPA Commercial Availability Procedures is to foster the use of U.S. and regional products by implementing procedures that allow products to be placed on or removed from a product list, on a timely basis, and in a manner that is consistent with normal business practice. The procedures are intended to facilitate the transmission of requests; allow the market to indicate the availability of the supply of products that are the subject of requests; make available promptly, to interested entities and the public, information regarding the requests for products and offers received for those products; ensure wide participation by interested entities and parties; allow for careful review and consideration of information provided to substantiate requests and responses; and provide timely public dissemination of information used by CITA in making commercial availability determinations.
CITA must collect certain information about fabric, yarn, or fiber technical specifications and the production capabilities of Peruvian and U.S. textile producers to determine whether certain fabrics, yarns, or fibers are available in commercial quantities in a timely manner in the United States or Peru, subject to Section 203(o) of the Agreement.
Participants in a commercial availability proceeding must submit public versions of their Requests, Responses or Rebuttals electronically (via email) for posting on OTEXA's Web site. Confidential versions of those submissions which contain business confidential information must be delivered in hard copy to the Office of Textiles and Apparel (OTEXA) at the U.S. Department of Commerce.
Comments are invited on: (a) Whether the proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information shall have practical utility; (b) the accuracy of the agency's estimate of the burden (including hours and cost) of the proposed collection of information; (c) ways to enhance the quality, utility, and clarity of the information to be collected; and (d) ways to minimize the burden of the collection of information on respondents, including through the use of automated collection techniques or other forms of information technology.
Comments submitted in response to this notice will be summarized and/or included in the request for OMB approval of this information collection; they also will become a matter of public record.
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Notice of SEDAR Data Best Practices Standing Panel Webinar.
The SEDAR Data Best Practices Panel will develop, review, and evaluate best practice recommendations for SEDAR Data Workshops, see
The SEDAR Data Best Practices Standing Panel Webinar will be held on Wednesday, April 13, 2016, from 1 p.m. to 3 p.m.
The Webinar is open to members of the public. Those interested in participating should contact Julia Byrd at SEDAR (see Contact Information below) to request an invitation providing Webinar access information. Please request Webinar invitations at
Julia Byrd, SEDAR Coordinator, 4055 Faber Place Drive, Suite 201, North Charleston, SC 29405; phone (843) 571-4366; email:
The Gulf of Mexico, South Atlantic, and Caribbean Fishery Management Councils, in conjunction with NOAA Fisheries and the Atlantic and Gulf States Marine Fisheries Commissions, have implemented the Southeast Data, Assessment and Review (SEDAR) process, a multi-step method for determining the status of fish stocks in the Southeast Region. SEDAR is a three-step process including: (1) Data Workshop; (2) Assessment Process utilizing webinars; and (3) Review Workshop. The product of the Data Workshop is a data report which compiles and evaluates potential datasets and recommends which datasets are appropriate for assessment analyses. The product of the Assessment Process is a stock assessment report which describes the fisheries, evaluates the status of the stock, estimates biological benchmarks, projects future population conditions, and recommends research and monitoring needs. The assessment is independently peer reviewed at the Review Workshop. The product of the Review Workshop is a Summary documenting panel opinions regarding the strengths and weaknesses of the stock assessment and input data. Participants for SEDAR Workshops are appointed by the Gulf of Mexico, South Atlantic, and Caribbean Fishery Management Councils and NOAA Fisheries Southeast Regional Office, Highly Migratory Species Management Division, and Southeast Fisheries Science Center. Participants include: data collectors and database managers; stock assessment scientists, biologists, and researchers; constituency representatives including fishermen, environmentalists, and non-governmental organizations (NGOs); international experts; and staff of Councils, Commissions, and state and federal agencies.
The SEDAR Data Best Practices Standing Panel is charged with developing, reviewing, and evaluating best practice recommendations for SEDAR Data Workshops. This will be the first meeting of this group. The items of discussion for this webinar are as follows:
1. Select Panel Chair.
2. Develop terms of reference specifying the Panel's purpose and approach.
3. Recommend organizing committee for Stock ID/Meristics workshop.
4. Provide input on topic for next SEDAR Procedural Workshop.
Although non-emergency issues not contained in this agenda may come before this group for discussion, those issues may not be the subject of formal action during this meeting. Action will be restricted to those issues specifically identified in this notice and any issues arising after publication of this notice that require emergency action under section 305(c) of the Magnuson-Stevens Fishery Conservation and Management Act, provided the public has been notified of the intent to take final action to address the emergency.
This meeting is accessible to people with disabilities. Requests for auxiliary aids should be directed to the SAFMC office (see
The times and sequence specified in this agenda are subject to change.
16 U.S.C. 1801
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Notice; request for comments.
The Assistant Regional Administrator for Sustainable Fisheries, Greater Atlantic Region, NMFS, has made a preliminary determination that Exempted Fishing Permits to facilitate the use of monkfish research set-aside days-at-sea warrants further consideration. This notice is to provide interested parties the opportunity to comment on the proposed Exempted Fishing Permits.
Comments must be received on or before April 8, 2016.
You may submit written comments by any of the following methods:
•
•
•
Reid Lichwell, Fishery Management Specialist, (978) 282-9112,
These Exempted Fishing Permits (EFPs) would facilitate monkfish research set-aside (RSA) compensation fishing in support of projects funded under the 2016 monkfish RSA competition. Project proposals are currently under review. Consistent with previous monkfish RSA compensation fishing EFPs, vessels fishing under a RSA days-at-sea (DAS) would be authorized to harvest monkfish in excess of the landing limits in the Northern and Southern Monkfish Fishery Management Areas.
The monkfish RSA program has been allocated 500 monkfish RSA DAS as established by the New England and Mid-Atlantic Fishery Management Councils (70 FR 21929, April 28, 2005). These monkfish RSA DAS would be divided between research award recipients and sold to fishermen to fund approved monkfish research projects. Award recipients receive an allocation of RSA DAS and a maximum amount of landed weight that may be landed under available DAS. Projects are constrained to the total DAS or maximum available landing weight, whichever is reached first. NOAA's National Marine Fisheries Service uses 32,000 lb (14.51 mt) of whole monkfish for each RSA DAS to calculate a maximum allocation of 1,600,000 lb (725.75 mt) to be harvested under these projects. As an example, a project awarded 100 RSA DAS would receive a maximum RSA harvest limit of 320,000 lb (144.1 mt) of whole monkfish (or tail weight equivalent) to be landed. Allowing vessels an exemption from monkfish landing limits provides an incentive for vessels to purchase RSA DAS to catch more monkfish per-trip, while constraining each project to a maximum available harvest limit
If approved, the applicants may request minor modifications and extensions to the EFP throughout the year. EFP modifications and extensions may be granted without further notice if they are deemed essential to facilitate completion of the proposed research and have minimal impacts that do not change the scope of the initially approved EFP request. Any fishing activity conducted outside the scope of the exempted fishing activity would be prohibited.
16 U.S.C. 1801
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Notice; receipt of application.
Notice is hereby given that Carlos E. Diez, Departamento de Recursos Naturales y Ambientales de Puerto Rico, Programa de Especies Protegidas, P.O. Box 366147, San Juan, Puerto Rico, 00936, has applied in due form for a permit to take green (
Written, telefaxed, or email comments must be received on or before April 25, 2016.
The application and related documents are available for review by selecting “Records Open for Public Comment” from the “Features” box on the Applications and Permits for Protected Species (APPS) home page,
These documents are also available upon written request or by appointment in the Permits and Conservation Division, Office of Protected Resources, NMFS, 1315 East-West Highway, Room 13705, Silver Spring, MD 20910; phone (301) 427-8401; fax (301) 713-0376.
Written comments on this application should be submitted to the Chief, Permits and Conservation Division, at the address listed above. Comments may also be submitted by facsimile to (301) 713-0376, or by email to
Those individuals requesting a public hearing should submit a written request to the Chief, Permits and Conservation Division at the address listed above. The request should set forth the specific reasons why a hearing on this application would be appropriate.
Rosa L. González or Amy Hapeman, (301) 427-8401.
The subject permit is requested under the authority of the Endangered Species Act of 1973, as amended (ESA; 16 U.S.C. 1531
The applicant requests a five-year research permit to continue long-term projects studying green and hawksbill sea turtle aggregations in the coastal waters of Puerto Rico, including Mona, Monito, and Desecheo Islands, and Culebra Archipelago. Proposed research would involve vessel surveys for abundance counts and capture by hand or tangle nets to assess the population structure, trends in relative abundance, habitat utilization, genetics, zoogeography, and epidemiology of sea turtles in their foraging habitats. Annually, up to 150 green and 150 hawksbill sea turtles would be captured. Each turtle would be flipper and passive integrated transponder tagged, measured, weighed, photographed/videoed, and may be blood and tissue sampled. A subset of up to 10 sea turtles annually of each species may also be outfitted with satellite transmitters to track movements post-release. Another subset of up to 10 green sea turtles would also be authorized for ultrasound and tumor removal surgery in a local facility.
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Notice; proposed incidental harassment authorization; request for comments.
NMFS (hereinafter, “we” or “our”) received an application from Glacier Bay National Park (Glacier Bay NP) requesting an Incidental Harassment Authorization (Authorization) to take marine mammals, by harassment, incidental to conducting proposed seabird monitoring and research activities within Glacier Bay National Park from May through September, 2016. Per the Marine Mammal Protection Act, we request comments on our proposal to issue an Authorization to Point Blue to incidentally take, by Level B harassment only, one species of marine mammal, the harbor seal (
NMFS must receive comments and information no later than April 25, 2016.
Address comments on the application to Jolie Harrison, Chief, Permits and Conservation Division, Office of Protected Resources, National Marine Fisheries Service, 1315 East-West Highway, Silver Spring, MD 20910. The mailbox address for providing email comments is
To obtain an electronic copy of the renewal request, application, our Environmental Assessment (EA), or a list of the references, write to the previously mentioned address, telephone the contact listed here (see
Information in Glacier Bay NP's application, NMFS' EA, and this notice collectively provide the environmental information related to proposed issuance of the Authorization for public review and comment.
Robert Pauline, NMFS, Office of Protected Resources, NMFS (301) 427-8401.
Sections 101(a)(5)(A) and (D) of the Marine Mammal Protection Act of 1972, as amended (MMPA; 16 U.S.C. 1361
An Authorization for incidental takings for marine mammals shall be granted if NMFS finds that the taking will have a negligible impact on the species or stock(s), will not have an unmitigable adverse impact on the availability of the species or stock(s) for subsistence uses (where relevant), and if the permissible methods of taking and requirements pertaining to the mitigation, monitoring, and reporting of such taking are set forth. NMFS has defined “negligible impact” in 50 CFR 216.103 as “an impact resulting from the specified activity that cannot be reasonably expected to, and is not reasonably likely to, adversely affect the species or stock through effects on annual rates of recruitment or survival.”
On January 12, 2016, NMFS received an application from Glacier Bay NP requesting taking by harassment of marine mammals, incidental to conducting monitoring and research studies on glaucus-winged gulls (
For the 2016 research season, Glacier Bay NP again proposes to conduct ground-based and vessel-based surveys to collect data on the number and distribution of nesting gulls within five study sites in Glacier Bay, AK. The proposed activities would occur over the course of five months, from May through September, 2016.
The following aspects of the proposed seabird research activities have the potential to take marine mammals: Acoustic stimuli from noise generated by motorboat approaches and departures; noise generated by researchers while conducting ground surveys; and human presence during the monitoring and research activities. Harbor seals hauled out in the five research areas may flush into the water or exhibit temporary modification in behavior and/or low-level physiological effects (Level B harassment). Thus, Glacier Bay NP has requested an authorization to take 500 harbor seals by Level B harassment only. Although Steller sea lions (
To date, we have issued two, five-month Authorizations to Glacier Bay NP for the conduct of the same activities in 2014 and 2015 (79 FR 56065, September 18, 2014 and 80 FR 28229, May 18, 2015). This is Glacier Bay NP's third request for an Authorization. Their 2015 Authorization expired on September 30, 2015 and the monitoring report associated with the 2015 Authorization is available at
Glacier Bay NP proposes to identify the onset of gull nesting; conduct mid-season surveys of adult gulls, and locate and document gull nest sites within the following study areas: Boulder, Lone, and Flapjack Islands, and Geikie Rock. Each of these study sites contains harbor seal haulout sites and Glacier Bay NP proposes to visit each study site up to five times during the research season.
Glacier Bay NP must conduct the gull monitoring studies to meet the requirements of a 2010 Record of Decision for a Legislative Environmental Impact Statement (NPS, 2010) which states that Glacier Bay NP must initiate a monitoring program for the gulls to inform future native egg harvests by the Hoonah Tlingit in Glacier Bay, AK. Glacier Bay NP actively monitors harbor seals at breeding and molting sites to assess population trends over time (
Glacier Bay NP proposes to conduct the proposed activities from the period of May through September, 2016. Glacier Bay NP proposes to conduct a maximum of three ground-based surveys per each study site and a maximum of two vessel-based surveys per each study site.
Thus, the proposed Authorization, if issued, would be effective from May 1, 2016 through September 30, 2016. NMFS refers the reader to the Detailed Description of Activities section later in this notice for more information on the scope of the proposed activities.
The proposed study sites would occur in the vicinity of the following locations: Boulder, Lone, and Flapjack Islands, and Geikie Rock in Glacier Bay, Alaska. Glacier Bay NP will also conduct studies at Tlingit Point Islet located at 58°45′16.86″ N.; 136°10′41.74″ W.; however, there are no reported pinniped haulout sites at that location.
Glacier Bay NP proposes to conduct: (1) Ground-based surveys at a maximum frequency of three visits per site; and (2) vessel-based surveys at a maximum frequency of two visits per site from the period of May 1 through September 30, 2016.
The observers would access each island using a kayak, a 32.8 to 39.4-foot (ft) (10 to 12 meter (m)) motorboat, or a 12 ft (4 m) inflatable rowing dinghy. The landing craft's transit speed would not exceed 4 knots (4.6 miles per hour (mph). Ground surveys generally last from 30 minutes to up to two hours depending on the size of the island and the number of nesting gulls. Glacier Bay NP will discontinue ground surveys after they detect the first hatchling to minimize disturbance to the gull colonies.
The marine mammals most likely to be harassed incidental to conducting the
NMFS refers the public to Muto and Angliss (2015) for additional information on the status, distribution, seasonal distribution, and life history of these species. The publications are available on the internet at
Northern sea otters (
This section includes a summary and discussion of the ways that components of the specified activity (
In the following discussion, we provide general background information on sound and marine mammal hearing. Acoustic and visual stimuli generated by: (1) Motorboat operations; and (2) the appearance of researchers may have the potential to cause Level B harassment of any pinnipeds hauled out on Boulder, Lone, and Flapjack Islands, and Geikie Rock. The effects of sounds from motorboat operations and the appearance of researchers might include hearing impairment or behavioral disturbance (Southall,
Marine mammals produce sounds in various important contexts—social interactions, foraging, navigating, and responding to predators. The best available science suggests that pinnipeds have a functional aerial hearing sensitivity between 75 hertz (Hz) and 75 kilohertz (kHz) and can produce a diversity of sounds, though generally from 100 Hz to several tens of kHz (Southall,
Exposure to high intensity sound for a sufficient duration may result in auditory effects such as a noise-induced threshold shift—an increase in the auditory threshold after exposure to noise (Finneran, Carder, Schlundt, and Ridgway, 2005). Factors that influence the amount of threshold shift include the amplitude, duration, frequency content, temporal pattern, and energy distribution of noise exposure. The magnitude of hearing threshold shift normally decreases over time following cessation of the noise exposure. The amount of threshold shift just after exposure is called the initial threshold shift. If the threshold shift eventually returns to zero (
Pinnipeds have the potential to be disturbed by airborne and underwater noise generated by the small boats equipped with outboard engines (Richardson, Greene, Malme, and Thomson, 1995). However, there is a dearth of information on acoustic effects of motorboats on pinniped hearing and communication and to our knowledge there has been no specific documentation of hearing impairment in free-ranging pinnipeds exposed to small motorboats during realistic field conditions.
Disturbances resulting from human activity can impact short- and long-term pinniped haul out behavior (Renouf
Numerous studies have shown that human activity can flush pinnipeds off haul-out sites and beaches (Kenyon, 1972; Allen
In 1997, Henry and Hammil (2001) conducted a study to measure the impacts of small boats (
In 2004, Johnson and Acevedo-Gutierrez (2007) evaluated the efficacy of buffer zones for watercraft around harbor seal haul-out sites on Yellow Island, Washington state. The authors estimated the minimum distance between the vessels and the haul-out sites; categorized the vessel types; and evaluated seal responses to the disturbances. During the course of the seven-weekend study, the authors recorded 14 human-related disturbances which were associated with stopped powerboats and kayaks. During these events, hauled out seals became noticeably active and moved into the water. The flushing occurred when stopped kayaks and powerboats were at distances as far as 453 and 1,217 ft (138 and 371 m) respectively. The authors note that the seals were unaffected by passing powerboats, even those approaching as close as 128 ft (39 m), possibly indicating that the animals had become tolerant of the brief presence of the vessels and ignored them. The authors reported that on average, the seals quickly recovered from the disturbances and returned to the haul-out site in less than or equal to 60 minutes. Seal numbers did not return to pre-disturbance levels within 180 minutes of the disturbance less than one quarter of the time observed. The study concluded that the return of seal numbers to pre-disturbance levels and the relatively regular seasonal cycle in abundance throughout the area counter the idea that disturbances from powerboats may result in site abandonment (Johnson and Acevedo-Gutierrez, 2007).
As a general statement from the available information, pinnipeds exposed to intense (approximately 110 to 120 decibels re: 20 μPa) non-pulse sounds often leave haul-out areas and seek refuge temporarily (minutes to a few hours) in the water (Southall
There are three ways in which disturbance, as described previously, could result in more than Level B harassment of marine mammals. All three are most likely to be consequences of stampeding, a potentially dangerous occurrence in which large numbers of animals succumb to mass panic and rush away from a stimulus. The three situations are: (1) Falling when entering the water at high-relief locations; (2) extended separation of mothers and pups; and (3) crushing of pups by large males during a stampede. However, NMFS does not expect any of these scenarios to occur at the proposed survey sites.
Because hauled-out animals may move towards the water when disturbed, there is the risk of injury if animals stampede towards shorelines with precipitous relief (
The probability of vessel and marine mammal interactions (
In summary, NMFS does not anticipate that the proposed activities would result in the injury, serious injury, or mortality of pinnipeds because the timing of research visits would preclude separation of mothers and pups, as activities would not occur in pupping/breeding areas or if pups are present in the research areas. The potential effects to marine mammals described in this section of the document do not take into consideration the proposed monitoring and mitigation measures described later in this document (see the “Proposed Mitigation” and “Proposed Monitoring and Reporting” sections).
NMFS does not expect the proposed research activities to have any habitat-related effects, including to marine mammal prey species, which could cause significant or long-term consequences for individual marine mammals or their populations. NMFS anticipates that the specified activity may result in marine mammals avoiding certain areas due to noise generated by: (1) Motorboat approaches and departures; (2) human presence during restoration activities and loading operations while resupplying the field station; and (3) human presence during seabird and pinniped research activities. NMFS considers this impact to habitat as temporary and reversible and considered this aspect in more detail earlier in this document, as behavioral modification. The main impact associated with the proposed activity will be temporarily elevated noise levels and the associated direct effects on marine mammals, previously discussed in this notice.
In order to issue an incidental take authorization under section 101(a)(5)(D) of the Marine Mammal Protection Act, we must set forth the permissible methods of taking pursuant to such activity, and other means of effecting the least practicable adverse impact on such species or stock and its habitat, paying particular attention to rookeries, mating grounds, and areas of similar significance, and the availability of such species or stock for taking for certain subsistence uses.
Glacier Bay NP has based the mitigation measures which they will
To reduce the potential for disturbance from acoustic and visual stimuli associated with the activities Glacier Bay NP and/or its designees has proposed to implement the following mitigation measures for marine mammals:
• Perform pre-survey monitoring before deciding to access a study site;
• Avoid accessing a site based on a pre-determined threshold number of animals present; sites used by pinnipeds for pupping; or sites used by Steller sea lions;
• Perform controlled and slow ingress to the study site to prevent a stampede and select a pathway of approach to minimize the number of marine mammals harassed;
• Monitor for offshore predators at study sites. Avoid approaching the study site if killer whales (
• Maintain a quiet research atmosphere in the visual presence of pinnipeds.
Prior to deciding to land onshore to conduct the study, the researchers would use high-powered image stabilizing binoculars from the watercraft to document the number, species, and location of hauled out marine mammals at each island. The vessels would maintain a distance of 328 to 1,640 ft (100 to 500 m) from the shoreline to allow the researchers to conduct pre-survey monitoring. During every visit, the researchers will examine each study site closely using high powered image stabilizing binoculars before approaching at distances of greater than 500 m (1,640 ft) to determine and document the number, species, and location of hauled out marine mammals.
Researchers would decide whether or not to approach the island based on the species present, number of individuals, and the presence of pups. If there are high numbers (more than 25) harbor seals hauled out (with or without young pups present), any time pups are present, or any time that Steller sea lions are present, the researchers would not approach the island and would not conduct gull monitoring research.
The researchers would determine whether to approach the island based on the number and type of animals present. If the island has 25 or fewer individuals without pups, the researchers would approach the island by motorboat at a speed of approximately 2 to 3 knots (2.3 to 3.4 mph). This would provide enough time for any marine mammals present to slowly enter the water without panic or stampede. The researchers would also select a pathway of approach farthest from the hauled out harbor seals to minimize disturbance.
We have carefully evaluated Glacier Bay NP's proposed mitigation measures in the context of ensuring that we prescribe the means of effecting the least practicable impact on the affected marine mammal species and stocks and their habitat. Our evaluation of potential measures included consideration of the following factors in relation to one another:
• The manner in which, and the degree to which, the successful implementation of the measure is expected to minimize adverse impacts to marine mammals;
• The proven or likely efficacy of the specific measure to minimize adverse impacts as planned; and
• The practicability of the measure for applicant implementation.
Any mitigation measure(s) prescribed by us should be able to accomplish, have a reasonable likelihood of accomplishing (based on current science), or contribute to the accomplishment of one or more of the general goals listed here:
1. Avoidance or minimization of injury or death of marine mammals wherever possible (goals 2, 3, and 4 may contribute to this goal).
2. A reduction in the numbers of marine mammals (total number or number at biologically important time or location) exposed to stimuli expected to result in incidental take (this goal may contribute to 1, above, or to reducing takes by behavioral harassment only).
3. A reduction in the number of times (total number or number at biologically important time or location) individuals would be exposed to stimuli that we expect to result in the take of marine mammals (this goal may contribute to 1, above, or to reducing harassment takes only).
4. A reduction in the intensity of exposures (either total number or number at biologically important time or location) to training exercises that we expect to result in the take of marine mammals (this goal may contribute to 1, above, or to reducing the severity of harassment takes only).
5. Avoidance or minimization of adverse effects to marine mammal habitat, paying special attention to the food base, activities that block or limit passage to or from biologically important areas, permanent destruction of habitat, or temporary destruction/disturbance of habitat during a biologically important time.
6. For monitoring directly related to mitigation—an increase in the probability of detecting marine mammals, thus allowing for more effective implementation of the mitigation.
Based on the evaluation of Glacier Bay NP's proposed measures, as well as other measures that may be relevant to the specified activity, we have preliminarily determined that the proposed mitigation measures provide the means of effecting the least practicable impact on marine mammal species or stocks and their habitat, paying particular attention to rookeries, mating grounds, and areas of similar significance.
In order to issue an incidental take authorization for an activity, section 101(a)(5)(D) of the Marine Mammal Protection Act states that we must set forth “requirements pertaining to the monitoring and reporting of such taking.” The Act's implementing regulations at 50 CFR 216.104 (a)(13) indicate that requests for an incidental take authorization must include the suggested means of accomplishing the necessary monitoring and reporting that will result in increased knowledge of the species and our expectations of the level of taking or impacts on populations of marine mammals present in the action area.
Glacier Bay NP submitted a marine mammal monitoring plan in section 13 of their Authorization application. We
• Occurrence of marine mammal species in action area (
• Nature, scope, or context of likely marine mammal exposure to potential stressors/impacts (individual or cumulative, acute or chronic), through better understanding of: (1) Action or environment (
• Individual responses to acute stressors, or impacts of chronic exposures (behavioral or physiological).
• How anticipated responses to stressors impact either: (1) Long-term fitness and survival of an individual; or (2) Population, species, or stock.
• Effects on marine mammal habitat and resultant impacts to marine mammals.
• Mitigation and monitoring effectiveness.
As part of its 2016 application, Glacier Bay NP proposes to sponsor marine mammal monitoring during the present project, in order to implement the mitigation measures that require real-time monitoring, and to satisfy the monitoring requirements of the incidental harassment authorization. The researchers will monitor the area for pinnipeds during all research activities. Monitoring activities will consist of conducting and recording observations on pinnipeds within the vicinity of the proposed research areas. The monitoring notes would provide dates, location, species, the researcher's activity, behavioral state, numbers of animals that were alert or moved greater than one meter, and numbers of pinnipeds that flushed into the water.
The method for recording disturbances follows those in Mortenson (1996). Glacier Bay NP would record disturbances on a three-point scale that represents an increasing seal response to the disturbance (Table 2). Glacier Bay will record the time, source, and duration of the disturbance, as well as an estimated distance between the source and haul-out. We note that we would consider only responses falling into Mortenson's Levels 2 and 3 as harassment under the MMPA, under the terms of this proposed Authorization.
Glacier Bay NP has complied with the monitoring requirements under the previous authorizations. We have posted the 2015 l report on our Web site at
Glacier Bay NP can add to the knowledge of pinnipeds in the proposed action area by noting observations of: (1) Unusual behaviors, numbers, or distributions of pinnipeds, such that any potential follow-up research can be conducted by the appropriate personnel; (2) tag-bearing carcasses of pinnipeds, allowing transmittal of the information to appropriate agencies and personnel; and (3) rare or unusual species of marine mammals for agency follow-up.
Glacier Bay NP actively monitors harbor seals at breeding and molting haul out locations to assess trends over time (
Glacier Bay NP will submit a draft monitoring report to us no later than 90 days after the expiration of the Incidental Harassment Authorization, if issued. The report will include a summary of the information gathered pursuant to the monitoring requirements set forth in the Authorization. Glacier Bay NP will submit a final report to the NMFS Director, Office of Protected Resources within 30 days after receiving comments from NMFS on the draft report. If Glacier Bay NP receives no comments from NMFS on the report, NMFS will consider the draft report to be the final report.
The report will describe the operations conducted and sightings of marine mammals near the proposed project. The report will provide full documentation of methods, results, and interpretation pertaining to all monitoring. The report will provide:
1. A summary and table of the dates, times, and weather during all research activities.
2. Species, number, location, and behavior of any marine mammals observed throughout all monitoring activities.
3. An estimate of the number (by species) of marine mammals exposed to acoustic or visual stimuli associated with the research activities.
4. A description of the implementation and effectiveness of the monitoring and mitigation measures of the Authorization and full documentation of methods, results, and interpretation pertaining to all monitoring.
In the unanticipated event that the specified activity clearly causes the take of a marine mammal in a manner prohibited by the authorization, such as an injury (Level A harassment), serious injury, or mortality (
• Time, date, and location (latitude/longitude) of the incident;
• Description and location of the incident (including water depth, if applicable);
• Environmental conditions (
• Description of all marine mammal observations in the 24 hours preceding the incident;
• Species identification or description of the animal(s) involved;
• Fate of the animal(s); and
• Photographs or video footage of the animal(s) (if equipment is available).
Glacier Bay NP shall not resume its activities until NMFS is able to review the circumstances of the prohibited take. We will work with Glacier Bay to determine what is necessary to minimize the likelihood of further prohibited take and ensure MMPA compliance. Glacier Bay NP may not resume their activities until notified by us via letter, email, or telephone.
In the event that Glacier Bay NP discovers an injured or dead marine mammal, and the lead researcher determines that the cause of the injury or death is unknown and the death is relatively recent (
In the event that Glacier Bay NP discovers an injured or dead marine mammal, and the lead visual observer determines that the injury or death is not associated with or related to the authorized activities (
Except with respect to certain activities not pertinent here, the MMPA defines “harassment” as: Any act of pursuit, torment, or annoyance which (i) has the potential to injure a marine mammal or marine mammal stock in the wild [Level A harassment]; or (ii) has the potential to disturb a marine mammal or marine mammal stock in the wild by causing disruption of behavioral patterns, including, but not limited to, migration, breathing, nursing, breeding, feeding, or sheltering [Level B harassment].
All anticipated takes would be by Level B harassment, involving temporary changes in behavior. NMFS expects that the proposed mitigation and monitoring measures would minimize the possibility of injurious or lethal takes. NMFS considers the potential for take by injury, serious injury, or mortality as remote. NMFS expects that the presence of Glacier Bay NP personnel could disturb animals hauled out and that the animals may alter their behavior or attempt to move away from the researchers.
As discussed earlier, NMFS considers an animal to have been harassed if it moved greater than 1 m (3.3 ft) in response to the surveyors' presence or if the animal was already moving and changed direction and/or speed, or if the animal flushed into the water. NMFS does not consider animals that became alert without such movements as harassed.
Based on pinniped survey counts conducted by Glacier Bay NP (
Harbor seals tend to haul out in small numbers (on average, less than 50 animals) at most sites with the exception of Flapjack Island (Womble, Pers. Comm.). Animals on Flapjack Boulder Islands generally haul out on the south side of the Islands and are not located near the research sites located on the northern side of the Islands. Aerial survey maximum counts show that harbor seals sometimes haul out in large numbers at all four locations (see Table 2 in Glacier Bays NP's application), and sometimes individuals and mother/pup pairs occupy different terrestrial locations than the main haulout (J. Womble, personal observation).
Considering the conservation status for the Western stock of the Steller sea lion, the Glacier Bay NP researchers would not conduct ground-based or vessel-based surveys if they observe Steller sea lions before accessing Boulder, Lone, and Flapjack Islands, and Geikie Rock. Thus, NMFS expects no takes to occur for this species during the proposed activities.
NMFS does not propose to authorize any injury, serious injury, or mortality.
NMFS has defined “negligible impact” in 50 CFR 216.103 as “. . . an impact resulting from the specified activity that cannot be reasonably expected to, and is not reasonably likely to, adversely affect the species or stock through effects on annual rates of recruitment or survival.” A negligible impact finding is based on the lack of likely adverse effects on annual rates of recruitment or survival (
To avoid repetition, the discussion below applies to all four species discussed in this notice. In making a negligible impact determination, we consider:
• The number of anticipated injuries, serious injuries, or mortalities;
• The number, nature, and intensity, and duration of Level B harassment;
• The context in which the takes occur (
• The status of stock or species of marine mammals (
• Impacts on habitat affecting rates of recruitment/survival; and The effectiveness of monitoring and mitigation measures to reduce the number or severity of incidental take.
For reasons stated previously in this document and based on the following factors, NMFS does not expect Glacier Bay NP's specified activities to cause long-term behavioral disturbance, abandonment of the haul-out area, injury, serious injury, or mortality:
1. The takes from Level B harassment would be due to potential behavioral disturbance. The effects of the research activities would be limited to short-term startle responses and localized behavioral changes due to the short and sporadic duration of the research activities. Minor and brief responses, such as short-duration startle or alert reactions, are not likely to constitute disruption of behavioral patterns, such as migration, nursing, breeding, feeding, or sheltering.
2. The availability of alternate areas for pinnipeds to avoid the resultant acoustic and visual disturbances from the research operations. Anecdotal observations and results from previous monitoring reports also show that the pinnipeds returned to the various sites and did not permanently abandon haul-out sites after Glacier Bay NP conducted their research activities.
3. There is no potential for large-scale movements leading to injury, serious injury, or mortality because the researchers would delay ingress into the landing areas only after the pinnipeds have slowly entered the water.
4. Glacier Bay NP would limit access to Boulder, Lone, and Flapjack Islands, and Geikie Rock when there are high numbers (more than 25) harbor seals hauled out (with or without young pups present), any time pups are present, or any time that Steller sea lions are present, the researchers would not approach the island and would not conduct gull monitoring research.
We do not anticipate that any injuries, serious injuries, or mortalities would occur as a result of Glacier Bay NP's proposed activities and we do not propose to authorize injury, serious injury, or mortality. These species may exhibit behavioral modifications, including temporarily vacating the area during the proposed seabird and pinniped research activities to avoid the resultant acoustic and visual disturbances. Further, these proposed activities would not take place in areas of significance for marine mammal feeding, resting, breeding, or calving and would not adversely impact marine mammal habitat. Due to the nature, degree, and context of the behavioral harassment anticipated, we do not expect the activities to impact annual rates of recruitment or survival.
NMFS does not expect pinnipeds to permanently abandon any area surveyed by researchers, as is evidenced by continued presence of pinnipeds at the sites during annual seabird monitoring. In summary, NMFS anticipates that impacts to hauled-out harbor seals during Glacier Bay NP's research activities would be behavioral harassment of limited duration (
Based on the analysis contained herein of the likely effects of the specified activity on marine mammals and their habitat, and taking into consideration the implementation of the proposed mitigation and monitoring measures, NMFS preliminarily finds that the total marine mammal take from Glacier Bay NP's proposed research activities will not adversely affect annual rates of recruitment or survival and therefore will have a negligible impact on the affected species or stocks.
As mentioned previously, NMFS estimates that Glacier Bay NP's activities could potentially affect, by Level B harassment only, one species of marine mammal under our jurisdiction. For harbor seals, this estimate is small (6.9 percent) relative to the population size.
Section 101(a)(5)(D) of the MMPA also requires us to determine that the taking will not have an unmitigable adverse effect on the availability of marine mammal species or stocks for subsistence use. There are no relevant subsistence uses of marine mammals implicated by this action. Glacier Bay National Park prohibits subsistence harvest of harbor seals within the Park (Catton, 1995). Thus, NMFS has determined that the total taking of affected species or stocks would not have an unmitigable adverse impact on the availability of such species or stocks for taking for subsistence purposes.
NMFS does not expect that Glacier Bay NP's proposed research activities (which include mitigation measures to avoid harassment of Steller sea lions) would affect any species listed under the ESA. Therefore, NMFS has determined that a section 7 consultation under the ESA is not required.
In 2014, NMFS prepared an Environmental Assessment (EA) analyzing the potential effects to the human environment from NMFS' issuance of an Authorization to Glacier Bay NP for their seabird research activities.
In September 2014, NMFS issued a Finding of No Significant Impact
As a result of these preliminary determinations, NMFS proposes to authorize the take of marine mammals incidental to Glacier Bay NP's seabird research activities, provided the previously mentioned mitigation, monitoring, and reporting requirements are incorporated. The next section provides the proposed Authorization language which we propose for inclusion in the Authorization (if issued).
Glacier Bay National Park, P.O. Box 140, Gustavus, Alaska 99826 and/or its designees (holders of the Authorization) are hereby authorized under section 101(a)(5)(D) of the Marine Mammal Protection Act (16 U.S.C. 1371(a)(5)(D)) to harass small numbers of marine mammals incidental to conducting monitoring and research studies on glaucus-winged gulls (
1. This Authorization is valid from May 1 through September 30, 2016.
2. This Authorization is valid only for research activities that occur in the following specified geographic areas: Boulder (58°33′18.08″ N; 136°1′13.36″ W); Lone (58°43′17.67″ N; 136°17′41.32″ W), and Flapjack (58°35′10.19″ N; 135°58′50.78″ W) Islands, and Geikie Rock (58°41′39.75″ N; 136°18′39.06″ W); and Tlingit Point Islet (58°45′16.86″ N; 136°10′41.74″ W) in Glacier Bay, Alaska.
a. The taking, by Level B harassment only, is limited to the following species: 500 Pacific harbor seals (
b. The taking by injury (Level A harassment), serious injury or death of any of the species listed in Condition 3(a) or the taking of any kind of any other species of marine mammal is prohibited and may result in the modification, suspension or revocation of this Authorization.
c. The taking of any marine mammal in a manner prohibited under this Authorization must be reported immediately to the Chief, Permits and Conservation Division, Office of Protected Resources, NMFS.
A copy of this Authorization must be in the possession of Glacier Bay National Park, its designees, and field crew personnel (including research collaborators) operating under the authority of this Authorization at all times.
The Holder of this Authorization is required to implement the following mitigation measures:
a. Conduct pre-survey monitoring before deciding to access a study site. Prior to deciding to land onshore of Boulder, Lone, or Flapjack Island or Geikie Rock, the Holder of this Authorization will use high-powered image stabilizing binoculars before approaching at distances of greater than 500 m (1,640 ft) to determine and document the number, species, and location of hauled out marine mammals. The vessels will maintain a distance of 328 to 1,640 ft (100 to 500 m) from the shoreline.
i. If the Holder of the Authorization determines that there are 25 or more harbor seals (with or without young pups present) hauled out on the shoreline, the holder will not access the island and will not conduct the study at that time.
ii. If the Holder of the Authorization determines that any Steller sea lions (
iii. If the Holder of the Authorization determines that there are any pups hauled out on the shoreline and vulnerable to being separated from their mothers, the Holder will not access the island and will not conduct the study at that time.
b. Minimize the potential for disturbance by: (1) Performing controlled and slow ingress to the study site to prevent a stampede; and (2) selecting a pathway of approach farthest from the hauled out harbor seals to minimize disturbance.
c. Monitor for offshore predators at the study sites and avoid research activities when predators area present. Avoid approaching the study site if killer whales (
d. Maintain a quiet working atmosphere, avoid loud noises, and use hushed voices in the presence of hauled out pinnipeds.
Glacier Bay NP is required to record the following:
a. BLM and/or its designees shall record the following:
i. Species counts (with numbers of adults/juveniles); and:
ii. Numbers of disturbances, by species and age, according to a three-point scale of intensity including: (1) Head orientation in response to disturbance, which may include turning head towards the disturbance, craning head and neck while holding the body rigid in a u-shaped position, or changing from a lying to a sitting position and/or slight movement of less than 1 meter; “alert” (2) Movements in response to or away from disturbance, typically over short distances (1-3 meters) and including dramatic changes in direction or speed of locomotion for animals already in motion; “movement” and (3) All flushes to the water as well as lengthier retreats (>3 meters); “flight”.
iii. Information on the weather, including the tidal state and horizontal visibility.
b. If applicable, the observer shall note observations of marked or tag-bearing pinnipeds or carcasses, as well as any rare or unusual species of marine mammal.
c. If applicable, the observer shall note the presence of any offshore predators (date, time, number, and species).
The holder of this Authorization is required to:
a. Draft Report: Submit a draft monitoring report to the Division Chief, Permits and Conservation Division, Office of Protected Resources, National Marine Fisheries Service within 90 days after the Authorization expires. NMFS will review the Draft Report which is subject to review and comment by NMFS. Glacier Bay NP must address any recommendations made by NMFS in the Final Report prior to submission to NMFS. If NMFS decides that the draft
b. Final Report: Glacier Bay shall prepare and submit a Final Report to NMFS within 30 days following resolution of any comments on the draft report from NMFS.
In the unanticipated event that the specified activity clearly causes the take of a marine mammal in a manner prohibited by the authorization, such as an injury (Level A harassment), serious injury, or mortality (
• Time, date, and location (latitude/longitude) of the incident;
• Description and location of the incident (including water depth, if applicable);
• Environmental conditions (
• Description of all marine mammal observations in the 24 hours preceding the incident;
• Species identification or description of the animal(s) involved;
• Fate of the animal(s); and
• Photographs or video footage of the animal(s) (if equipment is available).
Glacier Bay NP shall not resume its activities until NMFS is able to review the circumstances of the prohibited take. NMFS will work with Glacier Bay NP to determine what is necessary to minimize the likelihood of further prohibited take and ensure MMPA compliance. Glacier Bay NP may not resume their activities until notified by us via letter, email, or telephone.
In the event that Glacier Bay NP discovers an injured or dead marine mammal, and the marine mammal observer determines that the cause of the injury or death is unknown and the death is relatively recent (
In the event that Glacier Bay NP discovers an injured or dead marine mammal, and the lead visual observer determines that the injury or death is not associated with or related to the authorized activities (
NMFS requests comment on the analyses, the draft Authorization, and any other aspect of the Notice of Proposed Incidental Harassment Authorization for Glacier Bay NP's activities.
Please include any supporting data or literature citations with your comments to help inform our final decision on Glacier Bay NP's request for an Authorization.
United States Patent and Trademark Office, Commerce.
Request for Comments.
The United States Patent and Trademark Office (USPTO) is requesting information from its stakeholders regarding issues to be discussed in upcoming World Intellectual Property Organization (WIPO) meetings related to intellectual property, genetic resources, and associated traditional knowledge.
Written submissions should be sent by electronic mail over the Internet addressed to:
Electronic submissions are preferred to be formatted in plain text, but also may be submitted in ADOBE® portable document format or MICROSOFT WORD® format. Submissions not sent electronically should be on paper in a format that facilitates convenient digital scanning into ADOBE® portable document format.
Timely filed submissions will be available for public inspection at the Office of Policy and International Affairs, currently located in Madison West, Tenth Floor, 600 Dulany Street, Alexandria, Virginia 22314. Submissions also will be available for viewing via the USPTO's Internet Web site (
Karin Ferriter, Attorney-Advisor (telephone (571) 272-9300; electronic mail message
The World Intellectual Property Organization's (WIPO) Intergovernmental Committee
At the meeting, the IGC will continue a longstanding discussion as to whether WIPO members should require patent applicants to disclose the source or origin of traditional knowledge and genetic resources used in an invention, as well as practices to prevent the granting of patents for inventions that are not patentable. These discussions have included definitional issues, including the definitions of genetic resources and traditional knowledge. See
The IGC decided to invite relevant parties to provide information that could aid the IGC in its deliberations. The USPTO welcomes comments from the public on issues related to these topics. Comments regard the issues below would be particularly helpful to the USPTO.
• Currently, several resources are available which enable USPTO patent examiners to search prior art traditional knowledge and medicine, many of which are also available to the public,
○ Are there additional databases with information about genetic resources and traditional knowledge that patent examiners should use to assess patentability?
○ What are the best practices for establishing such a database?
○ Before such a database is made publicly available, what steps should be taken to ensure that it does not include confidential information?
○ What studies have been done regarding national laws and practices that require patent applications to disclose the country of source or origin for genetic resources or traditional knowledge that may be implicated in the patent application?
• The meeting is also expected to consider a wide range of views among IGC delegations as to whether the intellectual property system should play a role in ensuring that researchers obtain informed consent before obtaining genetic resources or traditional knowledge from indigenous peoples.
○ What codes of conduct (
○ What studies have been done regarding national laws and practices requiring patent applications to disclose the country of source or origin for genetic resources or traditional knowledge?
• At various times, different IGC delegations have referred to the Universal Declaration of Human Rights, and to the United Nations Declaration on the Rights of Indigenous Peoples.
○ How, if at all, should these Declarations inform the discussions at the IGC?
Interested parties are invited to share their views on these matters. The information obtained can help ensure that the United States delegation has the most current views on relevant issues for discussion at the WIPO IGC meetings. Studies, citations of databases, codes of conduct, and laws that are provided in response to this notice may be collected and submitted to WIPO for compilation as part of the reference materials for the WIPO IGC.
Department of the Army, DoD.
Notice to alter a System of Records.
The Department of the Army proposes to alter a system of records, A0600-43 DAPE, entitled “DA Conscientious Objector Review Board”. This system is used to investigate claims of a service member that he/she is a conscientious objector to participation in war or to the bearing of arms and to make final determination resulting in assignment of appropriate status or awarding of discharge.
Comments will be accepted on or before April 25, 2016. This proposed action will be effective on the date following the end of the comment period unless comments are received which result in a contrary determination.
You may submit comments, identified by docket number and title, by any of the following methods:
* Federal Rulemaking Portal:
* Mail: Department of Defense, Office of the Deputy Chief Management Officer, Directorate of Oversight and Compliance, Regulatory and Audit Matters Office, 9010 Defense Pentagon, Washington, DC 20301-9010.
Ms. Tracy Rogers, Department of the Army, Privacy Office, U.S. Army Records Management and Declassification Agency, 7701 Telegraph Road, Casey Building, Suite 144, Alexandria, VA 22325-3905 or by calling (703) 428-7499.
The Department of the Army's notices for systems of records subject to the Privacy Act of 1974 (5 U.S.C. 552a), as amended, have been published in the
DA Conscientious Objector Review Board (February 14, 2000, 65 FR 7365)
Delete entry and replace with “Army Review Boards Agency, 251 18th Street South, Suite 385, Arlington, VA 22202-3531.”
Delete entry and replace with “Name, grade/rank, Social Security Number (SSN), duty status, results of interview evaluation by military chaplain and a psychiatrist, command's report of investigation, evidence submitted by applicant, witness statements, hearing transcript or summary, information or records from the Selective Service System if appropriate, applicant's rebuttal to commander's recommendation, DA Conscientious Objector Review Board (DACORB) correspondence with applicant, summary of evidence considered, discussion, conclusions, names of voting DACORB members, and disposition of application.”
Delete entry and replace with “10 U.S.C. 3013, Secretary of the Army; DoDI 1300.06, Conscientious Objectors; Army Regulation 600-43, Conscientious Objection; and E.O. 9397 (SSN), as amended.”
Delete entry and replace with “In addition to those disclosures generally permitted under 5 U.S.C. 552a(b) of the Privacy Act of 1974, as amended, the records contained therein may specifically be disclosed outside the DoD as a routine use pursuant to 5 U.S.C. 552a(b)(3) as follows:
To the Selective Service System Headquarters for the purpose of identifying individuals who have less than 180 days active duty, and who have been discharged by reason of conscientious objection.
The DoD Blanket Routine Uses set forth at the beginning of the Army's compilation of systems of records notices may apply to this system. The complete list of DoD Blanket Routine Uses can be found online at:
The DOD Health Information Privacy Regulation (DOD 6025.18-R) issued pursuant to the Health Insurance Portability and Accountability Act of 1996, applies to most such health information. DOD 6025.18-R may place additional procedural requirements on the uses and disclosures of such information beyond those in the Privacy Act of 1974 or mentioned in this system of records notice.”
Delete entry and replace with “Paper records and electronic storage media.”
Delete entry and replace with “By applicant's name and SSN.”
Delete entry and replace with “Records are maintained in a controlled facility. Physical entry is restricted by the use of locks, guards, and is accessible only to authorized personnel. Access to records is limited to person(s) with an official need-to-know who are responsible for servicing the record in the performance of their official duties. Access to computerized data is restricted by use of Common Access Cards (CACs) and is accessible only by users with an authorized account. Persons are properly screened and cleared for access. Access to computerized data is role-based and further restricted by passwords, which are changed periodically. In addition, the integrity of automated data is ensured by internal audit procedures, database access accounting reports, and controls to preclude unauthorized disclosure.”
Delete entry and replace with “Individuals seeking to determine whether information about themselves is contained in this system of records may write to the Deputy Chief of Staff for Personnel, Headquarters, Department of the Army, ATTN: DAPE-ZXI-IC (PA Officer), 300 Army Pentagon, Washington, DC 20310-0300.
Individuals should provide their full name, SSN, current address, year of Conscientious Objector Review Board decision, and the request must be signed.
In addition, the requester must provide a notarized statement or an unsworn declaration made in accordance with 28 U.S.C. 1746, in the following format:
If executed outside the United States: `I declare (or certify, verify, or state) under penalty of perjury under the laws of the United State of America that the foregoing is true and correct. Executed on (date). (Signature)'.
If executed within the United States, its territories, possessions, or commonwealths: `I declare (or certify, verify, or state) under penalty of perjury that the foregoing is true and correct. Executed on (date). (Signature)'.”
Delete entry and replace with “Individuals seeking access to information about themselves contained in this system of records may write to the Deputy Chief of Staff for Personnel, Headquarters, Department of the Army, ATTN: DAPE-ZXI-IC (PA Officer), 300 Army Pentagon, Washington, DC 20310-0300.
Individual should provide their full name, SSN, current address, and the request must be signed.
In addition, the requester must provide a notarized statement or an unsworn declaration made in accordance with 28 U.S.C. 1746, in the following format:
If executed outside the United States: `I declare (or certify, verify, or state) under penalty of perjury under the laws of the United State of America that the foregoing is true and correct. Executed on (date). (Signature)'.
If executed within the United States, its territories, possessions, or commonwealths: `I declare (or certify, verify, or state) under penalty of perjury that the foregoing is true and correct. Executed on (date). (Signature)'.”
Delete entry and replace with “The Army's rules for accessing records, and for contesting contents and appealing initial agency determinations are contained in 32 CFR part 505, Army Privacy Program or may be obtained from the system manager.”
Delete entry and replace with “From the individual, his/her commander, and/or official records.”
Defense Finance and Accounting Service (DFAS), DoD.
Notice.
In compliance with the
Consideration will be given to all comments received by May 23, 2016.
You may submit comments, identified by docket number and title, by any of the following methods:
•
•
Any associated form(s) for this collection may be located within this same electronic docket and downloaded for review/testing. Follow the instructions at
To request more information on this proposed information collection or to obtain a copy of the proposal and associated collection instruments, please write to the Defense Finance and Accounting Service; Office of Financial Operations; Retired and Annuitant Pay Quality Product Assurance Division ATTN: Chuck Moss, Cleveland, OH 44199-2001, or call at (216) 204-4426.
Notice is sent to Survivor Benefit Plan child beneficiaries when they are about to turn age 18. They need to indicate any future school attendance or if the child is incapacitated in order to determine continuing entitlement.
Defense Finance and Accounting Service (DFAS), DoD.
Notice.
In compliance with the
Consideration will be given to all comments received by May 23, 2016.
You may submit comments, identified by docket number and title, by any of the following methods:
•
•
Any associated form(s) for this collection may be located within this same electronic docket and downloaded for review/testing. Follow the instructions at
To request more information on this proposed information collection or to obtain a copy of the proposal and associated collection instruments, please write to the Defense Finance and Accounting Service; Office of Financial Operations; Retired and Annuitant Pay Quality Product Assurance Division ATTN: Chuck Moss, Cleveland, OH 44199-2001, or call at (216) 204-4426.
The form is completed initially upon establishment of the VSI entitlement. If this designation needs to be changed, for various reasons, then another form DD 2864 will be completed.
Department of Defense.
Notice of meeting.
The Department of Defense is publishing this notice to announce the following Federal Advisory Committee meeting of the Judicial Proceedings since Fiscal Year 2012 Amendments Panel (“the Judicial Proceedings Panel” or “the Panel”). The meeting is open to the public.
A meeting of the Judicial Proceedings Panel will be held on Friday, April 8, 2016. The Public Session will begin at 9:00 a.m. and end at 4:30 p.m.
The Holiday Inn Arlington at Ballston, 4610 N. Fairfax Drive, Arlington, Virginia 22203.
Ms. Julie Carson, Judicial Proceedings Panel, One Liberty Center, 875 N. Randolph Street, Suite 150, Arlington, VA 22203. Email:
This public meeting is being held under the provisions of the Federal Advisory Committee Act of 1972 (5 U.S.C., Appendix, as amended), the Government in the Sunshine Act of 1976 (5 U.S.C. 552b, as amended), and 41 CFR 102-3.150.
Defense Finance and Accounting Service (DFAS), DoD.
Notice.
In compliance with the
Consideration will be given to all comments received by May 23, 2016.
You may submit comments, identified by docket number and title, by any of the following methods:
•
•
To request more information on this proposed information collection or to obtain a copy of the proposal and associated collection instruments, please write to the Defense Finance and Accounting Service; Office of Financial Operations; Retired and Annuitant Pay Quality Product Assurance Division ATTN: Chuck Moss, Cleveland, OH 44199-2001, or call at (216) 204-4426.
This form is completed by the retiree and the Department of Veterans Affairs (DVA) whenever the retired member elects to have costs deducted from his DVA benefits.
Department of the Navy, DoD.
Notice.
The inventions listed below are assigned to the United States Government, as represented by the Secretary of the Navy and are available for domestic and foreign licensing by the Department of the Navy.
The following patents are available for licensing: Patent No. 8,911,145: METHOD TO MEASURE THE CHARACTERISTICS IN AN ELECTRICAL COMPONENT//Patent No. 8,336,054: HAND LAUNCHABLE UNMANNED AERIAL VEHICLE//Patent No. 8,855,961: BINARY DEFINTION FILES//Patent No. 8,904,934: SEGMENTED LINEAR SHAPED CHARGE//Patent No. 9,081,409: EVENT DETECTION CONTROL SYSTEM FOR OPERATING A REMOTE SENSOR OR PROJECTILE SYSTEM//Patent No. 8,977,507: EVENT DETECTION SYSTEM USER INTERFACE SYSTEM COUPLED TO MULTIPLE SESNOR OR PROJECTILE SYSTEMS//Patent No. 8,905,282 ACCESSORY MOUNTING APPARATUS FOR A VEHICLE//Patent No. 9,083,078 UNIVERSAL ANTENNA MOUNTING BRACKET//Patent No. 8,967,049 SOLID LINED FABRIC AND A METHOD FOR MAKING//Patent No. 8,850,950 HELICOPTER WEAPON MOUNTING SYSTEM.
Requests for copies of the patents cited should be directed to Naval Surface Warfare Center, Crane Div, Code OOL, Bldg 2, 300 Highway 361, Crane, IN 47522-5001.
Mr. Christopher Monsey, Naval Surface Warfare Center, Crane Div, Code OOL, Bldg 2, 300 Highway 361, Crane, IN 47522-5001, telephone 812-854-4100.
35 U.S.C. 207, 37 CFR part 404.
Federal Student Aid (FSA), 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 May 23, 2016.
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 Beth Grebeldinger, 202-377-4018.
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.
Department of Energy.
Notice of open meeting.
This notice announces a meeting of the Environmental Management Site-Specific Advisory Board (EM SSAB), Hanford. The Federal Advisory Committee Act (Pub. L. 92-463, 86 Stat. 770) requires that public notice of this meeting be announced in the
Wednesday, April 13, 2016, 8:30 a.m.-5:00 p.m.
Thursday, April 14, 2016, 9:00 a.m.-12:00 p.m.
Red Lion Hanford House, 802 George Washington Way, Richland, WA 99352.
Kristen Holmes, Federal Coordinator, Department of Energy Richland Operations Office, 825 Jadwin Avenue, P.O. Box 550, A7-75, Richland, WA 99352; Phone: (509) 376-5803; or Email:
Office of Fossil Energy, Department of Energy.
Notice of orders.
The Office of Fossil Energy (FE) of the Department of Energy gives notice that during February 2016, it issued orders granting authority to import and export natural gas, to import and export liquefied natural gas (LNG), to vacate authority, and to dismiss applications. These orders are summarized in the attached appendix and may be found on the FE Web site at
They are also available for inspection and copying in the U.S. Department of Energy (FE-34), Division of Natural Gas Regulation, Office of Regulation and International Engagement, Office of Fossil Energy, Docket Room 3E-033, Forrestal Building, 1000 Independence Avenue SW., Washington, DC 20585, (202) 586-9478. The Docket Room is open between the hours of 8:00 a.m. and 4:30 p.m., Monday through Friday, except Federal holidays.
Environmental Protection Agency (EPA).
Notice of proposed determination.
By petition dated September 20, 2012 and submitted pursuant to 33 CFR 1322(f)(3) and 40 CFR 140.4(a), the State of New York certified that the protection and enhancement of the waters of the New York State portion of the St. Lawrence River and the numerous navigable tributaries, harbors and embayments thereof, requires greater environmental protection than the applicable Federal standards provide, and petitioned the United States Environmental Protection Agency (EPA), Region 2, for a determination that adequate facilities for the safe and sanitary removal and treatment of sewage from all vessels are reasonably available for those waters, so that the State may completely prohibit the discharge from all vessels of any sewage, whether treated or not, into such waters. On April 22, 2013, the EPA requested additional information regarding the population of commercial vessels using the subject waters and the availability of options for sewage removal from those vessels. Upon consideration of the petition, and subsequently obtained information regarding commercial vessels that has been made part of the administrative record, the EPA proposes to make the requested determination and hereby invites the public to comment.
Comments relevant to this proposed determination are due by April 25, 2016.
You may submit comments by any of the following methods:
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Moses Chang, (212) 637-3867, Email address:
In support of the certification, the Commissioner notes that the St. Lawrence River supports a diversity of uses, including providing drinking water for approximately 17,000 people in New York, valuable wildlife habitat, a commercial shipping corridor, recreational boating and numerous sites for aquatic recreation. The River serves as an economic engine for the region, and is heavily used and enjoyed by the citizens of the many lakeshore communities and throughout the watershed. The River is also home to the Thousand Islands Region, an international tourism destination encompassing communities on both sides of the U.S. and Canadian border along the River and the eastern shores of Lake Ontario. While New York acknowledges that a No Discharge Zone designation alone will not obviate the need for other water quality improvement efforts, a NDZ for the St. Lawrence River would complement the benefits of the State's other efforts to protect and improve water quality in the River.
There is no single definitive source of information on the number of vessels, or vessels with MSDs, that frequent the St. Lawrence River. The number and distribution fluctuates depending on the time of year, day of the week, weather conditions and special events. In order to develop a reasonable estimate of recreational vessel population, New York relied on two major sources of information. The first was the New York Department of State's (DOS's) Clean Vessel Act Plan (“Statewide Plan”), released in 1996. The purpose of the plan was to characterize pumpout adequacy across New York State. From August 1994 to July 1995, DOS surveyed municipalities to assess the availability of public sewage pumpout facilities. Many private marina operators were also contacted. Private pumpouts and dump stations were initially estimated from the NYSDEC and New York Sea Grant boating guides, augmented with information on vessel registration, aerial photographs of peak season use and local plans and studies. Using data from the Statewide Plan, the estimated number of recreational vessels in Jefferson and St. Lawrence Counties, which border the St. Lawrence River, is a total of 3,775 vessels (3,170 and 605, respectively).
The second, and more recent, source for information about the recreational vessel population in the proposed NDZ is the New York State Office of Parks, Recreation and Historic Preservation's 2012 Boating Report (OPRHP Report) for the counties of Jefferson and St. Lawrence, which encompass the proposed NDZ. The OPRHP Report provides a breakdown of the of the vessel registrations by vessel length for each county. Applying the CVA Guidelines, above, on the relationship between vessel length and MSDs to the data in the OPRHP Report yields an estimate of 2,611 vessels with MSDs registered in Jefferson and St. Lawrence counties, all of which, conservatively, were assumed to operate on the St. Lawrence River.
The federal Clean Vessel Act of 1992 made grants available to states for construction, replacement and renovation of recreational vessel pumpouts. The NYSDEC applied for the first federal grant in 1994 and initiated a statewide program known as the Clean Vessel Assistance Program (CVAP), managed and administered by the New York State Environmental Facilities Corporation (NYSEFC). The NYSEFC provides three distinct grant programs: CVAP Construction Grants (for new installations or replacement), CVAP Upgrade Grants (for improvements to existing pumpouts) and CVAP Operation & Maintenance Grants (for annual upkeep of pumpouts). The NYSEFC also provides funding for information and education on the benefits, use and availability of pumpouts. New York's petition listed 22 currently operating stationary CVAP pumpout facilities that serve the St. Lawrence River in Jefferson and St. Lawrence counties in the state, but the EPA's review has determined the number to be 21. These facilities are summarized in Table 1, below.
In calculating the ratio of pumpout facilities-to-vessels, only CVAP-funded facilities were considered. (If all pumpout facilities (CVAP and non-CVAP) are considered, the ratios would show even greater coverage.) This calculation shows that overall, within the proposed St. Lawrence River NDZ, there are an adequate number of stationary pumpout facilities to support the proposed NDZ, with a pumpout-to-vessel ratio as high as 1:180 (using the estimate of 3,775 vessels from the 1996 CVAP Statewide Plan) and as low as 1:119 (using the estimate of 2,611 registered vessels from the 2012 OPRHP Report). By either of the methods discussed above, there are currently sufficient pumpout facilities to meet the upper/maximum 1:600 ratio, and both ratios fall well below the lower/minimum 1:300 ratio used to determine adequacy of pumpout facilities.
Commercial vessel populations were estimated using data from the National Ballast Information Clearinghouse (NBIC), which records ballast water discharge reports for ships arriving at the two main commercial ports on the St. Lawrence River (U.S. side)—Ogdensburg and Massena. In calendar year 2011, ballast manifests showed eight vessels arriving in Ogdensburg and one in Massena. These vessels were either bulkers or passenger cruise ships. Most passenger cruise ships using ports in the proposed NDZ are smaller, chartered site-seeing boats, but this commercial traffic also includes two cruise passenger vessels (the St. Laurent and Pearl Mist), which can hold 200 to 300 passengers each. In calendar year 2010, there were four commercial arrivals at Ogdensburg and seven at Massena. Overall, at both ports combined, annual commercial traffic averages approximately one vessel per month. While other commercial vessels move through the proposed NDZ, they do not stop at the main commercial ports.
Commercial vessels in the proposed NDZ that are too large to use a CVAP stationary pumpout facility may dock at either commercial port, and call a mobile septic waste hauler (pumpout truck) to meet the vessel and provide pumpout services at the dock. There are
Based on a total recreational vessel population of 3,775 and 21 currently available pumpout facilities, the ratio of vessels to pumpouts is 180:1, which means there are significantly more pumpouts than the recommended range of 300-600:1. Also, based on the low level of commercial vessel traffic (approximately one vessel per month) at the two St. Lawrence River commercial ports and the transience of these vessels, the availability of four septic hauler pumpout truck companies provides adequate pumpout capacity for vessels that are too large to use the stationary pumpout facilities. Therefore, the EPA proposes to issue a determination that adequate pumpout facilities for the safe and sanitary removal and treatment of sewage for all vessels are reasonably available for the waters of the New York portion of the St. Lawrence River.
A 30-day period for public comment has been opened on this matter and the EPA invites any comments relevant to its proposed determination. If, after the public comment period ends, the EPA makes a final determination that adequate facilities for the safe and sanitary removal and treatment of sewage from all vessels are reasonably available for the waters of the New York State portion of the St. Lawrence River, the State may completely prohibit the discharge from all vessels of any sewage, whether treated or not, into such waters.
Environmental Protection Agency (EPA).
Notice of Advisory Committee meeting.
Under the Federal Advisory Committee Act, Public Law 92-463, the Environmental Protection Agency (EPA) gives notice of a meeting of the National Advisory Committee (NAC) and Governmental Advisory Committee (GAC) to the U.S. Representative to the North American Commission for Environmental Cooperation (CEC). The National and Governmental Advisory Committees advise the EPA Administrator in her capacity as the U.S. Representative to the CEC Council. The committees are authorized under Articles 17 and 18 of the North American Agreement on Environmental Cooperation (NAAEC), North American Free Trade Agreement Implementation Act, Public Law 103-182, and as directed by Executive Order 12915, entitled “Federal Implementation of the North American Agreement on Environmental Cooperation.” The NAC is composed of 15 members representing academia, environmental non-governmental organizations, and private industry. The GAC consists of 14 members representing state, local, and tribal governments. The committees are responsible for providing advice to the U.S. Representative on a wide range of strategic, scientific, technological, regulatory, and economic issues related to implementation and further elaboration of the NAAEC.
The purpose of the meeting is to provide advice on issues related to the CEC's 2016 Council Session theme and to discuss additional trade and environment issues in North America. The meeting will also include a public comment session. The agenda, meeting materials, and general information about the NAC and GAC will be available at
The National and Governmental Advisory Committees will hold an open meeting on Wednesday, April 20, 2016 from 9:00 a.m. to 5:00 p.m., and Thursday, April 21, 2016 from 9:00 a.m. until 3:00 p.m.
The meeting will be held at the U.S. EPA, Conference Room 2138, located in the William Jefferson Clinton South Building, 1200 Pennsylvania Ave. NW., Washington, DC 20004. Telephone: 202-564-2294. The meeting is open to the public, with limited seating on a first-come, first-served basis.
Oscar Carrillo, Designated Federal Officer,
Requests to make oral comments, or provide written comments to the NAC/GAC should be sent to Oscar Carrillo at
Federal Communications Commission.
Notice and request for comments.
As part of its continuing effort to reduce paperwork burdens, and as required by the Paperwork Reduction Act (PRA) of 1995 (44 U.S.C. 3501-3520), the Federal Communications Commission (FCC or the Commission) invites the general public and other Federal agencies to take this opportunity to comment on the following information collection. Comments are requested concerning: Whether the proposed collection of information is necessary for the proper performance of the functions of the Commission, including whether the information shall have practical utility; the accuracy of the Commission's burden estimate; ways to enhance the quality, utility, and clarity of the information collected; ways to minimize the burden of the collection of information on the respondents, including the use of automated collection techniques or other forms of information technology; and ways to further reduce the information collection burden on small business concerns with fewer than 25 employees. The FCC may not conduct or sponsor a collection of information unless it displays a currently valid control number. No person shall be subject to any penalty for failing to comply with a collection of information subject to the PRA that does not display a valid Office of Management and Budget (OMB) control number.
Written PRA comments should be submitted on or before May 23, 2016. If you anticipate that you will be submitting comments, but find it difficult to do so within the period of time allowed by this notice, you should advise the contact listed below as soon as possible.
Direct all PRA comments to Cathy Williams, FCC, via email
For additional information about the information collection, contact Cathy Williams at (202) 418-2918.
There are changes to FCC Form 2100, Schedule C to implement channel sharing between low power television (LPTV) and TV translator stations. There are also changes to the substance, burden hours, and costs for the collection.
47 CFR 74.800 permits LPTV and TV translator stations to seek approval to share a single television channel. Stations interested in terminating operations and sharing another station's channel must submit FCC Form 2100 Schedule C in order to have the channel sharing arrangement approved. If the sharing station is proposing to make changes to its facility to accommodate the channel sharing, it must also file FCC Form 2100 Schedule C.
47 CFR 74.787 permits full power television stations to obtain a digital-to-digital replacement translator to replace service areas lost as a result of the incentive auction and repacking processes. Stations submit FCC Form 2100 Schedule C to obtain a construction permit for the new replacement translator.
Federal Deposit Insurance Corporation (FDIC).
Notice and request for comment.
The FDIC, as part of its continuing effort to reduce paperwork and respondent burden, invites the general public and other Federal agencies to take this opportunity to comment on the renewal of an existing information collection, as required by the Paperwork Reduction Act of 1995. Currently, the FDIC is soliciting comment on the renewal of the information collection described below.
Comments must be submitted on or before May 23, 2016.
Interested parties are invited to submit written comments to the FDIC by any of the following methods:
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All comments should refer to the relevant OMB control number. A copy of the comments may also be submitted to the OMB desk officer for the FDIC: Office of Information and Regulatory Affairs, Office of Management and Budget, New Executive Office Building, Washington, DC 20503.
Gary Kuiper or Manuel Cabeza, at the FDIC address above.
Proposal to renew the following currently-approved collection of information:
Burden Estimate:
Comments are invited on: (a) Whether the collection of information is necessary for the proper performance of the FDIC's functions, including whether the information has practical utility; (b) the accuracy of the estimates of the burden of the collection of information, including the validity of the methodology and assumptions used; (c) ways to enhance the quality, utility, and clarity of the information to be collected; and (d) ways to minimize the burden of the collection of information on respondents, including through the use of automated collection techniques or other forms of information technology. All comments will become a matter of public record.
Federal Housing Finance Agency.
30-day Notice of Submission of Information Collection for Approval from Office of Management and Budget.
In accordance with the requirements of the Paperwork Reduction Act of 1995 (PRA), the Federal Housing Finance Agency (FHFA or the Agency) is seeking public comments concerning the information collection known as the “American Survey of Mortgage Borrowers” (in a prior PRA Notice, this information collection was referred to as the “National Survey of Existing Mortgage Borrowers”). This is a new collection that has not yet been assigned a control number by the Office of Management and Budget (OMB). FHFA intends to submit the information collection to OMB for review and approval of a three-year control number.
Interested persons may submit comments on or before April 25, 2016.
Submit comments to the Office of Information and Regulatory Affairs of the Office of Management and Budget, Attention: Desk Officer for the Federal Housing Finance Agency, Washington, DC 20503, Fax: (202) 395-3047, Email:
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We will post all public comments we receive without change, including any personal information you provide, such as your name and address, email address, and telephone number, on the FHFA Web site at
Forrest Pafenberg, Supervisory Policy Analyst, Office of the Chief Operating Officer, by email at
FHFA is seeking OMB clearance under the PRA for a new collection of information known as the “American Survey of Mortgage Borrowers” (ASMB).
The ASMB will be a component of the larger “National Mortgage Database” (NMDB) Project, which is a multi-year joint effort of FHFA and the Consumer Financial Protection Bureau (CFPB) (although the ASMB is being sponsored only by FHFA). The NMDB Project is designed to satisfy the Congressionally-mandated requirements of section 1324(c) of the Federal Housing Enterprises Financial Safety and Soundness Act of 1992, as amended by the Housing and Economic Recovery Act of 2008.
In order to fulfill those and other statutory mandates, as well as to support policymaking and research efforts, FHFA and CFPB committed in July 2012 to fund, build and manage the NMDB Project. When fully complete, the NMDB will be a de-identified loan-level database of closed-end first-lien residential mortgages. It will: (1) Be representative of the market as a whole; (2) contain detailed, loan-level information on the terms and performance of mortgages, as well as characteristics of the associated borrowers and properties; (3) be continually updated; (4) have an historical component dating back before the financial crisis of 2008; and (5) provide a sampling frame for surveys to collect additional information.
The core data in the NMDB are drawn from a random 1-in-20 sample of all closed-end first-lien mortgage files outstanding at any time between January 1998 and the present in the files of Experian, one of the three national credit repositories. A random 1-in-20 sample of mortgages newly reported to Experian is added each quarter. The NMDB also draws information on mortgages in the NMDB datasets from other existing sources, including the Home Mortgage Disclosure Act (HMDA) database that is maintained by the Federal Financial Institutions Examination Council (FFIEC), property valuation models, and data files maintained by Fannie Mae and Freddie Mac and by federal agencies. Currently, FHFA obtains additional data from its quarterly National Survey of Mortgage Borrowers (NSMB), which provides critical and timely information on newly-originated mortgages and those borrowing that are not available from any existing source, including: The range of nontraditional and subprime mortgage products being offered, the methods by which these mortgages are being marketed, and the characteristics of borrowers for these types of loans.
While the quarterly NSMB provides information on newly-originated mortgages, it does not solicit borrowers' experience with maintaining their existing mortgages; nor is detailed information on that topic available from any other existing source. The ASMB will solicit such information, including information on borrowers' experience with maintaining a mortgage under financial stress, their experience in soliciting financial assistance, their success in accessing federally-sponsored programs designed to assist them, and, where applicable, any challenges they may have had in terminating a mortgage loan. The ASMB questionnaire will be sent out to a stratified random sample of 10,000 borrowers in the NMDB. The ASMB assumes a 25 percent overall response rate, which would yield 2,500 survey responses.
The information collected through the ASMB questionnaire will be used, in combination with information obtained from existing sources in the NMDB, to assist FHFA in understanding how the performance of existing mortgages is influencing the residential mortgage market, what different borrower groups are discussing with their servicers when they are under financial stress, and consumers' opinions of federally-sponsored programs designed to assist them. This important, but currently unavailable, information will assist the Agency in the supervision of its regulated entities (Fannie Mae, Freddie Mac, and the Federal Home Loan Banks) and in the development and implementation of appropriate and effective policies and programs. The information may also be used for research and analysis by other federal agencies that have regulatory and supervisory responsibilities/mandates related to mortgage markets and to provide a resource for research and analysis by academics and other interested parties outside of the government.
FHFA expects that, in the process of developing the initial and any subsequent ASMB survey questionnaires and related materials, it will sponsor one or more focus groups to pretest those materials. Such pretesting will ultimately help to ensure that the survey respondents can and will answer the survey questions and will provide useful data on their experiences with maintaining their existing mortgages. FHFA will use
While FHFA currently has firm plans to conduct the survey only once—in the second quarter of 2016—it may decide to conduct further periodic ASMB surveys once the first survey is completed. The Agency therefore estimates that the survey will be conducted, on average, once annually over the next three years and that it will conduct pre-testing on each set of annual survey materials. FHFA has analyzed the hour burden on members of the public associated with conducting the survey (5,000 hours) and with pre-testing the survey materials (24 hours) and estimates the total annual hour burden imposed on the public by this information collection to be 5,024 hours. The estimate for each phase of the collection was calculated as follows:
FHFA estimates that the ASMB questionnaire will be sent to 10,000 recipients each time it is conducted. Although the Agency expects only 2,500 of those surveys to be returned, it assumes that all of the surveys will be returned for purposes of this burden calculation. Based on the reported experience of respondents to the quarterly NSMB questionnaire, which contains a similar number of questions, FHFA estimates that it will take each respondent 30 minutes to complete each survey, including the gathering of necessary materials to respond to the questions. This results in a total annual burden estimate of 5,000 hours for the survey phase of this collection (1 survey per year × 10,000 respondents per survey × 30 minutes per respondent = 5,000 hours).
FHFA estimates that it will sponsor two focus groups prior to conducting each survey, with 12 participants in each focus group, for a total of 24 focus group participants. It estimates the participation time for each focus group participant to be one hour, resulting in a total annual burden estimate of 24 hours for the pre-testing phase of the collection (2 focus groups per year × 12 participants in each group × 1 hour per participant = 24 hours).
In accordance with the requirements of 5 CFR 1320.8(d), FHFA published a request for public comments regarding this information collection in the
The trade associations' letter raised two issues that are relevant to the compliance of the ASMB with the PRA. First, the trade associations asserted that the information FHFA seeks to collect through the ASMB is, or could soon be, available from other sources and urged the Agency “to again review existing surveys and data collection efforts to identify redundancies.” The letter cites numerous existing sources of quantitative data about mortgage borrowers, loan terms, mortgaged properties and the origination and maintenance of first lien mortgages. However, most of the data sources cited are those from which the NMDB has drawn the bulk of its existing data. None of those sources (nor any other sources of which FHFA is aware) provide the type of qualitative information regarding borrowers' experience with maintaining a mortgage or their interactions with mortgage servicers that FHFA seeks to obtain through this information collection.
Second, noting that the draft ASMB questionnaire published with the initial PRA Notice in the
FHFA requests written comments on the following: (1) Whether the collection of information is necessary for the proper performance of FHFA functions, including whether the information has practical utility; (2) The accuracy of FHFA's estimates of the burdens of the collection of information; (3) Ways to enhance the quality, utility, and clarity of the information collected; and (4) Ways to minimize the burden of the collection of information on survey respondents, including through the use of automated collection techniques or other forms of information technology.
Federal Maritime Commission.
Notice.
The Federal Maritime Commission (Commission) is giving public notice that the agency has submitted to the Office of Management and Budget (OMB) for approval the new information collection described in this notice. The public is invited to comment on the proposed information
Written comments must be submitted at the addresses below on or before April 25, 2016.
Comments should be addressed to: Office of Information and Regulatory Affairs, Office of Management and Budget, Attention: Chandana Achanta, Desk Officer for Federal Maritime Commission, 725 17th Street NW., Washington, DC 20503,
A copy of the submission may be obtained by contacting Donna Lee on 202-523-5800 or email:
Pursuant to the Paperwork Reduction Act of 1995 (Pub. L. 104-13), the Commission invites the general public and other Federal agencies to comment on proposed information collections. On September 3, 2015, the Commission published a notice and request for comments in the
As required by the Administrative Dispute Resolution Act (ADRA), 5 U.S.C. 571-574, the information contained in these forms is treated as confidential and subject to the same confidentiality provisions as administrative dispute resolutions pursuant to 5 U.S.C. 574. Except as specifically set forth in 5 U.S.C. 574, neither CADRS staff nor the parties to a dispute resolution shall disclose any informal dispute resolution communication.
This information collection is subject to the PRA. The FMC may not conduct or sponsor a collection of information, and the public is not required to respond to an information collection, unless it is approved by the OMB under the PRA and displays a currently valid OMB Control Number. In addition, notwithstanding any other provisions of law, no person shall be subject to penalty for failing to comply with a collection of information that does not display a valid Control Number. See 5 CFR 1320.5(a) and 1320.6.
46 U.S.C. 40101
The Commission hereby gives notice of the filing of the following agreements under the Shipping Act of 1984. Interested parties may submit comments on the agreement to the Secretary, Federal Maritime Commission, Washington, DC 20573, within twelve days of the date this notice appears in the
By Order of the Federal Maritime Commission.
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 April 18, 2016.
A. Federal Reserve Bank of Philadelphia (William Spaniel, Senior Vice President) 100 North 6th Street, Philadelphia, Pennsylvania 19105-1521. Comments can also be sent electronically to
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B. Federal Reserve Bank of St. Louis (David L. Hubbard, Senior Manager) P.O. Box 442, St. Louis, Missouri 63166-2034. Comments can also be sent electronically to
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C. Federal Reserve Bank of Kansas City (Dennis Denney, Assistant Vice President) 1 Memorial Drive, Kansas City, Missouri 64198-0001:
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D. Federal Reserve Bank of San Francisco (Gerald C. Tsai, Director, Applications and Enforcement) 101 Market Street, San Francisco, California 94105-1579:
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Board of Governors of the Federal Reserve System.
Notice of Amended System of Records.
Pursuant to the provisions of the Privacy Act of 1974, 5 U.S.C. 552a, notice is given that the Board of Governors of the Federal Reserve System (Board) is modifying BGFRS-39 (General File of the Community Advisory Council), to correct the legal authority cited for maintenance of the system and to clarify the types of records that are maintained about a member's service on the Community Advisory Council (CAC).
In accordance with 5 U.S.C. 552a(e)(4) and (11), the public is given a 30-day period in which to comment; and the Office of Management and Budget (OMB), which has oversight responsibility under the Privacy Act, requires a 40-day period in which to conclude its review of the system. Therefore, please submit any comments on or before April 25, 2016. The amended system of records will become effective May 3, 2016, without further notice, unless comments dictate otherwise.
The public, OMB, and Congress are invited to submit comments, identified by the docket number above, by any of the following methods:
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All public comments will be made available on the Board's Web site at
Alye S. Foster, Senior Special Counsel, Legal Division, Board of Governors of the Federal Reserve System, 20th Street and Constitution Avenue NW., Washington, DC 20551, or (202) 452-5289, or
In accordance with the Privacy Act of 1974, 5 U.S.C. 552a, the Board proposes to modify BGFRS-39 (General File of the Community Advisory Council) to correct the legal authority cited for maintenance of the system and to clarify the types of records that are maintained about the member's service on the Community Advisory Council (CAC). The CAC meets semi-annually with the Board to offer diverse perspectives on the economic circumstances and financial services needs of consumers and communities, with a particular focus on the concerns of low- and moderate-income populations. The
FRB—General File of the Community Advisory Council
Board of Governors of the Federal Reserve System, 20th Street and Constitution Avenue NW., Washington, DC 20551.
This system maintains information on individuals considered for membership on the CAC and individuals selected to serve on the CAC.
Records in the system include identifying information about candidates and members of the CAC relating to the selection and appointment to the CAC and records relating to service on the CAC. Individual information in the system includes, but is not limited to, name, work address, telephone number, email address, organization, and title. The system stores additional information including, but not limited to, the candidate's or CAC member's education, work experience, qualifications, and service on the CAC (such as travel and contact information).
12 U.S.C. 225a and 244.
The system of records aids the Board in its operation and management of the CAC, including the selection, appointment, and service of members of the CAC.
General routine uses A, B, C, D, E, F, G, I apply to this system. Records are routinely used in the Board's operation and management of the CAC, including in the selection, appointment, and service of members of the CAC.
Access is restricted to authorized employees who require access for official business purposes. Board users are classified into different roles and common access and usage rights are established for each role. User roles are used to delineate between the different types of access requirements such that users are restricted to data that is required in the performance of their duties. Periodic audits and reviews are conducted to determine whether authenticated users still require access and whether there have been any unauthorized changes in any information maintained.
Director, Division of Consumer and Community Affairs, Board of Governors of the Federal Reserve System, 20th St. and Constitution Ave. NW., Washington, DC 20551.
An individual desiring to learn of the existence of, or to gain access to, his or her record in this system of records shall submit a request in writing to the Secretary of the Board, Board of Governors of the Federal Reserve System, 20th Street and Constitution Avenue NW., Washington, DC 20551. The request should contain: (1) A statement that the request is made pursuant to the Privacy Act of 1974, (2) the name of the system of records (
See “Notification Procedure,” above.
Same as “Notification procedures,” above except that the envelope should be clearly marked “Privacy Act Amendment Request.” The request for amendment of a record should: (1) Identify the system of records containing the record for which amendment is requested, (2) specify the portion of that record requested to be amended, and (3) describe the nature of and reasons for each requested amendment.
Information is provided by the individual to whom the record pertains.
None.
Office of Government-wide Policy (OGP), General Services Administration (GSA).
Notice.
GSA's Office of Government-wide Policy is announcing the availability of a warehouse best practices resource page that is publicly available on
GSA will continually supplement this site with current warehouse management efficiency studies, articles and practical information on warehouse space utilization.
Effective: March 24, 2016.
Ms. Aluanda Drain, Office of Government-wide Policy (MAC), Office of Asset and Transportation Management, General Services Administration, at 202-501-1624, or by email at
The Government Accountability Office (GAO), in its report
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 an extension of the information collection request entitled “Energy Employees Occupational Illness Compensation Program Act (EEOICPA) Special Exposure Cohort Petitions”. Energy Employees Occupational Illness Compensation authorizes the Department of Health and Human Services (HHS) to designate such classes of employees for addition to the Cohort when NIOSH lacks sufficient information to estimate with sufficient accuracy the radiation doses of the employees Program Act.
Written comments must be received on or before May 23, 2016.
You may submit comments, identified by Docket No. CDC-2016-0033 by any of the following methods:
All public comment should be submitted through the Federal eRulemaking portal (Regulations.gov) or by U.S. mail to the address listed above.
To request more information on the proposed project or to obtain a copy of the information collection plan and instruments, contact the Information Collection Review Office, Centers for Disease Control and Prevention, 1600 Clifton Road NE., MS-D74, Atlanta, Georgia 30329; phone: 404-639-7570; Email:
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.
EEOICPA Special Exposure Cohort Petitions (OMB Control No. 0920-0639 exp. 7/31/2016)—Extension—National Institute for Occupational Safety and Health (NIOSH), Centers for Disease Control and Prevention (CDC).
On October 30, 2000, the Energy Employees Occupational Illness Compensation Program Act of 2000 (EEOICPA), 42 U.S.C. 7384-7385 [1994, supp. 2001] was enacted. The Act established a compensation program to provide a lump sum payment of $150,000 and medical benefits as compensation to covered employees suffering from designated illnesses incurred as a result of their exposure to radiation, beryllium, or silica while in the performance of duty for the Department of Energy and certain of its vendors, contractors and subcontractors. This legislation also provided for payment of compensation for certain survivors of these covered employees.
Among other duties, the Department of Health and Human Services (HHS) was directed to establish and implement procedures for considering petitions by classes of nuclear weapons workers to be added to the “Special Exposure Cohort” (the “Cohort”). In brief, EEOICPA authorizes HHS to designate such classes of employees for addition to the Cohort when NIOSH lacks sufficient information to estimate with sufficient accuracy the radiation doses of the employees, and if HHS also finds that the health of members of the class may have been endangered by the radiation dose the class potentially incurred. HHS must also obtain the advice of the Advisory Board on Radiation and Worker Health (the “Board”) in establishing such findings. On May 28, 2004, HHS issued a rule that established procedures for adding such classes to the Cohort (42 CFR part 83). The rule was amended on July 10, 2007.
The HHS rule authorizes a variety of respondents to submit petitions. Petitioners are required to provide the information specified in the rule to qualify their petitions for a complete evaluation by HHS and the Board. HHS has developed two forms to assist the petitioners in providing this required information efficiently and completely. Form A is a one-page form to be used by EEOICPA claimants for whom NIOSH has attempted to conduct dose reconstructions and has determined that available information is not sufficient to complete the dose reconstruction. Form B, accompanied by separate instructions, is intended for all other petitioners. Forms A and B can be submitted electronically as well as in hard copy.
Respondent/petitioners should be aware that HHS is not requiring respondents to use the forms. Respondents can choose to submit petitions as letters or in other formats, but petitions must meet the informational requirements stated in the rule. NIOSH expects, however, that all petitioners for whom Form A would be appropriate will actually use the form, since NIOSH will provide it to them upon determining that their dose reconstruction cannot be completed and encourage them to submit the petition. NIOSH expects the large majority of petitioners for whom Form B would be appropriate will also use the form, since it provides a simple, organized format for addressing the informational requirements of a petition.
NIOSH will use the information obtained through the petition for the following purposes: (a) Identify the petitioner(s), obtain their contact information, and establish that the petitioner(s) is qualified and intends to petition HHS; (b) establish an initial definition of the class of employees being proposed to be considered for addition to the Cohort; (c) determine whether there is justification to require HHS to evaluate whether or not to designate the proposed class as an addition to the Cohort (such an evaluation involves potentially extensive data collection, analysis, and related deliberations by NIOSH, the Board, and HHS); and, (d) target an evaluation by HHS to examine relevant potential limitations of radiation monitoring and/or dosimetry-relevant records and to examine the potential for related radiation exposures that might have endangered the health of members of the class.
Finally, under the rule, petitioners may contest the proposed decision of the Secretary to add or deny adding classes of employees to the cohort by submitting evidence that the proposed decision relies on a record of either factual or procedural errors in the implementation of these procedures. NIOSH estimates that the time to prepare and submit such a challenge is 45 minutes. Because of the uniqueness of this submission, NIOSH is not providing a form. The submission will typically be in the form of a letter to the Secretary.
There are no costs to respondents unless a respondent/petitioner chooses to purchase the services of an expert in dose reconstruction, an option provided for under the rule.
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 effort 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 information collection request entitled “Case Investigation of Cervical Cancer (CICC) Study,” which is designed to identify self-reported barriers and facilitators to cervical cancer screening and follow-up among women diagnosed with invasive cervical cancer. Medical charts will also be reviewed to further evaluate verify screening and follow-up of abnormal tests results prior to diagnosis.
Written comments must be received on or before May 23, 2016.
You may submit comments, identified by Docket No. CDC-2016-0031 by any of the following methods:
•
•
All public comment should be submitted through the Federal eRulemaking portal (Regulations.gov) or by U.S. mail to the address listed above.
To request more information on the proposed project or to obtain a copy of the information collection plan and instruments, contact the Information Collection Review Office, Centers for Disease Control and Prevention, 1600 Clifton Road NE., MS-D74, Atlanta, Georgia 30329; phone: 404-639-7570; Email:
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
Case Investigation of Cervical Cancer (CICC) Study—New—National Center for Chronic Disease Prevention and Health Promotion (NCCDPHP), Centers for Disease Control and Prevention (CDC).
Invasive cervical cancer occurs when cervical cancer spreads from the surface of the cervix to deeper cervical tissue or to other parts of the body. In the United States, invasive cervical cancer is largely preventable due to the availability of (1) screening tests, which allow for early detection and treatment of cervical precancers, and (2) a vaccine that prevents infection with types of human papillomavirus (HPV) which are associated with over 80% of cervical cancers. However, one previous study showed that half of the women who developed cervical cancer had not been adequately screened, and a more recent study showed that there were still approximately 8 million women in the U.S. who had not been screened for cervical cancer in the previous five years.
CDC plans to conduct the Case Investigation of Cervical Cancer (CICC) study to improve understanding of the facilitators and barriers to cervical cancer screening and timely follow-up to abnormal test results. The study is designed to address the following research questions: (1) Did women get a cervical cancer screening test during the five years prior to cervical cancer diagnosis? (2) What were facilitators or barriers to getting a screening test? (3) Did women get recommended follow-up of an abnormal test in a timely manner? (4) What were the facilitators or barriers to getting follow-up for an abnormal test? (5) What were the women's patterns when seeking medical care (
To answer these questions, CDC will collect and analyze information from three sources, in collaboration with central cancer registries (CCR) in three states and a contract research organization.
First, CCR will use existing information to recruit participants who are eligible for the study,
Second, women who agree to participate in the CICC study will be asked to complete a survey assessing facilitators and barriers to screening and follow-up health care. The estimated
Third, medical chart abstractors will collect information from the health care providers who provided relevant services to study participants in the five years prior to their diagnosis with invasive cervical cancer. The medical record abstraction process does not entail burden to study participants, or to the medical chart abstractors who will review the medical charts on a fee-for-service basis. The medical record abstraction process does entail additional recordkeeping burden to office assistants for health care providers, who are required to maintain records of disclosures of medical information,
CDC has identified three states as potential study sites. Based on preliminary data from their state cancer registries, a total of approximately 1,670 eligible cervical cancer survivors are eligible for participation. CDC estimates a survey response rate of 50% of across the entire sample (N = 835) followed by an 80% acceptance of medical chart verification (N = 668). These estimates yield approximately 668 women with complete data for both surveys and chart verification. For each CICC participant, the medical chart abstraction process is expected to require follow-up with 1-5 (average of 3) health care providers (N = 2004).
Findings from this study will be used to inform interventions targeted to reach women who are never or rarely screened for cervical cancer. Study findings will be disseminated through reports, presentations, and publications. Results will also be used by participating sites, CDC, and other federal agencies to improve services provided to women at risk of invasive cervical cancer.
OMB approval is requested for two years. All personal identifier information will be maintained by the cancer registries where it is stored as part of the standard registry data repository. No identifiable information will be collected by CDC or CDC's main contractor. Participation is voluntary and there are no costs to respondents other than their time.
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 a proposed information collection request entitled “HIV Knowledge, Beliefs, Attitudes, and Practices of Providers in the Southeast (K-BAP Study)”. CDC is requesting a three-year approval for new data collection to identify areas of HIV prevention knowledge and practice strengths and deficits among primary care providers, in order to target limited HIV prevention resources to achieve the greatest reduction in new HIV infections and optimize HIV clinical care in clinical settings. The target population will be primary care providers practicing in high-prevalence metropolitan statistical geographic areas with large at-risk African American populations.
Written comments must be received on or before May 23, 2016.
You may submit comments, identified by Docket No. CDC-2016-0032 by any of the following methods:
•
•
All public comment should be submitted through the Federal eRulemaking portal (Regulations.gov) or by U.S. mail to the address listed above.
To request more information on the proposed project or to obtain a copy of the information collection plan and instruments, contact the Information Collection Review Office, Centers for Disease Control and Prevention, 1600 Clifton Road NE., MS-D74, Atlanta, Georgia 30329; phone: 404-639-7570; Email:
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.
HIV Knowledge, Beliefs, Attitudes, and Practices of Providers in the Southeast (K-BAP Study)—New—National Center for HIV/AIDS, Viral Hepatitis, STD, and TB Prevention (NCHHSTP), Centers for Disease Control and Prevention (CDC).
Persons at high risk of HIV infection have often had one or more contacts with a health care provider within a year of their diagnoses. These health care encounters represent missed opportunities to: (1) Review and discuss sexual health and risk reduction, (2) screen for HIV infection and other STDs, (3) recognize and diagnose acute HIV infection and offer immediate antiretroviral therapy (ART) if indicated, (4) discuss the prevention benefit of treatment (with subsequent referral or prescription) and re-engagement in care, as appropriate, and (5) provide PrEP and nPEP if not infected and at high risk, consistent with current HIV prevention guidelines and recommendations.
Health care providers in high-prevalence geographic areas could substantially reduce new HIV infections among the patient populations they serve, as well as their communities. Health care providers are a trusted source of reliable information. They also have the capacity to perform STD/HIV testing and to prescribe medication with appropriate clinical follow-up.
Review of the literature published between January 2000 and June 2014 indicates we know little about providers' knowledge, beliefs, attitudes, and practices (K-BAP) in at-risk jurisdictions about HIV risk, HIV diagnosis and antiretroviral drug interventions in these domains, especially primary care providers serving high-risk patients in high-prevalence communities. K-BAP Study is an effort to assess providers' K-BAP using a cross sectional survey in the five priority HIV prevention domains noted above.
This K-BAP Study aligns with multiple goals and objectives of the National HIV/AIDS Strategy (NHAS) and CDC's “winnable battles.”
The project's specific objectives are to (1) Characterize knowledge, beliefs, attitudes, and practices of providers in five key HIV prevention domains in high-HIV prevalence communities with disproportionate numbers of blacks/African Americans, and (2) Educate providers about prevention interventions related to these domains based on survey-identified knowledge, beliefs, attitudes, and practices of providers' deficits.
The respondent population of medical providers will be pulled from the Healthcare Data Solutions (HDS) ProviderPRO and MidLevelPRO databases. Respondents will be recruited to participate in the survey through a combination of emails and phone calls. This strategy will consist of four emails spaced one week apart followed by phone calls to non-responders. The emails will explain the purpose of the survey, the availability of continuing education (CE) credits, and the $20 cash token of appreciation.
A large two-part internet-based survey will be conducted among a representative random sample of providers in the selected six (6) metropolitan statistical areas (MSAs) with the highest HIV burden among the African American population. Part one of survey will be administered to participants at the beginning of project. The part-one survey findings will used to identify providers' knowledge, beliefs, attitudes, and practices of providers that might require additional educational reinforcement. Based on survey responses, providers will be linked to continuing education (CE) credit-eligible educational modules to improve their educational deficits. The educational modules are all web-based using either video or case-based methods of learning. The length of the course range from 1-3 hours accounting for 0.25—1.0 credit hours. Part two of survey will be administered six months later comprising of only the core questions in part one of survey to assess impact of CE modules on providers' practices regarding HIV prevention and treatment.
There are no costs to respondents other than their time. The total annual burden hours are 1,172.
Food and Drug Administration, HHS.
Notice.
The Food and Drug Administration (FDA) is announcing that a proposed collection of information has been submitted to the Office of Management and Budget (OMB) for review and clearance under the Paperwork Reduction Act of 1995.
Fax written comments on the collection of information by April 25, 2016.
To ensure that comments on the information collection are received, OMB recommends that written comments be faxed to the Office of Information and Regulatory Affairs, OMB, Attn: FDA Desk Officer, FAX: 202-395-7285, or emailed to
FDA PRA Staff, Office of Operations, Food and Drug Administration, 8455 Colesville Rd., COLE-14526, Silver Spring, MD 20993-0002,
In compliance with 44 U.S.C. 3507, FDA has submitted the following proposed collection of information to OMB for review and clearance.
In accordance with section 513 of the Federal Food, Drug, and Cosmetic Act (the FD&C Act) (21 U.S.C. 360c), FDA evaluated an application for an in vitro diagnostic device for detection of influenza subtype H5 (Asian lineage), commonly known as avian flu. FDA concluded that this device is properly classified into class II in accordance with section 513(a)(1)(B) of the FD&C Act, because it is a device for which the general controls by themselves are insufficient to provide reasonable assurance of the safety and effectiveness of the device, but there is sufficient information to establish special controls to provide such assurance. The statute permits FDA to establish as special controls many different things, including postmarket surveillance, development and dissemination of guidance recommendations, and “other appropriate actions as the Secretary deems necessary” (section 513(a)(1)(B) of the FD&C Act). This information collection is a measure that FDA determined to be necessary to provide reasonable assurance of safety and effectiveness of reagents for detection of specific novel influenza A viruses.
FDA issued an order classifying the H5 (Asian lineage) diagnostic device into class II on March 22, 2006 (71 FR 14377), establishing the special controls necessary to provide reasonable assurance of the safety and effectiveness of that device and similar future devices. The new classification was codified in 21 CFR 866.3332, a regulation that describes the new classification for reagents for detection of specific novel influenza A viruses and sets forth the special controls that help to provide a reasonable assurance of the safety and effectiveness of devices classified under that regulation. The regulation refers to the special controls guidance document entitled “Class II Special Controls Guidance Document: Reagents for Detection of Specific Novel Influenza A Viruses,” which provides recommendations for measures to help provide a reasonable assurance of safety and effectiveness for these reagents. The guidance document recommends that sponsors obtain and analyze postmarket data to ensure the continued reliability of their device in detecting the specific novel influenza A virus that it is intended to detect, particularly given the propensity for influenza viruses to mutate and the potential for changes in disease prevalence over time. As updated sequences for novel influenza A viruses become available from the World Health Organization, National Institutes of Health, and other public health entities, sponsors of reagents for detection of specific novel influenza A viruses will collect this information, compare them with the primer/probe sequences in their devices, and incorporate the result of these analyses into their quality management system, as required by 21 CFR 820.100(a)(1). These analyses will be evaluated against the device design validation and risk analysis required by 21 CFR 820.30(g) to determine if any design changes may be necessary.
FDA estimates that 10 respondents will be affected annually. Each respondent will collect this information twice per year; each response is estimated to take 15 hours. This results in a total data collection burden of 300 hours.
The guidance also refers to previously approved information collections found in FDA regulations. The collections of information in 21 CFR part 801 have been approved under OMB control number 0910-0485; the collections of information in 21 CFR part 807 subpart E have been approved under OMB control number 0910-0120; and the collections of information in 21 CFR
In the
FDA estimates the burden of this collection of information as follows:
Food and Drug Administration, HHS.
Notice.
The Food and Drug Administration (FDA) is announcing that it has received a petition requesting exemption from the premarket notification requirements for a method, metallic reduction, glucose (urinary, non-quantitative) test system in a reagent tablet format that is intended to measure glucosuria (glucose in urine). Method, metallic reduction, glucose (urinary, non-quantitative) test systems in a reagent tablet format are used in the diagnosis and treatment of carbohydrate metabolism disorders including diabetes mellitus, hypoglycemia, and hyperglycemia. FDA is publishing this notice to obtain comments in accordance with procedures established by the Food and Drug Administration Modernization Act of 1997 (FDAMA).
Submit either electronic or written comments by April 25, 2016.
You may submit comments as follows:
Submit electronic comments in the following way:
•
• If you want to submit a comment with confidential information that you do not wish to be made available to the public, submit the comment as a written/paper submission and in the manner detailed (see “Written/Paper Submissions” and “Instructions”).
Submit written/paper submissions as follows:
•
• For written/paper comments submitted to the Division of Dockets Management, FDA will post your comment, as well as any attachments, except for information submitted, marked and identified, as confidential, if submitted as detailed in “Instructions.”
• Confidential Submissions—To submit a comment with confidential information that you do not wish to be made publicly available, submit your comments only as a written/paper submission. You should submit two copies total. One copy will include the information you claim to be confidential with a heading or cover note that states “THIS DOCUMENT CONTAINS CONFIDENTIAL INFORMATION”. The Agency will review this copy, including the claimed confidential information, in its consideration of comments. The second copy, which will have the claimed confidential information redacted/blacked out, will be available for public viewing and posted on
Ana Loloei Marsal, Center for Devices and Radiological Health (CDRH), Food and
Under section 513 of the Federal Food, Drug, and Cosmetic Act (the FD&C Act) (21 U.S.C. 360c), FDA must classify devices into one of three regulatory classes: Class I, class II, or class III. FDA classification of a device is determined by the amount of regulation necessary to provide a reasonable assurance of safety and effectiveness. Under the Medical Device Amendments of 1976 (1976 amendments) (Pub. L. 94-295), as amended by the Safe Medical Devices Act of 1990 (Pub. L. 101-629), devices are to be classified into class I (general controls) if there is information showing that the general controls of the FD&C Act are sufficient to assure safety and effectiveness; into class II (special controls) if general controls, by themselves, are insufficient to provide reasonable assurance of safety and effectiveness, but there is sufficient information to establish special controls to provide such assurance; and into class III (premarket approval) if there is insufficient information to support classifying a device into class I or class II and the device is a life sustaining or life supporting device, or is for a use which is of substantial importance in preventing impairment of human health or presents a potential unreasonable risk of illness or injury.
Most generic types of devices that were on the market before the date of the 1976 amendments (May 28, 1976) (generally referred to as preamendments devices) have been classified by FDA under the procedures set forth in section 513(c) and (d) of the FD&C Act through the issuance of classification regulations into one of these three regulatory classes. Devices introduced into interstate commerce for the first time on or after May 28, 1976 (generally referred to as postamendments devices), are classified through the premarket notification process under section 510(k) of the FD&C Act (21 U.S.C. 360(k)). Section 510(k) of the FD&C Act and the implementing regulations, 21 CFR part 807, require persons who intend to market a new device to submit a premarket notification (510(k)) containing information that allows FDA to determine whether the new device is “substantially equivalent” within the meaning of section 513(i) of the FD&C Act to a legally marketed device that does not require premarket approval.
On November 21, 1997, the President signed into law FDAMA (Pub. L. 105-115). Section 206 of FDAMA, in part, added a new section, 510(m), to the FD&C Act. Section 510(m)(1) of the FD&C Act requires FDA, within 60 days after enactment of FDAMA, to publish in the
Section 510(m)(2) of the FD&C Act provides that 1 day after date of publication of the list under section 510(m)(1), FDA may exempt a device on its own initiative or upon petition of an interested person if FDA determines that a 510(k) is not necessary to provide reasonable assurance of the safety and effectiveness of the device. This section requires FDA to publish in the
There are a number of factors FDA may consider to determine whether a 510(k) is necessary to provide reasonable assurance of the safety and effectiveness of a class II device. These factors are discussed in the guidance the Agency issued on February 19, 1998, entitled “Procedures for Class II Device Exemptions from Premarket Notification, Guidance for Industry and CDRH Staff” (Ref. 1).
FDA has received the following petition requesting an exemption from premarket notification for a class II device: Evelyn Mirza, Biorex Labs, LLC, 194 E. Wallings Rd., Suite 201, Broadview Heights, OH 44147 for its method, metallic reduction, glucose (urinary, non-quantitative) test system in a reagent tablet format classified under 21 CFR 862.1340.
The following reference is on display in the Division of Dockets Management (see
Food and Drug Administration, HHS.
Notice.
The Food and Drug Administration (FDA) is announcing that a proposed collection of information has been submitted to the Office of Management and Budget (OMB) for review and clearance under the Paperwork Reduction Act of 1995 (the PRA).
Fax written comments on the collection of information by April 25, 2016.
To ensure that comments on the information collection are received, OMB recommends that written comments be faxed to the Office of Information and Regulatory Affairs, OMB, Attn: FDA Desk Officer, FAX: 202-395-7285, or emailed to
FDA PRA Staff, Office of Operations, Food and Drug Administration, 8455 Colesville Rd., COLE-14526, Silver Spring, MD 20993-0002,
In compliance with 44 U.S.C. 3507, FDA has submitted the following proposed collection of information to OMB for review and clearance.
FDA is requesting OMB approval for the reporting requirements contained in the FDA collection of information “Environmental Impact Considerations.” The National Environmental Policy Act (NEPA) (42 U.S.C. 4321-4347) states national environmental objectives and imposes upon each Federal Agency the duty to consider the environmental effects of its actions. Section 102(2)(C) of NEPA requires the preparation of an environmental impact statement (EIS) for every major Federal action that will significantly affect the quality of the human environment.
FDA's NEPA regulations are in part 25 (21 CFR part 25). All applications or petitions requesting Agency action require the submission of a claim for categorical exclusion or an environmental assessment (EA). A categorical exclusion applies to certain classes of FDA-regulated actions that usually have little or no potential to cause significant environmental effects and are excluded from the requirements to prepare an EA or EIS. Section 25.15(a) and (d) specifies the procedures for submitting to FDA a claim for a categorical exclusion. Extraordinary circumstances (§ 25.21), which may result in significant environmental impacts, may exist for some actions that are usually categorically excluded. An EA provides information that is used to determine whether an FDA action could result in a significant environmental impact. Section 25.40(a) and (c) specifies the content requirements for EAs for non-excluded actions.
This collection of information is used by FDA to assess the environmental impact of Agency actions and to ensure that the public is informed of environmental analyses. Firms wishing to manufacture and market substances regulated under statues for which FDA is responsible must, in most instances, submit applications requesting approval. Environmental information must be included in such applications for the purpose of determining whether the proposed action may have a significant impact on the environment. Where significant adverse events cannot be avoided, the Agency uses the submitted information as the basis for preparing and circulating to the public an EIS, made available through a
Any final EIS would contain additional information gathered by the Agency after the publication of the draft EIS, a copy or a summary of the comments received on the draft EIS, and the Agency's responses to the comments, including any revisions resulting from the comments or other information. When the Agency finds that no significant environmental effects are expected, the Agency prepares a finding of no significant impact.
In the
FDA estimates the burden of this collection of information as follows:
Under §§ 312.23(a)(7)(iv)(c), 314.50(d)(1)(iii), and 314.94(a)(9)(i) (21 CFR 312.23(a)(7)(iv)(c), 314.50(d)(1)(iii), and 314.94(a)(9)(i), each investigational new drug application (IND), new drug application (NDA), and abbreviated new drug application (ANDA) must contain a claim for categorical exclusion under § 25.30 or § 25.31, or an EA under § 25.40. Annually, FDA receives approximately 3,677 INDs from 2,501 sponsors; 120 NDAs from 87 applicants; 2,718 supplements to NDAs from 399 applicants; 9 biologic license applications (BLAs) from 8 applicants; 317 supplements to BLAs from 43 applicants; 1,475 ANDAs from 300 applicants; and 5,448 supplements to ANDAs from 318 applicants. FDA estimates that it receives approximately 13,663 claims for categorical exclusions as required under § 25.15(a) and (d), and 11 EAs as required under § 25.40(a) and (c). Based on information provided by the pharmaceutical industry, FDA estimates that it takes sponsors or applicants approximately 8 hours to prepare a claim for a categorical exclusion and approximately 3,400 hours to prepare an EA.
Under 21 CFR 71.1, 171.1, 170.39, and 170.100, food additive petitions, color additive petitions, requests from exemption from regulation as a food additive, and submission of a food contact notification for a food contact substance must contain either a claim of categorical exclusion under § 25.30 or § 25.32 or an EA under § 25.40. Annually, FDA receives approximately 97 industry submissions. FDA received an annual average of 42 claims of categorical exclusions as required under § 25.15(a) and (d) and 33 EAs as required under § 25.40(a) and (c). FDA estimates that approximately 42 respondents will submit an average of 1 application for categorical exclusion and 33 respondents will submit an average of 1 EA. FDA estimates that, on average, it takes petitioners, notifiers, or
Under § 814.20(b)(11) (21 CFR 814.20(b)(11)), premarket approvals (PMAs) (original PMAs and supplements) must contain a claim for categorical exclusion under § 25.30 or § 25.34 or an EA under § 25.40. In 2012 to 2014, FDA received an average of 39 claims (original PMAs and supplements) for categorical exclusions as required under § 25.15(a) and (d), and 0 EAs as required under § 25.40(a) and (c). FDA estimates that approximately 39 respondents will submit an average of 1 application for categorical exclusion annually. Based on information provided by sponsors, FDA estimates that it takes approximately 6 hours to prepare a claim for a categorical exclusion.
Under 21 CFR 601.2(a), BLAs as well as INDs (§ 312.23), NDAs (§ 314.50), ANDAs (§ 314.94), and PMAs (§ 814.20) must contain either a claim of categorical exclusion under § 25.30 or § 25.32 or an EA under § 25.40. Annually, FDA receives approximately 34 BLAs from 18 applicants, 801 BLA supplements to license applications from 156 applicants, 345 INDs from 256 sponsors, 1 NDA from 1 applicant, 26 supplements to NDAs from 8 applicants, 1 ANDA from 1 applicant, 1 supplement to ANDAs from 1 applicant, 8 PMAs from 3 applicants, and 33 PMA supplements from 16 applicants. FDA estimates that approximately 10 percent of these supplements would be submitted with a claim for categorical exclusion or an EA.
FDA has received approximately 481 claims for categorical exclusion as required under § 25.15(a) and (d) annually and 2 EAs as required under § 25.40(a) and (c) annually. Therefore, FDA estimates that approximately 247 respondents will submit an average of 2 applications for categorical exclusion and 2 respondents will submit an average of 1 EA. Based on information provided by industry, FDA estimates that it takes sponsors and applicants approximately 8 hours to prepare a claim of categorical exclusion and approximately 3,400 hours to prepare an EA for a biological product.
Under 21 CFR 514.1(b)(14), new animal drug applications (NADAs) and abbreviated new animal drug applications (ANADAs); 21 CFR 514.8(a)(1) supplemental NADAs and ANADAs; 21 CFR 511.1(b)(10) investigational new animal drug applications (INADs), and 21 CFR 571.1(c) food additive petitions must contain a claim for categorical exclusion under § 25.30 or § 25.33 or an EA under § 25.40. Annually, FDA's Center for Veterinary Medicine has received approximately 698 claims for categorical exclusion as required under § 25.15(a) and (d), and 10 EAs as required under § 25.40(a) and (c). FDA estimates that approximately 70 respondents will submit an average of 10 applications for categorical exclusion and 10 respondents will submit an average of 1 EA. FDA estimates that it takes sponsors/applicants approximately 3 hours to prepare a claim of categorical
Under sections 905, 910, and 911 of the Federal Food, Drug, and Cosmetic Act (21 U.S.C. 387e, 387j, and 387k), product applications and supplements (PMTAs), SEs, Exemption from SEs, and modified risk tobacco products must contain a claim for categorical exclusion or an EA. In 2015, FDA estimated it will receive approximately 5 premarket reviews of new tobacco PMTAs from 5 respondents, 509 reports intended to demonstrate the substantial equivalence of a new tobacco product (SEs) from 509 respondents, 15 exemptions from substantial equivalence requirements applications (SE Exemptions) from 15 respondents, and 3 modified risk tobacco product applications (MRTPAs) from 3 respondents. FDA is not accepting claims for categorical exclusions at this time, and estimates that there will be 532 EAs from 532 respondents as required under §§ 25.40(a) and (c). Therefore, over the next 3 years, FDA estimates that approximately 532 respondents will submit an average of 1 application for environmental assessment. Part of the information in the EA will be developed while writing other parts of a PMTA, SE, Exemption from SE, or MRTPA. Based on FDA's experience, previous information provided by potential sponsors and knowledge that part of the EA information has already been produced in one of the tobacco product applications, FDA estimates that it takes approximately 80 hours to prepare an EA.
Office of the Secretary, HHS.
Notice.
In compliance with section 3507(a)(1)(D) of the Paperwork Reduction Act of 1995, the Office of the Secretary (OS), Department of Health and Human Services, has submitted an Information Collection Request (ICR), described below, to the Office of Management and Budget (OMB) for review and approval. The ICR is for renewal of the approved information collection assigned OMB control number 0990-0406, scheduled to expire on April 30, 2016. Comments submitted during the first public review of this ICR will be provided to OMB. OMB will accept further comments from the public on this ICR during the review and approval period.
Comments on the ICR must be received on or before April 25, 2016.
Submit your comments to
Information Collection Clearance staff,
When submitting comments or requesting information, please include the OMB control number 0990-0406 for reference.
OMH proposes to continue to conduct the evaluation of the NPA. The evaluation's goal is to determine the extent to which the NPA has contributed to the elimination of health disparities and attainment of health
Pursuant to section 10(d) of the Federal Advisory Committee Act, as amended (5 U.S.C. App.), notice is hereby given of the following meeting.
The meeting will be closed to the public in accordance with the provisions set forth in sections 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., as amended. The grant applications and the discussions could disclose confidential trade secrets or commercial property such as patentable material, and personal information concerning individuals associated with the grant applications, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.
This notice is being published less than 15 days prior to the meeting due to the timing limitations imposed by the review and funding cycle.
Pursuant to section 10(d) of the Federal Advisory Committee Act, as amended (5 U.S.C. App.), notice is hereby given of the following meetings.
The meetings will be closed to the public in accordance with the provisions set forth in sections 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., as amended. The grant applications and the discussions could disclose confidential trade secrets or commercial property such as patentable material, and personal information concerning individuals associated with the grant applications, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.
Office of the Chief Information Officer, HUD.
Notice.
HUD has submitted the proposed information collection requirement described below to the Office of Management and Budget (OMB) for review, in accordance with the Paperwork Reduction Act. The purpose of this notice is to allow for an additional 30 days of public comment.
Interested persons are invited to submit comments regarding this proposal. Comments should refer to the proposal by name and/or OMB Control Number and should be sent to: HUD Desk Officer, Office of Management and Budget, New Executive Office Building, Washington, DC 20503; fax: 202-395-5806. Email:
Colette Pollard, Reports Management Officer, QMAC, Department of Housing and Urban Development, 451 7th Street SW., Washington, DC 20410; email Colette Pollard at
Copies of available documents submitted to OMB may be obtained from Ms. Pollard.
This notice informs the public that HUD is seeking approval from OMB for the information collection described in Section A.
The
This notice is soliciting comments from members of the public and affected parties concerning the collection of information described in Section A on the following:
(1) Whether the proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information will have practical utility;
(2) The accuracy of the agency's estimate of the burden of the proposed collection of information;
(3) Ways to enhance the quality, utility, and clarity of the information to be collected; and
(4) Ways to minimize the burden of the collection of information on those who are to respond; including through the use of appropriate automated collection techniques or other forms of information technology,
HUD encourages interested parties to submit comment in response to these questions.
Section 3507 of the Paperwork Reduction Act of 1995, 44 U.S.C. Chapter 35.
Office of the Chief Information Officer, HUD.
Notice.
HUD has submitted the proposed information collection requirement described below to the Office of Management and Budget (OMB) for review, in accordance with the Paperwork Reduction Act. The purpose of this notice is to allow for an additional 30 days of public comment.
Interested persons are invited to submit comments regarding this proposal. Comments should refer to the proposal by name and/or OMB Control Number and should be sent to: HUD Desk Officer, Office of Management and Budget, New Executive Office Building, Washington, DC 20503; fax: 202-395-5806. Email:
Colette Pollard, Reports Management Officer, QMAC, Department of Housing and Urban Development, 451 7th Street SW., Washington, DC 20410; email Colette Pollard at
Copies of available documents submitted to OMB may be obtained from Ms. Pollard.
This notice informs the public that HUD is seeking approval from OMB for the information collection described in Section A. The
This notice is soliciting comments from members of the public and affected parties concerning the collection of information described in Section A on the following:
(1) Whether the proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information will have practical utility;
(2) The accuracy of the agency's estimate of the burden of the proposed collection of information;
(3) Ways to enhance the quality, utility, and clarity of the information to be collected; and
(4) Ways to minimize the burden of the collection of information on those who are to respond; including through the use of appropriate automated collection techniques or other forms of information technology,
Section 3507 of the Paperwork Reduction Act of 1995, 44 U.S.C. Chapter 35.
Fish and Wildlife Service, Interior.
Notice of availability; request for comment/information.
We, the Fish and Wildlife Service (Service), have received an application for an incidental take permit (ITP) under the Endangered Species Act of 1973, as amended (Act). Palmas del Mar Home Owners Association requests a 10-year ITP. We request public comment on the permit application and accompanying proposed habitat conservation plan (HCP), as well as on our preliminary determination that the plan qualifies as low-effect under the National Environmental Policy Act (NEPA). To make this determination, we used our environmental action statement and low-effect screening form, which are also available for review.
To ensure consideration, please send your written comments by April 25, 2016.
If you wish to review the application and HCP, you may request documents by email, U.S. mail, or phone (see below). These documents are also available for public inspection by appointment during normal business hours at the office below. Send your comments or requests by any one of the following methods.
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Marelisa Rivera,via telephone at (787) 851-7297, x 206, or via email at
Section 9 of the Act (16 U.S.C. 1531
The Palmas Home Owners Association is proposing to renew and amend its existing HCP. They will be adding the following five new residential development areas to the HCP: Marbella Club, Solera, the Beach Club, Palmas Dorada, and Plaza del Mar. For the past 10 years, Palmas del Mar has had an ongoing sea turtle monitoring and conservation program, implemented sea turtle-friendly lighting in the existing developments, planted vegetation screens, and implemented avoidance and minimization measures during beach cleaning activities. These activities will continue and will be extended to the five new areas.
The Service has made a preliminary determination that the applicant's project, including the mitigation measures, will individually and cumulatively have a minor or negligible effect on the species covered in the HCP. Therefore, our proposed issuance of the requested incidental take permit qualifies as a categorical exclusion under the National Environmental Policy Act, as provided by Department of the Interior implementing regulations in part 46 of title 43 of the Code of Federal Regulations (43 CFR 46.205, 46.210, and 46.215). We base our preliminary determination that issuance of the ITP qualifies as a low-effect action on the following three criteria: (1) This
We will evaluate the HCP and comments we receive to determine whether the ITP application meets the requirements of section 10(a) of the Act (16 U.S.C. 1531
If you wish to comment on the permit application, HCP, and associated documents, you may submit comments by any one of the methods in
Before including your address, phone number, email address, or other personal identifying information in your comments, you should be aware that your entire comment—including your personal identifying information—may be made publicly available at any time. While you can ask us in your comment to withhold your personal identifying information from public review, we cannot guarantee that we will be able to do so.
We provide this notice under Section 10 of the Act and NEPA regulations (40 CFR 1506.6).
Fish and Wildlife Service, Interior.
Notice of availability; request for comments.
We, the U.S. Fish and Wildlife Service, invite the public to comment on the following applications to conduct activities intended to enhance the survival of endangered or threatened species.
To ensure consideration, please send your written comments by April 25, 2016.
You may submit comments or requests for copies or more information by any of the following methods. Alternatively, you may use one of the following methods to request hard copies or a CD-ROM of the documents. Please specify the permit you are interested in by number (
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Kathy Konishi, Recovery Permits Coordinator, Ecological Services, (719) 628-2670 (phone);
The Act (16 U.S.C. 1531
A permit granted by us under section 10(a)(1)(A) of the Act authorizes the permittees to conduct activities with U.S. endangered or threatened species for scientific purposes, enhancement of propagation or survival, or interstate commerce (the latter only in the event that it facilitates scientific purposes or enhancement of propagation or survival). Our regulations implementing section 10(a)(1)(A) for these permits are found at 50 CFR 17.22 for endangered wildlife species, 50 CFR 17.32 for threatened wildlife species, 50 CFR 17.62 for endangered plant species, and 50 CFR 17.72 for threatened plant species.
We invite local, State, and Federal agencies and the public to comment on the following applications. Documents and other information the applicants have submitted with their applications are available for review, subject to the requirements of the Privacy Act (5 U.S.C. 552a) and Freedom of Information Act (5 U.S.C. 552).
The applicant requests a permit to conduct presence/absence surveys for southwestern willow flycatcher (
The applicant requests an amendment to an existing permit to continue presence/absence surveys for southwestern willow flycatcher (
In compliance with the National Environmental Policy Act (42 U.S.C. 4321
All comments and materials we receive in response to these requests will be available for public inspection, by appointment, during normal business hours at the address listed in the
Before including your address, phone number, email address, or other personal identifying information in your comment, you should be aware that your entire comment—including your personal identifying information—may be made publicly available at any time. While you can ask us in your comment to withhold your personal identifying information from public review, we cannot guarantee that we will be able to do so.
We provide this notice under section 10 of the Act (16 U.S.C. 1531
Fish and Wildlife Service, Interior.
Notice of availability; request for comments.
The U.S. Fish and Wildlife Service (Service) has developed a proposed template Candidate Conservation Agreement with Assurances (CCAA) for the West Coast Distinct Population Segment (DPS) of the fisher in Oregon, and proposes to issue enhancement of survival (EOS) permits under the CCAA, pursuant to the Endangered Species Act of 1973, as amended (ESA). The permits would authorize incidental take with assurances to eligible landowners who are willing to enroll in the template CCAA and carry out conservation measures that would benefit the West Coast DPS of the fisher. We request comments from the public on the proposed template CCAA, the issuance of EOS permits, and on the Service's draft Environmental Action Statement (EAS) for our preliminary determination that the CCAA and issuance of EOS permits qualify for categorical exclusion under the National Environmental Policy Act of 1969 (NEPA).
To ensure consideration, written comments must be received from interested parties no later than April 25, 2016.
To request further information or submit written comments, please use one of the following methods, and note that your information request or comments are in reference to the “Template Fisher CCAA.”
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Jody Caicco, U.S. Fish and Wildlife Service (see
A CCAA is a voluntary agreement whereby landowners agree to manage their lands to remove or reduce threats to species that may become listed under the ESA (64 FR 32726; June 17, 1999). CCAAs are intended to facilitate the conservation of proposed and candidate species, and species likely to become candidates in the near future by giving non-Federal property owners incentives to implement conservation measures for declining species by providing certainty with regard to land, water, or resource use restrictions that might be imposed should the species later become listed as threatened or endangered under the ESA. In return for managing their lands to the benefit of the covered species, enrolled landowners receive assurances that additional regulatory requirements pertaining to the covered species will not be required if the covered species becomes listed as threatened or endangered under the ESA so long as the CCAA remains in place and is being fully implemented.
A CCAA serves as the basis for the Service to issue EOS permits to non-Federal participants pursuant section 10(a)(1)(A) of the ESA. EOS permits are issued to applicants in association with an approved CCAA to authorize incidental take of the covered species from covered activities, should the species become listed. Through a CCAA and its associated EOS permit, the Service provides assurances to property owners that they will not be subjected to increased land use restrictions if the covered species become listed under the ESA in the future, provided certain conditions are met. Because enrollment in a CCAA is voluntary, participating landowners may subsequently choose to discontinue their participation and their ESA section 10(a)1(A) permit coverage would then lapse.
Application requirements and issuance criteria for EOS permits for CCAAs are found in the Code of Regulations (CFR) at 50 CFR 17.22(d) and 17.32(d), respectively. See also our joint policy on CCAAs that was published in the
On April 8, 2004, the Service published a 12-month status review (69 FR 18769) finding that listing the West Coast Distinct Population Segment (DPS) of the fisher (
The Service proposes to issue EOS permits pursuant to section 10(a)(1)(A) of the ESA under a proposed template CCAA for the West Coast DPS of the fisher within Benton, Clackamas, Clatsop, Columbia, Coos, Curry, Deschutes, Douglas, Hood, Jackson, Jefferson, Josephine, Klamath, Lane, Linn, Lincoln, Polk, Tillamook, Yamhill, Wasco, and Washington counties, Oregon. The geographic area covered by the proposed CCAA and EOS permits includes the known and potential range of the fisher in those portions of the above listed Oregon counties that contain suitable forested habitat. The term of the proposed CCAA and EOS permits is 30 years.
The proposed template CCAA is between the Service and prospective non-Federal landowners and managers (participants) who would voluntarily commit to conservation measures, that when taken together with a sufficient number of other properties, may preclude or remove the need to list the West Coast DPS of the fisher as threatened or endangered. The CCAA is a template in that it establishes general guidelines and identifies minimum conservation measures for participants in the CCAA. Interested participants would enroll their property under the CCAA through individual “site plans.” Once the CCAA is signed, the documentation needs and approval process to enroll participants with their individual site plans will be significantly streamlined as they will be able to reference and rely upon the information and completed administrative procedures associated with finalizing the template CCAA and finalizing the EAS for purposes of compliance with the requirements of the National Environmental Policy Act of 1969, as amended (42 U.S.C. 4321
To qualify for take coverage, all enrollees must agree to implement the following conservation measures on enrolled lands:
• Allow the Service or its agents to access enrolled lands to evaluate fisher presence for the 30-year term of the CCAA and to determine if one or more female fisher are occupying dens and raising kits;
• Protect confirmed denning female fisher and their young by limiting or preventing access and disturbance near occupied sites, including preventing the destruction of the denning structure itself;
• Prohibit trapping and nuisance animal control activities on enrolled lands within 2.5 miles of known fisher occupied dens;
• Report to the Service within 48 hours upon finding any potentially fisher occupied den sites or any dead, sick, or incidentally trapped and released fishers on enrolled lands; cover all man-made structures on enrolled lands that pose an entrapment risk to fishers; and,
• Where suitable habitat exists and where agreed upon by the participant and the Service, allow for the reintroduction of fishers.
Details regarding the actual reintroduction of fishers, including when the reintroduction might occur, the sources and numbers of fishers, the duration of the reintroduction effort, and the parties responsible for the capture and movement of fisher are unknown at this time. We anticipate that any required environmental or regulatory analysis for fisher reintroduction will be done by the Service or other responsible parties when a reintroduction plan is developed under the laws and policies in effect at that time.
Covered activities include those activities that may be carried out by participating landowners or their authorized representatives on enrolled lands that may result in the incidental take of the fisher consistent with the provisions of the CCAA and their EOS permit. Covered activities under the proposed CCAA include the following land-management related activities commonly practiced on forest lands: Timber harvest and reforestation, road maintenance and construction, transport of timber and rock, collection of minor forest products, and recreational activities.
The proposed issuance of an ESA section 10(a)(1)(A) permit with its associated CCAA is a Federal action that triggers the need for compliance with NEPA. We have made a preliminary determination that the proposed CCAA and the proposed issuance of EOS permits under the CCAA are eligible for categorical exclusion under NEPA. The basis for our preliminary determination is contained in an EAS, which is available for public review (see
You may submit your comments and materials by one of the methods listed in the
All comments and materials we receive become part of the public record associated with this action. Before including your address, phone number, email address, or other personal identifying information in your comments, you should be aware that your entire comment—including your personal identifying information—may be made publicly available at any time. While you can ask us in your comment to withhold your personal identifying information from public review, we cannot guarantee that we will be able to do so. All submissions from organizations or businesses, and from individuals identifying themselves as representatives or officials of organizations or businesses, will be made available for public disclosure in their entirety. Comments and materials we receive, as well as supporting documentation, will be available for public inspection by appointment, during normal business hours, at our Oregon Fish and Wildlife Office (see
After considering public comments, the Service will make a decision regarding the proposed CCAA, the draft EAS, and our preliminary determination that the proposed permit action is eligible for categorical exclusion under NEPA, provided they meet the requirements of section 10(a)(1)(A) of the ESA and the requirements of NEPA. We will not make a final decision on NEPA and the template CCAA until after the end of the 30-day public comment period on this notice, and we will fully consider all comments we receive during the public comment period. If we determine that all the requirements are met, we will sign the CCAA and be able to accept EOS permit applications submitted under the requirements of the CCAA and section 10(a)(1)(A) of the ESA. The Service will
We provide this notice in accordance with the requirements of section 10(c) of the ESA (16 U.S.C. 1531
U.S. Geological Survey (USGS), Interior.
Notice of revision of a currently approved information collection, (1028-0094).
We (the U.S. Geological Survey) are notifying the public that we have submitted to the Office of Management and Budget (OMB) the information collection request (ICR) described below. To comply with the Paperwork Reduction Act of 1995 (PRA) and as part of our continuing efforts to reduce paperwork and respondent burden, we invite the general public and other Federal agencies to take this opportunity to comment on this ICR. This collection is scheduled to expire on 3/31/2016.
To ensure that your comments on this ICR are considered, OMB must receive them on or before April 25, 2016.
Please submit written comments on this information collection directly to the Office of Management and Budget (OMB), Office of Information and Regulatory Affairs, Attention: Desk Officer for the Department of the Interior, via email: (
Joseph East, Eastern Energy Resources Science Center, U.S. Geological Survey, 12201 Sunrise Valley Drive, Mail Stop 956, Reston, VA 20192 (mail); 703-648-6450 (phone); or
The primary objective of the National Coal Resources Data System (NCRDS) is to advance the understanding of the energy endowment of the United States (U.S.) by gathering and organizing digital geologic information related to coal, coal bed gas, shale gas, conventional and unconventional oil and gas, geothermal, and other energy resources and related information regarding these resources, along with environmental impacts from using these resources. These data are needed to support regional or national assessments concerning energy resources. Requesting external cooperation is a way for NCRDS to collect energy data and perform research and analyses on the characterization of geologic material, and obtain other information (including geophysical or seismic data, sample collection for generation of thermal maturity data) that can be used in energy resource assessments and related studies.
The USGS will issue a call for proposals to support researchers from State Geological Surveys and associated accredited state universities that can provide geologic data to support NCRDS and other energy assessment projects being conducted by the USGS.
Data submitted to NCRDS by external cooperators constitute more than two-thirds of the USGS point-source stratigraphic database (USTRAT) on coal occurrence. In 2015, NCRDS supported 21 projects in 19 States. This program is conducted under various authorities, including 30 U.S.C. 208-1, 42 U.S.C. 15801, and 43 U.S.C. 31
We again invite comments concerning this ICR as to: (a) Whether the proposed collection of information is necessary for the agency to perform its duties, including whether the information is useful; (b) the accuracy of the agency's estimate of the burden of the proposed collection of information; (c) how to enhance the quality, usefulness, and clarity of the information to be collected; and (d) how to minimize the burden on the respondents, including the use of automated collection techniques or other forms of information technology.
Please note that comments submitted in response to this notice are a matter of public record. Before including your personal mailing address, phone number, email address, or other personally identifiable information in
Bureau of Land Management, Interior.
Notice of public meetings.
In accordance with the Federal Land Policy and Management Act (FLPMA) and the Federal Advisory Committee Act of 1972 (FACA), the U.S. Department of the Interior, Bureau of Land Management (BLM) Tri-State Fuel Break Project Joint Subcommittee of the Boise District and Southeast Oregon Resource Advisory Councils (RACs) will hold meetings as indicated below.
The meetings will be held on the following dates and at the following locations:
Meetings will begin at 9:00 a.m. and adjourn by 3:00 p.m. Members of the public are invited to attend. A public comment period will be held.
Krista Berumen, Bureau of Land Management Public Affairs Specialist, 1387 South Vinnell Way Boise, Idaho 83709, (208)-373-3826.
The Tri-State Fuel Break Joint Subcommittee advises the Boise District and Southeast Oregon Resource Advisory Councils (RACs) on potential areas to locate fuel breaks for the proposed Tri-State Fuel Break Project and Environmental Impact Statement (EIS). The RACs advise the Secretary of the Interior, through the Bureau of Land Management, on a variety of planning and management issues associated with public land management in Idaho and Oregon. The joint subcommittee will be discussing potential fuel break locations within the proposed project area during the meetings. Agenda items and location may change due to changing circumstances. The public may present written or oral comments to members of the joint subcommittee. Individuals who plan to attend and need special assistance should contact the BLM Coordinator as provided above. Persons who use a telecommunications device for the deaf (TDD) may call the Federal Information Relay Service (FIRS) at 1-800-877-8339 to contact the above individual during normal business hours. The FIRS is available 24 hours a day, 7 days a week, to leave a message or question with the above individual. You will receive a reply during normal business hours. Additional information about the RACs is available at
National Park Service, Interior.
Meeting notice.
Notice is hereby given in accordance with the Federal Advisory Committee Act, 5 U.S.C. Appendix, and Parts 62 and 65 of title 36 of the Code of Federal Regulations, and in furtherance of the National Trails System Act, 16 U.S.C. Section 1244(b)(3), that the National Park System Advisory Board will meet June 2-3, 2016, in Anchorage, Alaska. The agenda will include the review of proposed actions regarding the National Historic Landmarks Program and the National Natural Landmarks Program. The Board also will consider a proposed extension to the Lewis and Clark National Historic Trail, and may consider proposed additions to the Oregon, California, Mormon Pioneer and Pony Express National Historic Trails. Interested parties are encouraged to submit written comments and recommendations that will be presented to the Board. Interested parties also may attend the board meeting and upon request may address the Board concerning an area's national significance.
(a) Written comments regarding any proposed National Historic Landmarks matter or National Natural Landmarks matter listed in this notice will be accepted by the National Park Service until May 23, 2016. (b) The Board will meet on June 2-3, 2016.
The meeting will be held in the Boyd Evison Conference Room 309 of the National Park Service Alaska Regional Office, 240 West 5th Avenue, Anchorage, Alaska 99501, telephone (907) 644-3510.
Agenda: On the morning of June 2, the Board will convene its business meeting at 9:00 a.m., Alaska Daylight Time, and adjourn for the day at 4:30 p.m. On June 3, the Board will reconvene at 9:00 a.m., and adjourn at 2:30 p.m. During the course of the two days, the Board may be addressed by National Park Service Director Jonathan Jarvis and briefed by other National Park Service officials regarding education, philanthropy, NPS urban initiatives, science, and the National Park Service Centennial; deliberate and make recommendations concerning National Historic Landmarks Program, National Natural Landmarks Program, and National Historic Trails Program proposals; and receive status briefings on matters pending before committees of the Board.
(a) For information concerning the National Park System Advisory Board or to request to address the Board, contact Shirley Sears, Office of Policy, National Park Service, MC 0004-Policy, 1849 C Street NW., Washington, DC 20240, telephone (202) 354-3955, email
Matters concerning the National Historic Landmarks Program, National Historic Trails Program, and National Natural Landmarks Program will be considered by the Board as follows:
NHL Program matters will be considered at the morning session of the business meeting on June 2, during which the Board may consider the following:
NHT Program matters will be considered at the morning session of the business meeting on June 2, during which the Board may consider the following:
NNL Program matters will be considered at the afternoon session of the business meeting on June 2, during which the Board may consider the following:
The board meeting will be open to the public. The order of the agenda may be changed, if necessary, to accommodate travel schedules or for other reasons. Space and facilities to accommodate the public are limited and attendees will be accommodated on a first-come basis. Anyone may file with the Board a written statement concerning matters to be discussed. The Board also will permit attendees to address the Board, but may restrict the length of the presentations, as necessary to allow the Board to complete its agenda within the allotted time. Before including your address, telephone number, email address, or other personal identifying information in your comment, you should be aware that your entire comment—including your personal identifying information—may be made publicly available at any time. While you may ask us in your comment to withhold your personal identifying information from public review, we cannot guarantee that we will be able to do so.
Draft minutes of the meeting will be available for public inspection about 12 weeks after the meeting in the 7th floor conference room at 1201 I Street NW., Washington, DC.
Bureau of Reclamation, Interior.
Notice.
Following consultation with the General Services Administration, the Secretary of the Interior (Secretary) is renewing the charter for the Yakima River Basin Conservation Advisory Group (CAG). The purpose of the CAG is to provide recommendations to the Secretary and the State of Washington on the structure and implementation of the Yakima River Basin Water Conservation Program.
Mr. Timothy McCoy, Manager, Yakima River Basin Water Enhancement Project, telephone (509) 575-5848, extension 209.
The basin conservation program is structured to provide economic incentives with cooperative Federal, State, and local funding to stimulate the identification and implementation of structural and nonstructural cost-effective water conservation measures in the Yakima
This notice is published in accordance with Section 9(a)(2) of the Federal Advisory Committee Act of 1972 (Pub. L. 92-463, as amended). The certification of renewal is published below.
I hereby certify that Charter renewal of the Yakima River Basin Conservation Advisory Group is in the public interest in connection with the performance of duties imposed on the Department of the Interior.
U.S. International Trade Commission.
Notice.
Notice is hereby given that the U.S. International Trade Commission has found no violation of section 337 of the Tariff Act of 1930, as amended, 19 U.S.C. § 1337 (“section 337”) by Solofill LLC and DongGuan Hai Rui Precision Mould Co., Ltd., and has issued a limited exclusion order and cease desist orders to the defaulted respondents Eko Brands, LLC, Evermuch Technology Co., Ltd., and Ever Much Company, Ltd. The investigation is terminated.
Robert Needham, Office of the General Counsel, U.S. International Trade Commission, 500 E Street SW., Washington, DC 20436, telephone (202) 708-5468. Copies of non-confidential documents filed in connection with this investigation are or will be available for inspection during official business hours (8:45 a.m. to 5:15 p.m.) in the Office of the Secretary, U.S. International Trade Commission, 500 E Street SW., Washington, DC 20436, telephone (202) 205-2000. General information concerning the Commission may also be obtained by accessing its Internet server (
The Commission instituted this investigation on September 9, 2014, based on a complaint filed by Adrian Rivera of Whittier, California, and Adrian Rivera Maynez Enterprises, Inc., of Santa Fe Springs, California (together, “ARM”). 79 FR 53445-46. The complaint alleges violations of section 337 of the Tariff Act of 1930, as amended, 19 U.S.C. § 1337, in the importation into the United States, the sale for importation, and the sale within the United States after importation of certain beverage brewing capsules, components thereof, and products containing the same that infringe claims 5-8 and 18-20 of U.S. Patent No. 8,720,320 (“the '320 patent”).
The Commission terminated the investigation with respect to Melitta, Spark, LBP, and B. Marlboros based on the entry of consent orders and terminated the investigation with respect to Amazon based on a settlement agreement. Notice (Dec. 18, 2014); Notice (Jan. 13, 2015); Notice (Mar. 27, 2015); Notice (Apr. 10, 2015). The Commission also found Eko Brands, Evermuch Technology, and Evermuch Company in default for failing to respond to the complaint and notice of investigation. Notice (May 18, 2015). Accordingly, Solofill and DongGuan (together, “Respondents”) are the only respondents actively participating in the investigation.
On September 4, 2015, the ALJ issued his final initial determination (“ID”) finding no violation of section 337. The ID found that ARM had established every element for finding a violation of section 337 except for infringement. The ID found that Respondents were not liable for direct infringement because direct infringement required the combination of Respondents' products with a third-party single serve beverage brewer, and that Respondents were not liable for induced or contributory infringement because they did not have pre-suit knowledge of the '320 patent. The ID did find that Respondents' products directly infringed claims 5-7, 18, and 20 of the '320 patent (“the asserted claims”) when combined with a third-party single serve coffee brewer, that the asserted claims were not shown invalid by clear and convincing evidence, and that ARM satisfied both the technical and economic prongs of the domestic industry requirement. The ALJ also issued his recommendation on remedy and bonding along with his ID.
On September 21, 2015, ARM petitioned for review of the ID's findings that Respondents were not liable for induced and contributory infringement because of a lack of pre-suit knowledge, and Respondents petitioned for review of several of the ID's findings. On September 29, 2015, the parties opposed each other's petitions, and the Commission Investigative Attorney (“IA”) opposed both petitions.
On November 9, 2015, the Commission determined to review the final ID in part. Specifically the Commission determined to review the following: (1) The ID's findings on the construction, infringement, and technical prong of the domestic industry requirement for the limitation “a needle-like structure, disposed below the base”; (2) the ID's findings on induced and contributory infringement; (3) the ID's findings that the asserted claims are not invalid for a lack of written description, as anticipated by Beaulieu and the APA, or as obvious; and (4) the ID's findings on the economic prong of the domestic industry requirement. The Commission determined not to review the remaining findings in the ID. The Commission also requested briefing from the parties on the issue of pre-suit knowledge, and briefing from the parties and the public on the issues of remedy, the public interest, and bonding. The Commission
Having examined the record of this investigation, including the ALJ's final ID, the petitions, responses, and other submissions from the parties, the Commission has determined that ARM has not proven a violation of section 337 by Solofill and DongGuan. Specifically, the Commission has determined to modify the ID's construction of “a needle-like structure, disposed below the base,” and, under the modified construction, affirms under modified reasoning the ID's findings on infringement and the technical prong of the domestic industry requirement. The Commission has also determined to reverse the ID's finding that Respondents are not liable for contributory and induced infringement. The Commission has further determined that that claims 5 and 6 of the '320 patent are invalid as anticipated by Beaulieu and that claims 5-7, 18, and 20 of the '320 patent are invalid for a lack of written description (Commissioner Kieff dissenting on written description). Additionally, the Commission has determined that Respondents have not shown that claims 7, 18, and 20 are invalid as anticipated or that claims 5-7, 18, and 20 are invalid as obvious. Finally, the Commission has determined to affirm the ID's findings on the economic prong. All other findings in the ID that are consistent with the Commission's determinations are affirmed.
The Commission also previously found the statutory requirements of section 337(g)(1) (19 U.S.C. § 1337(g)(1)) and Commission Rule 210.16(a)(1) (19 CFR 210.16(a)(1)) met with respect to Eko Brands, Evermuch Technology, and Evermuch Company, and found these respondents in default.
The Commission has determined that the appropriate form of relief in this investigation is: (1) A limited exclusion order prohibiting the unlicensed entry of beverage brewing capsules, components thereof, and products containing same that are manufactured abroad by or on behalf of, or imported by or on behalf of, Eko Brands, Evermuch Technology, or Evermuch Company, that infringe one or more of claims 8 and 19 of the '320 patent; (2) cease and desist orders prohibiting Eko Brands, Evermuch Technology, and Evermuch Company from importing, selling, marketing, advertising, distributing, transferring (except for exportation), soliciting United States agents or distributors, and aiding or abetting other entities in the importation, sale for importation, sale after importation, transfer (except for exportation), or distribution of beverage brewing capsules, components thereof, and products containing same that infringe one or more of claims 8 and 19 of the '320 patent. The Commission has further determined that the public interest factors enumerated in section 337(g)(1) (19 U.S.C. § 1337(g)(1)) do not preclude the issuance of the remedial orders. Finally, the Commission has determined that the bond during the period of Presidential review shall be in the amount of 100 percent of the entered value of the imported subject articles of Eko Brands, Evermuch Technology, and Evermuch Company. The Commission's orders were delivered to the President and the United States Trade Representative on the day of their issuance. A Commission Opinion concerning the Commission's finding of no violation by Solofill or DongGuan will issue shortly.
The authority for the Commission's determination is contained in section 337 of the Tariff Act of 1930, as amended (19 U.S.C. § 1337), and in Part 210 of the Commission's Rules of Practice and Procedure (19 CFR part 210).
By order of the Commission.
U.S. International Trade Commission.
Notice.
Notice is hereby given that the U.S. International Trade Commission has received a complaint entitled
Lisa R. Barton, Secretary to the Commission, U.S. International Trade Commission, 500 E Street SW., Washington, DC 20436, telephone (202) 205-2000. The public version of the complaint can be accessed on the Commission's Electronic Document Information System (EDIS) at EDIS,
General information concerning the Commission may also be obtained by accessing its Internet server at United States International Trade Commission (USITC) at USITC.
The Commission has received a complaint and a submission pursuant to section 210.8(b) of the Commission's Rules of Practice and Procedure filed on behalf of Varidesk LLC on March 18, 2016. The complaint alleges violations of section 337 of the Tariff Act of 1930 (19 U.S.C. 1337) in the importation into the United States, the sale for importation, and the sale within the United States after importation of certain height-adjustable desk platforms and components thereof. The complaint names as respondents Nortek, Inc. of Providence, RI; and Ergotron, Inc. of St. Paul, MN. The complainant requests that the Commission issue a limited exclusion order and cease and desist orders.
Proposed respondents, other interested parties, and members of the public are invited to file comments, not to exceed five (5) pages in length, inclusive of attachments, on any public interest issues raised by the complaint or section 210.8(b) filing. Comments should address whether issuance of the relief specifically requested by the complainant in this investigation would affect the public health and welfare in the United States, competitive conditions in the United States economy, the production of like or directly competitive articles in the
In particular, the Commission is interested in comments that:
(i) Explain how the articles potentially subject to the requested remedial orders are used in the United States;
(ii) identify any public health, safety, or welfare concerns in the United States relating to the requested remedial orders;
(iii) identify like or directly competitive articles that complainant, its licensees, or third parties make in the United States which could replace the subject articles if they were to be excluded;
(iv) indicate whether complainant, complainant's licensees, and/or third party suppliers have the capacity to replace the volume of articles potentially subject to the requested exclusion order and/or a cease and desist order within a commercially reasonable time; and
(v) explain how the requested remedial orders would impact United States consumers.
Written submissions must be filed no later than by close of business, eight calendar days after the date of publication of this notice in the
Persons filing written submissions must file the original document electronically on or before the deadlines stated above and submit 8 true paper copies to the Office of the Secretary by noon the next day pursuant to section 210.4(f) of the Commission's Rules of Practice and Procedure (19 CFR 210.4(f)). Submissions should refer to the docket number (“Docket No. 3127”) in a prominent place on the cover page and/or the first page. (
Any person desiring to submit a document to the Commission in confidence must request confidential treatment. All such requests should be directed to the Secretary to the Commission and must include a full statement of the reasons why the Commission should grant such treatment.
This action is taken under the authority of section 337 of the Tariff Act of 1930, as amended (19 U.S.C. 1337), and of sections 201.10 and 210.8(c) of the Commission's Rules of Practice and Procedure (19 CFR 201.10, 210.8(c)).
By order of the Commission.
U.S. International Trade Commission.
Notice.
Notice is hereby given that the U.S. International Trade Commission has received a complaint entitled
Lisa R. Barton, Secretary to the Commission, U.S. International Trade Commission, 500 E Street SW., Washington, DC 20436, telephone (202) 205-2000. The public version of the complaint can be accessed on the Commission's Electronic Document Information System (EDIS) at EDIS,
General information concerning the Commission may also be obtained by accessing its Internet server at United States International Trade Commission (USITC) at USITC.
The Commission has received a complaint and a submission pursuant to section 210.8(b) of the Commission's Rules of Practice and Procedure filed on behalf of Laerdal Medical Corp. and Laerdal Medical AS on March 21, 2016. The complaint alleges violations of section 337 of the Tariff Act of 1930 (19 U.S.C. 1337) in the importation into the United States, the sale for importation, and the sale within the United States after importation of certain carbon spine board, cervical collar and various medical training manikin devices, and accompanying product catalogues, product inserts, literature and components thereof. The complaint names as respondents Shanghai Evenk International Trading Co., Ltd. of China; Shanghai Honglian Medical Instrument Development Co., Ltd. of China; Shanghai Jolly Medical Education Co., Ltd. of China; Zhangjiagang Xiehe Medical Apparatus & Instruments Co., Ltd. of China; Zhangjiagang New Fellow Med. Co., Ltd. of China; Jiangsu Yongxin Medical Equipment Co., Ltd. of China; Jiangsu Yongxin Medical-Use Facilities Making Co., Ltd. of China; Jiangyin Everise Medical Devices Co., Ltd. of China; Medsource International Co., Ltd. and Medsource Factory, Inc. of China; and Basic Medical Supply, LLC of Richmond, TX. The complainant requests that the Commission issue a general exclusion order, or in the alternative issue a limited exclusion order, and issue a cease and desist orders.
Proposed respondents, other interested parties, and members of the public are invited to file comments, not to exceed five (5) pages in length, inclusive of attachments, on any public interest issues raised by the complaint or section 210.8(b) filing. Comments should address whether issuance of the relief specifically requested by the complainant in this investigation would affect the public health and welfare in the United States, competitive conditions in the United States economy, the production of like or directly competitive articles in the
In particular, the Commission is interested in comments that:
(i) Explain how the articles potentially subject to the requested remedial orders are used in the United States;
(ii) identify any public health, safety, or welfare concerns in the United States relating to the requested remedial orders;
(iii) identify like or directly competitive articles that complainant, its licensees, or third parties make in the United States which could replace the subject articles if they were to be excluded;
(iv) indicate whether complainant, complainant's licensees, and/or third party suppliers have the capacity to replace the volume of articles potentially subject to the requested exclusion order and/or a cease and desist order within a commercially reasonable time; and
(v) explain how the requested remedial orders would impact United States consumers.
Written submissions must be filed no later than by close of business, eight calendar days after the date of publication of this notice in the
Persons filing written submissions must file the original document electronically on or before the deadlines stated above and submit 8 true paper copies to the Office of the Secretary by noon the next day pursuant to section 210.4(f) of the Commission's Rules of Practice and Procedure (19 CFR 210.4(f)). Submissions should refer to the docket number (“Docket No. 3128”) in a prominent place on the cover page and/or the first page. (
Any person desiring to submit a document to the Commission in confidence must request confidential treatment. All such requests should be directed to the Secretary to the Commission and must include a full statement of the reasons why the Commission should grant such treatment.
This action is taken under the authority of section 337 of the Tariff Act of 1930, as amended (19 U.S.C. 1337), and of sections 201.10 and 210.8(c) of the Commission's Rules of Practice and Procedure (19 CFR 201.10, 210.8(c)).
By order of the Commission.
Employment and Training Administration, Labor.
Notice of Funding Opportunity Announcement (FOA).
The Employment and Training Administration (ETA), U.S. Department of Labor (DOL, or the Department, or we), announces the availability of approximately $338,520,000 in grant funds authorized by Title V of the Older Americans Act (OAA) as amended in 2006, Public Law 109-365 for the Community Service Employment for Older Americans program commonly referred to as the Senior Community Service Employment Program (SCSEP), for National Grants for Program Year (PY) 2016.
SCSEP is the only Federally-sponsored employment and training program targeted specifically to low-income older individuals who are able to enter or reenter the workforce. Program participants receive paid work experience at local public or non-profit agencies and are paid the higher of the Federal, State, or local minimum wage, or the prevailing wage for similar employment, for approximately 20 hours per week while in community service and other job training (OAA Amendments § 502(b)(1)(J); 20 CFR 641.565(a)). The dual goals of the program are to promote useful opportunities in community service job training and to move SCSEP participants into unsubsidized employment.
We anticipate awarding approximately 10-22 grants ranging from $2 million to $50 million each under this FOA. This is a four-year grant, renewable annually for each of those four years based on annual Departmental application requirements and subject to the availability of funds. The grant may be extended for a fifth year at the Department's discretion, contingent upon the grantee meeting or exceeding the minimum negotiated performance measures as required by section 514(a) of the OAA Amendments and 20 CFR 641.700.
The complete FOA and any subsequent FOA amendments in connection with this funding opportunity are described in further detail on ETA's Web site at
The closing date for receipt of applications under this announcement is April 29, 2016. Applications must be received no later than 4:00:00 p.m. Eastern Time.
Jeannette Flowers, 200 Constitution Avenue NW., Room N-4716, Washington, DC 20210; Telephone: 202-693-3322.
Jimmie Curtis is the Grant Officer for the Funding Opportunity Announcement.
In accordance with Section 223 of the Trade Act of 1974, as amended (19 U.S.C. 2273) the Department of Labor herein presents summaries of determinations regarding eligibility to apply for trade adjustment assistance for workers by (TA-W) number issued
In order for an affirmative determination to be made for workers of a primary firm and a certification issued regarding eligibility to apply for worker adjustment assistance, each of the group eligibility requirements of Section 222(a) of the Act must be met.
I. Under Section 222(a)(2)(A), the following must be satisfied:
(1) A significant number or proportion of the workers in such workers' firm have become totally or partially separated, or are threatened to become totally or partially separated;
(2) The sales or production, or both, of such firm have decreased absolutely; and
(3) One of the following must be satisfied:
(A) Imports of articles or services like or directly competitive with articles produced or services supplied by such firm have increased;
(B) Imports of articles like or directly competitive with articles into which one or more component parts produced by such firm are directly incorporated, have increased;
(C) Imports of articles directly incorporating one or more component parts produced outside the United States that are like or directly competitive with imports of articles incorporating one or more component parts produced by such firm have increased;
(D) Imports of articles like or directly competitive with articles which are produced directly using services supplied by such firm, have increased; and
(4) The increase in imports contributed importantly to such workers' separation or threat of separation and to the decline in the sales or production of such firm; or
II. Section 222(a)(2)(B) all of the following must be satisfied:
(1) A significant number or proportion of the workers in such workers' firm have become totally or partially separated, or are threatened to become totally or partially separated;
(2) One of the following must be satisfied:
(A) There has been a shift by the workers' firm to a foreign country in the production of articles or supply of services like or directly competitive with those produced/supplied by the workers' firm;
(B) There has been an acquisition from a foreign country by the workers' firm of articles/services that are like or directly competitive with those produced/supplied by the workers' firm; and
(3) The shift/acquisition contributed importantly to the workers' separation or threat of separation.
In order for an affirmative determination to be made for adversely affected secondary workers of a firm and a certification issued regarding eligibility to apply for worker adjustment assistance, each of the group eligibility requirements of Section 222(b) of the Act must be met.
(1) A significant number or proportion of the workers in the workers' firm have become totally or partially separated, or are threatened to become totally or partially separated;
(2) The workers' firm is a Supplier or Downstream Producer to a firm that employed a group of workers who received a certification of eligibility under Section 222(a) of the Act, and such supply or production is related to the article or service that was the basis for such certification; and
(3) Either—
(A) The workers' firm is a supplier and the component parts it supplied to the firm described in paragraph (2) accounted for at least 20 percent of the production or sales of the workers' firm; or
(B) A loss of business by the workers' firm with the firm described in paragraph (2) contributed importantly to the workers' separation or threat of separation.
In order for an affirmative determination to be made for adversely affected workers in firms identified by the International Trade Commission and a certification issued regarding eligibility to apply for worker adjustment assistance, each of the group eligibility requirements of Section 222(e) of the Act must be met.
(1) The workers' firm is publicly identified by name by the International Trade Commission as a member of a domestic industry in an investigation resulting in—
(A) An affirmative determination of serious injury or threat thereof under section 202(b)(1);
(B) An affirmative determination of market disruption or threat thereof under section 421(b)(1); or
(C) An affirmative final determination of material injury or threat thereof under section 705(b)(1)(A) or 735(b)(1)(A) of the Tariff Act of 1930 (19 U.S.C. 1671d(b)(1)(A) and 1673d(b)(1)(A));
(2) The petition is filed during the 1-year period beginning on the date on which—
(A) A summary of the report submitted to the President by the International Trade Commission under section 202(f)(1) with respect to the affirmative determination described in paragraph (1)(A) is published in the
(B) Notice of an affirmative determination described in subparagraph (1) is published in the
(3) The workers have become totally or partially separated from the workers' firm within—
(A) The 1-year period described in paragraph (2); or
(B) Not withstanding section 223(b)(1), the 1-year period preceding the 1-year period described in paragraph (2).
The following certifications have been issued. The date following the company name and location of each determination references the impact date for all workers of such determination.
The following certifications have been issued. The requirements of Section 222(a)(2)(A) (increased imports) of the Trade Act have been met.
The following certifications have been issued. The requirements of Section 222(a)(2)(B) (shift in production or services) of the Trade Act have been met.
The following certifications have been issued. The requirements of Section 222(b) (supplier to a firm whose workers are certified eligible to apply for TAA) of the Trade Act have been met.
In the following cases, the investigation revealed that the eligibility criteria for worker adjustment assistance have not been met for the reasons specified.
The investigation revealed that the criterion under paragraph (a)(1) or (b)(1) (employment decline or threat of separation) of section 222 has not been met.
The investigation revealed that the criteria under paragraphs (a)(2)(A)(i) (decline in sales or production, or both) and (a)(2)(B) (shift in production or services to a foreign country) of section 222 have not been met.
The investigation revealed that the criteria under paragraphs (a)(2)(A) (increased imports) and (a)(2)(B) (shift in production or services to a foreign country) of section 222 have not been met.
After notice of the petitions was published in the
The following determinations terminating investigations were issued because the petitioner has requested that the petition be withdrawn.
The following determinations terminating investigations were issued in cases where these petitions were not filed in accordance with the requirements of 29 CFR 90.11. Every petition filed by workers must be signed by at least three individuals of the petitioning worker group. Petitioners separated more than one year prior to the date of the petition cannot be covered under a certification of a petition under Section 223(b), and therefore, may not be part of a petitioning worker group. For one or more of these reasons, these petitions were deemed invalid.
The following determinations terminating investigations were issued because the petitioning groups of workers are covered by active certifications. Consequently, further investigation in these cases would serve no purpose since the petitioning group of workers cannot be covered by more than one certification at a time.
The following determinations terminating investigations were issued because the petitions are the subject of ongoing investigations under petitions filed earlier covering the same petitioners.
I hereby certify that the aforementioned determinations were issued during the period of
Petitions have been filed with the Secretary of Labor under Section 221(a) of the Trade Act of 1974 (“the Act”) and are identified in the Appendix to this notice. Upon receipt of these petitions, the Director of the Office of Trade Adjustment Assistance, Employment and Training Administration, has
The purpose of each of the investigations is to determine whether the workers are eligible to apply for adjustment assistance under Title II, Chapter 2, of the Act. The investigations will further relate, as appropriate, to the determination of the date on which total or partial separations began or threatened to begin and the subdivision of the firm involved.
The petitioners or any other persons showing a substantial interest in the subject matter of the investigations may request a public hearing, provided such request is filed in writing with the Director, Office of Trade Adjustment Assistance, at the address shown below, no later than April 4, 2016.
Interested persons are invited to submit written comments regarding the subject matter of the investigations to the Director, Office of Trade Adjustment Assistance, at the address shown below, not later than April 4, 2016.
The petitions filed in this case are available for inspection at the Office of the Director, Office of Trade Adjustment Assistance, Employment and Training Administration, U.S. Department of Labor, Room N-5428, 200 Constitution Avenue NW., Washington, DC 20210.
Employment and Training Administration, Labor.
Notice of Funding Opportunity Announcement (FOA).
The Employment and Training Administration (ETA), U.S. Department of Labor (the Department), announces the availability of approximately $30,250,000 in grant funds authorized by the Workforce Innovation and Opportunity Act (WIOA). The Department intends to award these grants to a combination of rural- and urban-serving organizations.
This Announcement solicits applications for Reentry Demonstration Projects for Young Adults. The purpose of these grants is to utilize evidence-based and informed interventions or new interventions that theory or research suggests are promising to improve employment outcomes of young adults between the ages of 18 to 24 who have been involved in the juvenile or adult justice system and who reside in high-poverty, high-crime communities.
The Department plans to award approximately seven grants of up to $4,500,000 each to eligible applicants. All applicants must have the capacity to implement multi-site projects and may only submit one application in response to this FOA. These awards will have a 36-month period of performance which includes a planning period, period of operation, and follow-up period; the period of operation must be at least 24 months of the total period of performance. The anticipated start date is July 1, 2016.
The complete FOA and any subsequent FOA amendments in connection with this funding opportunity are described in further detail on ETA's Web site at
The closing date for receipt of applications under this announcement is April 19, 2016. Applications must be received no later than 4:00:00 p.m. Eastern Time.
Ariam Ferro, 200 Constitution Avenue NW., Room N-4716, Washington, DC 20210; Telephone: 202-693-3968.
In accordance with Section 223 of the Trade Act of 1974, as amended (“Act”), 19 U.S.C. 2273, the Department of Labor issued a Certification of Eligibility to Apply for Worker Adjustment Assistance on November 1, 2013, applicable to workers of Honeywell International, Inc., Aerospace Order Management Division, including on-site leased workers from Tapfin-Manpower Group Solutions, Tempe, Arizona, (TA-W-82,900A). Furthermore, the Department of Labor amended its Certification of Eligibility to include the Customer Service Division on August 22, 2014.
At the request of a worker from OptiScan, Inc. the Department reviewed the certification for workers of the subject firm. The workers are engaged in activities related to the supply of order management services and customer services. The investigation confirmed that the subject worker group includes on-site leased workers from OptiScan, Inc.
The amended notice applicable to TA-W-82,900A is hereby issued as follows:
All workers of Honeywell International, Inc., Aerospace Order Management Division, Customer Service Division, including on-site leased workers from Tapfin-Manpower Group Solutions and OptiScan, Inc., Tempe, Arizona, (TA-W-82,900A) who became totally or partially separated from employment on or after July 11, 2012 through November 1, 2015, and all workers in the group threatened with total or partial separation from employment on the date of certification through November 1, 2015, are eligible to apply for adjustment assistance under Chapter 2 of Title II of the Trade Act of 1974, as amended.
In accordance with Section 223 of the Trade Act of 1974, as amended (“Act”), 19 U.S.C. 2273, the Department of Labor issued a Certification of Eligibility to Apply for Worker Adjustment Assistance on April 18, 2014, applicable to workers of Walter Walter Kidde Portable Equipment, Inc., Edwards Division, including on-site leased workers from Adecco and PDI, Pittsfield, Maine. The Department's Notice of determination was published in the
At the request of the State Workforce Office, the Department reviewed the certification for workers of the subject firm. The workers were engaged in activities related to the production of fire alarm and detection systems.
The company reports that workers leased from Digital Intelligence Systems (DISYS) and Randstad Engineering were employed on-site at the Pittsfield, Maine, location of Walter Kidde Portable Equipment, Inc., Edwards Division.
The Department has determined that these workers were sufficiently under the control of the subject firm to be considered leased workers.
Based on these findings, the Department is amending this certification to include workers leased from Digital Intelligence Systems (DISYS) and Randstad Engineering working on-site at the Pittsfield, Maine location of Walter Kidde Portable Equipment, Inc., Edwards Division.
The amended Notice applicable to TA-W-85,192 is hereby issued as follows:
“All workers of Walter Kidde Portable Equipment, Inc., Edwards Division, a subsidiary of UTC Building and Industrial Systems, including on-site leased workers from Adecco, PDI, Digital Intelligence Systems (DISYS) and Randstad Engineering, Pittsfield, Maine, who became totally or partially separated from employment on or after March 31, 2013, through April 18, 2016, are eligible to apply for adjustment assistance under Chapter 2 of Title II of the Trade Act of 1974, as amended, and are also eligible to apply for alternative trade adjustment assistance under Section 246 of the Trade Act of 1974, as amended.”
Employment and Training Administration, Labor.
Notice of Funding Opportunity Announcement (FOA).
The Employment and Training Administration (ETA), U.S. Department of Labor (DOL, or the Department, or we), announces the availability of approximately $81,402,000 in grant funds authorized by the Workforce Innovation and Opportunity Act (WIOA) Section 167 for National Farmworker Jobs Program (NFJP) Employment and Training Grants and Housing Assistance Grants.
This Announcement solicits applications for the National Farmworker Jobs Program (NFJP) Employment and Training Grants and Housing Assistance Grants. The purpose of this program is to assist eligible Migrant and Seasonal Farmworkers (MSFWs) and their dependents, including youth MSFWs, receive career services, training services, housing assistance services, youth services, and other related assistance services that help retain and stabilize their current agriculture jobs as well as acquire new skills they need to start careers that provide higher wages and stable, year-round employment. To support better economic outcomes for farmworkers, NFJP also works to meet a critical need for quality housing.
Of the approximately $81,402,000 available, the Department intends to award approximately $75,885,000 for Employment and Training Grants and $5,517,000 for Housing Assistance Grants. These awards will have a 4-year period of performance and will fund
The complete FOA and any subsequent FOA amendments in connection with this funding opportunity are described in further detail on ETA's Web site at
The closing date for receipt of applications under this announcement is May 3, 2016. Applications must be received no later than 4:00 p.m. Eastern Time.
Amanda Denogean, 200 Constitution Avenue NW., Room N-4716, Washington, DC 20210; Telephone: 202-693-2838.
Jimmie Curtis is the Grant Officer for the Funding Opportunity Announcement.
Legal Services Corporation.
Solicitation for proposals for the provision of civil legal services.
The Legal Services Corporation (LSC) is the national organization charged with administering Federal funds provided for civil legal services to low-income people.
LSC hereby announces the availability of funds for calendar year 2017 and is soliciting grant proposals from interested parties who are qualified to provide effective, efficient, and high quality civil legal services to eligible clients in the service area(s) of the states and territories identified below. The exact amount of congressionally appropriated funds and the date, terms, and conditions of their availability for calendar year 2017 have not been determined.
See
Legal Services Corporation—Notice of Funds Availability, 3333 K Street NW., Third Floor, Washington, DC 20007-3522.
The Office of Program Performance by email at
Applicants must file a Notice of Intent to Compete (NIC) to participate in the LSC grants process. Applicants must file the NIC by May 6, 2016, 5:00 p.m. E.D.T. The Request for Proposals (RFP), which contains the NIC and grant application guidelines, proposal content requirements, service area descriptions, and specific selection criteria, will be available the week of April 11, 2016. The RFP may be accessed at
LSC is seeking proposals from: (1) Non-profit organizations that have as a purpose the provision of legal assistance to eligible clients; (2) private attorneys; (3) groups of private attorneys or law firms; (4) state or local governments; and (5) sub-state regional planning and coordination agencies that are composed of sub-state areas and whose governing boards are controlled by locally elected officials.
Below are the service areas for which LSC is requesting grant proposals. Service area descriptions are available at
National Credit Union Administration (NCUA).
Notice and request for comment.
NCUA, as part of its continuing effort to reduce paperwork and respondent burden, invites the general public and other Federal agencies to comment on a reinstatement of a previously approved collection, as required by the Paperwork Reduction Act of 1995 (Pub. L. 104-13, 44 U.S.C. Chapter 35).
Written comments should be received on or before May 23, 2016 to be assured consideration.
Interested persons are invited to submit written comments on the information collection to Troy Hillier, National Credit Union Administration, 1775 Duke Street, Alexandria, Virginia 22314-3428; Fax No. 703-519-8595; or Email at
Requests for additional information should be directed to the address above.
Credit unions must join the CLF to gain access to CLF services. NCUA Rules and Regulations § 725.3(a)(1) and 725.4(a)(1) state a credit union may become a member of the CLF by making application on a form approved the CLF and furnishing applicable supporting documentation. The information requested on the form and the supporting documentation is necessary to establish the relationship between the CLF and the credit union and to determine the amount of the applicant's stock subscription as required by 12 U.S.C. 1795c.
NCUA Rules and Regulations § 725.20, requires member of the Central Liquidity Fund (CLF), to sign the repayment, security and credit reporting agreement in order to receive loans from the CLF. This form (CLF-8703) is the contract required to document loans made by the CLF to have an enforceable legal right to repayment of said loan, create a security interest in the specified asset in case of non-repayment, and establish reporting requirements for monitoring the credit union's financial condition when it has a CLF loan.
A Central Liquidity Facility (CLF) member may apply for extensions of credit for short-term adjustment, seasonal and protracted adjustment credit to meet liquidity needs. The forms are necessary for the CLF to determine credit worthiness, as required by 12 U.S.C 1795e(2).
Nuclear Regulatory Commission.
Memorandum of understanding; issuance.
On December 7, 2015, the U.S. Nuclear Regulatory Commission (NRC) and the U.S. Department of Homeland Security (DHS)/Federal Emergency Management Agency (FEMA) entered into a Memorandum of Understanding (MOU) that establishes a framework of cooperation between them in radiological emergency response planning and preparedness matters. The MOU ensures that the agencies' mutual efforts will be directed toward more effective preparedness plans, and related response measures at and in the vicinity of utilization facilities.
The MOU was effective December 7, 2015.
Please refer to Docket ID NRC-2016-0042 when contacting the NRC about the availability of information regarding this document. You may obtain publicly-available information related to this document using any of the following methods:
• Federal Rulemaking Web site: Go to
• NRC's Agencywide Documents Access and Management System (ADAMS): You may obtain publicly-available documents online in the ADAMS Public Documents collection at
• NRC's PDR: You may examine and purchase copies of public documents at the NRC's PDR, Room O1-F21, One White Flint North, 11555 Rockville Pike, Rockville, Maryland 20852.
Richard Kinard, Office of Nuclear Security and Incident Response, U.S. Nuclear Regulatory Commission, Washington, DC 20555-0001; telephone: 301-287-3768, email:
As part of the FEMA initiative to amend parts 350-354 of title 44 of the
Consolidating the MOUs results in the following revisions: establishes a concise listing of legal authorities; enhances the description of the disaster-initiated review process; eliminates superfluous language on emergency response by referring to existing documentation such as the National Preparedness System and the Nuclear/Radiological Incident Annex; confirms that nothing in the MOU is intended to conflict with current law or regulations or the directives of DHS/FEMA or the NRC, or restrict the authority of either party to act as provided by statute or regulation; includes the interface process between the NRC and FEMA concerning decommissioning plants and the NRC-approved effective date when FEMA Radiological Emergency Preparedness Program services will no longer be needed; and, for consistency with new wording, FEMA intends to include in 44 CFR part 350 the current term “deficiency” with “Level 1 Finding.”
For the Nuclear Regulatory Commission.
Postal Regulatory Commission.
Notice.
The Commission is noticing a recent Postal Service filing concerning the addition of Priority Mail Contract 199 to the competitive product list. This notice informs the public of the filing, invites public comment, and takes other administrative steps.
Submit comments electronically via the Commission's Filing Online system at
David A. Trissell, General Counsel, at 202-789-6820.
In accordance with 39 U.S.C. 3642 and 39 CFR 3020.30-.35, the Postal Service filed a formal request and associated supporting information to add Priority Mail Contract 199 to the competitive product list.
The Postal Service contemporaneously filed a redacted contract related to the proposed new product under 39 U.S.C. 3632(b)(3) and 39 CFR 3015.5. Request, Attachment B.
To support its Request, the Postal Service filed a copy of the contract, a copy of the Governors' Decision authorizing the product, proposed changes to the Mail Classification Schedule, a Statement of Supporting Justification, a certification of compliance with 39 U.S.C. 3633(a), and an application for non-public treatment of certain materials. It also filed supporting financial workpapers.
The Commission establishes Docket Nos. MC2016-100 and CP2016-128 to consider the Request pertaining to the proposed Priority Mail Contract 199 product and the related contract, respectively.
The Commission invites comments on whether the Postal Service's filings in the captioned dockets are consistent with the policies of 39 U.S.C. 3632, 3633, or 3642, 39 CFR part 3015, and 39 CFR part 3020, subpart B. Comments are due no later than March 28, 2016. The public portions of these filings can be accessed via the Commission's Web site (
The Commission appoints Katalin K. Clendenin to serve as Public Representative in these dockets.
1. The Commission establishes Docket Nos. MC2016-100 and CP2016-128 to consider the matters raised in each docket.
2. Pursuant to 39 U.S.C. 505, Katalin K. Clendenin is appointed to serve as an officer of the Commission to represent the interests of the general public in these proceedings (Public Representative).
3. Comments are due no later than March 28, 2016.
4. The Secretary shall arrange for publication of this order in the
By the Commission.
Postal Regulatory Commission.
Notice.
The Commission is noticing a recent Postal Service filing concerning the addition of Priority Mail Express Contract 35 to the competitive product list. This notice informs the public of the filing, invites public comment, and takes other administrative steps.
Submit comments electronically via the Commission's Filing Online system at
David A. Trissell, General Counsel, at 202-789-6820.
In accordance with 39 U.S.C. 3642 and 39 CFR 3020.30-.35, the Postal Service filed a formal request and associated supporting information to add Priority Mail Express Contract 35 to the competitive product list.
The Postal Service contemporaneously filed a redacted contract related to the proposed new product under 39 U.S.C. 3632(b)(3) and 39 CFR 3015.5. Request, Attachment B.
To support its Request, the Postal Service filed a copy of the contract, a copy of the Governors' Decision authorizing the product, proposed changes to the Mail Classification Schedule, a Statement of Supporting Justification, a certification of compliance with 39 U.S.C. 3633(a), and an application for non-public treatment of certain materials. It also filed supporting financial workpapers.
The Commission establishes Docket Nos. MC2016-107 and CP2016-135 to consider the Request pertaining to the proposed Priority Mail Express Contract 35 product and the related contract, respectively.
The Commission invites comments on whether the Postal Service's filings in the captioned dockets are consistent with the policies of 39 U.S.C. 3632, 3633, or 3642, 39 CFR part 3015, and 39 CFR part 3020, subpart B. Comments are due no later than March 28, 2016. The public portions of these filings can be accessed via the Commission's Web site (
The Commission appoints Curtis E. Kidd to serve as Public Representative in these dockets.
1. The Commission establishes Docket Nos. MC2016-107 and CP2016-135 to consider the matters raised in each docket.
2. Pursuant to 39 U.S.C. 505, Curtis E. Kidd is appointed to serve as an officer of the Commission to represent the interests of the general public in these proceedings (Public Representative).
3. Comments are due no later than March 28, 2016.
4. The Secretary shall arrange for publication of this order in the
By the Commission.
Postal Regulatory Commission.
Notice.
The Commission is noticing a recent Postal Service filing concerning the addition of First-Class Package Service Contract 46 to the competitive product list. This notice informs the public of the filing, invites public comment, and takes other administrative steps.
Submit comments electronically via the Commission's Filing Online system at
David A. Trissell, General Counsel, at 202-789-6820.
In accordance with 39 U.S.C. 3642 and 39 CFR 3020.30-.35, the Postal Service filed a formal request and associated supporting information to add First-Class Package Service Contract 46 to the competitive product list.
The Postal Service contemporaneously filed a redacted contract related to the proposed new product under 39 U.S.C. 3632(b)(3) and 39 CFR 3015.5. Request, Attachment B.
To support its Request, the Postal Service filed a copy of the contract, a copy of the Governors' Decision authorizing the product, proposed changes to the Mail Classification Schedule, a Statement of Supporting Justification, a certification of compliance with 39 U.S.C. 3633(a), and an application for non-public treatment of certain materials. It also filed supporting financial workpapers.
The Commission establishes Docket Nos. MC2016-103 and CP2016-131 to consider the Request pertaining to the proposed First-Class Package Service Contract 46 product and the related contract, respectively.
The Commission invites comments on whether the Postal Service's filings in the captioned dockets are consistent with the policies of 39 U.S.C. 3632, 3633, or 3642, 39 CFR part 3015, and 39 CFR part 3020, subpart B. Comments are due no later than March 28, 2016. The public portions of these filings can be accessed via the Commission's Web site (
The Commission appoints Natalie R. Ward to serve as Public Representative in these dockets.
1. The Commission establishes Docket Nos. MC2016-103 and CP2016-131 to consider the matters raised in each docket.
2. Pursuant to 39 U.S.C. 505, Natalie R. Ward is appointed to serve as an officer of the Commission to represent the interests of the general public in these proceedings (Public Representative).
3. Comments are due no later than March 28, 2016.
4. The Secretary shall arrange for publication of this order in the
By the Commission.
Postal Regulatory Commission.
Notice.
The Commission is noticing a recent Postal Service filing concerning the addition of Priority Mail Express & Priority Mail Contract 28 to the competitive product list. This notice informs the public of the filing, invites public comment, and takes other administrative steps.
Submit comments electronically via the Commission's Filing Online system at
David A. Trissell, General Counsel, at 202-789-6820.
In accordance with 39 U.S.C. 3642 and 39 CFR 3020.30-.35, the Postal Service filed a formal request and associated supporting information to add Priority Mail Express & Priority Mail Contract 28 to the competitive product list.
The Postal Service contemporaneously filed a redacted contract related to the proposed new product under 39 U.S.C. 3632(b)(3) and 39 CFR 3015.5. Request, Attachment B.
To support its Request, the Postal Service filed a copy of the contract, a copy of the Governors' Decision authorizing the product, proposed changes to the Mail Classification Schedule, a Statement of Supporting Justification, a certification of compliance with 39 U.S.C. 3633(a), and an application for non-public treatment of certain materials. It also filed supporting financial workpapers.
The Commission establishes Docket Nos. MC2016-106 and CP2016-134 to consider the Request pertaining to the proposed Priority Mail Express & Priority Mail Contract 28 product and the related contract, respectively.
The Commission invites comments on whether the Postal Service's filings in the captioned dockets are consistent with the policies of 39 U.S.C. 3632, 3633, or 3642, 39 CFR part 3015, and 39 CFR part 3020, subpart B. Comments are due no later than March 28, 2016. The public portions of these filings can be accessed via the Commission's Web site (
The Commission appoints Kenneth R. Moeller to serve as Public Representative in these dockets.
1. The Commission establishes Docket Nos. MC2016-106 and CP2016-134 to consider the matters raised in each docket.
2. Pursuant to 39 U.S.C. 505, Kenneth R. Moeller is appointed to serve as an officer of the Commission to represent the interests of the general public in these proceedings (Public Representative).
3. Comments are due no later than March 28, 2016.
4. The Secretary shall arrange for publication of this order in the
By the Commission.
Postal Regulatory Commission.
Notice.
The Commission is noticing a recent Postal Service filing concerning the addition of Priority Mail Contract 200 to the competitive product list. This notice informs the public of the filing, invites public comment, and takes other administrative steps.
Submit comments electronically via the Commission's Filing Online system at
David A. Trissell, General Counsel, at 202-789-6820.
In accordance with 39 U.S.C. 3642 and 39 CFR 3020.30-.35, the Postal Service filed a formal request and associated supporting information to add Priority Mail Contract 200 to the competitive product list.
The Postal Service contemporaneously filed a redacted contract related to the proposed new product under 39 U.S.C. 3632(b)(3) and 39 CFR 3015.5. Request, Attachment B.
To support its Request, the Postal Service filed a copy of the contract, a copy of the Governors' Decision authorizing the product, proposed changes to the Mail Classification Schedule, a Statement of Supporting Justification, a certification of compliance with 39 U.S.C. 3633(a), and an application for non-public treatment of certain materials. It also filed supporting financial workpapers.
The Commission establishes Docket Nos. MC2016-101 and CP2016-129 to consider the Request pertaining to the proposed Priority Mail Contract 200 product and the related contract, respectively.
The Commission invites comments on whether the Postal Service's filings in the captioned dockets are consistent with the policies of 39 U.S.C. 3632, 3633, or 3642, 39 CFR part 3015, and 39 CFR part 3020, subpart B. Comments are due no later than March 28, 2016. The public portions of these filings can be accessed via the Commission's Web site (
The Commission appoints Natalie R. Ward to serve as Public Representative in these dockets.
1. The Commission establishes Docket Nos. MC2016-101 and CP2016-129 to consider the matters raised in each docket.
2. Pursuant to 39 U.S.C. 505, Natalie R. Ward is appointed to serve as an officer of the Commission to represent the interests of the general public in these proceedings (Public Representative).
3. Comments are due no later than March 28, 2016.
4. The Secretary shall arrange for publication of this order in the
By the Commission.
Postal Regulatory Commission.
Notice.
The Commission is noticing a recent Postal Service filing concerning the addition of First-Class Package Service Contract 47 to the competitive product list. This notice informs the public of the filing, invites public comment, and takes other administrative steps.
Submit comments electronically via the Commission's Filing Online system at
David A. Trissell, General Counsel, at 202-789-6820.
In accordance with 39 U.S.C. 3642 and 39 CFR 3020.30-.35, the Postal Service filed a formal request and associated supporting information to add First-Class Package Service Contract 47 to the competitive product list.
The Postal Service contemporaneously filed a redacted contract related to the proposed new product under 39 U.S.C. 3632(b)(3) and 39 CFR 3015.5. Request, Attachment B.
To support its Request, the Postal Service filed a copy of the contract, a copy of the Governors' Decision authorizing the product, proposed changes to the Mail Classification Schedule, a Statement of Supporting Justification, a certification of compliance with 39 U.S.C. 3633(a), and an application for non-public treatment of certain materials. It also filed supporting financial workpapers.
The Commission establishes Docket Nos. MC2016-104 and CP2016-132 to consider the Request pertaining to the proposed First-Class Package Service Contract 47 product and the related contract, respectively.
The Commission invites comments on whether the Postal Service's filings in the captioned dockets are consistent with the policies of 39 U.S.C. 3632, 3633, or 3642, 39 CFR part 3015, and 39 CFR part 3020, subpart B. Comments are due no later than March 28, 2016. The public portions of these filings can be accessed via the Commission's Web site (
The Commission appoints Lyudmila Y. Bzhilyanskaya to serve as Public Representative in these dockets.
1. The Commission establishes Docket Nos. MC2016-104 and CP2016-132 to consider the matters raised in each docket.
2. Pursuant to 39 U.S.C. 505, Lyudmila Y. Bzhilyanskaya is appointed to serve as an officer of the Commission to represent the interests of the general public in these proceedings (Public Representative).
3. Comments are due no later than March 28, 2016.
4. The Secretary shall arrange for publication of this order in the
By the Commission.
Postal Regulatory Commission.
Notice.
The Commission is noticing a recent Postal Service filing concerning the addition of Parcel Select Contract 14 to the competitive product list. This notice informs the public of the filing, invites public comment, and takes other administrative steps.
Submit comments electronically via the Commission's Filing Online system at
David A. Trissell, General Counsel, at 202-789-6820.
In accordance with 39 U.S.C. 3642 and 39 CFR 3020.30-.35, the Postal Service filed a formal request and associated supporting information to add Parcel Select Contract 14 to the competitive product list.
The Postal Service contemporaneously filed a redacted contract related to the proposed new product under 39 U.S.C. 3632(b)(3) and 39 CFR 3015.5. Request, Attachment B.
To support its Request, the Postal Service filed a copy of the contract, a copy of the Governors' Decision authorizing the product, proposed changes to the Mail Classification Schedule, a Statement of Supporting Justification, a certification of compliance with 39 U.S.C. 3633(a), and an application for non-public treatment of certain materials. It also filed supporting financial workpapers.
The Commission establishes Docket Nos. MC2016-102 and CP2016-130 to consider the Request pertaining to the proposed Parcel Select Contract 14 product and the related contract, respectively.
The Commission invites comments on whether the Postal Service's filings in the captioned dockets are consistent with the policies of 39 U.S.C. 3632, 3633, or 3642, 39 CFR part 3015, and 39 CFR part 3020, subpart B. Comments are due no later than March 28, 2016. The public portions of these filings can be
The Commission appoints Lyudmila Y. Bzhilyanskaya to serve as Public Representative in these dockets.
1. The Commission establishes Docket Nos. MC2016-102 and CP2016-130 to consider the matters raised in each docket.
2. Pursuant to 39 U.S.C. 505, Lyudmila Y. Bzhilyanskaya is appointed to serve as an officer of the Commission to represent the interests of the general public in these proceedings (Public Representative).
3. Comments are due no later than March 28, 2016.
4. The Secretary shall arrange for publication of this order in the
By the Commission.
Postal Regulatory Commission.
Notice.
The Commission is noticing a recently-filed Postal Service proposal to conduct a market test of an experimental product called Global eCommerce Marketplace (GeM) Merchant. This notice informs the public of the filing, invites public comment, and takes other administrative steps.
Submit comments electronically via the Commission's Filing Online system at
David A. Trissell, General Counsel, at 202-789-6820.
In accordance with 39 U.S.C. 3641 and 39 CFR 3035.3, the Postal Service filed notice of its intent to conduct a market test of an experimental product called Global eCommerce Marketplace (GeM) Merchant.
According to the Postal Service, GeM Merchant constitutes a novel eCommerce service for domestic online merchants and their international customers.
The Postal Service intends to offer GeM Merchant to a limited number of domestic online merchants through negotiated service agreements (NSAs) that would include, but not be limited to, localization, export compliance, delivery speed, and targeted marketing features.
The Postal Service asserts that the proposed GeM Merchant market test would likely benefit the public by meeting the demands of domestic online merchants and their international customers.
The Postal Service plans to begin the market test on or shortly after April 30, 2016, to run for 2 calendar years.
According to the Postal Service, because GeM Merchant is an international product offered to select domestic merchants through NSAs rather than a retail service offered to the American public, the geographical scope analysis under 39 CFR 3035.3(a)(2)(iv) is not germane to this market test.
The Postal Service does not request a waiver of the $10 million, as adjusted for inflation, annual revenue limitation at this time.
The Postal Service proposes to report the costs, revenues, and volumes associated with each agreement on a
The Postal Service asserts that the proposed GeM Merchant market test satisfies the conditions on market tests of experimental products. Notice at 3;
The Postal Service does not expect GeM Merchant to create an “unfair or otherwise inappropriate competitive advantage for the Postal Service or any mailer, with regard to any other party (including small businesses).”
The Postal Service classifies GeM Merchant as a competitive product, asserting that GeM Merchant is designed for international packages and are unlikely to contain any letters, and thus, do not fall under the Private Express Statutes.
To support its Notice, the Postal Service filed its proposed changes to the Mail Classification Schedule, as well as redacted versions of the GeM Merchant model contract, GeM Merchant price ranges summary, and supporting financial workpapers. The Postal Service also submitted an application for non-public treatment of materials requesting that unredacted versions of the GeM Merchant model contract, GeM Merchant price ranges summary, and related financial information remain under seal.
The Commission establishes Docket No. MT2016-1 to consider matters raised by the Notice. The Commission invites comments on whether the Postal Service's filing is consistent with the requirements of 39 U.S.C. 3641 and 39 CFR part 3035. Comments are due no later than April 11, 2016. The public portions of these filings can be accessed via the Commission's Web site (
The Commission appoints James Waclawski to serve as an officer of the Commission to represent the interests of the general public in these proceedings (Public Representative).
1. The Commission establishes Docket No. MT2016-1 to consider the matters raised by the Notice.
2. Pursuant to 39 U.S.C. 505, James Waclawski is appointed to serve as an officer of the Commission to represent the interests of the general public in these proceedings (Public Representative).
3. Comments are due no later than April 11, 2016.
4. The Secretary shall arrange for publication of this order in the
By the Commission.
Postal Service
Notice.
The Postal Service gives notice of a market test of an experimental product in accordance with statutory requirements.
March 24, 2016.
Kyle Coppin, 202-268-2368.
The United States Postal Service® hereby gives notice pursuant to 39 U.S.C. 3641(c)(1) that it will begin a market test of its Global eCommerce Marketplace (GeM) Merchant Solution experimental product on or after April 30, 2016. The Postal Service has filed with the Postal Regulatory Commission a notice setting out the basis for the Postal Service's determination that the market test is covered by 39 U.S.C. 3641 and describing the nature and scope of the market test. Documents are available at
March 18, 2016.
Pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (“Act”),
The Exchange proposes to amend the Phlx Pricing Schedule at Section I, entitled “Rebates and Fees for Adding and Removing Liquidity in SPY,” specifically related to PIXL
The text of the proposed rule change is available on the Exchange's Web site
In its filing with the Commission, the Exchange included statements concerning the purpose of and basis for the proposed rule change and discussed any comments it received on the proposed rule change. The text of these statements may be examined at the places specified in Item IV below. The Exchange has prepared summaries, set forth in sections A, B, and C below, of the most significant aspects of such statements.
The Exchange proposes to amend language in the Pricing Schedule at Section I, entitled “Rebates and Fees for Adding and Removing Liquidity in SPY,” related to PIXL executions in SPY.
Effective June 3, 2013, the Exchange filed a rule change
`When the PIXL Order is contra to other than the Initiating Order, the PIXL Order will be assessed $0.00 per contract, unless the order is a Customer, in which case the Customer will receive a rebate of $0.38 per contract. All other contra parties to the PIXL Order, other than the Initiating Order, will be assessed a Fee for Removing Liquidity of $0.38 per contract or will receive the Rebate for Adding Liquidity.'
In that rule change, the Exchange noted that it was adopting PIXL Pricing to “. . . assess Initiating Orders in SPY options $0.05 per contract for all market participants. In addition, when the PIXL Order is contra to the Initiating Order, a Customer PIXL Order will be assessed $0.00 per contact and all non-Customer market participants will be assessed a $0.38 per contract fee when contra to the Initiating Order. Also, when a PIXL Order is contra to other than the Initiating Order, the PIXL Order will be assessed $0.00 per contract, unless the order is a Customer, in which case the Customer will receive a rebate of $0.38 per contract.
The Exchange also reasoned that “[a]lso, the Exchange proposes to uniformly assess all market participants a fee when a Customer rebate would be paid to enable the Exchange to offer the rebate. The Exchange believes that widening the differential as between the Initiating Order Fee and the contra party to the PIXL Order ($0.05 vs. $0.38) as compared to the cost to transact a PIXL Order today ($0.05 or $0.07 per contract vs. $0.30) does not misalign the cost of these transactions depending on the market participant because the Exchange would now not assess a fee in the case that PIXL Order is contra to other than the Initiating Order, which is not a Customer, and would pay the Customer a rebate in the case where the contra party is a Customer.”
The Exchange assessed all contra-parties to the SPY PIXL Order, other than the Initiating Order, a fee of $0.38 per contract as a result of this rule change.
On March 11, 2015, the Exchange filed a rule change to amend the SPY PIXL pricing established by SR-Phlx-2013-61.
`The Exchange also proposes to amend PIXL fees in SPY in Section I of the Pricing Schedule. Today, when a PIXL Order is contra to other than the Initiating Order, the PIXL Order will be assessed $0.00 per contract, unless the order is a Customer, in which case the Customer will receive a rebate of $0.38 per contract. All other contra parties to the PIXL Order, other than the Initiating Order, will be assessed a Fee for Removing Liquidity of $0.38 per contract or will receive the Rebate for Adding Liquidity. The Exchange is proposing to increase the amount that all other contra parties to the PIXL Order, other than the Initiating Order, will be assessed to remove liquidity from $0.38 to $0.42 per contract. These contra parties will continue to be entitled to receive the Rebate for Adding Liquidity, as is the case today. Despite, the increase [the Exchange] believes that its current SPY PIXL fees remain competitive.'
Footnote 13 in that rule change indicated that a member may electronically submit for execution an order it represents as agent on behalf of a public customer, broker-dealer, or any other entity (“PIXL Order”) against principal interest or against any other order (except as provided in Rule 1080(n)(i)(E)) it represents as agent (“Initiating Order”) provided it submits the PIXL order for electronic execution into the PIXL Auction (“Auction”) pursuant to Rule 1080. Non-Initiating Order interest could be a PIXL Auction Responder or a resting order or quote that was on the Phlx book prior to the auction.
As a result of the amendments to SR-Phlx-2015-25, the Exchange's current rule text does not address the amount a Customer would be assessed if the
The Exchange proposes to assess a Customer contra party to a PIXL Order a Fee for Removing Liquidity of $0.42 per contract, similar to all other contra parties to a SPY PIXL Order. The Exchange's proposal would increase the Customer Fee for Removing Liquidity, when the Customer is a contra party to the PIXL Order, other than the Initiating Order, from $0.00 to $0.42 per contract.
The Exchange proposes to (i) add the word “PIXL” in the first sentence to clarify the type of order being discussed; and (ii) remove the reference to “other Non-Customer” in the second sentence, to assess the $0.42 per contract Fee for Removing to Liquidity to all participants, including a Customer and make the second sentence its own paragraph. The proposed rule text would be as follows, “When the PIXL Order is contra to other than the Initiating Order, the PIXL Order will be assessed $0.00 per contract, unless the PIXL Order is a Customer, in which case the Customer will receive a rebate of $0.38 per contract.” Separately, in another paragraph, the proposed rule text would be as follows, “All contra parties to the PIXL Order that are not the Initiating Order will be assessed a Fee for Removing Liquidity of $0.42 per contract or will receive the Rebate for Adding Liquidity.” The Exchange is also adding some clarifying language in this sentence to make clear that the contra parties are note [sic] the Initiating Order.
To further explain this amendment and the role of the contra party, during a PIXL Auction, a paired order may be entered into the auction consisting of a PIXL Order and an Initiating Order. If during the auction, non-Initiating Order interest
The Exchange proposes to correct a typographical error in this section to capitalize “non-Customer” to state “Non-Customer” to properly refer to the defined term. The Exchange also proposes to remove extraneous parentheticals from Section I in the Simple Order Rebate for Adding Liquidity in the Specialist and Market Maker pricing.
The Exchange believes that its proposal is consistent with Section 6(b) of the Act
The Commission and the courts have repeatedly expressed their preference for competition over regulatory intervention in determining prices, products, and services in the securities markets. In Regulation NMS, for example, the Commission indicated that market forces should generally determine the price of non-core market data because national market system regulation “has been remarkably successful in promoting market competition in its broader forms that are most important to investors and listed companies.”
Further, “[n]o one disputes that competition for order flow is `fierce.' . . . As the SEC explained, `[i]n the U.S. national market system, buyers and sellers of securities, and the broker-dealers that act as their order-routing agents, have a wide range of choices of where to route orders for execution'; [and] `no exchange can afford to take its market share percentages for granted' because `no exchange possesses a monopoly, regulatory or otherwise, in the execution of order flow from broker dealers'. . . .”
The Exchange's proposal to increase the amount that Customer contra parties to a PIXL Order that were not the Initiating Order will be assessed to remove liquidity from $0.00 to $0.42 per contract is reasonable because despite the increase in the fee, the Exchange believes this pricing will continue to incentivize market participants to transact a greater number of SPY options. Customers will continue to receive a rebate of $0.38 per contract when the PIXL Order is a Customer order and is contra to other than the Initiating Order. The Exchange's proposal to increase the Fee for Removing Liquidity for Customer contra-parties to the PIXL Order in SPY that are not the Initiating Order from $0.00 to $0.42 per contract remains lower than the $0.43 per contract Simple Order Fee for Removing Liquidity that is assessed for Simple Orders in SPY.
SPY options are currently the most actively traded options class and therefore the Exchange believes that incentivizing Customers to remove liquidity in SPY options by continuing to offer a lower rate as compared to Simple Order Fees for Removing Liquidity in SPY will benefit all market participants by providing incentives for price improvement, such as this reduction in the Fee for Removing Liquidity. Despite the increase, the Exchange believes the Fee for Removing
The Exchange's proposal to increase the amount that Customer contra parties to the PIXL Order that are not the Initiating Order will be assessed to remove liquidity from $0.00 to $0.42 per contract is equitable and not unfairly discriminatory because the Exchange will be assessing the same Fees for Removing Liquidity for SPY PIXL options to all market participants that are contra parties to the PIXL Order in SPY, other than the Initiating Order. Customer liquidity benefits all market participants by providing more trading opportunities, which attracts Specialists and Market Makers. A higher percentage of SPY Orders in PIXL leads to increased auctions and better opportunities for price improvement.
The Exchange believes that it is reasonable, equitable and not unfairly discriminatory to correct the typographical error to properly refer to a defined term, remove extraneous parentheticals from Section I and make other clarifying language. These rule changes are non-substantive.
The Exchange does not believe that the proposed rule change will impose any burden on competition not necessary or appropriate in furtherance of the purposes of the Act. In terms of inter-market competition, the Exchange notes that it operates in a highly competitive market in which market participants can readily favor competing venues if they deem fee levels at a particular venue to be excessive, or rebate opportunities available at other venues to be more favorable. In such an environment, the Exchange must continually adjust its fees to remain competitive with other exchanges and with alternative trading systems that have been exempted from compliance with the statutory standards applicable to exchanges. Because competitors are free to modify their own fees in response, and because market participants may readily adjust their order routing practices, the Exchange believes that the degree to which fee changes in this market may impose any burden on competition is extremely limited.
The proposed increase to the amount that Customer contra parties to the PIXL Order that are not the Initiating Order will be assessed to remove liquidity does not impose a burden on inter-market competition, because the Exchange is competing with other options markets which offer price improvement mechanisms. A higher percentage of SPY Orders in PIXL leads to increased auctions and better opportunities for price improvement for all market participants. In sum, if the changes proposed herein are unattractive to market participants, it is likely that the Exchange will lose market share as a result. Accordingly, the Exchange does not believe that the proposed changes will impair the ability of members or competing order execution venues to maintain their competitive standing in the financial markets.
The Exchange's proposal to amend the Fee for Removing Liquidity applicable to Customers that are contra to a SPY PIXL Order, other than the Initiating Order, does not impose any undue burden on intra-market competition as all market participants will be assessed the same fee of $0.42 per contract to remove liquidity as other contra party market participants. Customer orders bring valuable liquidity to the market, which liquidity benefits all market participants. This proposal also corrects a discrepancy in the rule text which does not currently address fees for Customer responders.
The Exchange's proposal to correct a typographical error to properly refer to a defined term, remove extraneous parentheticals from Section I and make other clarifying language does not impose any undue burden on intra-market competition as these rule changes are non-substantive.
No written comments were either solicited or received.
The foregoing rule change has become effective pursuant to Section 19(b)(3)(A)(ii) of the Act.
At any time within 60 days of the filing of the proposed rule change, the Commission summarily may temporarily suspend such rule change if it appears to the Commission that such action is: (i) Necessary or appropriate in the public interest; (ii) for the protection of investors; or (iii) otherwise in furtherance of the purposes of the Act. If the Commission takes such action, the Commission shall institute proceedings to determine whether the proposed rule should be approved or disapproved.
Interested persons are invited to submit written data, views, and arguments concerning the foregoing, including whether the proposed rule change is consistent with the Act. Comments may be submitted by any of the following methods:
• Use the Commission's Internet comment form (
• Send an email to
• Send paper comments in triplicate to Secretary, Securities and Exchange Commission, 100 F Street NE., Washington, DC 20549-1090.
Copies of the submission, all subsequent amendments, all written statements with respect to the proposed rule change that are filed with the Commission, and all written communications relating to the proposed rule change between the Commission and any person, other than those that may be withheld from the public in accordance with the provisions of 5 U.S.C. 552, will be available for Web site viewing and printing in the Commission's Public Reference Room, 100 F Street NE., Washington, DC 20549, on official business days between the hours of 10:00 a.m. and 3:00 p.m. Copies of the filing also will be available for inspection and copying at the principal office of the Exchange. All comments received will be posted without change; the Commission does not edit personal identifying information from submissions. You should submit only information that you wish to make available publicly.
All submissions should refer to File Number SR-Phlx-2016-21 and should
For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.
On August 21, 2015, Investors' Exchange LLC (“IEX” or “IEX Exchange”) submitted to the Securities and Exchange Commission (“Commission”) a Form 1 application (“Form 1”), seeking registration as a national securities exchange pursuant to Section 6 of the Securities Exchange Act of 1934 (“Act”).
On September 9, 2015, IEX submitted Amendment No. 1 to its Form 1.
Section 19(a)(1) of the Act
Section 19(a)(1)(B) of the Act
The Commission received over 430 comment letters on IEX's Form 1, many focused on IEX's proposed trading rules and system.
Among the commenters who supported IEX's exchange registration, several argued that IEX would offer a market solution to address certain market inefficiencies and conflicts of interest in a manner that may protect
Among the commenters who were critical of aspects of IEX's proposal, most focused on issues surrounding IEX's coil delay, IEX's affiliated outbound router and what they viewed as an unfair advantage to bypass the outbound coil delay, and IEX's proposed order types.
IEX, which currently operates a trading platform as an alternative trading system (“ATS”), is seeking to register as a national securities exchange. Below is a brief description of the proposed IEX exchange trading platform, including the new aspects of the system concerning the router functionality where noted.
IEX proposed several pegged order types—primary peg, midpoint peg, and discretionary peg—all of which would be non-displayed with prices that are automatically adjusted by the IEX system in response to changes in the national best bid and offer (“NBBO”) (subject to a limit price, if any).
Several commenters expressed concern that IEX's previously-published Form 1 lacked specific detail about how the POP/coil structure would work, including what messages and activity would—and would not—be subject to the delay.
According to IEX, all
As originally proposed, one type of inbound message and two types of outbound messages would
1. Inbound market data from other trading centers to the IEX system would
2. Orders routed outbound from IEX through IEXS to away trading centers for execution (as well as reports back to IEX from those away trading centers) would
3. Outbound transaction and quote messages sent from IEX to the applicable securities information processor (“SIP”) would
According to IEX, its POP/coil delay, including its application to some but not all of the message traffic into and out of its trading system, was originally designed to achieve two main purposes: (1) To allow IEX time to update the prices of resting dark pegged orders on its book (whose permissible execution prices are not static, but rather are tied to the NBBO as IEX sees it through the proprietary data feeds it purchases from each exchange) in response to changes in market prices before other market participants can access IEX's resting pegged orders at potentially “stale” prices (
The Commission is hereby instituting proceedings pursuant to Section 19(a)(1)(B) of the Act
As required by Section 19(a)(1)(B) of the Act,
The Commission is particularly interested in commenters' views as to whether the changes set forth in IEX's Form 1, as amended, are consistent with the Act, in light of commenters' concerns that IEX's routing functionality and IEXS would have an advantage over other routing broker-dealers that would be unfairly discriminatory and an inappropriate burden on competition.
The proposed new outbound routing structure, which IEX filed with the Commission over a period ending in early March, represents a material departure from the original design that IEX proposed in its original Form 1 and therefore warrants further review and consideration by the Commission, as informed by further public comment.
The Commission previously has stated that an exchange-affiliated outbound router, as a “facility” of the exchange, will be subject to the exchange's and the Commission's regulatory oversight, and that the exchange will be responsible for ensuring that the affiliated outbound routing function is operated consistent with Section 6 of the Act and the exchange's rules.
As specified in IEX's initial Form 1, unexecuted shares of routable orders sent to IEXS would not have traversed the POP/coil. As revised by Amendment Nos. 2, 3, and 4, IEX now proposes a significantly different structure that it says is intended to place its router and routing logic in an identical position to non-affiliated routing broker-dealers.
IEX's recent amendments include new rules to bifurcate its handling of non-routable and routable orders.
Given this additional POP/coil delay, Users submitting
The Commission is evaluating whether IEX's revised proposal for handling routable orders sufficiently addresses concerns that its proposed rules may not be consistent with the Act, for example whether they constitute unfair discrimination, or impose an unnecessary or inappropriate burden on competition.
Accordingly, the Commission believes that it is appropriate at this time to institute proceedings to determine whether to grant or deny IEX's Form 1, as modified by IEX's recent amendments. For the reasons set forth above, the Commission believes that questions remain as to whether IEX's proposed trading system is consistent with the requirements of: (1) Section 6(b)(5) of the Act,
The Commission invites comment on all aspects of IEX's Form 1, as amended, particularly with regard to the proposed outbound routing functionality as presented in its recent amendments. In particular, do commenters have a view on whether IEX's revised proposal places other routing brokers who are members of IEX on the same footing as IEX in a manner that would address the concerns under the Act and the rules thereunder? Are there material aspects of IEX's proposed revised routing functionality that are not clearly presented in IEX's revised rules
As noted above, IEX previously consented to an extension of time for its Form 1 to March 21, 2016.
IEX filed these amendments to its Form 1 approximately two weeks prior to the March 21 deadline. The Commission does not have sufficient time before that March 21 deadline to publish notice of IEX's amendments in the
The Commission requests that interested persons provide written views and data with respect to IEX's Form 1, as amended, and the questions included above or other relevant issues. 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.
By the Commission.
Pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (“Act”)
FINRA is proposing to modify the dissemination protocols for TRACE-Eligible Securities to disseminate a new alternative trading system (“ATS”) contra-party type and ATS indicator. There are no changes to the text of a FINRA rule.
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.
On February 2, 2015, FINRA Rule 6720(c) (Alternative Trading Systems) went into effect to require TRACE participants that operate an alternative trading system (“ATS”) to use a separate Market Participant Identifier (“MPID”) to report all transactions that are executed within the ATS to TRACE. Where a member operates multiple ATSs, a unique, separate MPID must be used for reporting transactions within each respective ATS. Where a member operates a single ATS, but also engages in transactions otherwise than on the ATS (
In light of the implementation of the separate MPID requirement for ATS reporting, FINRA now can conclusively identify transactions that occur within an ATS (as opposed to other areas of a member's business). As discussed in the filing proposing the separate MPID requirement, FINRA believes that separate MPIDs will enhance FINRA's ability to surveil for compliance with the requirements of Regulation ATS as well as other SEC rules, the federal securities laws, and FINRA rules.
At present, disseminated TRACE transactions indicate whether the reporting party or contra-party is a dealer (“D”), non-member affiliate of a member (“A”) or customer (“C”). FINRA is now proposing another new identifier for purposes of dissemination to indicate when the reporting party or contra-party is an ATS. Specifically, where a reporting party or contra-party is identified with a unique ATS MPID, or where an ATS is exempt from TRACE reporting pursuant to FINRA Rule 6732 and a member that is a party to the exempt transaction on the ATS enters the ATS's unique MPID pursuant to FINRA Rule 6730(c)(13),
The proposal will not necessitate that members change their TRACE trade reporting practices. As noted above, FINRA will use information already required to be reported to TRACE to identify transactions involving an ATS and append the ATS indicator for dissemination, as appropriate. Importantly, FINRA will not disclose any identifying information regarding the particular ATS involved in the transaction. All ATSs will be generically identified by FINRA using the same new contra-party type and the ATS indicator also will be generic. However, FINRA will not identify ATSs for transactions in “to be announced” or “TBA”
FINRA has filed the proposed rule change for immediate effectiveness. The implementation date of the proposed rule change will be July 18, 2016.
FINRA believes that the proposed rule change is consistent with the provisions of Section 15A(b)(6) of the Act,
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. FINRA will use information currently reported to TRACE for the new reporting and contra-party types as well as the ATS indicator; therefore, the proposed rule change does not require changes in trade reporting practices by members. The proposed rule also does not identify particular ATSs—all ATSs will be identified generically using the same ATS reporting party and contra-party type and ATS indicator. Thus, there will be no impact relating to disclosure that may result directly or indirectly in an impact on competition.
In the case of TRACE-Eligible Securities that are traded TBA, due to the high concentration of TBA transactions on a single ATS, transactions in these types of TRACE-Eligible Securities will not be subject to the new reporting and contra-party type and ATS indicator, and will continue to be identified as a transaction by a “dealer,” even reported by or against an ATS. FINRA believes that excepting transactions in TBAs from the ATS contra-party type will ensure that the proposed rule change will not have a disparate impact on competition for members that engage in transactions in such securities.
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
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.
Pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (“Act”),
The Exchange proposes to comply with the requirements of the Amended and Restated Limited Liability Company Agreement of BOX Holdings, and to permit certain ownership changes pursuant thereto. The text of the proposed rule change is available from the principal office of the Exchange, at the Commission's Public Reference Room and also on the Exchange's Internet 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 these statements may be examined at the places specified in Item IV below. The self-regulatory organization has prepared summaries, set forth in Sections A, B, and C below, of the most significant aspects of such statements.
BOX Holdings is a limited liability company, organized under the laws of the State of Delaware on August 26, 2010. BOX Holdings is the sole owner of BOX Market LLC, a facility of the Exchange (“BOX Market”). IB Exchange Corp (“IB”) became a Member of Holdings on May 10, 2012 with an ownership percentage of 20.1%, comprised of 2,125 Class A Units and 265 Class B Units. The purpose of this filing is to provide notice that IB's economic interest in BOX Holdings will surpass a 5% aggregate ownership threshold. IB's voting power with respect to BOX Holdings remains unchanged and is limited to 20%.
In January 2015, BOX Holdings launched a program available to all Participants (the “VPR Program”) pursuant to which Participants on BOX Market that subscribe to the VPR Program (“Subscribers”) receive additional equity units of BOX Holdings (“Class C Units”) by providing order flow to BOX Market.
Section 7.4(f) of the Holdings LLC Agreement provides that a rule filing pursuant to Section 19 of the Exchange Act is required with respect to certain transactions that result in the acquisition and holding by a person of an aggregate ownership interest in BOX Holdings which meets or crosses the threshold level of 20% or any successive 5% level.
The change in IB's ownership percentage will not alter the voting power of IB in BOX Holdings. Pursuant to Section 7.4(h) of the Holdings LLC Agreement,
Additionally, the effectiveness of this rule filing will not affect the ownership or control of the Exchange, including its capitalization, board of directors, voting or control over BOX Market. All ownership limits relating to the Exchange will continue to be strictly respected.
The Exchange believes that the proposal is consistent with the requirements of Section 6(b) of the Act,
The Exchange does not believe that the proposed rule change will impose any burden on competition not necessary or appropriate in furtherance of the purposes of the Act.
The Exchange has neither solicited nor received comments on the proposed rule change.
Because the 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 if consistent with the protection of investors and the public interest, the proposed rule change has become effective pursuant to Section 19(b)(3)(A) of the Act
A proposed rule change filed under Rule 19b-4(f)(6)
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 Secretary, Securities and Exchange Commission, 100 F Street NE., Washington, DC 20549-1090.
You should submit only information that you wish to make available publicly. All submissions should refer to File Number SR-BOX-2016-12, and should be submitted on or before April 14,
For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.
On January 27, 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”)
Section 19(b)(2) of the Act
The Commission finds it appropriate to designate a longer period within which to take action on the proposed rule change so that it has sufficient time 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.
The Social Security Administration (SSA) publishes a list of information collection packages requiring clearance by the Office of Management and Budget (OMB) in compliance with Public Law 104-13, the Paperwork Reduction Act of 1995, effective October 1, 1995. This notice includes revisions, and an extension, of OMB-approved information collections.
SSA is soliciting comments on the accuracy of the agency's burden estimate; the need for the information; its practical utility; ways to enhance its quality, utility, and clarity; and ways to minimize burden on respondents, including the use of automated collection techniques or other forms of information technology. Mail, email, or fax your comments and recommendations on the information collection(s) to the OMB Desk Officer and SSA Reports Clearance Officer at the following addresses or fax numbers.
Or you may submit your comments online through
I. The information collections below are pending at SSA. SSA will submit them to OMB within 60 days from the date of this notice. To be sure we consider your comments, we must receive them no later than May 23, 2016. Individuals can obtain copies of the collection instruments by writing to the above email address.
1. Representative Payee Evaluation Report—20 CFR 404.2065 & 416.665—0960-0069. Sections 205(j) and 1631(a)(2) of the Social Security Act (Act) state SSA may appoint a representative payee to receive Title II benefits or Title XVI payments on behalf of individuals unable to manage or direct the management of those funds themselves. SSA requires appointed representative payees to report once each year on how they used or conserved those funds. When a representative payee fails to adequately report to SSA as required, SSA conducts a face-to-face interview with the payee and completes Form SSA-624, Representative Payee Evaluation Report, to determine the continued suitability of the representative payee to serve as a payee. The respondents are individuals or organizations serving as representative payees for individuals receiving Title II benefits or Title XVI payments and who fail to comply with SSA's statutory annual reporting requirement.
2. Beneficiary Recontact Form—20 CFR 404.703, 404.705—0960-0502. SSA investigates recipients of disability payments to determine their continuing eligibility for payments. Research indicates recipients may fail to report circumstances that affect their eligibility. Two such cases are: (1) When parents receiving disability benefits for their child marry; and (2) the removal of an entitled child from parents' care. SSA uses Form SSA-1588-OCR-SM to ask mothers or fathers about both their marital status and children under their care, to detect overpayments and avoid continuing payment to those are no longer entitled. Respondents are recipients of mothers' or fathers' Social Security benefits.
3. Technical Updates to Applicability of the Supplemental Security Income (SSI) Reduced Benefit Rate for Individuals Residing in Medical Treatment Facilities—20 CFR 416.708(k)—0960-0758. Section 1611(e)(1)(A) of the Act states residents of public institutions are ineligible for Supplemental Security Income (SSI). However, Sections 1611(e)(1)(B) and (G) list certain exceptions to this provision making it necessary for SSA to collect information about SSI recipients who enter or leave a medical treatment facility or other public or private institution. SSA's regulation 20 CFR 416.708(k) establishes the reporting guidelines that implement this legislative requirement. SSA collects the information to determine eligibility for SSI and the payment amount. The respondents are SSI recipients who enter or leave an institution.
4. Waiver of Supplemental Security Income Payment Continuation—20 CFR 416.1400-416.1422—0960-0783. SSI recipients who wish to discontinue their SSI payments while awaiting a determination on their appeal complete Form SSA-263-U2, Waiver of Supplemental Security Income Payment Continuation, to inform SSA of this decision. SSA collects the information to determine whether the SSI recipient meets the provisions of the Act regarding waiver of payment continuation and as proof respondents no longer want their payments to continue. Respondents are recipients of SSI payments who wish to discontinue receipt of payment while awaiting a determination on their appeal.
II. SSA submitted the information collections below to OMB for clearance. Your comments regarding the information collections would be most useful if OMB and SSA receive them 30 days from the date of this publication. To be sure we consider your comments, we must receive them no later than April 25, 2016. Individuals can obtain copies of the OMB clearance packages by writing to
1. Supplemental Statement Regarding Farming Activities of Person Living Outside the U.S.A.—0960-0103. When a beneficiary or claimant reports farm work from outside the United States, SSA documents this work on Form
2. Employer Verification of Earnings After Death—20 CFR 404.821 and 404.822—0960-0472. When SSA records show a wage earner is deceased and we receive wage reports from an employer for the wage earner for a year subsequent to the year of death, SSA mails the employer Form SSA-L4112 (Employer Verification of Earnings After Death). SSA uses the information Form SSA-L4112 provides to verify wage information previously received from the employer is correct for the employee and the year in question. The respondents are employers who report wages for employees who have died.
3. Certificate of Incapacity—5 CFR 890.302(d)—0960-0739. Rules governing the Federal Employee Health Benefits (FEHB) plan require a physician to verify the disability of Federal employees' children ages 26 and over for these children to retain health benefits under their employed parents' plans. The physician must verify the adult child's disability: (1) Pre-dates the child's 26th birthday; (2) is very serious; and (3) will continue for at least one year. Physicians use Form SSA-604, the Certificate of Incapacity, to document and certify this information, and SSA uses the information provided to determine the eligibility for these children, ages 26 and over, for coverage under a parent's FEHB plan. The respondents are physicians of SSA employees' children ages 26 or over who are seeking to retain health benefits under their parent's FEHB coverage.
Social Security Administration.
Notice of Social Security Ruling; correction.
The Social Security Administration published a document in the
Acting under the authority of and in accordance with section 1(b) of Executive Order 13224 of September 23, 2001, as amended by Executive Order 13268 of July 2, 2002, and Executive Order 13284 of January 23, 2003, I hereby determine that the individual known as Santoso, also known as Abu Wardah as-Syarqi, also known as Abu Warda, also known as Abu Yahra, committed, or poses a significant risk of
Consistent with the determination in section 10 of Executive Order 13224 that “prior notice to persons determined to be subject to the Order who might have a constitutional presence in the United States would render ineffectual the blocking and other measures authorized in the Order because of the ability to transfer funds instantaneously,” I determine that no prior notice needs to be provided to any person subject to this determination who might have a constitutional presence in the United States, because to do so would render ineffectual the measures authorized in the Order.
This notice shall be published in the
Department of State.
Notice of availability, solicitation of comments.
The U.S. Department of State (Department) announces availability of the “
The Department invites the public, governmental agencies, tribal governments, and all other interested parties to provide comments on the Draft SEA and Draft FONSI during the 30-day public comment period. The public comment period starts on March 24, 2016, with the publication of this
All comments received during the review period may be made public, no matter how initially submitted. Comments are not private and will not be edited to remove identifying or contact information. Commenters are cautioned against including any information that they would not want publicly disclosed. Any party soliciting or aggregating comments from other persons is further requested to direct those persons not to include any identifying or contact information, or information they would not want publicly disclosed, in their comments.
Comments on the Draft SEA and Draft FONSI may be submitted at
Project details for the Dos Laredos Pipeline and the Presidential Permit Application, as well as information on the Presidential Permit process are available on the following Web site:
The Department evaluates Presidential permit applications under Executive Order (E.O.) 13337 and E.O. 14432. E.O. 13337 delegates to the Secretary of State the President's authority to receive applications for permits for the construction, connection, operation, or maintenance of facilities for the exportation or importation of petroleum, petroleum products, coal, or other fuels (except for natural gas), at the borders of the United States, and to issue or deny such Presidential Permits upon a national interest determination.
NuStar applied for a Presidential Permit on December 4, 2013 to amend the 2003 Presidential Permit issued to Valero Logistics Operations, L.P. to construct, connect, operate, and maintain transboundary pipeline facilities between the United States and Mexico approximately six miles northwest of downtown Laredo, Texas at a location on the Rio Grande River knows as “La Bota.” NuStar requests a new Presidential Permit that: (1) Reflects NuStar's name change from Valero Logistics Operations, L.P. to NuStar Logistics, L.P., as the owner and operator of the Dos Laredos Pipeline crossing the international boundary; and (2) permits the transportation in either direction across the international border of a broader range of products. The 2003 Presidential Permit only allows shipment of liquefied petroleum gas (LPG). NuStar is now also seeking to transport other specifically defined petroleum products, including diesel.
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
February 1-29, 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(e) and (f) for the time period specified above:
1. Church & Dwight Co., Inc., Davies Facility, ABR-20090301.1, Jackson Township, York County, Pa.; Consumptive Use of Up to 0.9999 mgd; Approval Date: February 23, 2016.
1. EQT Production Company, Pad ID: Gobbler, ABR-201107039.R1, Huston Township, Clearfield County, Pa.; Consumptive Use of Up to 3.0000 mgd; Approval Date: February 1, 2016.
2. Anadarko E&P Onshore LLC, Pad ID: COP Tr 728 D, ABR-201104001.R1, Cummings Township, Lycoming County, Pa.; Consumptive Use of Up to 4.0000 mgd; Approval Date: February 8, 2016.
3. Anadarko E&P Onshore LLC, Pad ID: COP Tr 728 C, ABR-201104004.R1, Watson Township, Lycoming County, Pa.; Consumptive Use of Up to 4.0000 mgd; Approval Date: February 8, 2016.
4. Range Resources—Appalachia, LLC, Pad ID: Red Bend Hunting & Fishing Club Unit #3H-#5H Drilling Pad, ABR-201011067.R1, Cogan House Township, Lycoming County, Pa.; Consumptive Use of Up to 5.0000 mgd; Approval Date: February 8, 2016.
5. Range Resources—Appalachia, LLC, Pad ID: Ogontz Fishing Club #18H-#23H Drilling Pad, ABR-201011073.R1, Cummings Township, Lycoming County, Pa.; Consumptive Use of Up to 5.0000 mgd; Approval Date: February 8, 2016.
6. Range Resources—Appalachia, LLC, Pad ID: Paulhamus, Frederick Unit #5H & #6H Drilling Pad, ABR-201011074.R1, Mifflin Township, Lycoming County, Pa.; Consumptive Use of Up to 5.0000 mgd; Approval Date: February 8, 2016.
7. Range Resources—Appalachia, LLC, Pad ID: Ogontz Fishing Club #24H-#29H Drilling Pad, ABR-201011077.R1, Cummings Township, Lycoming County, Pa.; Consumptive Use of Up to 5.0000 mgd; Approval Date: February 8, 2016.
8. Range Resources—Appalachia, LLC, Pad ID: Fuller, Eugene Unit #1H-#3H Drilling Pad, ABR-201012004.R1, Mifflin Township, Lycoming County, Pa.; Consumptive Use of Up to 5.0000 mgd; Approval Date: February 8, 2016.
9. Range Resources—Appalachia, LLC, Pad ID: Ogontz Fishing Club #30H-#35H, ABR-201012043.R1, Cummings Township, Lycoming County, Pa.; Consumptive Use of Up to 5.0000 mgd; Approval Date: February 8, 2016.
10. Range Resources—Appalachia, LLC, Pad ID: Winner Unit #2H-#5H Drilling Pad, ABR-201012050.R1, Gallagher Township, Clinton County, Pa.; Consumptive Use of Up to 5.0000 mgd; Approval Date: February 8, 2016.
11. Range Resources—Appalachia, LLC, Pad ID: Goodwill Hunting Club Unit #4H-#9H Drilling Pad, ABR-201011054.R1, Lewis Township, Lycoming County, Pa.; Consumptive Use of Up to 5.0000 mgd; Approval Date: February 8, 2016.
12. SWEPI LP, Pad ID: Knowlton 303, ABR-201101007.R1, Charleston Township, Tioga County, Pa.; Consumptive Use of Up to 4.0000 mgd; Approval Date: February 8, 2016.
13. SWEPI LP, Pad ID: Stratton 885, ABR-201101008.R1, Farmington Township, Tioga County, Pa.; Consumptive Use of Up to 4.0000 mgd; Approval Date: February 8, 2016.
14. SWEPI LP, Pad ID: Bielski 628, ABR-201101009.R1, Richmond Township, Tioga County, Pa.; Consumptive Use of Up to 4.0000 mgd; Approval Date: February 8, 2016.
15. SWN Production Company, LLC, Pad ID: TI-24 Long Run Timber B Pad, ABR-201602001, Morris Township, Tioga County, Pa.; Consumptive Use of Up to 4.9990 mgd; Approval Date: February 8, 2016.
16. SWEPI LP, Pad ID: Baker 1105, ABR-201101011.R1, Deerfield Township, Tioga County, Pa.; Consumptive Use of Up to 4.0000 mgd; Approval Date: February 9, 2016.
17. Chesapeake Appalachia, LLC, Pad ID: J & J, ABR-201106015.R1, Smithfield Township, Bradford County, Pa.; Consumptive Use of Up to 7.5000 mgd; Approval Date: February 10, 2016.
18. Chesapeake Appalachia, LLC, Pad ID: Nichols, ABR-201106024.R1, Smithfield Township, Bradford County, Pa.; Consumptive Use of Up to 7.5000 mgd; Approval Date: February 10, 2016.
19. Pennsylvania General Energy Company, LLC, Pad ID: COP Tract 293 Pad F, ABR-201105001.R1, Cummings Township, Lycoming County, Pa.; Consumptive Use of Up to 3.0000 mgd; Approval Date: February 10, 2016.
20. Seneca Resources Corporation, Pad ID: DCNR 595 PAD C, ABR-201103047.R1, Bloss Township, Tioga County, Pa.; Consumptive Use of Up to 4.0000 mgd; Approval Date: February 10, 2016.
21. SWEPI LP, Pad ID: Violet Bieser Revocable Living Trust 833, ABR-201101010.R1, Chatham Township, Tioga County, Pa.; Consumptive Use of Up to 4.0000 mgd; Approval Date: February 10, 2016.
22. Talisman Energy USA Inc., Pad ID: 05 081 Uhouse D, ABR-201102008.R1, Orwell Township, Bradford County, Pa.; Consumptive Use of Up to 6.0000 mgd; Approval Date: February 10, 2016.
23. Chesapeake Appalachia, LLC, Pad ID: Oilcan, ABR-201107037.R1, Overton Township, Bradford County, Pa.; Consumptive Use of Up to 7.5000 mgd; Approval Date: February 12, 2016.
24. Chesapeake Appalachia, LLC, Pad ID: Burns, ABR-201107038.R1, Ulster Township, Bradford County, Pa.; Consumptive Use of Up to 7.5000 mgd; Approval Date: February 12, 2016.
25. Chesapeake Appalachia, LLC, Pad ID: Paul, ABR-201107048.R1, Ulster Township, Bradford County, Pa.; Consumptive Use of Up to 7.5000 mgd; Approval Date: February 12, 2016.
26. SWEPI LP, Pad ID: Kalke 819, ABR-201009042.R1, Chatham Township, Tioga County, Pa.; Consumptive Use of Up to 4.0000 mgd; Approval Date: February 17, 2016.
27. WPX Energy Appalachia LLC, Pad ID: Resource Recovery Well Pad 1, ABR-201010059.R1, Snow Shoe Township, Centre County, Pa.; Consumptive Use of Up to 4.0000 mgd; Approval Date: February 17, 2016.
28. WPX Energy Appalachia LLC, Pad ID: Resource Recovery Well Pad 2, ABR-201011012.R1, Snow Shoe Township, Centre County, Pa.; Consumptive Use of Up to 4.0000 mgd; Approval Date: February 17, 2016.
29. WPX Energy Appalachia LLC, Pad ID: Resource Recovery Well Pad 3, ABR-201010060.R1, Snow Shoe Township, Centre County, Pa.; Consumptive Use of Up to 4.0000 mgd; Approval Date: February 17, 2016.
30. Chesapeake Appalachia, LLC, Pad ID: Sophia, ABR-201106005.R1, Smithfield and Springfield Townships, Bradford County, Pa.; Consumptive Use of Up to 7.5000 mgd; Approval Date: February 22, 2016.
31. Chesapeake Appalachia, LLC, Pad ID: GB, ABR-201106007.R1, Rush Township, Susquehanna County, Pa.; Consumptive Use of Up to 7.5000 mgd; Approval Date: February 22, 2016.
32. Chesapeake Appalachia, LLC, Pad ID: Neal, ABR-201106010.R1, Leroy Township, Bradford County, Pa.; Consumptive Use of Up to 7.5000 mgd; Approval Date: February 22, 2016.
33. Chesapeake Appalachia, LLC, Pad ID: Mel, ABR-201106012.R1, Franklin Township, Bradford County, Pa.; Consumptive Use of Up to 7.5000 mgd; Approval Date: February 22, 2016.
34. Chesapeake Appalachia, LLC, Pad ID: Knickerbocker, ABR-201106013.R1, Franklin Township, Bradford County, Pa.; Consumptive Use of Up to 7.5000 mgd; Approval Date: February 22, 2016.
35. Chesapeake Appalachia, LLC, Pad ID: IH, ABR-201106014.R1, Stevens Township, Bradford County, Pa.; Consumptive Use of Up to 7.5000 mgd; Approval Date: February 22, 2016.
36. Chesapeake Appalachia, LLC, Pad ID: Wootten, ABR-201106016.R1, Mehoopany Township, Wyoming County, Pa.; Consumptive Use of Up to 7.5000 mgd; Approval Date: February 22, 2016.
37. Chesapeake Appalachia, LLC, Pad ID: Lambs Farm, ABR-201106023.R1, Smithfield Township, Bradford County, Pa.; Consumptive Use of Up to 7.5000 mgd; Approval Date: February 22, 2016.
38. SWEPI LP, Pad ID: Parent 749, ABR-201012054.R1, Canton Township, Bradford County, Pa.; Consumptive Use of Up to 4.0000 mgd; Approval Date: February 22, 2016.
39. Talisman Energy USA Inc., Pad ID: 05 178 Peck Hill Farm, ABR-201101019.R1, Windham Township, Bradford County, Pa.; Consumptive Use of Up to 6.0000 mgd; Approval Date: February 22, 2016.
40. XTO Energy Incorporated, Pad ID: Buck Unit A, ABR-201107041.R1, Penn Township, Lycoming County, Pa.; Consumptive Use of Up to 4.0000 mgd; Approval Date: February 22, 2016.
41. XTO Energy Incorporated, Pad ID: TLT Unit A, ABR-201107017.R1, Jordan Township, Lycoming County, Pa.; Consumptive Use of Up to 4.0000 mgd; Approval Date: February 22, 2016.
42. Chesapeake Appalachia, LLC, Pad ID: Quail, ABR-201106018.R1, Fox Township, Sullivan County, Pa.; Consumptive Use of Up to 7.5000 mgd; Approval Date: February 23, 2016.
43. Warren Marcellus LLC, Pad ID: Johnston 1 Pad, ABR-201106009.R1, Meshoppen Township, Wyoming County, Pa.; Consumptive Use of Up to 5.0000 mgd; Approval Date: February 26, 2016.
44. SWN Production Company, LLC, Pad ID: Longacre Pad, ABR-201101029.R1, Jackson Township, Susquehanna County, Pa.; Consumptive Use of Up to 4.9900 mgd; Approval Date: February 29, 2016.
45. SWN Production Company, LLC, Pad ID: Gerfin Pad, ABR-201102022.R1, Lenox Township, Susquehanna County, Pa.; Consumptive Use of Up to 4.9900 mgd; Approval Date: February 29, 2016.
46. SWN Production Company, LLC, Pad ID: Herman Well Pad, ABR-201102035.R1, Franklin Township, Susquehanna County, Pa.; Consumptive Use of Up to 4.0000 mgd; Approval Date: February 29, 2016.
47. SWN Production Company, LLC, Pad ID: Demento Pad, ABR-201102036.R1, Stevens Township, Bradford County, Pa.; Consumptive Use of Up to 4.9900 mgd; Approval Date: February 29, 2016.
48. SWN Production Company, LLC, Pad ID: Ransom Pad, ABR-201103007.R1, Lenox Township, Susquehanna County, Pa.; Consumptive Use of Up to 4.9900 mgd; Approval Date: February 29, 2016.
Pub. L. 91-575, 84 Stat. 1509
Federal Aviation Administration (FAA), U.S. Department of Transportation (DOT).
Notice of Twenty-Second RTCA Special Committee 225 meeting.
The FAA is issuing this notice to advise the public of the Twenty-Second RTCA Special Committee 225 meeting.
The meeting will be held April 12-14, 2016 from 9:00 a.m.-5:00 p.m.
The meeting will be held at RTCA, Inc., 1150 18th Street NW., Suite 910, Washington, DC 20036, Tel: (202) 330-0662.
The RTCA Secretariat, 1150 18th Street NW., Suite 910, Washington, DC 20036, or by telephone at (202) 833-9339, fax at (202) 833-9434, or Web site at
Pursuant to section 10(a)(2) of the Federal Advisory Committee Act (Pub. L. 92-463, 5 U.S.C., App.), notice is hereby given for a meeting of RTCA Special Committee 225. The agenda will include the following:
Attendance is open to the interested public but limited to space availability. With the approval of the chairman, members of the public may present oral statements at the meeting. Plenary information will be provided upon request. Persons who wish to present statements or obtain information should contact the person listed in the
Federal Aviation Administration (FAA), DOT.
Notice of Commercial Space Transportation Advisory Committee open meeting.
Pursuant to Section 10(a)(2) of the Federal Advisory Committee Act (Pub. L. 92-463, 5 U.S.C. App. 2), notice is hereby given of a meeting of the Commercial Space Transportation Advisory Committee (COMSTAC). The meeting will take place on Wednesday, April 27, 2016, from 8:00 a.m. to 5:00 p.m., and Thursday, April 28, 2016 from 8:00 a.m. to 5:00 p.m. at the National Transportation Safety Board Conference Center, 429 L'Enfant Plaza SW., Washington, DC 20594. This will be the 63rd meeting of the COMSTAC.
The proposed schedule for the COMSTAC working group meetings on April 27 is below:
The full Committee will meet on April 28, from 8:00 a.m. to 5:00 p.m. The proposed agenda for that meeting features speakers relevant to the commercial space transportation industry; and reports and recommendations from the working groups.
Interested members of the public may submit relevant written statements for the COMSTAC members to consider under the advisory process. Statements may concern the issues and agenda items mentioned above and/or additional issues that may be relevant for the U.S. commercial space transportation industry. Interested parties wishing to submit written statements should contact Michael Beavin, COMSTAC Executive Director, (the Contact Person listed below) and Designated Federal Officer in writing
An agenda will be posted on the FAA Web site at
Individuals who plan to attend and need special assistance, such as sign language interpretation or other reasonable accommodations, should inform the Contact Persons listed below in advance of the meeting.
Michael Beavin, telephone (202) 267-9051; email
Complete information regarding COMSTAC is available on the FAA Web site at:
Federal Aviation Administration (FAA), DOT.
Notice of availability of limited waiver of the slot usage requirement.
This action announces a limited waiver of the requirement to use Operating Authorizations (slots) at John F. Kennedy International Airport, LaGuardia Airport, and Newark Liberty International Airport due to significant impacts of winter weather in January 2016. This policy is effective from January 22, 2016, through January 26, 2016. Carriers who seek to obtain a waiver must submit information on flight cancellations and the slots for which relief is requested.
For questions concerning this Notice contact: Susan Pfingstler, System Operations Services, Air Traffic Organization, Federal Aviation Administration, 600 Independence Avenue SW., Washington, DC 20591; telephone (202) 267-6462; email
Under the FAA's Orders limiting operations at John F. Kennedy International Airport (JFK), New York LaGuardia Airport (LGA), and Newark Liberty International Airport (EWR), slots must be used at least 80 percent of the time.
Recent weather on the East Coast severely disrupted aviation and other modes of transportation. A winter storm from January 22 to January 24, 2016, impacting the mid-Atlantic and Northeast regions, resulted in record snowfall levels in several locations, including the New York City area. The storm impacted a widespread area in the eastern U.S., including airports with regularly scheduled flights to or from the New York City area. The storm resulted in reduced airport capacity due to snow accumulation on runways and taxiways. Further, this storm covered a wide geographical area and impacted capacity and operations at outlying airports with service to EWR, JFK, and LGA.
Carriers responded to the forecasted storm by proactively cancelling flights to avoid stranding passengers, to minimize the number of aircraft on the ground at airports affected by the storm, and to position aircraft and crews to implement network recovery plans and resume normal operations as soon as possible. Cumulative effects from the storm impacted operations for some carriers until January 26, 2016.
FAA operational data (OPSNET) on the number of actual air carrier and air taxi operations at EWR, JFK, and LGA indicate flight cancellations began on January 22 and the impacts were most significant on Saturday, January 23 and Sunday, January 24. On January 22, about 20 percent of EWR and LGA flights were cancelled compared to other Fridays in January while about ten percent of JFK flights were cancelled. On January 23, EWR had 18 air carrier and air taxi operations, JFK had 58 and LGA had three. On January 24, EWR had 67 air carrier and air taxi operations, JFK had 447, and LGA had 107. On January 25 and 26, EWR had less than 60 percent of typical January traffic levels while snow removal efforts continued. All three airports were at typical operation levels by Wednesday, January 27. Consequently, some carriers have advised the FAA of plans to request a waiver of the minimum slot usage requirements due to the number of flight cancellations and the extent and duration of disruptions.
The FAA has determined that the facts described above meet the criteria for a limited waiver of the minimum slot usage requirement. The winter storm caused cumulative effects with operational disruptions that impacted carriers at the New York City area slot controlled airports lasting five consecutive days. The FAA believes the impact of this storm on air travel constitutes unusual and unpredictable circumstances.
The FAA has determined that adopting a policy setting forth conditions for a waiver of the usage policy during the January 22-26, 2016, period is warranted in these circumstances. However, this waiver will apply only to flights that were scheduled to operate on one or more of the impacted days. A carrier seeking to obtain the relief consistent with this Notice is required to submit detailed information regarding scheduled flights, cancellations, and the associated slots at each airport for each day relief is requested, as discussed further in this Notice.
As the FAA has stated previously, waivers to the usage requirements will not be granted routinely. Slot rules allow for up to 20 percent nonuse, including planned and unplanned cancellations. This is expected to accommodate weather and other cancellations or planned non-use of
Consistent with this Notice, the FAA will treat as used, any slot allocated to a carrier on January 22 through 26, 2016, for which there was a planned flight that was subsequently cancelled. A waiver will not apply to slots without a corresponding scheduled flight as the carrier should have already factored nonuse on those days into their usage plans. In order to obtain a waiver under this policy, a carrier must provide a list of the cancelled flights at each slot-controlled airport, including the reported slot identification number, operating carrier, flight number, date, scheduled time of operation, scheduled origin or destination airport, and the diversion airport, if applicable.
Carriers must submit the detailed slot and flight information to the FAA Slot Administration Office by email to
Federal Railroad Administration (FRA), Department of Transportation.
Notice and request for comments.
In accordance with the Paperwork Reduction Act of 1995 and its implementing regulations, the Federal Railroad Administration (FRA) hereby announces that it is seeking an extension of the following currently approved information collection activities. On February 19, 2016, FRA published in the
Comments must be received no later than May 23, 2016.
Submit written comments on any or all of the following proposed activities by mail to either: Mr. Robert Brogan, Information Collection Clearance Officer, Office of Railroad Safety, Regulatory Safety Analysis Division, RRS-21, Federal Railroad Administration, 1200 New Jersey Ave. SE., Mail Stop 17, Washington, DC 20590, or Ms. Kimberly Toone, Information Collection Clearance Officer, Office of Information Technology, RAD-20, Federal Railroad Administration, 1200 New Jersey Ave. SE., Mail Stop 35, Washington, DC 20590. Commenters requesting FRA to acknowledge receipt of their respective comments must include a self-addressed stamped postcard stating, “Comments on OMB control number 2130-0586.” Alternatively, comments may be transmitted via facsimile to (202) 493-6216 or (202) 493-6497, or via email to Mr. Brogan at
Mr. Robert Brogan, Information Collection Clearance Officer, Regulatory Safety Analysis Division, RRS-21, Federal Railroad Administration, 1200 New Jersey Ave. SE., Mail Stop 25, Washington, DC 20590 (telephone: (202) 493-6292) or Ms. Kimberly Toone, Information Collection Clearance Officer, Office of Information Technology, RAD-20, Federal Railroad Administration, 1200 New Jersey Ave. SE., Mail Stop 35, Washington, DC 20590 (telephone: (202) 493-6132). (These telephone numbers are not toll-free.)
The Paperwork Reduction Act of 1995 (PRA), Public Law 104-13, sec. 2, 109 Stat. 163 (1995) (codified as revised at 44 U.S.C. 3501-3520), and its implementing regulations, 5 CFR part 1320, require Federal agencies to provide notice to the public for comment on information collection activities before seeking approval for reinstatement or renewal by OMB. 44 U.S.C. 3506(c)(2)(A); 5 CFR 1320.8(d)(1), 1320.10(e)(1), 1320.12(a). Specifically, FRA invites interested respondents to comment on the following summary of proposed information collection activities regarding (i) whether the information collection activities are necessary for FRA to properly execute its functions, including whether the activities will have practical utility; (ii) the accuracy of FRA's estimates of the burden of the information collection activities, including the validity of the methodology and assumptions used to determine the estimates; (iii) ways for FRA to enhance the quality, utility, and clarity of the information being collected; and (iv) ways for FRA to minimize the burden of information collection activities on the public by automated, electronic, mechanical, or other technological collection techniques or other forms of information technology (
Below is a brief summary of the currently approved information collection request that FRA will submit for clearance by OMB as required under the PRA:
FRA has revised its currently approved information collection to account for the additional burden that will be incurred by States and political subdivisions of States requesting a public version of a bridge inspection report generated by a railroad for a bridge located within their respective jurisdiction. FRA developed a new form titled “Bridge Inspection Report Public Version Request Form” (see below) to facilitate such requests by States and their political subdivisions. Additionally, FRA has revised its currently approved information collection to account for the additional burden that will be incurred by railroads to provide the public version of a bridge inspection report upon agency request to FRA.
As background, on July 15, 2010, FRA published its Bridge Safety Standards Final Rule.
The information collected is used by FRA to ensure that railroads/track owners meet Federal standards for bridge safety and comply with all the requirements of this regulation. In particular, the collection of information is used by FRA to confirm that railroads/track owners adopt and implement bridge management programs to properly inspect, maintain, modify, and repair all bridges that carry trains over them for which they are responsible. Railroads/track owners must conduct annual inspections of railroad bridges. Further, railroads/track owners must incorporate provisions for internal audit into their bridge management program and must conduct internal audits of bridge inspection reports. The internal audit information is used by railroads/track owners to verify that the inspection provisions of the bridge management program are being followed and to continually evaluate the effectiveness of their bridge management program and bridge inspection activities. FRA uses this information to ensure that railroads/track owners implement a safe and effective bridge management program and bridge inspection regime.
Pursuant to 44 U.S.C. 3507(a) and 5 CFR 1320.5(b), 1320.8(b)(3)(vi), FRA informs all interested parties that it may not conduct or sponsor, and a respondent is not required to respond to, a collection of information unless it displays a currently valid OMB control number.
44 U.S.C. 3501-3520.
The Fixing America's Surface Transportation Act (FAST Act) (Pub. L. 114-94) (Dec. 4, 2015), Section 11405, “Bridge Inspection Reports,” provides a means for a State or a political subdivision of a State to obtain a public version of a bridge inspection report generated by a railroad for a bridge located within their respective jurisdiction. While the FAST Act specifies that requests for such reports are to be filed with the Secretary of Transportation, the responsibility for fulfilling these requests is delegated to the Federal Railroad Administration (FRA).
A. Section 11405 of the FAST Act permits a State or a political subdivision of a State to file a request for a public version of a bridge inspection report for a bridge located in that State or political subdivision's jurisdiction. Thus, any duly elected or appointed official of a State or political subdivision of a State, acting in his or her official capacity, may file a request. This includes officials of a State, city, county, town, municipality or other political subdivision of a State.
A. Go to FRA's Web site (
• Your name and title;
• Official address;
• Email address;
• Telephone number;
• Identification of the individual bridge(s) for which you are requesting a public version of a bridge inspection report(s). Bridge identification information could include a street name, a nearby intersecting street, a waterway or a recognizable land feature where appropriate;
• Name of the railroad that owns and/or operates over the requested bridge(s) (if known); and
• An indication that the request is being made in your official capacity as a representative of a State or a political subdivision of a State. The bridge(s) for which the inspection report(s) is sought must be within the jurisdiction of the political subdivision of the State you represent.
A. You can file a request by going to FRA's Web site (
If you are unable to submit the form to FRA directly, please fill out the “
A. FRA will evaluate the request and, if found to be compliant with law, FRA will promptly request that the railroad responsible for the bridge provide a public version of the most recent inspection report(s) to FRA. Once FRA has received the report(s), FRA will review the report(s) to ensure that at least the minimum information required by law has been provided. Once determined to be satisfactory, the report(s) will be sent to the requester electronically by reply to the request unless the requester provides an alternate email address to send the report to.
A. The FAST Act requires the following information to be included in a public version of a bridge inspection report:
1. The date of the last inspection;
2. Length of bridge;
3. Location of bridge;
4. Type of bridge (superstructure);
5. Type of structure (substructure);
6. Features crossed by the bridge;
7. Railroad contact information; and
8. A general statement on the condition of the bridge.
A. FRA interprets the statute to require a railroad to provide a requested report containing at least the minimum specified information within a reasonable amount of time. FRA believes that a reasonable time for a railroad to provide a requested report is within 30 days of receipt of FRA's request.
A. FRA will handle these requests as expeditiously as possible and generally expects to respond to most requests by providing the requester with a public version of a bridge inspection report within 45 days of receipt of the request.
(
Section 417(d) of the Rail Safety Improvement Act of 2008 (49 U.S.C. 20103 note) is amended—(1) by striking “The Secretary” and inserting the following: “(1) IN GENERAL.—The Secretary”; and (2) by adding at the end the following: “(2) AVAILABILITY OF BRIDGE CONDITION.—
“(A) IN GENERAL.—A State or political subdivision of a State may file a request with the Secretary for a public version of a bridge inspection report generated under subsection (b)(5) for a bridge located in such State or political subdivision's jurisdiction.
“(B) PUBLIC VERSION OF REPORT.—If the Secretary determines that the request is reasonable, the Secretary shall require a railroad to submit a public version of the most recent bridge inspection report, such as a summary form, for a bridge subject to a request under subparagraph (A). The public version of a bridge inspection report shall include the date of last inspection, length of bridge, location of bridge, type of bridge, type of structure, feature crossed by bridge, and railroad contact information, along with a general statement on the condition of the bridge.
“(C) PROVISION OF REPORT.—The Secretary shall provide to a State or political subdivision of a State a public version of a bridge inspection report submitted under subparagraph (B).
“(D) TECHNICAL ASSISTANCE.—The Secretary, upon the reasonable request of State or political subdivision of a State, shall provide technical assistance to such State or political subdivision of a State to facilitate the understanding of a bridge inspection report.”
Pipeline and Hazardous Materials Safety Administration (PHMSA), Department of Transportation (DOT).
Notice and request for comments.
In accordance with the Paperwork Reduction Act of 1995, PHMSA invites comments on certain information collections pertaining to hazardous materials transportation for which PHMSA intends to request renewal from the Office of Management and Budget (OMB).
Interested persons are invited to submit comments on or before May 23, 2016.
You may submit comments identified by the docket number (PHMSA-2016-0027) by any of the following methods:
• Federal eRulemaking Portal: Go to
• Fax: 1-202-493-2251.
• Mail: Docket Operations, U.S. Department of Transportation, West Building, Ground Floor, Room W12-140, Routing Symbol M-30, 1200 New
• Hand Delivery: To Docket Operations, Room W12-140 on the ground floor of the West Building, 1200 New Jersey Avenue SE., Washington, DC 20590, between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays.
Requests for a copy of an information collection should be directed to Steven Andrews or T. Glenn Foster, Standards and Rulemaking Division (PHH-12), Pipeline and Hazardous Materials Safety Administration, 1200 New Jersey Avenue SE., East Building, 2nd Floor, Washington, DC 20590-0001, Telephone (202) 366-8553.
Steven Andrews or T. Glenn Foster, Standards and Rulemaking Division (PHH-12), Pipeline and Hazardous Materials Safety Administration, 1200 New Jersey Avenue SE., East Building, 2nd Floor, Washington, DC 20590-0001, Telephone (202) 366-8553.
Section 1320.8 (d), Title 5, Code of Federal Regulations requires PHMSA to provide interested members of the public and affected agencies an opportunity to comment on information collection and recordkeeping requests. This notice identifies information collection requests that PHMSA will be submitting to OMB for renewal and extension. These information collections are contained in 49 CFR 171.6 of the Hazardous Materials Regulations (HMR; 49 CFR parts 171 through 180). PHMSA has revised burden estimates, where appropriate, to reflect current reporting levels or adjustments based on changes in proposed or final rules published since the information collections were last approved. The following information is provided for each information collection: (1) Title of the information collection, including former title if a change is being made; (2) OMB control number; (3) summary of the information collection activity; (4) description of affected public; (5) estimate of total annual reporting and recordkeeping burden; and (6) frequency of collection. PHMSA will request a three-year term of approval for each information collection activity and, when approved by OMB, publish a notice of the approval in the
PHMSA requests comments on the following information collection:
Number of Respondents: 8,770.
Total Annual Responses: 86,100.
Total Annual Burden Hours: 66,390.
Frequency of collection: On occasion.
It should be noted that PHMSA recently completed a collection of information under the Hazardous Materials Automated Cargo Communications for Efficient and Safe Shipments (HM-ACCESS) pilot program. This program has concluded and the burden hours posted in this notice no longer reflect the collection of information related to the HM-ACCESS pilot program.
Number of Respondents: 260,000.
Total Annual Responses: 185,000,000.
Total Annual Burden Hours: 4,625,846.
Frequency of Collection: On occasion.
(1) Each meter prover must undergo and pass an external visual inspection annually to ensure that the meter provers used in the flow of liquid hazardous materials into bulk packagings are accurate and in conformance with the performance standards in the HMR.
(2) Each meter prover must undergo and pass a hydrostatic pressure test at least every five years to ensure that the meter provers used in the flow of liquid hazardous materials into bulk packagings are accurate and in conformance with the performance standards in the HMR.
(3) Each meter prover must successfully complete the test and inspection and must be marked in accordance with §§ 180.415(b) and 173.5a.
(4) Each owner must retain a record of the most recent visual inspection and pressure test until the meter prover is requalified.
Number of Respondents: 50.
Total Annual Responses: 250.
Total Annual Burden Hours: 175.
Frequency of collection: On occasion.
Office of the Secretary, DOT.
Notice and request for comments.
In compliance with the Paperwork Reduction Act of 1995, Public Law 104-13, the Department of Transportation (DOT) invites the general public, industry and other governmental parties to comment on Public Charters, 14 CFR part 380. The pre-existing information collection request was previously approved by the Office of Management and Budget (OMB).
Written comments should be submitted by May 23, 2016.
Ms. Reather Flemmings (202-366-1865) and Mr. Brett Kruger (202-366-8025), Office of the Secretary, Office of International Aviation, Special Authorities Division-X46, 1200 New Jersey Ave. SE., Washington, DC 20590.
You may submit comments [identified by DOT-DMS Docket No. DOT-OST-2016-0023] through one of the following methods:
•
•
•
As an additional matter, the Department's Office of Aviation Enforcement and Proceedings has the authority to pursue or not to pursue enforcement action against airlines or other sellers of air transportation with respect to air travel consumer
The frequency of response is dependent upon whether the operator is requesting a new program or amending an existing prospectus. Variations occur due to the respondents' criteria. On average four responses (forms 4532, 4533, 4534 and/or 4535) are required for filing new prospectuses and two of the responses (forms) are required for amendments. The separate hour burden estimate is as follows:
The Paperwork Reduction Act of 1995; 44 U.S.C. Chapter 35, as amended; and 49 CFR 1.48.
Office of the Secretary of Transportation, DOT.
Notice and request for comments.
The Department of Transportation (DOT) invites public comments about our intention to request the Office of Management and Budget (OMB) approval to renew an information collection. The collection involves information required in an application to request Special Priorities Assistance. The information to be collected is necessary to facilitate the supply of civil transportation resources to promote the national defense. A
Written comments should be submitted by April 25, 2016.
Your comments should be identified by Docket No. DOT-OST-2015-0271 and may be submitted through one of the following methods:
•
•
•
Deborah Hinz, 202-366-6945, Office of Intelligence, Security and Emergency Response, Office of the Secretary of Transportation, U.S. Department of Transportation, 1200 New Jersey Avenue SE., Washington, DC 20590.
The Paperwork Reduction Act of 1995; 44 U.S.C. Chapter 35, as amended; and 49 CFR 1:48.
Veterans Benefits Administration, Department of Veterans Affairs.
Notice.
The Veterans Benefits Administration (VBA), Department of Veterans Affairs (VA), is announcing an opportunity for public comment on the proposed collection of certain information by the agency. Under the Paperwork Reduction Act (PRA) of 1995, Federal agencies are required to publish notice in the
Written comments and recommendations on the proposed collection of information should be received on or before May 23, 2016.
Submit written comments on the collection of information through Federal Docket Management System (FDMS) at
Nancy J. Kessinger at (202) 632-8924 or FAX (202) 632-8925.
Under the PRA of 1995 (Pub. L. 104-13; 44 U.S.C. 3501-21), Federal agencies must obtain approval from the Office of Management and Budget (OMB) for each collection of information they conduct or sponsor. This request for comment is being made pursuant to Section 3506 (c)(2)(A) of the PRA.
With respect to the following collection of information, VBA invites comments on: (1) Whether the proposed collection of information is necessary for the proper performance of VBA's functions, including whether the information will have practical utility; (2) the accuracy of VBA's estimate of the burden of the proposed collection of information; (3) ways to enhance the quality, utility, and clarity of the information to be collected; and (4) ways to minimize the burden of the collection of information on respondents, including through the use of automated collection techniques or the use of other forms of information technology.
By direction of the Secretary.
Federal Communications Commission.
Notice of proposed rulemaking.
This document proposes taking the next step towards strengthening the nation's public alert and warning systems, the Emergency Alert System (EAS) and Wireless Emergency Alerts (WEA), as community-driven public safety tools capable of ensuring that the public is able to receive and properly respond to alerts issued by alerting authorities in emergency situations. This document seeks comment on proposed rule changes in four areas: Improving alerting organization at the state and local levels; building effective community-based public safety exercises; ensuring that alerting mechanisms are able to leverage advancements in technology, including IP-based technologies; and securing the EAS against accidental misuse and malicious intrusion. By this action, the Commission affords interested parties an opportunity to submit comments on these proposed rule changes. Through this action, the Commission hopes to empower state and local alert originators to participate more fully in WEA, and to enhance the utility of EAS and WEA as an alerting tool.
Comments are due on or before May 9, 2016 and reply comments are due on or before June 7, 2016. Written Paperwork Reduction Act (PRA) comments on the proposed information collection requirements contained herein must be submitted by the public, Office of Management and Budget (OMB), and other interested parties on or before May 23, 2016.
You may submit comments, identified by PS Docket No. 15-94 and PS Docket No. 15-91, by any of the following methods:
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For detailed instructions for submitting comments and additional information on the rulemaking process, see the
Lisa Fowlkes, Deputy Bureau Chief, Public Safety and Homeland Security Bureau, at (202) 418-7452, or by email at
This is a summary of the Commission's Notice of Proposed Rulemaking in PS Docket Nos. 15-94 and 15-91, FCC 16-5, released on January 29, 2015. The documents are available for download at
This document contains proposed information collection requirements. The Commission, as part of its continuing effort to reduce paperwork burdens, invites the general public and OMB to comment on the information collection requirements contained in this document, as required by the Paperwork Reduction Act of 1995, Public Law 104-13. Public and agency comments on the PRA proposed information collection requirements are due May 23, 2016. Comments should address: (a) Whether the proposed collection of information is necessary for the proper performance of the functions of the Commission, including whether the information shall have practical utility; (b) the accuracy of the Commission's burden estimates; (c) ways to enhance the quality, utility, and clarity of the information collected; (d) ways to minimize the burden of the collection of information on the respondents, including the use of automated collection techniques or other forms of information technology and (e) ways to further reduce the information collection burden on small business concerns with fewer than 25 employees. In addition, pursuant to the Small Business Paperwork Relief Act of 2002, Public Law 107-198,
To view or obtain a copy of this information collection request (ICR) submitted to OMB: (1) Go to this OMB/GSA Web page:
1. As required by the Regulatory Flexibility Act of 1980, as amended (RFA), the Commission has prepared this present Initial Regulatory Flexibility Analysis (IRFA) of the possible significant economic impact on a substantial number of small entities by the policies and rules proposed in this Notice of Proposed Rulemaking (NPRM). Written public comments are requested on this IRFA. Comments must be identified as responses to the IRFA and must be filed by the deadlines for comments on the NPRM provided in section III of the NPRM. The Commission will send a copy of the NPRM, including this IRFA, to the Chief Counsel for Advocacy of the Small Business Administration (SBA).
2. With this NPRM, the Commission takes another step towards strengthening the Emergency Alert System (EAS) and Wireless Emergency Alerts (WEA) as community-driven public safety tools by proposing revisions to the EAS and WEA rules to ensure the public is able to receive and properly respond to alerts issued by alerting authorities in emergency situations. The Commission's proposals fall into four categories, improving alerting organization at the state and local levels, building effective community-based public safety exercises, ensuring that alerting mechanisms are able to leverage advancements in technology (including IP-based technologies), and securing the EAS against accidental misuse and malicious intrusion. With respect to improving alerting organization at the state and local levels, the Commission proposes to adopt EAS designations that more accurately reflect the current roles and responsibilities of key EAS Participants; streamline and update the State EAS Plan filing process by requiring State Emergency Communications Committees (SECCs) to file their plans electronically in an online State EAS Plan filing system; and adopt a standard online template for State EAS Plan content to allow the SECCs to file plans that fully detail their strategy for delivering Presidential and other life-saving alerts in an evolving technological landscape. With respect to building effective community-based alerting exercise programs, the Commission proposes to expand the EAS testing regime to include “live” code tests as community public safety exercises and to allow the use of EAS header codes and emergency alerting Attention Signal in Public Service Announcements (PSAs) by entities aiming to raise public awareness of, and alert initiator proficiency with EAS. The Commission seeks comment on how to best ensure that community based exercises address the needs of individuals with limited English proficiency and individuals with disabilities. The Commission seeks comment on several issues that reflect the extent to which evolving technologies are changing the alerting landscape. Specifically, the Commission seeks comment on whether to retain the current forced tuning and selective override provisions in light of stakeholder feedback and advances in technology. Further, the Commission seeks comment on whether an EAS Participant cable or Internet Protocol Television (IPTV) provider should be required to deliver EAS alerts and tests over any channel, whether “programmed” or not, if it is controlled by the EAS Participant and viewable by the consumer. Finally, the Commission seeks comment on potential technological advancements to improve alert accessibility.
3. This NPRM represents another step towards achieving one of the Commission's highest priorities—“to ensure that all Americans have the capability to receive timely and accurate alerts, warnings and critical information regarding disasters and other emergencies.” This NPRM also is consistent with the Commission's obligation under Executive Order 13407 to “adopt rules to ensure that communications systems have the capacity to transmit alerts and warnings to the public as part of the public alert and warning system,” and the Commission's mandate under the Communications Act to promote the safety of life and property through the use of wire and radio communication. The Commission takes these steps as part of an overarching strategy to advance the nation's alerting capability, which includes both WEA and EAS, to keep pace with evolving technologies and to empower communities to initiate life-saving alerts.
4. Authority for the actions proposed in the NPRM may be found in 47 U.S.C. 151, 152, 154(i), 154(o), 301, 303(b), (g) and (r), 303(v), 307, 309, 335, 403, 544(g), 606, 613, 615 and 1302; Sections 602(a), (b), (c), (d), (f), 603, 604, and 606 of the Warning, Alert and Response Network (WARN) Act, Title VI of the Security and Accountability For Every Port Act of 2006, Public Law 109-347, 120 Stat. 1884 (2006); Twenty-First Century Communications and Video Accessibility Act of 2010, Public Law 111-260 and Public Law 111-265.
5. The RFA directs agencies to provide a description of, and, where feasible, an estimate of the number of small entities that may be affected by the proposed rules, if adopted. 5 U.S.C. 603(b)(3). The RFA generally defines the term “small entity” as having the same meaning as the terms “small business,” “small organization,” and “small governmental jurisdiction.” In addition, the term “small business” has the same meaning as the term “small business
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10. According to Commission staff review of the BIA Financial Network, Inc. Media Access Pro Television Database as of March 31, 2013, about 90 percent of an estimated 1,385 commercial television stations in the United States have revenues of $38.5 million or less. Based on this data and the associated size standard, the Commission concludes that the majority of such establishments are small. The Commission has estimated the number of licensed noncommercial educational (“NCE”) stations to be 396. The Commission does not have revenue estimates for NCE stations. These stations rely primarily on grants and contributions for their operations, so the Commission will assume that all of these entities qualify as small businesses. In addition, there are approximately 567 licensed Class A stations, 2,227 licensed low-power television (“LPTV”) stations, and 4,518 licensed TV translators. Given the nature of these services, the Commission will presume that all LPTV licensees qualify as small entities under the above SBA small business size standard.
11. The Commission notes that in assessing whether a business entity qualifies as small under the above definition, business control affiliations must be included. The Commission's estimate, therefore, likely overstates the number of small entities affected by the proposed rules, because the revenue figures on which this estimate is based do not include or aggregate revenues from affiliated companies.
12. In addition, an element of the definition of “small business” is that the entity not be dominant in its field of operation. The Commission is unable at this time and in this context to define or quantify the criteria that would establish whether a specific television station is dominant in its market of operation. Accordingly, the foregoing estimate of small businesses to which the rules may apply does not exclude any television stations from the definition of a small business on this basis and is therefore over-inclusive to that extent. An additional element of the definition of “small business” is that the entity must be independently owned and operated. It is difficult at times to assess these criteria in the context of media entities, and the Commission's estimates of small businesses to which they apply may be over-inclusive to this extent.
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23. On January 26, 2001, the Commission completed the auction of 422 C and F Block Broadband PCS licenses in Auction No. 35. Of the 35 winning bidders in that auction, 29 claimed small business status. Subsequent events concerning Auction 35, including judicial and agency determinations, resulted in a total of 163 C and F Block licenses being available for grant. On February 15, 2005, the Commission completed an auction of 242 C-, D-, E-, and F-Block licenses in Auction No. 58. Of the 24 winning bidders in that auction, 16 claimed small business status and won 156 licenses. On May 21, 2007, the Commission completed an auction of 33 licenses in the A, C, and F Blocks in Auction No. 71. Of the 12 winning bidders in that auction, five claimed small business status and won 18 licenses. On August 20, 2008, the Commission completed the auction of 20 C-, D-, E-, and F-Block Broadband PCS licenses in Auction No. 78. Of the eight winning bidders for Broadband PCS licenses in that auction, six claimed small business status and won 14 licenses.
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28. In 2007, the Commission reexamined its rules governing the 700 MHz band in the
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32. In 2009, the Commission conducted Auction 86, the sale of 78 licenses in the BRS areas. The Commission offered three levels of bidding credits: (i) A bidder with attributed average annual gross revenues that exceed $15 million and do not exceed $40 million for the preceding three years (small business) received a 15 percent discount on its winning bid; (ii) a bidder with attributed average annual gross revenues that exceed $3 million and do not exceed $15 million for the preceding three years (very small business) received a 25 percent discount on its winning bid; and (iii) a bidder with attributed average annual gross revenues that do not exceed $3 million for the preceding three years (entrepreneur) received a 35 percent discount on its winning bid. Auction 86 concluded in 2009 with the sale of 61 licenses. Of the ten winning bidders, two bidders that claimed small business status won 4 licenses; one bidder that claimed very small business status won three licenses; and two bidders that claimed entrepreneur status won six licenses.
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37. In addition, an element of the definition of “small business” is that the entity not be dominant in its field of operation. The Commission is unable at this time to define or quantify the criteria that would establish whether a specific television station is dominant in its field of operation. Accordingly, the estimate of small businesses to which rules may apply do not exclude any television station from the definition of a small business on this basis and are therefore over-inclusive to that extent. Also as noted, an additional element of the definition of “small business” is that the entity must be independently owned and operated. The Commission notes that it is difficult at times to assess these criteria in the context of media entities and the Commission's estimates of small businesses to which they apply may be over-inclusive to this extent. There are also 2,117 low power television stations (LPTV). Given the nature of this service, the Commission will presume that all LPTV licensees qualify as small entities under the above SBA small business size standard.
38. The Commission has estimated the number of licensed NCE television stations to be 380. The Commission notes, however, that, in assessing whether a business concern qualifies as small under the above definition, business (control) affiliations must be included. The Commission's estimate, therefore, likely overstates the number of small entities that might be affected by the Commission's action, because the revenue figure on which it is based does not include or aggregate revenues from affiliated companies. The Commission does not compile and otherwise does not have access to information on the revenue of NCE stations that would permit it to determine how many such stations would qualify as small entities.
39. This Notice of Proposed Rulemaking proposes to expand the scope of State EAS Plans to include additional information necessary to reflect advances in technology, and to ensure the successful transmission of a Presidential Alert, such as uniform EAS designations, a description of SECC governance structure, expanded descriptions of emergency alerting procedures, a more accurate statement of monitoring requirements, a statement of the extent to which states leverage one-to-many/many-to-one communications, expanded testing procedures and security elements. It proposes that such Plans be submitted via an online State EAS Plan Filing Interface (SEPFI) designed to minimize filing burdens attendant to the Commission's State EAS Plan requirements, and to offset any additional burden that the Commission's expanded requirements may impose.
40. This Notice of Proposed Rulemaking also proposes adding an annual certification to the existing Form 1 of the mandatory electronic reporting system, Electronic Test Reporting System (ETRS), that EAS Participants have done the following: (1) Kept their systems updated with the latest firmware and software patches, (2) put a program in place to control access to EAS devices that includes changing default passwords, requiring password complexity, and removing or disabling expired accounts, (3) ensured that all EAS devices are not directly accessible from the Internet, and that, if required, any remote access is properly secured and logged, and (4) configured EAS devices to validate digital signatures on CAP messages if the source of the CAP message requires this feature. Depending on whether the employee checking for performance of required security measures is also the certifying official, including a certification on Form 1 could take between five minutes and an hour for the many EAS Participants that already have performed all required security measures. The Commission estimates that additional time, and legal and managerial resources may be needed for some EAS Participants to complete this certification in the first instance only. For those who are not using best
41. The Commission also proposes extending ETRS to include a false alert and lockout reporting requirement. An initial report including only the EAS header codes and time discovered of the false message may be required within fifteen to thirty minutes of identification of a false EAS message transmission, and a final report may be required within seventy-two hours including the root cause of the improper transmission. Because EAS security incidents have occurred at a rate of one or two per year and EAS Participants must already investigate unauthorized EAS alert matters as they occur, a reporting requirement for false alerts and lockouts would likely have a very minimal impact on small entities.
42. The RFA requires an agency to describe any significant, specifically small business alternatives that it has considered in reaching its conclusions, which may include the following four alternatives (among others): “(1) The establishment of differing compliance or reporting requirements or timetables that take into account the resources available to small entities; (2) the clarification, consolidation, or simplification of compliance or reporting requirements under the rule for small entities; (3) the use of performance, rather than design, standards; and (4) an exemption from coverage of the rule, or any part thereof, for small entities.” 5 U.S.C. 603(c)(1)-(c)(4).
43. With respect to the State EAS Plan filing process, converting the paper-based filing process into an online process is intended to reduce reporting costs and associated burdens for SECCs. With respect to State EAS Plan contents, the Commission seeks comment on whether the same EAS designations and plan components can be applied universally to all states, and have taken steps to allow states flexibility to stipulate EAS Plans that fit their individual needs. With respect to live code tests, the Commission seeks comment on whether removing the need for SECCs to request a waiver of the Commission's rules to conduct live code tests will reduce costs and remove regulatory burdens. With respect to forced tuning and selective override provisions, the Commission seeks comment on whether small entities should be subject to different requirements than their larger counterparts.
44. With respect to security, smaller entities often face particular challenges in maintaining awareness of current security measures, due to limited human, financial or technical resources; however, the Commission is merely proposing performance of required security measures to which many EAS Participants, including smaller entities, already adhere. Because proper patching and updating and basic account management are common best practices accepted across the sector, the assumption is that there would be no additional impact on small entities to keep EAS systems current. An annual certification allows small entities to comply even if they choose to update patches semi-annually rather than quarterly, and small entities may alternatively explain why they are unable to certify. Digital signature authentication has more of an impact on states, which must modify EAS plans, and smaller entities often have the advantage of simpler setups than those of large entities.
45. The Commission seeks comment on whether the Presidential Alert warrants additional/heightened security measures whose costs may exceed the benefits when applied to alerts that are issued more commonly, and that have a less immediate impact on national security. The Commission seeks comment on whether to except EAS Participants currently designated as PN stations from some or all of the security requirements the Commission proposes. The Commission also seeks comment on whether and how it should consider excepting EAS Participants that qualify as “small businesses” under the Small Business Association (SBA) standard their respective industries from some or all of the security requirements it proposes. Finally, the Commission proposes implementation timeframes for each of its rules that are intended to allow EAS Participants to come into compliance with its rules in a manner that balances the need for improving EAS organization and effectiveness as soon as possible, with any potential burdens that may be imposed by adoption of its proposals.
46. None.
47. Technological advancements continue to change the landscape of alerting for emergency managers. Alerting tools such as EAS and WEA that had previously occupied fundamentally different infrastructures now share common platforms and a common language. Social media such as Google and Twitter provide emergency managers with entirely new ways of informing the public of dangers to life and property, and new ways of assessing the public's response. The interactivity enabled by IP-based systems may provide emergency managers with the opportunity to receive rapid feedback from the public on the effectiveness of alerts and warnings.
48. The Commission is obligated to ensure that the President can reach the public in times of national emergency. In light of continuous technological advancements, the Commission has taken significant steps to ensure that the nation's public alert and warning systems perform this function in an effective and accessible manner. At the same time, the Commission must continue to review its rules to ensure that the EAS and WEA perform this important function in a manner that minimizes burdens for stakeholders and safeguards these alerting systems against inherent vulnerabilities and attacks. Accordingly, this NPRM proposes rules and seeks comment on alerting issues in an evolving technological climate in order to continue to provide emergency managers with effective tools to assess and coordinate available alerting systems to securely deliver an alert from the President during a national crisis, and to improve the ability of emergency managers to alert and train those communities to take protective action in response to national, regional and local emergencies.
49. As discussed in greater detail below, the Commission estimates that the cost of the proposed changes would be more than offset by the public benefit of lives saved, together with the reduction in human suffering and property loss. One measure against which the Commission can balance costs associated with complying with its proposed rules is the Department of Transportation (DOT) model, which estimates the value of risk reduction, measured in terms of an expected life saved, to be $9.1 million. Using the Value of a Statistical Life (VSL) as a benchmark, even one life saved could more than offset the one-time costs potentially imposed by the
50. The Commission created EAS designations to “use succinct terminology to more clearly define EAS functions.” The current EAS designations are:
• Primary Entry Point (PEP) System. Defined in Section 11.2, 47 CFR 11.2, as “a nationwide network of broadcast stations and other entities connected with government activation points . . . used to distribute EAS messages . . . formatted in the EAS Protocol . . . , including the [Emergency Action Notification (EAN)] and EAS national test messages” that includes “some of the nation's largest radio broadcast stations,” as approved by FEMA, and is “designated to receive the Presidential alert from FEMA and distribute it to local stations.”
• National Primary (NP) stations. Defined in Section 11.2 as “the primary entry point for Presidential messages delivered by FEMA . . . responsible for broadcasting a Presidential alert to the public and to State Primary stations within their broadcast range,” and by Section 11.18 simply as “a source of EAS Presidential messages.”
• State Primary (SP) stations. Defined in Section 11.2 as “the entry point for State messages, which can originate from the Governor or a designated representative.” Section 11.18 defines SP stations as “a source of EAS State messages” and adds that such messages originate from the “State Emergency Operating Center (EOC) or State Capital,” and that such messages “are sent via the State Relay Network.”
• State Relay Network. Defined in Section 11.20 as a network composed of “State Relay (SR) sources, leased common carrier communications facilities or any other available communication facilities. The network distributes State EAS messages originated by the Governor or designated official.”
• State Relay (SR). Defined in Section 11.18 as “a source of EAS State messages” that is “part of the State Relay Network and relays National and State common emergency messages into Local Areas.”
• Local Primary (LP) stations. Defined in Section 11.2 as radio or TV stations that act as key EAS monitoring sources, stating that each LP station “must monitor its regional PEP station and a back-up source for Presidential messages.” LPs are further defined in Section 11.18 as “a source of EAS Local Area messages . . . responsible for coordinating the carriage of common emergency messages from sources such as the National Weather Service or local emergency management offices as specified in its EAS Local Area Plan.” According to Section 11.18, if an LP “is unable to carry out this function, other LP sources in the Local Area may be assigned the responsibility as indicated in State and Local Area Plans” and “LP sources are assigned numbers (LP-1, 2, 3,
• Participating National (PN) sources. Defined in Section 11.18 as sources that “transmit EAS National, State or Local Area messages . . . for direct public reception,” as defined in Section 11.18.
• NP, SP, LP and SR stations are defined collectively in Section 11.21 as “key EAS sources.”
51. Since the Commission defined these EAS designations, SECCs have taken disparate approaches to their implementation, leading to the inconsistent use of these terms among State EAS Plans. For example, not all State EAS Plans contain an NP-designated station, and it is unclear whether, in some states, the designations PEP and NP are used interchangeably. Further, while some State EAS Plans refer to primary sources of state and local alerts as SPs, others identify primary sources as SRs. A number of State EAS Plans term the system of transmitting state alerts from SR to LP stations and from LP stations to PN stations and the public as the State Relay Network, but many State EAS Plans do not include SR or State Relay Network designations at all. As the
52. In order to ensure that the Commission can meaningfully review and confirm states' preparedness to deliver Presidential Alerts the Commission proposes to revise its EAS designation scheme to more accurately and consistently describes key EAS sources. Specifically, the Commission proposes to continue to designate the primary entry point for a Presidential Alert as a PEP, as that is a designation determined by FEMA. For each State EAS Plan, however, the Commission proposes that the entity tasked with primary responsibility for delivering the Presidential Alert to that state's EAS Participants will be designated as the National Primary (NP). Thus, for a state that has a FEMA-designated PEP, that station would also be designated as that state's NP. For a state that does not have a PEP, another station would have to be identified to act as the state's NP. The Commission further proposes that an entity tasked with initiating the delivery of a state EAS alert will be designated as a State Primary (SP). An SP may be a broadcaster, a state emergency management office, or other authorized entity capable of initiating a state-based EAS alert. The Commission proposes that the same entity may be designated as an SP and as an NP. In that case, each designation for that station would have to be separately listed in the State EAS Plan. The Commission would retain the current definition of Participating National (PN) and Local Primary (LP). In cases where geography or other reasons necessitate another layer of monitoring and retransmission between the LP and PN levels, the Commission proposes that such stations be designated in State EAS Plans as “Relay Stations.” The Commission anticipates that this proposed terminology scheme would more clearly define key EAS functions in a manner that could be used consistently across all State EAS Plans. As discussed in further detail below, the standard SEPFI template provides an opportunity to ensure that, going forward, these terms are used pursuant to a common understanding of their meaning.
53. The Commission seeks comment on the designations it has identified, based on its analysis of State EAS Plans, as necessary for the successful distribution of Presidential, state and local EAS alerts. The Commission also seeks comment on whether additional EAS designations may be needed, for
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55. Do all state and local alerts originate at the same source? If not, should the Commission provide SECCs with terms that allow them to distinguish among the primary initiation points for the various types of state and local alerts that are initiated in their respective states? What would be an appropriate title for such designations? For example, would it be appropriate to designate the source responsible for originating an AMBER Alert as a State AMBER Alert Primary? Conversely, are some state or local alerts likely to initiate from more than one source, frustrating the use of a single designation? Is it appropriate that the Commission continues to use LP as the denomination for those stations that are monitored by PN stations? Is it appropriate that the Commission continues to use the term PN for stations that are not monitored, in light of the fact that the Non-Participating National (NN) designation was deleted from the rules when the Commission required all EAS Participants to carry the Presidential Alert? If not, what designation would be preferable?
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58. The Commission adopted rules requiring states to file State EAS Plans that “contain guidelines which must be followed by EAS Participants' personnel, emergency officials, and National Weather Service (NWS) personnel to activate the EAS.” These rules maintain the role of state and local committees in strategically organizing state and local EAS Participants into a network capable of ensuring the proper dissemination of,
59. Following the first nationwide EAS test in 2011, the Bureau recommended that the Commission “consider whether to make the State EAS Plan filing process into an online, rather than a paper-based process” in light of inconsistencies identified in the structure of State EAS Plans. Subsequently, in the
60. The Commission proposes to convert the paper-based filing process for State EAS Plans into a secure, online process using a State EAS Plan Filing Interface (SEPFI) that would be designed to interoperate with the ETRS. The data collected in SEPFI would complement the monitoring assignment data already collected by ETRS. The data collected via ETRS and SEPFI would provide an end-to-end picture of the EAS distribution architecture for each state that could be used to populate an EAS Mapbook. The Commission proposes that the entry format for State EAS Plan data into SEPFI would be a pre-configured online template to be designed by the Bureau in collaboration with SECCs and other stakeholders, using a similar to process to the one the Commission directed the Bureau to use when designing the templates for ETRS. CSRIC IV observes that State EAS Plans are inconsistent in both structure and content, and that “[t]his lack of consistency makes it difficult for the FCC to determine if a proper distribution network exists for . . . distribution [of the Presidential Alert] in each state.” The Commission seeks comment on this proposed online filing process below.
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62. With respect to the potential administrative cost savings, the Commission anticipates that the proposed use of a template will facilitate the agency's review of the Plans. Because the State Plans currently are submitted in differing formats, with different levels of detail and using inconsistent terminology, it can be time-consuming and difficult to conduct a review that ensures that each Plan contains the elements required by the rules, or that the Plans, in concert, will function efficiently and effectively as a nationwide daisy chain that can pass along alerts in a seamless manner. The Commission believes that with the use of an on-line template, the Commission's ability to review the Plans for compliance with the required elements and to identify potential problems that might hinder achieving the basic goals of the EAS will be improved by enabling us to conduct such reviews in a quicker and more accurate fashion. Facilitating the review process in this manner may not only improve the effectiveness of the EAS, but it could yield significant administrative cost savings to the extent that FCC review and approval of the Plans could be automated, at least in part. The Commission seeks comment on the likelihood and weight of such potential benefits.
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66. What is the most cost-effective way to protect potentially sensitive data contained in State EAS Plans? The Commission seeks comment on specific aspects of State EAS Plan data that may implicate national security or that otherwise could present security concerns when aggregated into a single database. Are there any particular aspects of State EAS Plans that should be made confidential in light of this sensitivity? Would it be sufficient to provide such data with the same level of confidentiality as test data submitted to the Commission via ETRS? If not, how should sensitive SEPFI data be protected? Even if data contained in an individual State EAS Plan may not be sensitive or present national security concerns, would State EAS Plan data become more sensitive when aggregated via SEPFI? If so, what additional protections should be afforded to aggregated data versus individual state data, and how could this be implemented? What costs, if any, would those additional protections impose on reporting entities?
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68. The Commission's EAS rules currently state that State EAS Plans must contain the following elements:
(1) A list of the EAS header codes and messages that will be transmitted by key EAS sources;
(2) Procedures for state emergency management and other state officials, NWS, and EAS Participant personnel to transmit emergency information to the public during an emergency using EAS;
(3) A data table, in computer-readable form, clearly showing monitoring assignments and the specific primary and backup path for the EAN formatted in the EAS Protocol from the PEP to each station in the plan;
(4) A description of how CAP-formatted messages will be aggregated and distributed to EAS Participants within the state, including the monitoring requirements associated with distributing such messages;
(5) A statement of any unique methods of EAS message distribution;
(6) Instructions for state and local activations of EAS, including a list of all authorized entities participating in State or Local Area EAS; and
(7) Procedures for conducting special EAS tests.
The EAS rules require that EAS operations must be conducted as specified in State EAS Plans in order to ensure that the Presidential Alert can be effectively delivered. The Commission adopted these requirements in the
69. In 2013, the Commission evaluated the state of SECCs and State EAS Plans in the
70. Since the adoption of State EAS Plan rules in 1994, the alerting landscape has dramatically changed. Local alerts now originate from a wider array of sources, such as Public Safety Answering Points (PSAPs) and nuclear power plants. Local weather alerts continue to increase in frequency, and new alerting platforms such as WEA, SMS- and social media-based alerts are being rapidly added to the toolbox available to each community's alerting authority. For many alert initiators, WEA acts in concert with the EAS and other systems to transmit alerts to the public. Further, alert initiators may offer both EAS and WEA through IPAWS-OPEN, which serves as an interconnected CAP alert aggregator for previously siloed alerting platforms. In the
71. The Commission proposes to amend Section 11.21 to integrate State EAS Plan requirements contained in other portions of Part 11, and to include new elements designed to enhance the value of State EAS Plans as community alerting tools, as well as to inform the Commission that the EAS remains an efficient and effective method to deliver a Presidential Alerts in an evolving technological landscape. The Commission proposes that State EAS Plans should include organizational, operational, testing/outreach, and security elements, as set forth below, and seeks comment on these proposals. While the Commission proposes to afford states considerable flexibility within these categories, to provide information they deem relevant to designing and maintaining their respective states' own robust and redundant EAS relay networks, the Commission believes these general categories will help establish a baseline level of information across states nationwide.
72. State EAS Plans and the SECCs that create them are designed to organize EAS Participants representing a variety of industries and regions into a cohesive whole capable of efficiently and reliably distributing emergency information to the public, including the Presidential Alert. In order to fulfill this purpose, SECCs and EAS Participants must be well organized. Accordingly, the Commission proposes that State EAS Plans filed with the Commission via SEPFI template include uniform designations for the roles of EAS Participants, a list of entities authorized to activate EAS, a description of SECC governance structure, and a clear role for Local Area EAS Plans, should they continue to be necessary.
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77. The primary purpose of EAS is to transmit a message from the President to the public during an emergency of national significance. In order to achieve that purpose, SECCs must maintain a detailed understanding of how multiple alerting platforms operate in concert with one another to create a seamless information distribution system within their respective states. Accordingly, the Commission proposes that State EAS Plans should include emergency alerting procedures for EAS alerts transmitted via all available alert distribution mechanisms that the state utilizes (
78.
79. In light of the monitoring assignments that EAS Participants used successfully during the first nationwide EAS test, and for the reasons provided below, the Commission proposes to encourage SECCs to specify a satellite-based source, such as the NPR Squawk Channel, in State EAS Plans as an alternate monitoring assignment for the Presidential Alert where it presents a reliable source of EAS messages. The Commission seeks comment on this approach. In the
80. The Commission also seeks comment on whether and how alert originators use alternative alert distribution platforms, such as social media and highway signs, to supplement their traditional alerting channels. What is the extent to which emergency managers at the federal, state, and local levels currently leverage targeted feedback during emergency situations to disseminate and gather information? The Commission seeks comment on the extent to which social media has served as a reliable and effective source of crowdsourced data about developing situations. To what extent have alert originators begun taking advantage of social media's crowdsourced communications functionality in order to establish a real-time conversation with individuals and communities in crisis? Is the information generated by social media platforms reliable enough to be trusted by emergency managers, and if not, what challenges are involved? The Commission seeks comment on the steps that emergency managers currently take to confirm the accuracy of crowdsourced reports of emergency situations in order to act on, correct or clarify, or otherwise respond to such reports. Are the platforms secure enough to be used in emergency situations? To what extent has the use of social media platforms supplemented alert accessibility, either by providing translations of alerts in languages other than English or by providing alerts in multiple formats? To what extent has the personalization of alerts facilitated and encouraged public engagement and participation with alerting platforms, and, in turn, instigated more rapid protective action taking? The Commission seeks comment on whether state and local use of social media alerting tools should be included in State EAS Plans. Further, the Commission seeks comment on the extent to which highway signs are used to retransmit EAS alerts formatted in CAP. If IPAWS-OPEN is capable of distributing CAP-formatted alerts to highway signs, do any barriers currently exist to such use? The Commission seeks comment on what, if any, other alternative alerting systems alert originators are relying upon to supplement their use of EAS and WEA, and seeks comment on its proposal that this information be specified in State EAS Plans.
81. Are there examples of best practices from the Commission's federal, state and local government partners for using crowdsourced information in an emergency situation? The Commission observes that the Peta Jakarta initiative in Indonesia may provide an example of how a government alert initiator can leverage crowdsourced data to increase the overall effectiveness of alerts. The Peta Jakarta project piloted a program that monitored Twitter for posts mentioning the word for “flood” during flooding season. The system would automatically respond to such messages, asking whether the user saw flooding, at which point the user could confirm their report either by turning geo-location on in their device settings, or by responding, in turn, with the word for “flood.” Peta Jakarta then incorporated the results of this information-gathering process into a live, public crisis map that depicted in real time areas in the city that were affected by flooding. To what extent would it be possible to leverage this model as a best practice for automated crowdsourcing of reliable emergency response data, using regulated alerting platforms in the United States? To what extent is a similar model to the one utilized by Peta Jakarta feasible using EAS and/or WEA, in order to provide an authoritative source of information? The Commission observes that emergency managers used Twitter in a 2013 flood in Boulder, Colorado to prioritize deployment of satellite- and drone-based imaging platforms to the most severely impacted areas. To what extent could community feedback via EAS or WEA be similarly used to prioritize emergency managers' information gathering efforts?
82.
83. The Commission proposes that State EAS Plans should continue to divide their respective states into geographically-based operational areas, specifying primary and backup monitoring assignments for EAS Participants to receive the Presidential Alert in each operational area. The Commission seeks comment on this proposal. The Commission seeks comment on whether dividing states into operational areas facilitates EAS administration by more clearly defining responsibilities for EAS alert distribution by geographic area for key EAS sources. CSRIC IV notes a lack of uniformity among State EAS Plan definitions of “operational areas,” and recommends that such service areas should be uniformly identified. The Commission seeks comment on CSRIC IV's conclusion. Is it possible to standardize the definition of an operational area nationwide? If so, how should SEPFI define operational areas? Could the definition of an operational area have implications for President's ability to transmit a regional Presidential Alert?
84. The Commission proposes to remove the current restriction that State EAS Plans include monitoring assignments for Presidential Alerts formatted in the EAS Protocol only. The Commission seeks comment on this proposed change. As technologies evolve, the Presidential Alert may not necessarily be issued using the EAS Protocol, and the Commission seeks to remain technologically neutral so that its rules may evolve correspondingly. The Commission seeks comment on the extent to which EAS Participants are prepared to receive a Presidential Alert formatted in CAP. The Commission observes that new alerting protocols may be developed in the future, and the Commission seeks comment on whether removing this technology-specific limitation from its rules better prepares the nation for receiving the Presidential Alert.
85. CSRIC IV observes that, as currently written, State EAS Plans reflect the requirement in the EAS rules that each EAS Participant monitor at least two sources for the Presidential Alert by including two monitoring assignments for the Presidential Alert, but also observes that merely listing two monitoring sources may not serve to remove single points of failure from EAS alert distribution where, for example, both monitored EAS sources, in turn, monitor the same source. The Commission agrees with CSRIC IV's observation and seeks comment on whether it should require that the two sources that EAS Participants are required to monitor for the Presidential Alert as specified in their State EAS Plan, cannot, in turn, monitor the same key EAS source. Are there further steps that the Commission can take to remove single points of failure within the EAS Protocol-based alert distribution architecture, and from EAS in general, and if so, what are they?
86. The Commission further proposes that State EAS Plans should include the extent to which monitoring assignments for state and local alerts differ from monitoring assignments for the Presidential Alert. To what extent do states' Presidential and local alerting strategies differ? The Commission seeks comment on whether the importance of transmitting state and local alerts to communities has had any impact on the ability of the community to deliver a Presidential Alert. Has the use of alternative alerting structures led to innovations that augment the ability of EAS Participants to efficiently and effectively receive and retransmit a Presidential Alert during a national crisis? Alternatively, has the use of such alternatives resulted in lack of use of the EAS and lack of proficiency in its use by local emergency managers and EAS Participants? In either case, would including in State EAS Plans a description of the extent to which a state's alerting strategy for the Presidential Alert differs from their state and local alerting strategy serve to facilitate dialogue at the state and local level about the extent to which new and emerging technologies could be used to improve the ability of EAS Participants to receive and retransmit the Presidential Alert?
87. In order to address all State EAS Plan monitoring requirements in the same Section of Part 11, the Commission proposes to relocate State EAS Plan requirements currently contained in Sections 11.52 and 11.55 to Section 11.21. The Commission proposes to merge those requirements into one Section by amending Section 11.21 to state that EAS Participant monitoring assignments and EAS operations must be implemented in a manner consistent with guidelines established in a State EAS Plan submitted to the Commission, and by removing that language from Sections 11.52 and 11.55. The Commission seeks comment on whether this proposal is consistent with CSRIC IV's recommendation that the Commission amend Section 11.21 to state that “[s]tates that want to use the EAS shall submit a State EAS Plan.” The Commission seeks comment on whether the data submitted in State EAS Plans must accurately reflect actual monitoring assignments for the EAS Mapbook to be a useful tool to analyze and address issues with EAS functionality. Would State EAS Plans be more up-to-date, inclusive, and effective given the improvements the Commission proposes in this NPRM? If so, does this militate for the use of State EAS Plan provisions other than monitoring assignments (
88.
89. In order to properly utilize EAS to fulfill its purpose to transmit a Presidential Alert, emergency managers must be assured that the alerting platforms available to them will function as intended when needed, and the public must be assured that those alerts will be made accessible to them, irrespective of disability or language preference. To this end, the Commission proposes that State EAS Plans include testing procedures and security elements.
90.
91. The Commission seeks comment on whether State EAS Plans should include a listing of the manners in which a state or community conducts such live code tests. Should the Plan include the language of the notification to be provided during the test (
92. The Commission seeks comment on whether each of these testing procedures continues to play an important role in ensuring system readiness for a Presidential Alert. In particular, with respect to State/Local WEA Testing, the Commission seeks comment on whether the ubiquity of smartphone technology makes it likely that, in the event of a Presidential Alert, members of the public would likely have their smartphone closer at hand than any traditional EAS source. If so, the Commission seeks comment on whether it is likely that the first medium through which members of the public would receive notice that a Presidential Alert is occurring is through their smartphone, notwithstanding the fact that the actual alert may be aired over EAS. The Commission seeks comment on whether this makes State/Local WEA Testing procedures a necessary component of state-level preparedness to receive a Presidential Alert. If so, should the manner in which a state or community uses smartphone technology, through WEA or otherwise, to augment an EAS alert be included in State EAS Plans?
93. Security and reliability are critical components of an alerting system, especially one that may be used by the President. A public safety communications system that is vulnerable to mistaken use or malicious intrusion poses as much of a threat to public safety as an efficient, secure system offers a benefit. A compromised alerting system could be used to misdirect public safety resources, or lead members of the public into harm's way. Accordingly, the Commission proposes to require certification of performance of required security measures, as discussed in greater detail below. Should State EAS Plans also describe the measures EAS Participants have taken to comply with the Commission's proposed security requirements? Should State EAS Plans include any additional information regarding their approach to cyber risk management, including if and how they use tools like the National Institute for Standards and Technology (NIST) Cybersecurity Framework (NSF), or other risk management construct, and how this has been extended to their emergency alerting system? In the alternative, do the certifications proposed below provide adequate disclosures regarding EAS Participants' security efforts, obviating the need for the separate inclusion of such information in State EAS Plans?
94. Section 11.45 of the Commission's EAS rules provides in pertinent part that “[n]o person may transmit or cause to transmit the EAS codes or Attention Signal, or a recording or simulation thereof, in any circumstance other than in an actual National, State or Local Area emergency or authorized test of the EAS.” The Commission adopted this restriction because it found that a specific prohibition against the misuse of the EAS audio Attention Signal and codes was necessary in light of the “enormous detriment to the system” that might result from improper use. As a general matter, the EAS audio Attention Signal is used exclusively to alert the public that an emergency message is about to be distributed. Section 11.31(e) lists the “live” event header codes that are used for alerts in specific emergency situations,
(1) A description of the test and test participants, including when the test is scheduled to occur, when it will conclude, and what notification is being provided during the test (
(2) An explanation why the EAS Participant or the state authority conducting such tests has concluded that use of live codes is necessary;
(3) A statement about how the test has been coordinated among EAS Participants and with state and local emergency authorities, as well as first responder organizations such as police and fire agencies; and
(4) A description of those public information steps that have been taken before the test occurs to notify the public about the test (specifically, that live event codes will be used, but that no emergency is in fact occurring). This should include a statement about all media that have participated in the public awareness/information campaign (
Live code tests are currently performed as “special” tests under Section 11.61. A “special” test may fulfill an EAS Participant's weekly testing obligation provided that the test includes transmission of the EAS header codes and End of Message (EOM) codes, and may fulfill an EAS Participant's monthly testing obligation provided that the test also includes the emergency alerting Attention Signal and emergency message. In either case, the test message must meet a minimum standard of accessibility, as discussed in further detail below.
95. The Commission proposes to amend its EAS rules to authorize EAS Participants to conduct periodic EAS exercises using live event header codes, provided that they are used in a non-misleading manner, and that steps are taken to prevent public confusion prior to and during the test. Specifically, the Commission proposes to amend Section 11.61 to include “Live Code Tests” as a separate category of alerting exercise that may be undertaken periodically provided that:
(1) The state or local entity provides accessible notification during the test (
(2) Coordinates the test among EAS Participants and with state and local emergency authorities, as well as first responder organizations such as Public Safety Answering Points (PSAPs), police and fire agencies; and
(3) Notifies the public before the test (specifically, that live event codes will be used, but that no emergency is in fact occurring).
The Commission further proposes to amend Section 11.45 to exempt state-designed EAS live code exercises from the Commission's prohibition against false or misleading use of the EAS Attention Signal. The Commission seeks comment on these proposals.
96.
97.
98.
99.
100. EAS Participants may use Public Service Announcements or obtain commercial sponsors for announcements, infomercials, or programs explaining the EAS to the public to increase awareness of the EAS. The Commission's rules state that “[s]uch announcements and programs may not be a part of alerts or tests, and may not simulate or attempt to copy alert tones or codes.” Since that time, the Commission has granted requests for waiver to use the emergency alerting Attention Signal in PSAs to entities other than EAS Participants in order to raise public awareness about EAS. The
101. Consistent with the Commission's approach to the use of the emergency alerting attention signal in PSAs in the
102. How can the Commission ensure that PSAs designed to raise public awareness about EAS do not have the unintended consequence of causing public confusion about whether the use of the EAS header codes and Attention Signal signify that an actual emergency is occurring? The Commission seeks comment on whether it should require entities that wish to use PSAs to coordinate with other EAS Participants and state and local authorities and the public to minimize any confusion. As with the use of the EAS header codes and Attention Signal for live code EAS tests, should entities seeking to use the EAS header codes and Attention Signal for EAS PSAs provide notification during the PSA to make sure the public understands that the use of the EAS header codes and Attention Signal does not, in fact, signify the occurrence of an actual emergency? Should entities seeking to use the EAS header codes and Attention Signal for use in EAS PSAs be required to coordinate the test among EAS Participants and with state and local emergency authorities, as well as first responder organizations such as PSAPs, police and fire agencies?
103. The Commission seeks comment on whether there is a negative public perception of EAS that deserves to be redressed, and on whether the public has a clear understanding of what EAS is. In its requests for waiver, FEMA stated that “many people are startled or annoyed when hearing the WEA Attention Signal for the first time.” The Commission notes that the WEA Attention Signal is a loud, attention-grabbing, two-tone audio signal that uses frequencies and sounds identical to the distinctive and familiar Attention Signal used by the EAS. The Commission seeks comment on whether alerts become more annoying when multiple alerts are received at the same time on a variety of platforms. The Commission also notes that it has received a number of complaints from individuals stating that the EAS Attention Signal is intrusive, and annoying. Accordingly, the Commission seeks comment on the public perception of EAS, and the EAS Attention Signal. To this point, the Commission also seeks comment on whether PSAs would be a useful tool for changing public perceptions about EAS for the better by, for example, providing them with information on how EAS saves lives and helps people to protect their property. As a testament to the success of the WEA PSA in this regard, FEMA offers that it has earned over $30 million in free media, and that the WEA PSA is currently the most played FEMA PSA. The Commission seeks comment on the success of any EAS PSAs that EAS Participants have issued pursuant to Section 11.46. Further, the Commission seeks comment on additional steps that EAS stakeholders could take to improve the efficacy of EAS PSAs at raising public awareness about, and shifting public perceptions of EAS. What effect on public perception would likely result were EAS PSAs allowed to be conducted in connection with EAS tests, including live code tests?
104. Accessibility is a crucial aspect of alerting exercises because members of communities with disabilities or with limited English proficiency are particularly vulnerable to being excluded from community preparedness initiatives. Accordingly, in order to substitute for an RMT, a live code test must “comply with the visual message requirements in Section 11.51,” and in order to substitute for an RWT, it must comply with both the aural and visual requirements contained therein. Recently, the Bureau granted a request from Emergency and Community Health Outreach (ECHO), in partnership with Twin Cities Public Television (tpt) and FEMA, for a waiver of the Commission's rules to allow use of the WEA and EAS attention signal, as well as an audible portion of the EAS tones in PSAs, in conjunction with providing EAS PSAs in languages other than English, including Spanish, Hmong and Somali. The Bureau reasoned that including the EAS Attention Signal in educational media materials is essential to ensure that members of the public, including individuals with limited English proficiency, are familiar with EAS as an alert and warning methods.
105. The Commission seeks comment on how to best ensure that community-based alerting exercises address the accessibility needs of individuals with limited English proficiency and individuals with disabilities. Specifically, the Commission seeks comment on the extent to which live code testing may be used by local emergency managers to target the particular needs of communities with accessibility needs, such as individuals with sensory disabilities and individuals with limited English proficiency, and on how to better prepare such communities for emergencies through PSAs.
106.
107. Further, the Commission observes that live code testing often does not occur in a vacuum, and is requested to supplement larger efforts to raise public awareness of emergency response resources, such as during a “Severe Weather Preparedness Week.” Does live code testing promote and facilitate such community engagement? Do such events provide opportunities for those that might not normally be able to access the emergency alerting attention signal to create community response mechanisms that ensure that some community members, such as those who do not speak English or those with disabilities, are not left behind during an emergency? What role should community stakeholders, including those who deliver alerts as well as those who benefit from the receipt of alerts, play in the design, execution, and subsequent evaluation of live code tests and subsequent alerts? How can the Commission work with public safety officials, SECCs, EAS Participants and other stakeholders to facilitate the inclusion of the entire community, including non-English speakers and those with disabilities, in such planning, execution and evaluation? Would the Commission's proposed testing rules provide transparency and allow collection of best practices results that would enhance this facilitation role? How should broadcasters and other EAS Participants, as well as PSAPs and emergency managers that coordinate live code tests, be equipped with the tools necessary to serve multilingual communities and communities of individuals with disabilities? Could tests be designed to allow broadcasters and other EAS Participants to share resources during an emergency, such as non-English speaking personnel and air time, to ensure that non-English speakers maintain access to EAS and emergency information?
108. How, if at all, should the Commission conduct outreach and gather feedback on the ability of public safety officials, SECCs, EAS Participants and other stakeholders to plan and execute community tests and exercises to reach populations with limited English proficiency and individuals with disabilities? How should the Commission evaluate the results? What steps, if any, should the Commission take in response to any such information it may collect? For example, should the Bureau conduct outreach to EAS Participants and other stakeholders in particular regions that have non-English speaking communities to gather information about best practices for ensuring alerts reach non-English speaking communities? What accountability measures should be instituted or encouraged if the tests fail to reach citizens due to their lack of English proficiency or disability?
109.
110. In this section, the Commission seeks comment on the extent to which the communications infrastructure underlying the nation's alerting capability should be—and already is—taking steps to leverage technological advancements to improve the content, accessibility and security of emergency alerts. In addressing these issues, the Commission intends to initiate a dialogue about creating a voluntary industry roadmap for further enhancing the capability of the nation's alerting infrastructure to carry a Presidential Alert in a manner consistent with consumer expectations of IP-based communications technologies.
111. The EAS “force tuning” provisions allow wireless and digital cable service providers and wireline video service providers to satisfy the general requirement that they transmit EAS audio and visual information over all channels by automatically tuning the subscribers' set top boxes (STB) to a designated channel (usually an otherwise empty control channel) that carries the required audio and video EAS message. The Commission's “selective override” provisions allow cable service providers to elect not to deliver EAS audio and visual information over channels that are carrying news or weather related emergency information with state and local EAS message. Such elections are made pursuant to a written agreement between the cable service provider and broadcaster. Use of selective override by the cable service provider is voluntary.
112. The Commission has received requests that it reexamine the selective override policy. Most recently, for example, the NAB requested that the Commission “permit local television stations to opt out of cable system-wide overrides, provided such stations participate in the EAS system.” NAB contends that cable overrides “disrupt viewers' access to the critical, often life-saving emergency information provided by local television broadcasters, including shelter-in-place or evacuation directions, storm pathways, and the status of power outages . . . [and] frequently cause confusion and distress among viewers.” NAB proposes that cable operators be required to “implement `selective override,' so that certain [broadcast] channels can be selectively omitted during a cable system's EAS interruption,” thus providing local broadcast television stations with the ability to opt out of the cable system's universal forced-tuning of all cable channels, enabling the station to offer uninterrupted emergency information.
113. The Commission is also aware of reported instances where force tuning STBs has caused the subscriber's picture and audio to freeze, sometimes requiring a reboot of the STBs to restore normal access to channels. Viewers have claimed that during the period when the force tuned alert was active, they were unable to change channels and were stuck on the force-tuned EAS channel for extended periods of time. For example, on March 30, 2015, an in-house test conducted by a cable service provider was inadvertently distributed beyond the cable provider's test environment equipment to cable subscribers across several states, force-tuning most, if not all of them to a control channel where they were denied access to programming for approximately ten minutes. Commission staff has learned that over two million STBs likely were affected in that one example alone.
114. The Commission seeks comment on the propriety of its selective override and forced tuning rules in an evolving alerting landscape. Specifically, the
115.
116. Have technological advancements enabled cable operators' ability to selectively override broadcast signals? For example, cable services now benefit from the introduction of digital technologies, including “smart” STBs. How do these and related technologies affect the use of selective override? Have STB and headend technologies advanced to the point where selective override on a channel-by-channel basis can be readily programmed into cable equipment, without imposing undue burdens on cable providers? Is it reasonable to assume that all content delivered by STB shall be interruptible, such that EAS warnings could be delivered in banner form or otherwise for all content (without directing the subscriber to another channel through force tuning or by other means)? Have technological advances in EAS equipment made it easier and more affordable to engage in selective override? The Commission notes in this regard that some parties maintain that force tuning via the STB is not the only way that MVPD EAS Participants can display EAS information.
117. Does the widespread and growing availability of programming distributed by IP-based networks, including STBs and “smart” TVs capable of “on-screen” graphical user interface (GUI) user input, suggest that greater user control with respect to EAS acknowledgement and/or feedback should be supported or encouraged? Do the Commission's current cable force tuning and selective override requirements affect emergency operators' ability to leverage these technological advancements to rapidly and efficiently obtain feedback from consumers, in response to EAS messages? What regulatory obstacles exist that might unnecessarily impede greater consumer interaction with received alerting messages? Would facilitating this interaction introduce the capability for crowdsourced citizen feedback during emergencies and disasters that would improve community, state and national response? What possible consequences or potential for abuse, if any, would need to be addressed in harnessing this capability?
118.
119.
120. As discussed above, the Part 11 EAS rules allow wireless and digital cable provider EAS Participants to comply with their obligations to deliver EAS messages by force tuning viewers to a channel that carries the alert or test. The rules limit the obligation of a cable EAS Participant to deliver EAS to “programmed channels,” which, under the current rules do not include “channels used for the transmission of data such as interactive games,” “channels used for the transmission of data services such as Internet,” or “channels used for the transmission of data services such as Internet access.”
121. The Commission initially seeks comment on what basis exists today, when technical advances have expanded the scope of programming and other services delivered by cable and other MVPD EAS Participants, to distinguish channels as “programmed channels” for purposes of receiving EAS messages. Is there a technical basis to continuing the distinction among channels? If so, is there some other basis that would be more suitable for making this distinction? For example, should the distinction be based on channels
122. The Commission also seeks comment on the public safety benefits that could be derived from requiring that EAS Participants support EAS alerts over all channels that are part of the service package offered to the consumer. To what extent would requiring support for EAS alerts on all such channels increase the likelihood that the public will receive potentially life-saving alerts? To what extent might such channels offer opportunities to improve alert quality or accessibility? Further, what additional costs, if any, would EAS Participants expect to result from requiring EAS alerts to be supported on all channels that are part of the service package offered to the consumer by the EAS Participant? Would this approach fully address National Security and community alerting needs in the evolved technology landscape for typical residential consumers? Would this approach require hardware and/or software replacement? What standards, if any, would be affected by these proposed changes? How long should the Commission expect that it would take industry to comply with this alternative approach?
123. The Commission has consistently striven to ensure that, as technologies evolve, EAS continues to meet consumer expectations for basic emergency communications. For example, in preparation for the transition to digital television, Commission staff held a series of
124. In order to implement the Commission's statutory obligations in a manner consistent with the public interest, the Commission seeks to understand whether and how the way in which consumers view content has changed consumer expectations for how they will receive EAS messages. In this regard, the Commission seeks to ensure that EAS alerts endure and remain reliable as technology advances. The Commission seeks comment on the extent to which entities offering content outside of traditional broadcast or pay TV modes of architecture are making EAS alerts available to consumers. From a technical perspective, what hardware, software, and standards updates would need to be addressed before alerts could be delivered via alternative means, such as via IP-based platforms? Are the potential issues with offering alerts outside traditional broadcast or pay TV delivery mechanisms? What kind of strategies could be employed to standardize the availability of alerts across technologies, applications, and platforms? To what extent are these efforts already underway?
125. The Commission further seeks comment on whether consumers have an expectation that alerts will be durable across different technology platforms. Do consumers expect that the alerts provided with programming offered via traditional technologies would still be provided when programming is offered through some other means, such as through an online offering? To the extent that commenters believe the Commission should take action to address consumer expectations with respect to receiving EAS alerts through new technologies, on what statutory basis would the Commission take such action? Commenters should also address any possible unintended consequences of Commission action.
126. The Commission seeks comment on whether EAS alerts offered through different technologies may have a greater potential to meet the emergency information needs of the public than do alerts offered via traditional media. What, if any, potential do these services have to improve EAS geo-targeting, for example, by using a devices' geolocation technology when the consumer is viewing content over the Internet? The Commission seeks comment on this assertion. Could alerts via non-traditional platforms offer consumers greater personalization options? For example, could consumers elect to receive alerts for geographic areas other than the location in which their device is located, in order to remain vigilant of prospective threats to loved ones living in other parts of the country? Further, the Commission seeks comment on how new technologies could facilitate consumer feedback on, and interaction with alert content. Could the text crawl of such alerts potentially contain clickable URLs and phone numbers directing the recipient to additional resources and information about developing emergency situations? The Commission seeks comment on the extent to which the advancements in technology may allow for customer feedback on alerts, such as confirming that an individual is threatened by a certain emergency condition, or enabling that individual to request specific emergency assistance by interacting with an alert. The Commission seeks comment on whether these technologies could give rise to a cycle of information sharing consistent with a “many-to-one/one-to-many” alerting dynamic.
127. Section 10.10 of the Commission's WEA rules defines a “mobile device” as “the subscriber equipment generally offered by CMS providers that supports the distribution of WEA Alert Messages.” Pursuant to Section 10.500, support for the distribution of WEA Alert messages entails “(a) Authentication of interactions with CMS Provider infrastructure; (b) Monitoring for Alert Messages; (c) Maintaining subscriber alert opt-out selections, if any; (d) Maintaining subscriber alert language preferences, if any; (e) Extraction of alert content in English or the subscriber's preferred language, if applicable; (f) Presentation of alert content to the device, consistent with subscriber opt-out selections . . . ; and (g) Detection and suppression of presentation of duplicate alerts.” Electing to participate in WEA entails a commitment by the Participating CMS Provider “to support the development and deployment of technology for . . . mobile devices with WEA functionality.” Pursuant to the
128. The Commission seeks comment on whether it should consider tablets that consumers use to access mobile services as “mobile devices” under the Commission's Part 10 WEA rules. Do 4G LTE-enabled tablets currently support the distribution of WEA messages? If not, the Commission seeks comment on what, if any, standards, software, or hardware modifications would be required to enable 4G-LTE-enabled tablets to support the distribution of WEA messages? Would 4G-LTE tablets be able to receive WEA alerts when they are connected to a Wi-Fi network or other unlicensed spectrum, based on the user's preference (such as when the user is at home and connected to their own Wi-Fi network), but while the tablet still remains within range of the Participating CMS Providers' 4G-LTE network? The Commission seeks comment on any costs commenters believe would likely be attendant to providing WEA alerts to 4G LTE-enabled tablets. The Commission also seeks comments on any benefits likely to result from the delivery of WEA alerts to 4G LTE-enabled tablets. Specifically, the Commission seeks comment on whether modernizing alerting platforms in this manner would increase the likelihood that individuals would receive potentially life-saving alerts by requiring that they be transmitted to the devices and services they use most. Are Participating CMS Providers prepared to develop a voluntary roadmap for providing WEA alerts to 4G LTE-enabled tablets?
129. The Commission seeks comment on the potential of new and emerging technologies to improve alert accessibility. In particular, the Commission seeks comment on the state of technology for machine-generated translation (
130. Further, the Commission seeks comment on the ability of OTT alerting to improve EAS alert personalization. Could OTT EAS alerting be leveraged to improve alert accessibility for all Americans, including those with sensory disabilities those with limited English proficiency? For example, could the availability of URLs make it possible for alert content to be presented in languages other than English and in American Sign Language (ASL)? Could consumers personalize alert preferences with respect to text size, crawl speed, and contrast based on their unique needs? Could alerting via OTT services facilitate the use of symbols as accessible replacements or supplements to alert messages? Is it technically feasible and should consumers be given the ability to control the volume of the emergency alerting Attention Signal or audio message, independent of the volume settings in place for other activity on their device, in order to ensure that the alert is audible from anywhere in the home, or at least is appropriate for the user who may be deaf or hard of hearing? Similarly, is it technically feasible and should there be a requirement for any consumer, with or without a disability, to be given the flexibility and capability to control other settings of the alerting signals and audio levels, such as the type and intensity of vibrations and flashing lights, in order to accommodate their individual needs? Alternatively, would it be appropriate to enable users to lower the volume of an EAS alert in certain circumstances?
131. In the
132. As described below, several high-profile and other less widely-known EAS security breaches in recent years have demonstrated that there are significant vulnerabilities in the nation's EAS infrastructure that must be addressed comprehensively. The Commission is concerned about the severity, frequency and nature of the risks associated with these EAS attacks and the related implications for the readiness of the nation's critical means of alerting and informing citizens of threats to safety of life and property, consistent with the Commission's statutory mission. The Commission starts to address those concerns with the proposals in this NPRM, including those discussed in this section and upon which the Commission seeks comment, which will help to ensure that the nation is better prepared in its ability to alert citizens of such threats, particularly to support the need of the President to communicate with the public during times of emergency and the need to ensure the system is reliable and secure in advance, in order to preserve that capability.
133.
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135.
136. Additionally, on June 26, 2007, a government contractor installing satellite equipment in Springfield, Illinois triggered an accidental EAN activation when he incorrectly left the receiver connected to a state EAS transmitter before final testing of that delivery path had been completed. The false EAS alert repeatedly interrupted programming for three or four minutes at a time and, in Chicago, triggered channel switchovers to a single area broadcaster, WGN. Proper originator authentication included in the EAS protocol would have prevented the incident.
137. Improper retransmission of dated EAS alerts, similar to the Bobby Bones Show incident, are also somewhat common. On February 12, 2013, for example, WIZM-FM in La Crosse, Wisconsin inadvertently triggered an EAS warning on neighboring station WKBT-DT by playing a recording of the Zombie Attack Hoax incident during its morning show. Another inadvertent retransmission occurred in a September 2010 advertisement for ARCO/BP aired by stations in several states including Oregon and Kansas. The advertisement included the EAS attention signal and header codes from an EAS RWT that triggered EAS devices in multiple stations nationwide. The inclusion of originator authentication or date validation in the EAS protocol would have prevented the incident.
138. Collectively, the incidents described above reveal an unacceptably high risk of unauthorized EAS signal broadcasts and insufficient real-time Commission awareness of, and visibility into the possible negative impacts of unauthorized alerts. In combination, they point to troubling security vulnerabilities associated with the nation's EAS. Unless appropriate actions are taken to enhance the broadcast network security environment through which the nation's EAS operates, these risks, vulnerabilities, and resulting problems are likely to persist, and indeed grow. That potential is likely to be exacerbated by the Nation's ongoing national transition to CAP alerts because of the increasing reach and number of originators capable of transmitting alerts.
139. Until now, the Commission has sought to ensure EAS security by encouraging EAS Participants to voluntarily adopt EAS security best practices. These efforts, however, have not always borne the intended fruits of a highly secure, highly reliable and unquestionably credible system. Indeed, the record tends to suggest a certain level of complacency by at least some EAS Participants with respect to system security. A brief discussion of that history illustrates the shortcomings of the voluntary approach and further highlights the need for the new approach the Commission explores below.
140.
141. Also on November 7, 2014, the Bureau released a Public Notice announcing an inquiry into the impact of false EAS alerts on the security, reliability and integrity of EAS. As part of this inquiry, the Bureau held meetings with EAS Participants, FEMA, equipment manufacturers and other EAS stakeholders. The record developed through these activities suggests that the EAS' present authentication methodology warrants further examination in terms of its adequacy, systemic security, and reliability.
142.
143. Unauthorized EAS alerts generate a host of ills, from consumer inconvenience and frustration over TV lockouts, to broad public fear and confusion about the existence and nature of threats. False alerts divert public safety and other government resources from other important activities, impose costs on licensees that have to deal with many of the consequences of false alerts and, ultimately, desensitize the public to legitimate alerts. The Commission, consistent with its fundamental public safety mandate, must ensure that the public has complete confidence in the EAS as one of the nation's essential public safety communications tools. Thus, if EAS Participants cannot effectively secure the system through voluntary mechanisms, the Commission must explore regulatory solutions to achieve EAS security. Accordingly, the Commission now proposes rules designed to safeguard the EAS and
144. In this section, the Commission seeks comment on proposals intended to decrease the likelihood of false or malicious EAS broadcasts, and to codify best practices consistent with CSRIC IV's recommendations. The Commission also proposes rules requiring the reporting of false alerts,
145. Also, the Commission invites alternative proposals from commenters on how best to promote EAS security. Commenters should support such proposals with sufficient information and analysis to provide a basis for thorough consideration. Given the importance of ensuring the authenticity and security of presidential EAN messages, the Commission also seeks comment on whether its proposed changes are sufficient for all EAS messages, or whether additional measures should be taken to secure particular alerts, such as the EAN. Assuming such additional measures are indicated, commenters should describe them and explain how they would better secure the EAS. Finally, commenters should address relative costs and benefits of the Commission's proposed rules as well as any proffered alternative proposals.
146. In light of the issues raised above, the Commission proposes action to ensure that EAS Participants are following EAS security best practices, which in turn will make the Commission's nation's alerting system more secure and reliable. The Commission proposes that EAS Participants must submit an annual reliability certification form that attests to performance of required security measures with a baseline security posture in four core areas, as described in the following sections. The Commission believes this annual certification would establish minimum expectations for security, and provide the Commission with the necessary assurances that EAS Participants are adhering to industry best practices and therefore taking appropriate measures to secure the EAS. The Commission believes this requirement would be minimally burdensome, and would allow EAS Participants ample flexibility in implementing core security mechanisms based on the individual entity's particular needs. As an initial matter, the Commission seeks comment on whether an annual certification would achieve these objectives, and on the relative costs and benefits of this approach. The Commission expects that the information required to make a determination by the certifying official is readily available as part of the Participant's normal operations, and that the amount of legal and management review is negligible given that the best practices to which they certify are well known and have been carefully assessed by industry in the CSRIC process. The Commission estimates that certification should add an average of fifteen minutes to the annual update of the “identifying information” section in ETRS, resulting in an increased cost to industry of approximately $549,360 per year. If additional legal and management review would be required, the Commission assumes it would only be required the first year to ensure appropriate internal processes were in place and would amount to no more than an average of one hour per company for an additional $2,179,440 the first year. For those EAS Participants who are not using best practices, the Commission estimates it should take no more than four hours per device to perform the necessary changes, resulting in an estimated cost of $879,040 to industry. The Commission seeks comment on the accuracy of the estimates of the expected number of Participants that are not using best practices, the accuracy of the assumptions underlying the amount of time required for compliance, and the accuracy of cost estimates. Are there additional costs that are not sufficiently captured by these proposed cost estimates? Administratively, should the “identifying information” section of ETRS be used to provide an EAS Participant's certification, or should a different mechanism be used for making and recording the certification? Is it reasonable and efficient to require the certification to be part of the current required annual update of ETRS identifying information? What ways might there exist to further reduce the burden on EAS Participant while achieving the same result? Would the longer term burden be reduced by including a provision to review the certification requirement in five years with the intent to sunset the requirement if it becomes clear that Participants are effectively managing cybersecurity risk through mature implementation of the NIST Cybersecurity Framework or suitable equivalent as demonstrated through the planned cyber risk assurance meetings and Sector Annual Report recommended by CSRIC IV?
147. Further, the Commission seeks comment on each of the four core elements that would be addressed in the annual certification. Particularly, the Commission asks whether these four areas of certification provide sufficient assurance that security best practices are being followed. Are there any additional—or alternative—areas that should be subject to certification to achieve system security assurance aims? Are there measures that the Commission or industry stakeholders can take to ensure performance of the proposed security measures are minimally burdensome for all EAS Participants, from the largest broadcasters and cable systems to the smallest independent operators? For example, could industry organizations at the national and state levels work with their members to conduct outreach to smaller and less resourced EAS Participants to educate them and otherwise help them to successfully certify their compliance with the security guidelines the Commission proposes today? What, if any, should the Commission's role be in such an outreach effort? The Commission notes in this regard that the Bureau has already released a Public Notice reminding EAS Participants of the EAS security best practices recommended by the
148. A basic network security hygiene practice for any communications- and computer-based system—EAS included—is ensuring that the system runs up-to-date, secure software and firmware. This practice is included in various best practice documents, surveys and security guidelines, including one of the “first five” controls from the SANS Institute Critical Security Controls, control CSC 3-2. For more than a decade, the Commission and a series of communications security authorities and expert bodies have stressed the importance of regular system patching and updating, starting with Network Reliability and Interoperability Council (NRIC) V, and continuing through NRIC 7, CSRIC 2, and CSRIC 3. Despite continued attention to patching as a needed part of basic security hygiene, attackers continue to exploit unpatched systems. According to Verizon's 2015 Data Breach Investigations Report, 99.9 percent of all computer system exploits target vulnerabilities that have persisted for at least a year. Additionally, SANS control CSC 6-1—updating to the most current software and firmware version and patch level—would be the recommended mitigation strategy in 24 percent of all incidents Verizon reviewed.
149. In the Bobby Bones Show incident, for example, vendors with properly updated software and firmware for their EAS equipment resisted the false alert. Others, whose system software/firmware were unpatched, either broadcast the false alert or queued it for later broadcast. Had all equipment been updated to the latest version and in the correct configuration, it is highly likely the alert would not have been rebroadcast.
150. Proactive management of system vulnerabilities tends to reduce or eliminate the potential for exploitation and involve considerably less time and effort than responding after an exploitation has occurred. Accordingly, the Commission proposes, and seeks comment on, requiring EAS Participants to certify annually that they keep their systems updated with the latest firmware and software patches. The Commission observes that three of the thirteen best practice controls recommended by CSRIC IV cover patch management. Specifically, Recommended Control No. 1 states that “EAS participants should regularly monitor EAS Manufacturer information resources (
151. Would effective implementation of best practice Control Nos. 1, 6 and 7 be assured by requiring participants to certify that they have followed a program to identify and install updates and patches to EAS devices and attached systems in a timely manner, verified EAS devices are running the current version and patch level of software and firmware, and verified that systems connected to EAS devices are running the current version and patch level of software and firmware? If so, is that sufficient to demonstrate basic security hygiene in the EAS? What alternatives would be acceptable if a participant does not comply with the above elements? Should the Commission allow participants to instead certify the measures they have taken to provide equivalent security or the explanation of how the above elements do not apply to their network? How extensive should such descriptions or explanations be? What issues could arise from requiring that the certification apply to both EAS equipment and all network equipment on the same network? Are there any reasons to refrain from applying the certification requirement to all network equipment connected to an EAS device? Is an annual performance certification from an EAS Participant sufficient? If not, what is a more appropriate interval for filings attesting to performance of required security measures? Alternatively, should the Commission require EAS Participants to update their systems when a patch or update is released and report that they have done so to the Commission? How much time would EAS Participants need to comply with a requirement to identify, acquire, test, apply and verify such updates? Are any of the specific actions proposed above unnecessary, and, if so, why? Alternatively, what other measures should be included in the certification?
152. The Commission seeks comment on the cost of complying with an annual requirement to certify as part of the required information in ETRS that systems are fully patched and running the most current firmware. Since ensuring proper patching and updating is already a common best practice across the communications sector, the Commission assumes that, for most EAS Participants, there would be no additional cost related impact to keeping EAS related systems current. Is this a reasonable assumption? Are there other factors that should be taken in to account when determining whether complying with this particular best practice would require additional effort? Would the benefits from increased performance of required security measures for EAS Participants who are not currently practicing them outweigh the costs of filing? The Commission requests that commenters be specific about costs and provide support and documentation accordingly.
153. A second basic security hygiene practice is proper control, assignment and management of user and administrative accounts. Poor password practices are directly responsible for the Zombie Attack Hoax that had an impact on multiple stations in the northern and western regions of the nation. Due to stations not changing the manufacturer default passwords on their Internet-accessible equipment, hackers were able to log in, generate and send false EAS alerts. As a result, the Commission issued an urgent notice to change default passwords on EAS devices.
154. Despite the existence of well-known user account management best practices, the security breaches described above show that a number of EAS Participants fail to follow them. Thus, the Commission proposes a rule that would require EAS Participants to certify that they are following specific, common, EAS user account management best practices. Had such a rule been in effect at the time of the Zombie Attack Hoax, the targeted entities would have had certifications on file with the Commission that they had changed the default password for the system, had removed or disabled improper accounts, and routinely enforced complex passwords. The Commission believes such certifications, submitted upon penalty for false statements, would have induced the stations to change their default passwords, thus preventing the Zombie Attack Hoax. The Commission
155. Accordingly, the Commission seeks comment on rules requiring EAS Participants to certify annually that they have a control system in place to restrict access to EAS devices, that all EAS devices and connected system passwords have been changed from the default passwords, that password complexity is required, and that default, unnecessary, and expired accounts have been removed or disabled. Would these requirements be sufficient to ensure proper control over EAS device access? If not, what other user account management requirements should be added? What account management alternatives would be acceptable in lieu of these specific elements? In that vein, should participants be required instead to certify as to measures taken to provide equivalent security, or to explain how the account management elements described do not apply to their network? How extensive should such descriptions or explanations be? Should they apply to both EAS equipment and all network equipment on the same network? Should the ETRS identifying information section be used to provide an EAS Participant's certification? Is there a better method of recording certification? Is it reasonable and efficient to require certification as part of the currently required annual update of ETRS identifying information?
156. The Commission also seeks comment on the costs of complying with this particular element of the certification process. Since accepted best practices require basic account management, the Commission assumes that there would be little or no additional effort required to implement those best practices. Is this a reasonable assumption? The Commission requests that commenters be specific about costs and their sources.
157. In the Zombie Attack Hoax, outside actors used default passwords to gain remote Internet access to EAS devices allowing them to transmit false alerts. Had the impacted stations implemented best practices to prevent unauthorized remote access, it is far less likely that the intruders would have been able to penetrate the systems and log in with the default password. A firewall or other architectural separation would have impeded their ability to discover, access and utilize the EAS devices, and would likely have prevented the intrusion. Further, proper remote access security would have provided indications of the access attempt to system administrators who, in turn, could have acted upon that information to safeguard the system.
158. Accordingly, the Commission proposes requiring EAS Participants to certify annually that they have achieved a minimum level of segmentation of the EAS system. The Commission defines segmentation here for certification purposes as a category of best practice-based actions that logically group and compartmentalize assets and restrict trusted access to those compartments. Specifically the Commission proposes that EAS Participants certify that none of their EAS devices is directly accessible through the Internet, (for example, by configuring a firewall to deny access from the public Internet) and that any other type of remote access is properly secured and logged. The Commission believes this would have prevented the fraudulent remote access experienced in the Zombie Attack Hoax and in other similar attacks. The Commission specifically seeks comment on the effectiveness and desirability of the proposed rule. Would such a requirement adequately ensure proper separation of EAS equipment from Internet-connected network equipment? What other specific actions normally included in best practices to segregate control traffic from public access should be included in the certification? What segmentation alternatives would be acceptable to prevent unauthorized remote access? Should participants be required to certify as to the taking of specified measures or, in lieu of those measures, explain how the elements described do not apply to their network? How extensive should such descriptions or explanations be? The Commission also seeks comment on the definition and use of segmentation as a category of certification items. Should the ETRS identifying information section be used to report EAS Participants' certification, or should a different mechanism be employed?
159. The Commission seeks comment on the cost of complying with an annual certification requirement that EAS devices are not directly accessible from the Internet. The Commission further seeks comment on the cost of complying with a requirement that any means of remote access is properly secured and logged. Since accepted best practices (as well as recommendations in vendor guides and industry publications) specify a firewall or other method of segmenting the EAS device from the Internet, the Commission's assumption is that there would be no additional cost associated with having to institute these best practices. Is this a reasonable assumption? Are there other factors that should be taken in to account when determining whether complying with the best practice would require additional effort?
160. Based on comments received in response to the Commission's inquiry into the Bobby Bones Show Incident, it is apparent that EAS Participants may opt not to filter CAP messages based on the digital signature parameter, or may only filter based on digital signature for selected CAP monitoring sources. This raises the risk that even if State or Local authorities include a digital signature in a CAP-formatted message, EAS Participants may disregard the signature if the message was received from a source other than IPAWS-OPEN. By ensuring, and accordingly certifying, that their equipment is configured to validate CAP digital signatures on all CAP messages that include them, EAS Participants increase the security of the entire system by ensuring that CAP messages are unmodified and have been sent by a party with a valid digital certificate and, thus, are trustworthy messages.
161. The Commission seeks comment on the effectiveness and desirability of rules requiring EAS Participants to certify annually that their EAS devices are configured to validate digital signatures on CAP messages if the source of the CAP message includes this feature. Are there any technological or other barriers to certifying devices that are configured to validate digital signatures? If so, what actions could be taken to mitigate or remove those barriers?
162. The Commission also seeks comment on the cost of complying with an annual requirement to certify, as part of the required information in ETRS, that EAS devices are configured to validate digital signatures on CAP messages for all CAP messages that include a digital signature. The Commission requests that commenters be specific about costs and their sources.
163. There currently is no requirement that EAS Participants report to the Commission or FEMA that they have generated a false EAS alert or what circumstances led to the false alert; thus requiring the Commission to rely on reports from the public and the press. This situation has often hampered the Commission's real-time awareness and ability to respond to a crisis or emergency associated with these activities. The Commission's experience over the last decade of collecting and
164. Accordingly, the Commission proposes, and seeks comment on, a rule requiring EAS Participants to report the issuance or retransmission of a false EAS message via ETRS. Should an initial report including only EAS header codes, source, area affected, and time discovered of the false message be required? Is that information sufficient for an initial report? Is it reasonable to require such information or should less be required of the initial report? What other information should be included? The Commission also seeks comment on whether EAS Participants should be required to file their false alert report in ETRS within thirty minutes of identification of a false EAS message transmission. Is there a more appropriate time frame for a required initial report? Should a final report be required 72 hours after the initial report that includes an explanation of the root cause of the improper transmission? What other information should be included? Is that time frame long enough for EAS Participants to provide a final report? Is there a more appropriate time frame for the final report? Should any information in the final report be considered confidential? If so, what information should be covered as such? The Commission seeks comment on the effectiveness and appropriateness of using the ETRS as a reporting tool. Is there a better method of reporting false message transmission?
165. Finally, the Commission requests comments on the costs, burdens and benefits of the proposed mandatory reporting requirement; whether the requirement would promote the reliability, resiliency and security of EAS services; and whether the Commission could more narrowly tailor the requirement or otherwise pursue an alternative that would maximize the potential benefits to society or would accomplish the proceeding's objectives in a less costly, less burdensome, or more effective manner. Based on similarities with the Commission's Part Four outage reporting requirements for the notification and initial reports, the Commission estimates that complying with the reporting requirement will require approximately fifteen minutes for the initial report and forty-five minutes for the final report, for a total of one hour and an estimated cost of $46,400 per year. The Commission seeks comment on the reasonableness and accuracy of this estimate. Commenters should be specific about costs and their sources.
166. As described above, the Bobby Bones Show Incident's audio clip did not contain the EOM code to return subscribers to regular programming. This resulted in 667,195 AT&T U-verse customers across the United States being locked out for several hours, unable to change their television to other programming while leaving them wondering what was happening. During this lockout period, the viewers were left confused about the validity of the alert, placing the credibility of the alert messaging system in question. The Commission believes that viewers must be able to rely on the alerting system for timely, accurate alerting information on which they can depend. The Commission believes that EAS reliability would be greatly enhanced by taking necessary steps to prevent the conditions that would result in the inability of devices to resume normal operation after an EAS alert. The Commission believes this would further public safety interests and address credibility issues that currently linger with the current system. Mandatory reporting
167. Accordingly, the Commission seeks comment on a proposed rule to require all EAS Participants to report instances when their EAS equipment causes, contributes to, or participates in a lockout that adversely affects the public (
168. Finally, the Commission requests comments on the costs, burdens and benefits of the proposed mandatory reporting requirement; whether the requirement would promote the reliability, resiliency and security of EAS services; and whether the Commission could more narrowly tailor the requirement or otherwise pursue an alternative that would maximize the potential benefits to society or would accomplish the proceeding's objectives in a less costly, less burdensome, or more effective manner. The Commission estimates that complying with the reporting requirement will require approximately fifteen minutes for the initial report and forty-five minutes for the final report, for a total of one hour and an estimated cost of $800 per year. The Commission seeks comment on the reasonableness and accuracy of this estimate. The Commission requests that commenters be specific about costs and their sources.
169. The EAS Protocol does not currently include a method to ensure that an alert received by EAS equipment was originated by an authorized source,
170. CAP allows for the use of a digital signature to be used as one method of message authentication. A message may be authenticated by using a digital signature when a federal, state or local CAP alert originator signs a CAP message using its unique originator key, and that signature is decrypted using a single decryption key provided by FEMA/DHS. An EAS Participant can know that a message was sent from a trusted source if it contains a digital signature that can be decrypted by the FEMA/DHS-provided key. Currently, all IPAWS-OPEN-originated CAP messages require digital certificate authentication, but some state and local CAP systems do not, and EAS Participants may elect not to filter CAP messages on the digital signature parameter for all, or only for selected CAP monitoring sources. As EAS Participants and federal authorities comply with CAP-related requirements in accordance with the
171. Accordingly, the Commission seeks comment on the desirability and feasibility of discarding CAP formatted EAS alerts where the digital signature is invalid. What barriers to the implementation of such a rule exist? Is a requirement for all EAS Participants to treat as invalid any CAP-formatted message signed with an invalid signature sufficient to achieve the desired goals? The Commission also seeks comment on the desirability and feasibility of digital signature authentication for all CAP messages, not only those originated by IPAWS-OPEN. Should the Commission require all CAP-formatted messages to be digitally signed? Are there any technical barriers to such a requirement? Is the current process for digitally signing CAP messages for IPAWS-OPEN sufficient? Could it be effectively used for all CAP messages? Should the Commission specify a method of ensuring that all EAS Participants can properly authenticate the alert originators they are responsible for monitoring, or should that be specified within the State EAS Plans? Are State EAS Plans the appropriate location for defining the authentication process for State and Local digital signatures? What impact would there be to state and local authorities from requiring all CAP-formatted EAS messages be digitally signed? Is this rule—in conjunction the certification requirement described above—the most effective and efficient means of ensuring performance of required security measures? If not, what other methods of ensuring performance of required security measures should be adopted? Would any of the questions or proposals in this paragraph apply equally to the WEA system? If so, then to what extent? Commenters should include detail concerning such proposals, including costs and benefits of applying these types of security measures to the WEA system.
172. While CAP digital signatures can provide authentication for messages propagated via IPAWS-OPEN or other IP-based systems, they do not address traditional analog EAS messages transmitted over the air using the EAS Protocol. To address this issue previous commenters have suggested two methods of adding analog authentication mechanisms to EAS Protocol messages. Some EAS stakeholders support the use of an analog version of the CAP digital signature to confirm the authenticity of EAS messages originated in the EAS Protocol. To confirm the authenticity, Monroe proposes a solution of adding a unique message ID or authenticator after the existing EAS header codes. As an example, their TDX solution utilizes Audio Frequency Shift Keyed (AFSK) data in the audio portion of the message to provide an analog version of the CAP digital signature to be decoded downstream. Monroe suggests that “the use of only a few bits of data could suffice as an authenticator value,” and that “such a solution would not overly burden the EAS message, lasting only two to four seconds, and would significantly improve message security.” According to Monroe, such a solution would allow authentication of EAS Protocol messages without reference to an ulterior authentication source. There may be other potential solutions leveraging an analog version of the CAP digital signatures that would prevent retransmission of unauthorized audio alerts. If such an analog version of a digital signature had been in use during the Bobby Bones Show Incident, EAS equipment would have treated the unauthorized EAN alert as inauthentic because it lacked a signature. The same is true in the case of the February 12, 2013 retransmission of the Zombie Attack Hoax, and in the case of the ARCO/BP Advertisement Incident. Additionally, utilizing such an analog signature would have prevented the airing of a number of mistaken test events where an EAN was sent instead of a required test alert, including the December '10 Unauthorized EAN and the Springfield, Illinois Incident.
173. A second solution to EAS alert authentication that could be applied to alerts formatted in the EAS Protocol is a Virtual Red Envelope (VRE) system. While the EAS's predecessor, the Emergency Broadcast System (EBS), used red envelopes to send authentication codes to EAS Participants so that the EAS Participant could confirm the authenticity of subsequent alerts, this proposed virtual solution would use “IPAWS servers to distribute a short validation code as part of the Required Weekly Test.” The Broadcast Warning Working Group (BWWG) advises that such a method could maintain fidelity to the EAS Protocol by appending the validation field to the end of the EAS message header. The message would be considered valid only if the validation code provided in the most recent required monthly test (RMT) matched a corresponding code included in the EAN message. Under the VRE model, “[t]he code match would compel the recipient equipment to automatically and immediately proceed to forward the entire enhanced EAS message in accordance with the Commission's EAS requirements.” On the other hand, if the code did not match, this would trigger an alarm within the VRE system which would prompt manual authentication of the message. If a VRE system had been in use during the Bobby Bones Show Incident, EAS equipment would have treated the unauthorized Presidential EAS alert as inauthentic because it would have lacked an authentication code. Further, if the alert used for the first Nationwide EAS test in November 2011 had contained an authentication code, that code would not have matched the authentication code specified for alerts received in October 2014, which would have prevented retransmission. If EAS equipment were programmed to respond to such a mismatch by holding such an alert for manual inspection, the
174. Accordingly, the Commission seeks comment on the desirability and feasibility of including a unique message ID and/or authenticator ancillary to the EAS Protocol header codes and how to accomplish this in a manner that respects technological neutrality. The Commission seeks comment on the advantages and disadvantages of including a digital signature in CAP- and EAS Protocol-formatted EAS messages. The Commission also seeks comment on the desirability and feasibility of adopting a VRE solution to alert authentication that includes an authentication code within the EAS alert. Is a technical solution currently available that would allow the community to rapidly implement such a capability? What advantages and disadvantages would such a solution have? What would the impact of requiring such a solution be on small and medium businesses? What would the costs of such an implementation be? Should one, two or all of these solutions be required? Should each be considered an independent means of compliance?
175. Alert message “validation” refers to a technical check of a message by EAS equipment that allows for confirmation that a message received is in fact a valid EAS message. The sole method currently available to EAS equipment for performing alert message validation makes use of a time stamp, which contains an inherent ambiguity in that no year parameter is specified in the time stamp. EAS equipment, therefore, is not always capable of determining whether an alert is valid. The Broadcast Warning Working Group (BWWG) notes that “[i]f a fake EAS event is sent or an operator makes a mistake but has the right credentials and timestamp, it will be propagated as programmed, even if it is a recording of a previous alert.”
176. EAS alert validation could be improved by revising Section 11.31 of the Commission's EAS rules to include a year parameter “YYYY” in the time stamp (“JJJHHMM”), and requiring devices to ensure the expiration time of the alert is in the future. If a year field had been included in the time stamp during the Bobby Bones Show Incident, EAS equipment would have recognized that it was dated and, thus, could have prevented the unauthorized EAS alert from being processed as valid by downstream equipment. Such date validation also could have prevented the ARCO/BP Advertisement Incident and the Springfield, Illinois Incident since they were also caused by replay of previous outdated alerts.
177. Further, the Station identification (ID) header code (“LLLLLLLL”) could be a useful validation parameter if the station ID parameter is based on a static designation, such as a station's Physical System ID (PSID), and if EAS Participants accurately maintain the station ID parameter of their EAS equipment as well as the station IDs of the facilities they are assigned to monitor. If EAS equipment always verifies that the station indicated by an alert's station ID header code matches the station ID of an EAS Participant's assigned monitoring sources, use of station ID as a validation parameter could increase the security and reliability of the EAS ecosystem by not retransmitting EAS messages that have originated from outside its area.
178. Accordingly, the Commission seeks comment on the desirability and feasibility of amending Part 11.31 to include a year parameter in the time stamp, and to require devices to only transmit valid alerts. What hardware or software changes would be necessitated by adding a year parameter to the time stamp? How could any costs associated with this change be mitigated? Should the Commission define as valid only alerts with an expiration time in the future? Are there other validation criteria the Commission should consider based on the date-time fields? Are there other actions that the Commission should specify EAS Participants must take based on date-time fields? The Commission also seeks comment on the desirability and feasibility of requiring that the station ID header code be anchored to a static identifier, and on amending the Commission's EAS rules to require alert validation based on the station ID header code. Is PSID an appropriate unique station identifier suitable for use as the station ID header code? Are there other existing identifiers that would be more suitable? Is requiring devices to validate that the station ID header code matches one of the monitoring stations listed in the State EAS Plan, alone or in combination with other methods, a reasonable and effective way of ensuring stations do not retransmit alerts from unauthorized sources?
179. There are some indications that checking for interstitial alerts as a means of alert validation might have prevented the Bobby Bones Show Incident. Recent recommendations from CSRIC IV, however, advise against discarding all interstitial alerts, as some such alerts may be damaged or otherwise inappropriate for retransmission, and some such alerts may be valid and appropriate. In light of the CSRIC IV recommendations on this issue, the Commission seeks comment on the desirability and feasibility of revising Part 11 of the rules to require discard of none, some or all interstitial alerts.
180. Finally, the Commission requests comments on the costs, burdens and benefits of the above proposed changes; whether the changes would reduce the incidence of inadvertent or false alerts; and whether the Commission could more narrowly tailor the changes or otherwise pursue an alternative that would maximize the potential benefits to society or otherwise would accomplish the proceeding's objectives in a less costly, less burdensome, and/or more effective manner. In the
181. In this section, the Commission seeks comment on the degree of confidentiality that should be provided for security certifications and reporting-related information submitted to the Commission via ETRS. Under Sections 0.457(d)(1)(vi) and 4.2 of the Commission's rules, the Commission currently treats reports that are filed in its Network Outage Reporting System (NORS) as presumptively confidential, thus allowing such reports to be withheld from routine public inspection. This presumption recognizes both the “likelihood of substantial competitive harm from disclosure of information” and the Commission's concern that “the national defense and public safety goals that we seek to achieve by . . . these . . . reports would be seriously undermined if we were to permit these reports to fall into the hands of terrorists who seek to cripple the nation's communications infrastructure.” The Commission currently shares NORS reports with the Department of Homeland Security (DHS), which may “provide information from those reports to such other [federal] governmental authorities as it may deem to be appropriate.”
182.
183. The Commission tentatively concludes that the act of filing an annual certification should not be treated as presumptively confidential; however, the Commission recognizes that the data reported on the certification should be treated as presumptively confidential. The Commission recognizes the potential utility in treating as presumptively confidential information submitted in addition to annual certifications that describe alternative measures employed by the EAS Participant to mitigate the risks of nonconformance with certification elements. Accordingly, the Commission proposes the act of filing, and the contents of that addenda to EAS Participants annual certifications describing alternative approaches to performance of required security measures should be treated as presumptively confidential. The Commission believes this approach and rationale are consistent with other similar certification reporting requirements. The Commission seeks comment on these tentative conclusions, and on its analysis.
184.
185. The Commission believes that a need exists to presumptively treat as confidential the information submitted by an EAS Participant pursuant to reporting on the issuance or retransmission of a false EAS message via ETRS, or on instances when an EAS Participant's equipment causes, contributes to, or participates in an incident that adversely affects the public and equipment does not return to normal operation after receiving an EAS alert. The Commission recognizes that some of the information in both contexts may contain material that, if disclosed, could potentially cause substantial competitive harm to the EAS Participant or even undermine national defense and public safety. Conversely, the same information may provide valuable insight into EAS vulnerabilities, information detailing specific corrective action(s) taken, the need for specific corrective action(s), or reasons why the EAS may have functioned sub-optimally. Given these competing concerns, the Commission tentatively concludes that treating such information in a presumed confidential manner is justified. The Commission seeks comment on this view. The Commission also seeks comment on whether there are sound reasons why it should treat submissions related to EAS annual certifications, false alert reporting, and lockout notifications differently with respect to their respective presumptive confidential treatment.
186.
187. The Commission further seeks comment on whether information should be shared under Part 11 with the National Coordinating Center for Communications (NCC), a government-industry initiative led by DHS representing 24 federal agencies and more than 50 private-sector communications and information technology companies. Would access to data collected pursuant to Part 11 contribute to the NCC's mission? Under what terms, if any, should such access be provided? Should the Commission instead leave to the discretion of the EAS Participants what Part 11 information they chose to share with the NCC? Would the Commission's sharing of Part 11 information with NCC discourage Part 11 reporting? Is there a subset of data proposed to be collected under Part 11 that the Commission should share with the NCC while upholding the confidentiality presumption that the Commission proposes be established for information submitted pursuant to Part 11? Would the sharing of Part 11 data in aggregate or generalized form be useful to NCC? Finally, it would appear that such information sharing would not have any appreciable cost impact. The Commission seeks comment on this view.
188.
189. Given the national security and critical infrastructure concerns with having access to this data, what additional assurances can the Commission provide to ensure that any Part 11 information shared with appropriate entities will be properly safeguarded? Should personnel charged with obtaining Part 11 information be required to have security training? Should the identity of these individuals be supplied to the Commission? Should states be required to report breaches of confidentiality of information obtained as a result of compliance with the Commission's Part 11 rules? Should an EAS Participant be permitted to audit a state's handling of its information submitted in accordance with Part 11?
190.
191. In addition to any EAS information that the Commission ultimately may receive through the reporting processes outlined in this NPRM, the Commission may also obtain information through other sources (public and non-public) revealing vulnerabilities in the EAS. While the Commission proposes to treat information contained in certifications as presumptively confidential, as discussed above, it does not presently have an established regime for other information that it may receive that is in addition to information received through the reporting processes. As potential threats increase, and as the Commission receives more information on related threats to EAS and its potential vulnerabilities, should the Commission establish a set of controls within the Commission to limit the distribution of and otherwise safeguard the information that it receives? For example, should such information be treated as presumptively confidential as well? Further, should there be specific methodologies for the handling of information on EAS vulnerabilities, beyond simply the confidential treatment of that information? Should the Commission apply physical and IT security controls to protect information regarding EAS vulnerabilities, and limit access to such information on EAS vulnerabilities to a validated subset of Commission staff? The Commission asks commenters to address whether and what controls should be used in the Commission's handling of such information, and the duration for which such controls should remain in force or effect. The Commission seeks comment on these or other potential approaches to the treatment of information that reveals potential vulnerabilities in the system, and to the designation and handling of such information once received by the Commission. The Commission also asks commenters to address whether the designation, treatment and handling processes proposed ought to concern both the physical EAS architecture as well as IT security controls, or just one of those areas and, if the latter, which and why?
192. The Commission also seeks comment on the extent to which EAS stakeholders, including EAS Participants and EAS equipment vendors, should take measures to ensure that potential architectural or configuration vulnerabilities are safeguarded from inappropriate public disclosure. For example, the Commission observes that EAS equipment manufacturers may provide encoder/decoder information available to users on public Web sites, including default equipment passwords. Despite the Commission's proposal to require participants change default equipment passwords, does such practice create potential vulnerabilities? The Commission asks commenters whether information on the EAS architecture, including equipment instructions, can be subject to safeguards, and if so by what means? For example, should instructions be made available only to validated entities and thus, not made publicly available on Web sites? How could the effectiveness in increasing security of such a restriction be measured compare to the costs of administering such a program and of limiting access to operators, maintainers, and researchers? What other measures should stakeholders take to keep information regarding EAS architecture and configuration secure? To the extent the Commission were to take measures to ensure that information on EAS architectural and IT configuration vulnerabilities is made more secure, what specific legal and regulatory authorities would apply?
193. As a logical extension of the Commission's discussion above of the costs and operational issues associated with implementing new security measures for EAS, the Commission seeks comment on whether its proposed security rules should apply to all EAS alerts, and to all EAS Participants. Specifically, the Commission seeks comment on whether the Presidential Alert may warrant additional and/or heightened security measures, whose implementation costs may exceed the benefits when applied to local alerts that are issued more commonly, and that have a less immediate impact on national security. In the discussion below, the Commission seeks comment on whether to except EAS Participants currently designated as PN stations from some or all of the security requirements it proposes. The Commission also seeks comment on potentially excusing EAS Participants that qualify as “small businesses” under the Small Business Association (SBA) standard for their respective industries from some or all of the security requirements the Commission proposes today.
194.
195.
196.
197. In this section, the Commission initiates a dialogue about whether the level of administrative upkeep and oversight required to ensure that all security and performance updates required to maintain EAS equipment are uniformly implemented across a heterogeneous EAS system, and the level of coordination and planning needed to satisfactorily address the complex and varied threat vectors that exist for attacking EAS militate in favor of a new approach to EAS design. In particular, the Commission seeks comment on the efficacy of two potential software-defined networking approaches to a new EAS paradigm: (1) Centralized configuration and management of EAS updates and security; and (2) virtualization of EAS equipment. The Commission also seeks comment on whether and how these approaches could be implemented in order to improve EAS security, and increase the consistency of EAS operations.
198. Centralization of EAS configuration and management entails logically connecting EAS equipment to a remote, central controller or database. In the
199. The Commission seeks comment on whether a centralized configuration and management structure for EAS would result in significant security and operational benefits. The security of the EAS platform has been compromised on several occasions. While the Commission has proposed to adopt measures to further authenticate and validate EAS messages above, given the scope of human intervention required to completely inoculate the EAS against unauthorized alerts and other security threats, is it possible that continued piecemeal modification of the Part 11 rules, even with greater diligence on the part of EAS Participants in adhering to security best practices, might not be sufficient to fully secure the EAS? The Commission seeks comment on whether a broader approach to EAS architecture design may be necessary. Particularly, as threats evolve, what steps should the Commission take now as a proactive response to such threats? Specifically, the Commission seeks comment on whether centralization has potential to augment EAS capabilities, whether it has the potential to improve EAS security and reliability, and on the engineering challenges and operational issues, including cost, that implementation would entail.
200.
201.
202.
203. The Commission seeks comment on whether centralized configuration and management would also include the development of at least three new, secure protocols. First, the Commission seeks comment on whether a secure protocol would be necessary to govern all communications between the central controller and EAS equipment. The Commission also seeks comment on whether a second secure protocol would be required to describe the master-slave relationship between the central controller and EAS receivers. Third, the Commission also seeks comment on whether a secure protocol would be required to automatically hand over control from one controller to another in the event of such an equipment failure or attack. Are there are additional protocols, equipment upgrades or engineering challenges of which the Commission should be aware?
204.
205.
206. The Commission seeks comment on the benefits of virtualization of aspects of EAS equipment or alert distribution in the context of a wider transition among EAS Participants to IP-based platforms, and cloud-based network architectures and strategies in particular. Specifically, the Commission seeks comment on the benefits of virtualizing EAS equipment, operational issues and costs implicated by implementation, and on whether virtualization should be considered in the alternative, or as a complement to centralization.
207.
208.
209. Would virtualization add value to an EAS implementation that included a central controller? The Commission seeks comment on whether the system checking function of the central controller is sufficient to achieve consistency in function without the homogeneity of form that could be created by virtualization. Are there any additional benefits to a virtualized system not captured by centralized configuration and management? Would a virtualized approach to EAS implementation be consistent with the Commission's operating principle of technological neutrality?
210. The NPRM in its background section discusses the two complementary mechanisms by which EAS messages are transmitted: (1) Through the traditional, broadcast-based EAS Protocol; and (2) through the newer, Internet-based, CAP-formatted, IPAWS system. The Commission seeks comment on how stakeholders believe those two systems should relate to each other going forward. For example, does it make sense to keep the two different systems solely for resiliency considerations? Can the Commission, FEMA and other Federal partners and EAS Participants sufficiently secure the broadcast-based EAS to achieve appropriate levels of resiliency and to ensure that this EAS path does not expose EAS more generally to undue security risks? Are the failure modes of the two paths sufficiently different to suggest an enduring unique value from both elements? Does a sufficient number of EAS Participants, particularly in rural and other underserved areas have the Internet access or other technologies necessary to participate in the CAP-formatted system? Ultimately, does it make sense to migrate to one system? If so, over what time period? What should that new system look like? Would purely Internet-based systems be overly reliant on the need for strong cybersecurity?
211. Are stakeholders confused or is there any inefficiencies the Commission should be aware of because there are two systems? Also, given the ways in which communications have changed since the EAS and its predecessor system was introduced,
212. The current adoption of IPAWS-OPEN as a delivery method of alerts to all EAS participants in accordance with the Commission's requirements in the
213. Given the importance of physical security in maintaining the integrity of the EAS system, what additional measures may be necessary to ensure access to EAS devices and the IP network that feeds them are protected from malicious damage or compromise? Are the existing practices and continuity of operation plans sufficient to ensure reliable delivery of EAS alerts to the public? What additional levels of redundant paths, equipment, power, and other services should be required to ensure operation? For example, in addition to the security measures proposed earlier in Section III(D)(2), what other methods could the Commission use to prevent IP-based attacks from compromising the EAS system? Should the Commission maintain a secondary broadcast EAS system based on legacy EAS in addition to and separate from the IPAWS-OPEN-based system?
214. The Commission seeks comment on the timeframes in which the proposals in this NPRM, if adopted, could reasonably be implemented by EAS Participants. As discussed in greater detail below, the Commission proposes that EAS Participants must comply with its proposed rules that include new information collection requirements (
215.
216.
217.
218.
219. Under the Communications Act of 1934, as amended (Act), the Commission was established, among other things, to “make available rapid, efficient . . . wire and radio communication service with adequate facilities . . . for the purpose of the national defense” and “for the purpose of promoting safety of life and property.” The Commission's regulation of emergency broadcasting, both of the EBS and EAS, has been grounded, in significant part, in Sections 1, 4(i) and (o), 303(r), and 706 of the Act. Additionally, the Commission has authority to impose EAS obligations on cable systems under Section 624(g) of the Act, regulate participation by Commercial Mobile Service in the emergency alerting process under the WARN Act, and to ensure that emergency information is accessible under the Twenty-First Century Communications and Video Accessibility Act.
220. In order to enable the President to reliably execute this authority in the public interest, the Commission has long considered it necessary to ensure that the Commission's national alerting architecture is ready to transmit an alert authorized by the President (
221. In addition to the authorities discussed above, the Commission believes it has authority to adopt alert authentication and validation rules, require security certifications, and collect false alert and lockout reports from EAS Participants. First, the Commission has express authority under Title III to make changes to alert authentication and validation and to require EAS security certifications from Title III licensees. Title III directs the Commission to “maintain the control of the United States over all channels of radio transmission” and charges the Commission with protecting the viability of local broadcasting. Section 303 of the Act states that the Commission shall “[p]rescribe the nature of the service to be rendered by each class of licensed stations” where public convenience, interest, or necessity requires and encourage the effective use of radio in the public interest. Further, the Act prohibits the transmission or rebroadcast of “false distress signals,” a prohibition that includes false or fraudulent EAS alerts. Finally, the Commission believes that its authority to assure that the EAS is delivered in a secure fashion extends to requiring EAS Participants to provide reports that would allow the Commission to investigate, study, and be aware of any potential issues that may preclude the secure and reliable transmission of the EAN. Fraudulent EAS alerts create widespread public confusion and even panic. The Commission seeks comment on its authority under all the foregoing provisions discussed in this section to adopt the proposals in this NPRM, all of which are primarily intended to prepare the nation's alerting infrastructure for successful transmission of a Presidential Alert. The Commission also seeks comment on whether there are other sources of legal authority for the Commission to enact these rules. To the extent commenters believe that additional sources of authority would be necessary or relevant to allowing the Commission to address commenters' concerns, the Commission encourages commenters to offer additional sources of authority on which it may rely for this purpose.
222. The proceeding initiated by this
223. Pursuant to Sections 1.415 and 1.419 of the Commission's rules, 47 CFR 1.415, 1.419, interested parties may file comments and reply comments on or before the dates indicated on the first page of this document. Comments may be filed using the Commission's Electronic Comment Filing System (ECFS).
Filings can be sent by hand or messenger delivery, by commercial overnight courier, or by first-class or overnight U.S. Postal Service mail. All filings must be addressed to the Commission's Secretary, Office of the Secretary, Federal Communications Commission.
1. All hand-delivered or messenger-delivered paper filings for the Commission's Secretary must be delivered to FCC Headquarters at 445 12th St. SW., Room TW-A325, Washington, DC 20554. The filing hours are 8:00 a.m. to 7:00 p.m. All hand deliveries must be held together with rubber bands or fasteners. Any envelopes and boxes must be disposed of
2. Commercial overnight mail (other than U.S. Postal Service Express Mail and Priority Mail) must be sent to 9300 East Hampton Drive, Capitol Heights, MD 20743.
3. U.S. Postal Service first-class, Express, and Priority mail must be addressed to 445 12th Street SW., Washington DC 20554.
224. People with Disabilities: To request materials in accessible formats for people with disabilities (braille, large print, electronic files, audio format), send an email to
225. As required by the Regulatory Flexibility Act of 1980, see 5 U.S.C. 604, the Commission has prepared an Initial Regulatory Flexibility Analysis (IRFA) of the possible significant economic impact on small entities of the policies and rules addressed in this document. The IRFA is set forth in Appendix B. Written public comments are requested in the IRFA. These comments must be filed in accordance with the same filing deadlines as comments filed in response to this
226. This document contains proposed new or modified information collection requirements. The Commission, as part of its continuing effort to reduce paperwork burdens, invites the general public and the Office of Management and Budget (OMB) to comment on the information collection requirements contained in this document, as required by the Paperwork Reduction Act of 1995, Public Law 104-13. In addition, pursuant to the Small Business Paperwork Relief Act of 2002, Public Law 107-198,
227. Accordingly,
228.
Radio, Television, Emergency alerting.
For the reasons discussed in the preamble, the Federal Communications Commission proposes to amend 47 CFR part 11 to read as follows:
47 U.S.C. 151, 154 (i) and (o), 303(r), 544(g) and 606.
The definitions of terms used in part 11 are:
(a)
(b)
(c)
(d)
(a) The Primary Entry Point System is a nationwide network of broadcast stations and other entities connected with government activation points. It is used to distribute EAS messages that are formatted in the EAS Protocol (specified in § 11.31), including the EAN and EAS national test messages. FEMA has designated some of the nation's largest radio broadcast stations as PEPs. The PEPs are designated to receive the Presidential alert from FEMA and distribute it to local stations.
(b) A National Primary (NP) is the entity tasked with the primary responsibility of delivering the Presidential alert to a state's EAS Participants. Thus, for a state that has a FEMA-designated PEP, that station would be designated as that state's National Primary. For a state that does not have a PEP, another station would act as National Primary.
(c) A State Primary (SP) is an entity tasked with initiating the delivery of a state EAS alert. A State Primary may be a broadcaster, a state emergency management office, or other entity authorized to and capable of initiating a state-based EAS alert. A State Primary and a National Primary may be the same broadcaster, but would need to be separately designated as such in any State EAS Plan.
(d) A Relay Station (RS) retransmits EAS messages, including the Presidential Alert and state and local alerts, to Local Primary (LP) sources for distribution to Participation National sources, and the public, as necessary.
(e) A Local Primary (LP) serves as a monitoring assignment for a Participating National (PN) entity. An LP source is responsible for coordinating the carriage of common emergency messages from sources such as the National Weather Service or local emergency management offices as specified in its State EAS Plan. If it is unable to carry out this function, other LP sources in the Local Area may be assigned the responsibility as indicated in State EAS Plans. LP sources are assigned numbers (LP-1, 2, 3,
(f) Participating National (PN) entities transmit EAS National, State or Local Area messages. The EAS transmissions of PN sources are intended for direct public reception.
(a) EAS plans contain guidelines which must be followed by EAS Participants' personnel, emergency officials, and National Weather Service (NWS) personnel to activate the EAS. The plans include the following elements:
(1) A list of the EAS header codes and messages that will be transmitted by key EAS sources (National Primary (NP), State Primary (SP), Local Primary (LP), and State Relay (SR) stations);
(2) Procedures for state emergency management officials, the National Weather Service, and EAS Participant personnel to transmit emergency information to the public during an emergency using regulated alerting tools (
(3) A list of all entities authorized to activate EAS for state and local emergency messages (
(4) Monitoring assignments to receive the Presidential Alert, and the primary and back-up paths for the dissemination of the Presidential Alert to all key EAS sources organized by operational areas within the state;
(5) State procedures for special EAS tests, Required Monthly Tests (RMTs), Required Weekly Tests (RWTs) and national tests designed to ensure that the system will function as designed when needed for a Presidential Alert, including a description of the extent to which State and Local WEA Tests are utilized by alert originators as a complement to the Presidential Alert distribution system to verify that WEA is capable of informing the public that a Presidential Alert is presently being delivered over EAS;
(6) The extent to which alert originators coordinate “one-to-many” alerts with “many-to-one” community feedback mechanisms, such as 9-1-1, to make full use of public safety resources;
(7) Specific and detailed information describing the procedures for ensuring EAS Participants can authenticate the current assigned state, local and tribal originators, if the state initiates EAS messages formatted in the Common Alerting Protocol (CAP) signed with a digital signature as specified in the Organization for the Advancement of Structured Information Standards (OASIS) Common Alerting Protocol Version 1.2 (July 1, 2010), its EAS State Plan; and
(8) The SECC governance structure utilized by the state in order to organize state and local resources to ensure the efficient and effective delivery of a Presidential Alert, including the duties of SECCs, the membership selection process utilized by the SECC, and the proposed administration of the SECCs.
(b) The Local Area plan contains procedures for local officials or the NWS to transmit emergency information to the public during a local emergency using the EAS. Local plans may be a part of the State plan. A Local Area is a geographical area of contiguous communities or counties that may include more than one state.
(c) The FCC Mapbook is based on the consolidation of the data table required in each State EAS plan with the identifying data contained in the ETRS. The Mapbook organizes all EAS Participants according to their State, EAS Local Area, and EAS designation. EAS Participant monitoring assignments and EAS operations must be implemented in a manner consistent with guidelines established in a State EAS Plan submitted to the Commission in order for the Mapbook to accurately reflect actual alert distribution.
(c) The EAS protocol, including any codes, must not be amended, extended or abridged without FCC authorization. The EAS protocol and message format are specified in the following representation.
Examples are provided in FCC Public Notices.
[PREAMBLE]ZCZC-ORG-EEE-PSSCCC+TTTT-YYYYJJJHHMM-LLLLLLLL-(one second pause)
[PREAMBLE]ZCZC-ORG-EEE-PSSCCC+TTTT-YYYYJJJHHMM-LLLLLLLL-(one second pause)
[PREAMBLE]ZCZC-ORG-EEE-PSSCCC+TTTT-YYYYJJJHHMM-LLLLLLLL-(at least a one second pause)
(transmission of 8 to 25 seconds of Attention Signal)
(transmission of audio, video or text messages)
(at least a one second pause)
[PREAMBLE]NNNN (one second pause)
[PREAMBLE]NNNN (one second pause)
[PREAMBLE]NNNN (at least one second pause)
[PREAMBLE] This is a consecutive string of bits (sixteen bytes of AB hexadecimal [8 bit byte 10101011]) sent to clear the system, set AGC and set asynchronous decoder clocking cycles. The preamble must be transmitted before each header and End of Message code.
ZCZC—This is the identifier, sent as ASCII characters ZCZC to indicate the start of ASCII code.
ORG—This is the Originator code and indicates who originally initiated the activation of the EAS. These codes are specified in paragraph (d) of this section.
EEE—This is the Event code and indicates the nature of the EAS activation. The codes are specified in paragraph (e) of this section. The Event codes must be compatible with the codes used by the NWS Weather Radio Specific Area Message Encoder (WRSAME).
PSSCCC—This is the Location code and indicates the geographic area affected by the EAS alert. There may be 31 Location codes in an EAS alert. The Location code uses the codes described in the American National Standards Institute (ANSI) standard, ANSI INCITS 31-2009 (“Information technology—Codes for the Identification of Counties and Equivalent Areas of the United States, Puerto Rico, and the Insular Areas”). Each state is assigned an SS number as specified in paragraph (f) of this section. Each county and some cities are assigned a CCC number. A CCC number of 000 refers to an entire State or Territory. P defines county subdivisions as follows: 0 = all or an unspecified portion of a county, 1 = Northwest, 2 = North, 3 = Northeast, 4 = West, 5 = Central, 6 = East, 7 = Southwest, 8 = South, 9 = Southeast. Other numbers may be designated later for special applications. The use of county subdivisions will probably be rare and generally for oddly shaped or unusually large counties. Any subdivisions must be defined and agreed to by the local officials prior to use.
+ TTTT—This indicates the valid time period of a message in 15 minute segments up to one hour and then in 30 minute segments beyond one hour;
YYYYJJJHHMM—This is the year (YYYY), day in Julian Calendar days (JJJ) of the year and the time in hours and minutes (HHMM) when the message was initially released by the originator using 24 hour Universal Coordinated Time (UTC).
LLLLLLLL—This is the PSID identification of the EAS Participant, NWS office, etc., transmitting or retransmitting the message. These codes will be automatically affixed to all outgoing messages by the EAS encoder.
NNNN—This is the End of Message (EOM) code sent as a string of four ASCII N characters.
(a) * * *
(5) Day-Hour-Minute and Identification Stamps. The encoder shall affix the YYYYJJJHHMM and LLLLLLLL codes automatically to all initial messages.
(a) * * *
(10)
(a)
(1)
(i) Has satisfied the obligations of subsection (b) of this section.
(ii) Has adequate internal controls to bring material information regarding network architecture, operations, and maintenance to the Certifying Official's attention.
(iii) Has made the Certifying Official aware of all material information reasonably necessary to complete the certification.
(2)
(3)
(b)
(1)
(i) An EAS Participant shall certify whether it has, within the past year:
(A) Followed a program to identify and install updates and patches to EAS devices and attached systems in a timely manner;
(B) Verified EAS devices are running the current version and patch level of software and firmware; and
(C) Verified systems connected to EAS devices are running the current version and patch level of software and firmware.
(ii) If an EAS Participant does not conform with the elements in paragraph (b)(1)(i) of this section it must certify:
(A) Whether it has taken alternative measures or remediation to meet or exceed the security provided by the current version and patch level, in which case it shall provide a brief explanation of such alternative measures or such remediation steps, the date by which it anticipates such remediation will be completed, and why it believes those measures are reasonably sufficient to mitigate such risk; or
(B) Whether it believes that one or more of the requirements of this paragraph are not applicable to its network, in which case it shall provide a brief explanation of why it believes any such requirement does not apply.
(2)
(i) An EAS Participant shall certify that:
(A) All EAS device and connected system passwords have been changed from the default;
(B) Where passwords are used, password complexity is required; and
(C) Default, unnecessary, and expired accounts have been removed or disabled.
(ii) If an EAS Participant does not conform with all of the elements in paragraph (b)(2)(i) of this section, it must certify:
(A) Whether it has taken alternative measures to mitigate the risk of a unauthorized access or is taking steps to remediate any issues it has identified in complying with the above elements, in which case it shall provide a brief explanation of such alternative measures or such remediation steps, the date by which it anticipates such remediation will be completed, and why it believes those measures are reasonably sufficient to mitigate such risk; or
(B) Whether it believes that one or more of the requirements of this paragraph are not applicable to its network, in which case it shall provide a brief explanation of why it believes any such requirement does not apply.
(3)
(i) An EAS Participant shall certify that:
(A) All of its EAS devices are not directly accessible from the Internet; and
(B) If remote access to EAS devices is required, such access is properly logged and secured in accordance with industry best practices.
(ii) If an EAS Participant does not conform with all of the elements in paragraph (c)(3)(i) of this section, it must certify whether it believes that one or more of the requirements of this paragraph are not applicable to its network, in which case it shall provide an explanation of why it believes any such requirement does not apply.
(4)
(c) Other Matters.
(1)
(i) The fact of filing or not filing an Annual EAS Security Certification and the responses on the face of such certification forms shall not be treated as confidential.
(ii) Information submitted with or in addition to such Certifications shall be presumed confidential to the extent that it consists of descriptions and documentation of alternative measures to mitigate the risks of nonconformance with certification elements, information detailing specific corrective actions taken with respect to certification elements, or supplemental information requested by the Commission or Bureau with respect to a certification.
(2) [Reserved]
(a) No person may transmit or cause to transmit the EAS codes or Attention Signal, or a recording or simulation thereof, in any circumstance other than in an actual National, State or Local Area emergency or authorized test of the EAS; or as specified in §§ 11.46 and 11.61.
(b) All EAS Participants shall submit electronically a Notification to the Commission via ETRS:
(1) An initial report within 30 minutes of discovering the transmission of a false EAS alert by their station. The report shall include the time discovered, transmitted EAS alert fields, message source, and area covered by the transmission.
(2) An initial report within 15 minutes of discovering that EAS Participant equipment causes, contributes to, or participates in a lockout that adversely affects the public. The report shall include the time discovered, message source, and affected devices.
(3) Not later than 72 hours after discovering the event, the EAS Participant shall submit a final report to the Commission describing the root cause of the event, number of affected customers, and mitigation steps taken.
(c) Confidential Treatment.
(1) The fact of filing or not filing a false EAS alert report shall not be treated as confidential.
(2) Information submitted with or in addition to such reports shall be presumed confidential to the extent that it consists of descriptions and documentation of proprietary company information, root causes, or supplemental information requested by the Commission or Bureau with respect to an incident.
Public Service Announcements and commercially-sponsored announcements, infomercials, or programs may be used to explain the EAS to the public, provided that the entity using the codes and Attention Signal presents them in a non-misleading and technically harmless manner.
(d) EAS Participants must comply with the following monitoring requirements:
(1) With respect to monitoring for EAS messages that are formatted in accordance with the EAS Protocol, EAS Participants must monitor two EAS sources.
(a) Immediately upon receipt of a valid EAN message, or the NPT Event code in the case of a nationwide test of the EAS, EAS Participants must comply with the following requirements, as applicable:
(1) Analog and digital broadcast stations may transmit their call letters and analog cable systems, digital cable systems and wireless cable systems may transmit the names of the communities they serve during an EAS activation.
(c) EAS Participants shall configure their systems to treat as invalid all CAP-formatted EAS messages that include a digital signature that does not match an authorized source from FEMA or from a designated source as specified in the state EAS plan.
(a) * * *
(3) * * *
(iv) * * *
(A) EAS Participants shall provide the identifying information required by the ETRS initially no later than sixty days after the publication in the
(5)
(i) Provides notification in accessible formats during the test (
(ii) Engages in outreach pre-test to coordinates among EAS Participants and with state and local emergency authorities, as well as first responder organizations (
Office of Energy Efficiency and Renewable Energy, Department of Energy.
Notice of proposed rulemaking and announcement of public meeting.
The Energy Policy and Conservation Act of 1975 (EPCA), as amended, prescribes energy conservation standards for various consumer equipment and certain commercial and industrial equipment, including commercial packaged boilers. EPCA also requires the U.S. Department of Energy (DOE) to periodically determine whether more stringent standards would be technologically feasible and economically justified, and would save a significant amount of energy. DOE has tentatively concluded that more stringent standards are technologically feasible and economically justified, and would result in significant additional conservation of energy. Therefore, DOE proposes amended energy conservation standards for commercial packaged boilers. This document also announces a public meeting to receive comment on the proposed standards and associated analyses and results.
Comments regarding the likely competitive impact of the proposed standard should be sent to the Department of Justice contact listed in the
The public meeting will be held at the U.S. Department of Energy, Forrestal Building, Room 1E-245, 1000 Independence Avenue SW., Washington, DC 20585. To register for the webinar and receive call-in information, please use this link:
1.
2.
3.
4.
Written comments regarding the burden-hour estimates or other aspects of the collection-of-information requirements contained in this proposed rule may be submitted to Office of Energy Efficiency and Renewable Energy through the methods listed above and by email to
No telefacsimilies (faxes) will be accepted. For detailed instructions on submitting comments and additional information on the rulemaking process, see section VII of this document (Public Participation).
EPCA requires the Attorney General to provide DOE a written determination of whether the proposed standard is likely to lessen competition. The U.S. Department of Justice Antitrust Division invites input from market participants and other interested persons with views on the likely competitive impact of the proposed standard. Interested persons may contact the Division at
A link to the docket Web page can be found at
Mr. James Raba, U.S. Department of Energy, Office of Energy Efficiency and Renewable Energy, Building Technologies Office, EE-5B, 1000 Independence Avenue SW., Washington, DC 20585-0121. Telephone: (202) 586-8654. Email:
Mr. Peter Cochran, U.S. Department of Energy, Office of the General Counsel, GC-33 1000 Independence Avenue SW., Washington, DC 20585-0121. Telephone: (202) 586-9496. Email:
For further information on how to submit a comment, review other public comments and the docket, or participate in the public meeting, contact Ms. Brenda Edwards at (202) 586-2945 or by email:
Title III, Part C
EPCA requires DOE to conduct an evaluation of its standards for CPB equipment every 6 years and to publish either a notice of determination that such standards do not need to be amended or a NOPR including proposed amended standards. (42 U.S.C. 6313(a)(6)(C)(i)) EPCA further requires that any new or amended energy conservation standards that DOE prescribes for covered equipment shall be designed to achieve the maximum improvement in energy efficiency that is technologically feasible and economically justified. (42 U.S.C. 6313(a)(6)(A)(ii)(II)) Furthermore, the new or amended standard must result in a significant additional conservation of energy.
Pursuant to these and other statutory requirements discussed in this document, DOE initiated this rulemaking to evaluate CPB energy conservation standards and to determine whether new or amended standards are warranted. DOE has examined the existing CPB standards and has tentatively concluded that modifying and expanding the existing 10 CPB equipment classes to 12 equipment classes is warranted. As discussed in detail in section IV.A.2 of this document, DOE proposes to: (1) Discontinue the use of draft type as a criteria for equipment classes; and (2) establish separate equipment classes for “very large” commercial packaged boilers. Eliminating the use of draft type as a distinguishing feature for equipment classes would consolidate the 4 existing draft-specific equipment classes into 2 non-draft-specific equipment classes. Further, the proposed change to distinguish very large CPB as separate equipment classes would result in an additional 4 equipment classes. As a result, the total number of equipment classes would increase from 10 to 12. DOE has tentatively concluded that there is clear and convincing evidence to support more stringent standards for 8 of the 12 equipment classes proposed in this NOPR, which includes all classes except for the newly proposed very large CPB classes. The proposed standards, which prescribe minimum thermal efficiencies (E
Table I.2 presents DOE's evaluation of the economic impacts of the proposed energy conservation standards on consumers of commercial packaged boilers, as measured by the average life-cycle cost (LCC) savings and the simple payback period (PBP).
DOE's analysis of the impacts of the proposed standards on consumers is described in section IV.F of this document and in chapter 8 of the NOPR TSD.
The industry net present value (INPV) is the sum of the discounted cash flows to the industry from the base year through the end of the analysis period (2014 to 2048). Using a real discount rate of 9.5 percent, DOE estimates that the INPV for manufacturers of commercial packaged boilers is $180.1 million in 2014$. Under the proposed standards, DOE expects that INPV may reduce by $23.8 to $13.1 million, which is approximately 13.2 to 7.3 percent respectively. Under today's proposed standard, DOE expects the industry to incur $27.5 million in conversion costs.
DOE's analysis of the impacts of the proposed standards on manufacturers is described in section IV.J of this document.
DOE's analyses indicate that the proposed standards would save a significant amount of energy. The lifetime energy savings for commercial packaged boilers purchased in the 30-year period that begins in the anticipated first full year of compliance with amended standards (2019-2048), relative to the case without amended standards (referred to as the “no-new-standards case”), amount to 0.39 quadrillion Btu (quads).
The cumulative net present value (NPV) of total consumer costs and savings of the proposed standards for commercial packaged boilers ranges from $0.414 billion (at a 7-percent discount rate) to $1.687 billion (at a 3-percent discount rate). This NPV expresses the estimated total value of future operating-cost savings minus the estimated increased equipment and installation costs for commercial packaged boilers purchased in 2019-2048.
In addition, the proposed CPB standards would have significant environmental benefits. The energy savings described in this section are estimated to result in cumulative emission reductions (over the same period as for energy savings) of 22 million metric tons (Mt)
The value of the CO
Table I.3 summarizes the national economic benefits and costs expected to result from the proposed standards for commercial packaged boilers.
The benefits and costs of this NOPR's proposed energy conservation standards, for covered commercial packaged boilers sold in 2019-2048, can also be expressed in terms of annualized values. The monetary values for the total annualized net benefits are the sum of: (1) The annualized national economic value of the benefits from consumer operation of the equipment that meets the proposed standards (consisting primarily of reduced operating costs minus increases in product purchase price and installation costs); and (2) the annualized value of the benefits of CO
The national operating savings are domestic private U.S. consumer monetary savings that occur as a result of purchasing these equipment. The national operating cost savings is measured for the lifetime of commercial packaged boilers shipped in 2019-2048.
The CO
Estimates of annualized benefits and costs of the proposed standards are shown in Table I.4. The results under the primary estimate are as follows. Using a 7-percent discount rate for benefits and costs other than CO
DOE's analysis of the national impacts of the proposed standards is described in sections IV.H, IV.K, and IV.L of this document.
Based on clear and convincing evidence, DOE has tentatively concluded that the proposed standards represent the maximum improvement in energy efficiency that is technologically feasible and economically justified, and would result in the significant conservation of energy. DOE further notes that equipment achieving these standard levels is already commercially available for at least some, if not most, equipment classes covered by this
DOE also considered more stringent energy efficiency levels as potential standards, and is considering them in this rulemaking. However, DOE has tentatively concluded that the potential burdens of the more stringent energy efficiency levels would outweigh the projected benefits. Based on consideration of the public comments that DOE receives in response to this document and related information collected and analyzed during the course of this rulemaking effort, DOE may adopt energy efficiency levels presented in this document that are either higher or lower than the proposed standards, or some combination of level(s) that incorporate the proposed standards in part.
The following section briefly discusses the statutory authority underlying this proposal, as well as some of the relevant historical background related to the establishment of standards for commercial packaged boilers.
Title III, Part C
The ASHRAE Standard 90.1, “Energy Standard for Buildings Except Low-Rise Residential Buildings,” sets industry energy efficiency levels for small, large, and very large commercial package air-conditioning and heating equipment, packaged terminal air conditioners, packaged terminal heat pumps, warm air furnaces, packaged boilers, storage water heaters, instantaneous water heaters, and unfired hot water storage tanks (collectively “ASHRAE equipment”).
In the event that ASHRAE does not act to amend Standard 90.1, EPCA provides an alternative statutory mechanism for initiating such review. More specifically, EPCA requires that every six years, the Secretary of Energy (Secretary) shall consider amending the energy conservation standards for covered commercial equipment and shall publish either a notice of determination that those standards do not need to be amended, or a notice of proposed rulemaking for more stringent energy efficiency standards. (42 U.S.C. 6313(a)(6)(C))
Pursuant to EPCA, DOE's energy conservation program for covered equipment consists essentially of four parts: (1) Testing, (2) labeling, (3) the establishment of Federal energy conservation standards, and (4) compliance certification and enforcement procedures. Subject to certain criteria and conditions, DOE has authority, as discussed above, to adopt amended energy conservation standards for commercial packaged boilers. In addition, DOE is required to develop test procedures to measure the energy efficiency, energy use, or estimated annual operating cost of covered equipment. (42 U.S.C. 6314(a)(2)) Manufacturers of covered equipment must use the prescribed DOE test procedure as the basis for certifying to DOE that their equipment comply with the applicable energy conservation standards adopted under EPCA and when making representations to the public regarding the energy use or efficiency of such equipment. (42 U.S.C. 6314(d)(1)) Similarly, DOE must use these test procedures to determine whether the equipment comply with standards adopted pursuant to EPCA. The DOE test procedures for commercial packaged boilers currently appear at 10 CFR 431.86.
When setting standards for the ASHRAE equipment addressed by this document, EPCA, as amended, prescribes certain statutory criteria for DOE to consider. See generally 42 U.S.C. 6313(a)(6)(A)-(D). Any amended standard for covered equipment more stringent than the level contained in ASHRAE Standard 90.1 must be designed to achieve significant improvement in energy efficiency that is technologically feasible and economically justified. (42 U.S.C. 6313(a)(6)(A)(ii)(II) and (C)(i)) Furthermore, DOE may not adopt a more stringent standard that would not result in the significant additional conservation of energy.
(1) The economic impact of the standard on manufacturers and consumers of products subject to the standard;
(2) The savings in operating costs throughout the estimated average life of the covered products in the type (or class) compared to any increase in the price, initial charges, or maintenance expenses for the covered equipment which are likely to result from the standard;
(3) The total projected amount of energy savings likely to result directly from the standard;
(4) Any lessening of the utility or the performance of the covered product likely to result from the standard;
(5) The impact of any lessening of competition, as determined in writing by the Attorney General, that is likely to result from the standard;
(6) The need for national energy conservation; and
(7) Other factors the Secretary of Energy considers relevant.
Subject to certain criteria and conditions, DOE is required to develop test procedures to measure the energy efficiency, energy use, or estimated annual operating cost of covered equipment. (42 U.S.C. 6314) Specifically, EPCA requires that if a test procedure referenced in ASHRAE Standard 90.1 is updated, DOE must update its test procedure to be consistent with the amended test procedure in ASHRAE Standard 90.1, unless DOE determines that the amended test procedure is not reasonably designed to produce test results that reflect the energy efficiency, energy use, or estimated operating costs of the ASHRAE equipment during a representative average use cycle. In addition, DOE must determine that the amended test procedure is not unduly burdensome to conduct. (42 U.S.C. 6314(a)(2) and (4)) Manufacturers of covered equipment must use the prescribed DOE test procedure as the basis for certifying to DOE that their equipment complies with the applicable energy conservation standards adopted under EPCA and when making representations to the public regarding the energy use or efficiency of such equipment. (42 U.S.C. 6314(d)) Similarly, DOE must use these test procedures to determine whether the equipment complies with standards adopted pursuant to EPCA. The DOE test procedure for commercial packaged boilers currently appear at 10 CFR 431.86.
EPCA, as codified, also contains what is known as an “anti-backsliding” provision, which prevents the Secretary from prescribing any amended standard that either increases the maximum allowable energy use or decreases the minimum required energy efficiency of a covered product. (42 U.S.C. 6313(a)(6)(B)(iii)(I) and (C)(i)) Furthermore, the Secretary may not prescribe an amended or new standard if interested persons have established by a preponderance of the evidence that the standard is likely to result in the unavailability in the United States of any covered product type (or class) of performance characteristics (including reliability), features, sizes, capacities, and volumes that are substantially the same as those generally available in the United States at the time of the Secretary's finding. (42 U.S.C. 6313(a)(6)(B)(iii)(II)(aa) and (C)(i))
Further, EPCA, as codified, establishes a rebuttable presumption that a standard is economically justified if the Secretary finds that the additional cost to the consumer of purchasing a product complying with an energy conservation standard level will be less than three times the value of the energy (and, as applicable, water) savings during the first year that the consumer will receive as a result of the standard, as calculated under the applicable test procedure. For this rulemaking, DOE considered the criteria for rebuttable presumption as part of its analysis.
Additionally, when a type or class of covered equipment has two or more subcategories, DOE often specifies more than one standard level. DOE generally will adopt a different standard level than that which applies generally to such type or class of products for any group of covered products that have the same function or intended use if DOE determines that products within such group (A) consume a different kind of energy from that consumed by other covered products within such type (or class), or (B) have a capacity or other performance-related feature that other products within such type (or class) do not have and which justifies a higher or lower standard. In determining whether a performance-related feature justifies a different standard for a group of products, DOE generally considers such factors as the utility to the consumer of the feature and other factors DOE deems appropriate. In a rule prescribing such a standard, DOE includes an explanation of the basis on which such higher or lower level was established. DOE considered these criteria for this rulemaking.
Because ASHRAE did not update its efficiency levels for commercial packaged boilers in any of its most recent updates to ASHRAE Standard 90.1 (
After carefully reviewing all commercial packaged boiler equipment classes, DOE has tentatively concluded that there is clear and convincing evidence that the proposed amended standards for eight of the twelve proposed commercial packaged boiler equipment classes (
For the remaining four equipment classes, (
DOE amended its energy conservation standards for commercial packaged boilers through a final rule published in the
DOE is conducting this rulemaking pursuant to 42 U.S.C. 6313(a)(6)(C), which requires that every six years, DOE must publish either: (1) A notice of the determination that standards for the equipment do not need to be amended, or (2) a NOPR including proposed energy conservation standards. As noted above, DOE's last final rule for commercial packaged boilers was published on July 22, 2009, so as a result, DOE is required to act to publish one of the above two documents within 6 years. Once completed, this rulemaking will satisfy DOE's statutory obligation under 42 U.S.C. 6313(a)(6)(C). DOE must publish a final rule not later than two years after this NOPR is issued. (42 U.S.C. 6313(a)(6)(C)(iii)(I))
In initiating this rulemaking, DOE prepared a Framework document, “Energy Conservation Standards Rulemaking Framework Document for Commercial Packaged Boilers,” which describes the procedural and analytical approaches DOE anticipated using to evaluate energy conservation standards for commercial packaged boilers. DOE published a notice that announced both the availability of the Framework document and a public meeting to discuss the proposed analytical framework for the rulemaking. That notice also invited written comments from the public. 78 FR 54197 (Sept. 3, 2013). The Framework document is available at:
DOE held a public meeting on October 1, 2013, at which it described the various analyses DOE would conduct as part of the rulemaking, such as the engineering analysis, the life-cycle cost (LCC) and payback period (PBP) analyses, and the national impact analysis (NIA). Representatives of manufacturers, trade associations, environmental and energy efficiency advocates, and other interested parties attended the meeting. The participants discussed the following major topics, among others: (1) The rulemaking scope (2) test procedures for commercial packaged boilers; and (3) various issues related to the planned analyses of amended energy conservation standards. Interested parties also provided comments on the Framework document, which DOE considered and responded to in chapter 2 of the preliminary analysis TSD.
On November 20, 2014, DOE published a second notice, “Energy Conservation Standards for Commercial Packaged Boilers: Public Meeting and Availability of the Preliminary Technical Support Document” in the
On December 9, 2014, DOE held a public meeting, at which it described the methodology and preliminary results of the various analyses it conducted as part of the rulemaking, such as the engineering analysis, the LCC and PBP analyses, and the NIA. Representatives of manufacturers, trade associations, environmental and energy efficiency advocates, and other interested parties attended the meeting. The public meeting provided an opportunity for the attendees to provide feedback and comments that would help improve DOE's analysis and results for the NOPR stage. In addition, DOE also received several written comments from interested parties and stakeholders, in response to the preliminary analysis TSD. Parties providing comments are shown in Table II.3. DOE considered the comments and feedback for the updating the analysis in preparation of
In parallel to the energy conservation standards rulemaking, DOE published a notice of proposed determination on August 13, 2013 (August 2013 NOPD), which initiated a coverage determination to explicitly clarify DOE's statutory authority under EPCA to cover natural draft commercial packaged boilers. DOE initiated this coverage determination because the existing definition of “packaged boiler” could have allowed for differing interpretations as to whether natural draft commercial packaged boilers are covered equipment. 78 FR 49202. In the August 2013 NOPD, DOE proposed a definition for natural draft commercial packaged boilers that would clarify its statutory authority to cover such equipment. DOE sought public comments in response to its proposed determination and definition for natural draft commercial packaged boilers, and received several written comments from interested parties. In addition, DOE also received several comments in response to the preliminary analysis TSD that are relevant to the issue of coverage determination of natural draft commercial packaged boilers.
Lastly, DOE is also currently conducting a separate test procedure rulemaking to consider an amended test procedure for commercial packaged boilers. On February 20, 2014, DOE published a request for information (RFI) in the
In 42 U.S.C. 6313(a), EPCA prescribes a number of compliance dates for any resulting amended standards for commercial packaged boilers. These compliance dates vary depending on specific statutory authority under which DOE is conducting its review (
As discussed in section II.A of this document, EPCA requires that at least once every 6 years, DOE must review standards for commercial packaged boilers and publish either a notice of determination that standards for this type of equipment do not need to be amended or a NOPR for any equipment for which more than 6 years has elapsed since the issuance of the most recent final rule. (42 U.S.C. 6313(a)(6)(C)(i)) EPCA requires that an amended standard prescribed under 42 U.S.C. 6313(a)(6)(C) must apply to products manufactured after the date that is the later of: (1) The date 3 years after publication of the final rule establishing a new standard or (2) the date 6 years after the effective date of the current standard for a covered product. (42 U.S.C. 6313(a)(6)(C)(iv)). For commercial packaged boilers, the final rule is scheduled to be published in 2016 and the current standards went into effect in 2012. Thus, the date 3 years after the publication of a final rule (2019) would be later than the date 6 years after the effective date of the current standard (2018) for this round of rulemaking. As a result, compliance with any amended energy conservation standards promulgated in the final rule would be required beginning on the date that is 3 years after the publication of the final rule.
The current test procedure for commercial packaged boilers is found at 10 CFR 431.86, and incorporates by reference the Hydronics Institute (HI) BTS-2000 (Rev 06.07) testing standard,
In the comments received on the preliminary analysis TSD for the energy conservation standards rulemaking, DOE received several comments that are specifically related to the current test procedure for commercial packaged boilers. Comments related to the technical aspects of the test procedure development were considered and addressed in the test procedure NOPR.
In addition, DOE received several comments related to the timing of the test procedure and energy conservation standard. AHRI stated that it appreciates DOE's effort to finalize the test procedure revisions in advance of the standards revisions and that it is critical that the revised test procedures be finalized so that the analysis for the revised standard is based properly on the test procedures that will be applied to products to establish their compliance with the revised efficiency standard. AHRI also stated that there must be sufficient time between the completion of the revised test procedure and the NOPR for the efficiency standard to allow all parties to assess the effect of test procedure revisions on potential increased efficiency standards, and encouraged DOE to continue its efforts to minimize the burden. (AHRI, No. 37 at p. 2)
As noted previously, the test procedure NOPR for commercial packaged boilers was issued by DOE on February 22, 2016. Although the test procedure has not yet been finalized, DOE believes the proposed test method updates give enough insight as to the changes under consideration that amended standard levels can reasonably be considered in this rulemaking. DOE conducted analyses for this NOPR based on the amended test procedure proposed in the February 2016 test procedure NOPR. However, DOE notes its final rule analyses will be based on DOE's most recently adopted CPB test procedure available at the time of the analyses. EPCA requires that, at least once every 7 years, the Secretary of Energy shall evaluate each type of covered equipment, including packaged boilers, to determine whether amended test procedures would more accurately or fully comply with the requirements for the test procedures to be reasonably designed to produce test results which reflect energy efficiency, energy use, and estimated operating costs during a representative average use cycle; and would not be unduly burdensome to conduct. (42 U.S.C. 6314(a)(1)-(2)) DOE adopted its latest amendments to its CPB test procedure in a final rule published on July 22, 2009. 74 FR 36312. Pursuant to EPCA's provision at 42 U.S.C. 6314(a)(1)-(2), DOE is conducting a concurrent test procedure rulemaking to evaluate its current CPB test procedure.
Regarding the effect of the amended test procedure on efficiency ratings, DOE notes that it tested several commercial packaged boilers with both the previous and the proposed test procedure to observe the variation in efficiency ratings as a result of the amended test procedure. As explained in the February 2016 test procedure NOPR, based on the results of this testing, DOE has tentatively determined that the proposed amendments, in aggregate, would not result in an overall measurable impact on ratings.
In each energy conservation standards rulemaking, DOE conducts a screening analysis based on information gathered on all current technology options and prototype designs that could improve the efficiency of the products or equipment that are the subject of the rulemaking. As the first step in such an analysis, DOE conducts a market and technology assessment that develops a list of technology options for consideration in consultation with manufacturers, design engineers, and other interested parties. DOE then determines which of those means for improving efficiency are technologically feasible. DOE considers technologies incorporated in commercially available products or in working prototypes to be technologically feasible. 10 CFR part 430, subpart C, appendix A, section 4(a)(4)(i).
After DOE has determined that particular technology options are technologically feasible, it further evaluates each technology option in light of the following additional screening criteria: (1) Practicability to manufacture, install, and service; (2) adverse impacts on product utility or availability; and (3) adverse impacts on health or safety. 10 CFR part 430, subpart C, appendix A, section 4(a)(4)(ii) through (iv). Additionally, DOE notes that these screening criteria do not directly address the proprietary status of design options. DOE only
When DOE proposes to adopt an amended standard for a type or class of covered product, it must determine the maximum improvement in energy efficiency or maximum reduction in energy use that is technologically feasible for such equipment. Accordingly, in the engineering analysis, DOE determined the maximum technologically feasible (“max-tech”) improvements in energy efficiency for commercial packaged boilers, using the design parameters for the most efficient equipment available on the market or in working prototypes. The max-tech levels that DOE determined for this rulemaking are described in section IV.C.4 of this document and in chapter 5 of the NOPR TSD.
For each TSL, DOE projected energy savings from the commercial packaged boilers that are the subject of this rulemaking purchased in the 30-year period that begins in the year of compliance with amended standards (2019-2048).
DOE uses its NIA spreadsheet models to estimate energy savings from potential amended standards. The NIA spreadsheet model (described in section IV.H of this document) calculates energy savings in site energy, which is the energy directly consumed by equipment at the locations where they are used. For electricity, DOE calculates national energy savings in terms of primary energy savings, which is the savings in the energy that is used to generate and transmit the site electricity. For electricity and natural gas and oil, DOE also calculates full-fuel-cycle (FFC) energy savings. As discussed in DOE's statement of policy and notice of policy amendment, the FFC metric includes the energy consumed in extracting, processing, and transporting primary fuels (
To calculate primary energy savings, DOE derives annual conversion factors from the model used to prepare the Energy Information Administration's (EIA's) most recent
To amend standards for commercial packaged boilers, DOE must determine with clear and convincing evidence that the standards would result in “significant” additional energy savings. (42 U.S.C. 6313(a)(6)(A)(ii)(II) and (C)(i)) Although the term “significant” is not defined in the Act, the U.S. Court of Appeals for the District of Columbia Circuit, in
EPCA provides seven factors to be evaluated in determining whether a potential energy conservation standard is economically justified. (42 U.S.C. 6313(a)(6)(B)(ii)(I)-(VII) and (C)(i)) The following sections discuss how DOE has addressed each of those seven factors in this rulemaking.
EPCA requires DOE to consider the economic impact of a standard on manufacturers and the commercial consumers of the products subject to the standard. (42 U.S.C. 6313(a)(6)(B)(I) and (C)(i)) In determining the impacts of a potential amended standard on manufacturers, DOE conducts a manufacturer impact analysis (MIA), as discussed in section IV.J of this document. DOE first uses an annual cash-flow approach to determine the quantitative impacts. This step includes both a short-term assessment—based on the cost and capital requirements during the period between when a regulation is issued and when entities must comply with the regulation—and a long-term assessment over a 30-year period. The industry-wide impacts analyzed include: (1) INPV, which values the industry based on expected future cash flows; (2) cash flows by year; (3) changes in revenue and income; and (4) other measures of impact, as appropriate. Second, DOE analyzes and reports the impacts on different types of manufacturers, including impacts on small manufacturers. Third, DOE considers the impact of standards on domestic manufacturer employment and manufacturing capacity, as well as the potential for standards to result in plant closures and loss of capital investment. Finally, DOE takes into account cumulative impacts of various DOE regulations and other regulatory requirements on manufacturers.
For individual consumers, measures of economic impact include the changes in LCC and PBP associated with new or amended standards. These measures are discussed further in the following section. For consumers in the aggregate, DOE also calculates the national NPV of the economic impacts applicable to a particular rulemaking. DOE also evaluates the LCC impacts of potential standards on identifiable subgroups of consumers that may be affected disproportionately by a national standard.
EPCA requires DOE to consider the savings in operating costs throughout the estimated average life of the covered equipment in the type (or class) compared to any increase in the price of, or in the initial charges for, or maintenance expenses of, the covered equipment that are likely to result from an amended standard. (42 U.S.C. 6313(a)(6)(B)(ii)(II) and (C)(i)) DOE conducts this comparison in its LCC and PBP analysis.
The LCC is the sum of the purchase price of the equipment (including installation cost and sales tax) and the operating expense (including energy, maintenance, and repair expenditures) discounted over the lifetime of the equipment. The LCC analysis requires a variety of inputs, such as equipment prices, equipment energy consumption, energy prices, maintenance and repair costs, equipment lifetime, and consumer discount rates. To account for uncertainty and variability in specific inputs, such as equipment lifetime and discount rate, DOE uses a distribution of values, with probabilities attached to each value. For its analysis, DOE assumes that consumers will purchase the covered equipment in the first year of compliance with amended standards.
The PBP is the estimated amount of time (in years) it takes consumers to recover the increased purchase cost (including installation) of a more-efficient product through lower operating costs. DOE calculates the PBP by dividing the change in purchase cost due to a more stringent standard by the change in annual operating cost for the year that standards are assumed to take effect.
The LCC savings for the considered efficiency levels are calculated relative to a no-new-standards-case that reflects projected market trends in the absence of amended standards. DOE identifies the percentage of consumers estimated to receive LCC savings or experience an LCC increase, in addition to the average LCC savings associated with a particular standard level. DOE's LCC and PBP analysis is discussed in further detail in section IV.F of this document.
EPCA requires DOE, in determining the economic justification of a standard, to consider the total projected energy savings that are expected to result directly from the standard. (42 U.S.C. 6313(a)(6)(B)(ii)(III) As discussed in section III.D.1 and section IV.E of this document and chapter 10 of the NOPR TSD, DOE uses spreadsheet models to project national energy savings.
In determining whether a proposed standard is economically justified, DOE evaluates any lessening of the utilities or performance of the considered equipment. (42 U.S.C. 6313(a)(6)(B)(ii)(IV) and (C)(i)) Based on data available to DOE, the standards proposed in this document would not reduce the utility or performance of the equipment under consideration in this rulemaking.
EPCA directs DOE to consider the impact of any lessening of competition, as determined in writing by the Attorney General of the United States that is likely to result from a proposed standard. (42 U.S.C. 6313(a)(6)(B)(ii)(V) and (C)(i)) DOE will transmit a copy of this proposed rule to the Attorney General with a request that the Department of Justice (DOJ) provide its determination on this issue. DOE will publish and respond to the Attorney General's determination in the final rule.
In considering new or amended energy conservation standards, EPCA also directs DOE to consider the need for the national energy conservation. (42 U.S.C. 6313(a)(6)(B)(ii)(VII) and (C)(i)) The proposed standards are likely to improve the security and reliability of the nation's energy system. Reductions in the demand for electricity also may result in reduced costs for maintaining the reliability of the nation's electricity system. DOE conducts a utility impact analysis to estimate how standards may affect the nation's needed power generation capacity, as discussed in section IV.M of this document.
The proposed standards also are likely to result in environmental benefits in the form of reduced emissions of air pollutants and greenhouse gases associated with energy production and use. DOE conducts an emissions analysis to estimate how standards may affect these emissions, as discussed in section IV.K of this document. DOE reports the emissions impacts from each TSL it considered in section V.B.6 of this document. DOE also estimates the economic value of emissions reductions resulting from the considered TSLs, as discussed in section IV.L of this document.
EPCA allows the Secretary of Energy, in determining whether a standard is economically justified, to consider any other factors that the Secretary deems to be relevant. (42 U.S.C. 6313(a)(6)(B)(ii)(VII) and (C)(i)) To the extent interested parties submit any relevant information regarding economic justification that does not fit into the other categories described above, DOE could consider such information under “other factors.”
EPCA creates a rebuttable presumption that an energy conservation standard is economically justified if the additional cost to the consumer of the equipment that meets the standard is less than three times the value of the first year's energy savings resulting from the standard, as calculated under the applicable DOE test procedure. DOE's LCC and PBP analyses generate values used to calculate the effects that proposed energy conservation standards would have on the PBP for consumers. These analyses include, but are not limited to, the 3-year PBP contemplated under the rebuttable-presumption test.
In addition, DOE routinely conducts an economic analysis that considers the full range of impacts to consumers, manufacturers, the Nation, and the environment, as required under 42 U.S.C. 6313(a)(6)(B)(ii) and (C)(i). The results of this analysis serve as the basis for DOE's evaluation of the economic justification for a potential standard level (thereby supporting or rebutting the results of any preliminary determination of economic justification). The rebuttable presumption payback calculation is discussed in section IV.F.11 of this document.
DOE used three analytical tools to estimate the impact of the proposed standards. The first tool is a spreadsheet that calculates LCCs and PBPs of potential new energy conservation standards. The second tool is a spreadsheet that calculates national energy savings and net present value resulting from potential amended energy conservation standards.
Additionally, DOE estimated the impacts of energy conservation standards for commercial packaged boilers on utilities and the environment. DOE used a version of EIA's National Energy Modeling System (NEMS) for the utility and environmental analyses. The NEMS model simulates the energy sector of the U.S. economy. EIA uses NEMS to prepare its
For the market and technology assessment, DOE develops information that provides an overall snapshot of the market for the equipment considered, including the nature of the equipment, market characteristics, industry structure, and technologies that improve energy efficiency. The analysis carried out under this chapter is broadly divided into two categories: (1) Market assessment and (2) technology assessment. The purpose of the market assessment is to develop a qualitative and quantitative characterization of the CPB industry and market structure, based on information that is publicly available and on data submitted by manufacturers and other interested parties. Issues addressed include CPB characteristics, market share and equipment classes; existing regulatory and non-regulatory efficiency improvement initiatives; overview of historical equipment shipments and lifetimes and trends in the equipment markets. The purpose of the technology assessment is to investigate technologies that will improve the energy efficiency of commercial packaged boilers, and results in a preliminary list of technology options that can improve the thermal and/or combustion efficiency of commercial packaged boilers. Chapter 3 of the NOPR TSD contains all the information related to the market and technology assessment. The chapter also provides additional details on the methodology used, information gathered and results. DOE typically uses the information gathered in this chapter in the various downstream analyses such as engineering analysis, shipment analysis, and manufacturer impact analyses.
In this NOPR, DOE also explored the market to identify manufacturers of commercial packaged boilers. As per the definition set forth in 10 CFR 431.82, a manufacturer of a commercial packaged boiler is any person who: (1) Manufactures, produces, assembles or imports a commercial packaged boiler in its entirety; (2) manufactures, produces, assembles or imports a commercial packaged boiler in part, and specifies or approves the boiler's components, including burners or other components produced by others, as for example by specifying such components in a catalogue by make and model number or parts number; or (3) is any vendor or installer who sells a commercial packaged boiler that consists of a combination of components that is not specified or approved by a person described in the two previous definitions.
Through extensive search of publicly available information, including ABMA's and AHRI's Web sites, DOE identified 45 CPB manufacturers that meet this definition. The complete list of manufacturers can be found in chapter 3 of the NOPR TSD.
DOE requests comment on the number and names of manufacturers that qualify as CPB manufacturers according to the list of manufacturers in chapter 3 of the NOPR TSD.
EPCA lists “packaged boilers” as a type of covered equipment. (42 U.S.C 6311(1)). EPCA defines the term “packaged boiler” as “a boiler that is shipped complete with heating equipment, mechanical draft equipment, and automatic controls; usually shipped in one or more sections.” (42 U.S.C. 6311(11)(B)) In its regulations, DOE clarifies the term “packaged boiler” to exclude a boiler that is “custom designed and field constructed,” and it further provides that if the boiler is shipped in more than one section, the sections may be produced by more than one manufacturer and may be originated or shipped at different times and from more than one location. 10 CFR 431.82.
DOE's regulations also define the term “commercial packaged boiler” as “a type of packaged low pressure boiler that is industrial equipment with a capacity (rated maximum input) of 300,000 Btu per hour (Btu/h) or more which, to any significant extent, is distributed in commerce (1) for heating or space conditioning applications in buildings; or (2) for service water heating in buildings but does not meet the definition of `hot water supply boiler' in [10 CFR part 431].” A “packaged low pressure boiler” means, “a packaged boiler that is (1) a steam boiler designed to operate below a steam pressure of 15 psig; or (2) a hot water boiler designed to operate at or below a water pressure of 160 psig and a temperature of 250°F or (3) a boiler that is designed to be capable of supplying either steam or hot water, and designed to operate under the conditions in paragraphs (1) and (2) of this definition.” 10 CFR 431.82.
As noted above, the current definition of “packaged boiler” refers to a boiler that is shipped complete with heating equipment, mechanical draft equipment, and automatic controls. The definition does not explicitly include natural draft equipment. However, as discussed in the August 2015 withdrawal notice, DOE interprets the definitions in the statute to include natural draft commercial packaged boilers. After considering written comments on the August 2013 NOPD and comments on the preliminary analysis TSD related to the coverage of natural draft equipment, DOE concluded that natural draft commercial packaged boilers are and have been covered equipment subject to DOE's energy conservation standards. Therefore, DOE concluded it was unnecessary to publish a determination to clarify its statutory authority to cover natural draft commercial packaged boilers. Accordingly, DOE has included natural draft commercial packaged boilers under the scope of the rulemaking.
In the preliminary analysis, DOE specifically sought public comment on its tentative decision not to set an upper limit to the fuel input rate for commercial packaged boilers. This issue was first raised in the Framework document (Item 2-4 at page 12), where DOE requested feedback on whether there were any size related issues that may render energy conservation
Several interested parties and stakeholders commented on this issue in response to the preliminary analysis TSD. Lochinvar commented in support of DOE's decision, stating that the inclusion of commercial packaged boilers with very large fuel input rate is needed to ensure a level playing field and accurate product ratings. Lochinvar further commented that many concerns regarding the test burden are addressed by the revised Alternative Efficiency Determination Methods (AEDM) rules. (Lochinvar, No. 34 at p. 1) ABMA stated that DOE's decision not to set an upper limit on input capacity for commercial packaged boilers is causing significant concern among their member boiler manufacturers. ABMA reported that boilers can approach capacities as high as 80,000 kBtu/h with the testing cost approaching one million dollars, which imposes a prohibitively high financial burden on companies manufacturing large institutional sized space heating boilers. ABMA also argued that their member manufacturers have been offering efficiency guarantees since the late 1970s on the large space heating commercial and institutional packaged boilers and have been capable of meeting current efficiency requirements since 1970. Further, ABMA stated that there exists significant difference between smaller boilers that are built in large quantities to a standard specification and large custom engineered boilers manufactured to specifications for a particular installation. ABMA recommended that DOE cap the efficiency certification requirements for commercial packaged boilers at 2,500 kBtu/h. (ABMA, No. 33 at pp. 1-2) AHRI stated that the commercial boilers that have input rates in the high millions of Btu/h are very different products and that many factors that are considered in DOE's analysis and the associated conclusions cannot be extrapolated up to characterize very large commercial packaged boilers. (AHRI, No. 37 at p. 1) AHRI also stated that when going from 3,000 kBtu/h to tens of millions of Btu/h, a whole different price structure should be employed and there may be an upper limit at which the price structure changes completely. (AHRI, Public Meeting Transcript, No. 39 at p. 45) During the public meeting, ABMA also expressed concern on how DOE would extrapolate prices for an 80 million Btu/h boiler using a 3 million Btu/h boiler as the representative unit. (ABMA, Public Meeting Transcript, No. 39 at pp. 64-65)
DOE considered the comments received from interested parties. Comments regarding testing large commercial packaged boilers were addressed separately in the ongoing test procedure rulemaking (discussed further in section III.B of this document). DOE also acknowledges other issues with regards to the compliance burden of very large commercial packaged boilers, particularly those that are engineered-to-order. Some stakeholders suggested capping the scope of the energy conservation standards as an option to resolve this issue. However, as discussed previously, setting an upper limit to the scope of DOE's energy conservation standards for commercial packaged boilers could violate EPCA's anti-backsliding provision. Therefore, DOE has not set an upper limit for fuel input rate above which the standards will not be applicable. However, as discussed in further detail below, DOE proposes a separate equipment class for “very large” commercial packaged boilers with input capacities greater than 10 million Btu/h.
When evaluating and establishing energy conservation standards, DOE typically divides covered equipment into equipment classes based on the type of energy used, capacity, or performance-related features that justify a different standard. In making a determination whether a performance-related feature justifies a different standard, DOE considers such factors as the utility to the consumer of the feature and other factors DOE determines are appropriate.
The current regulations for commercial packaged boilers list 10 equipment classes with corresponding energy efficiency levels for each.
In the preliminary analysis, DOE divided commercial packaged boilers into 16 equipment classes, based on size, fuel, heating medium, and type of draft. DOE sought public comment on its tentative decision to classify commercial packaged boilers into 16 equipment classes.
In response to the request, ACEEE, ASAP, and NRDC recommended that DOE adopt a single equipment class for natural draft and mechanical draft commercial packaged boilers, citing that natural draft commercial packaged boilers are inherently less efficient and that this will ensure maximum energy efficiency improvement. The commenters also stated that they are unaware of any distinct utility that is offered by natural draft commercial packaged boilers that is different from mechanical draft commercial packaged boilers. (ACEEE, ASAP, and NRDC, No. 36 at p. 2) PG&E and SCE noted that natural draft commercial packaged boilers have much lower part-load efficiency and are rapidly becoming obsolete due to changes in consumer buying behavior. The commenters argued against the separation of the equipment classes, specifically hot water commercial packaged boilers and stated that both mechanical draft and natural draft systems have the same utility and, therefore, should be considered in the same equipment class. (PG&E and SCE, No. 38 at p. 3) Raypak recommended DOE to revert back to the 10 equipment classes that are set forth in the current energy conservation standards at 10 CFR 431.87. (Raypak, No. 35 at p. 2) Raypak noted that non-condensing boilers are still a significant part of the market and offer several advantages such as simple operation and maintenance, higher design water temperature, lower costs, and higher lifetimes, and encouraged DOE to maintain the natural draft boiler equipment classes. Raypak further encouraged DOE not to amend energy conservation standards to a level that would not support natural draft commercial packaged boilers. (Raypak, No. 35 at pp. 6-7) Lochinvar encouraged DOE to maintain the 10 equipment classes that are set forth in the current energy conservation standards at 10 CFR 431.87 and stated that the division of the classes will lead to different minimum ratings for natural draft and mechanical draft boilers and competitive inequality. Lochinvar also cited commercial water heaters as an example, stating that commercial water heaters are available with mechanical and natural draft systems, but the energy conservation standards are applicable to all types of equipment irrespective of the draft type (Lochinvar, No. 34 at p. 1) AHRI argued that natural draft commercial packaged boilers are covered equipment subject to DOE's efficiency standards, but this does not extend to creating separate equipment classes for such products in the efficiency standards. AHRI further stated that the current 10 equipment classes set forth in 10 CFR 431.87 are appropriate. (AHRI, No. 37 at p. 2) AHRI also commented during the preliminary analysis public meeting that the 16 equipment classes used in the preliminary analysis were a good starting point, but that the classes can be squeezed together. (AHRI, Public Meeting Transcript, No. 39 at p. 26) ASAP questioned DOE's rationale for adopting separate equipment classes for mechanical and natural draft commercial packaged boilers. (ASAP, Public Meeting Transcript, No. 39 at p. 39)
DOE agrees with comments stating that both natural draft and mechanical draft commercial packaged boilers provide the same utility. Based on DOE's understanding, there appears to be no distinct performance related utility that is provided by natural draft commercial packaged boilers that justifies a separate equipment class for such equipment. Consequently, there appears to be no justification to maintain separate equipment classes for natural draft commercial packaged boilers. Therefore, in this document, DOE proposes to consolidate CPB equipment classes that are currently divided by draft type.
In addition, based on the concerns expressed by interested parties regarding the complexities of regulating very large commercial packaged boilers discussed earlier in this section, DOE has tentatively decided to propose
DOE requests data on manufacturer selling prices, shipments and conversion costs of very large commercial packaged boilers with fuel input rate above 10,000 kBtu/h that can be used to supplement the analyses of such equipment in this rulemaking.
See section VII.E for a list of issues on which DOE seeks comment.
DOE also believes that creating separate equipment classes for very large commercial packaged boilers would reduce the overall compliance burden of manufacturers.
In summary, DOE proposes the following changes to the equipment classes: (1) Separating the equipment classes for commercial packaged boilers that have a fuel input rate above 10,000 kBtu/h, and (2) consolidating the equipment classes for small and large gas-fired steam boilers that are currently divided based on draft type into equipment classes that are not draft specific. Thus, in total, DOE proposes 12 equipment classes
In addition to the two issues discussed previously in this section, DOE received several comments in response to the preliminary analysis related to standby mode and off mode energy consumption. In chapter 2 of the preliminary analysis TSD, DOE reported that standby mode and off mode energy consumption is a negligible proportion of the total energy consumption of the commercial packaged boiler (about 0.02 percent of total energy used). Consequently, DOE decided in the preliminary analysis not to analyze standards for commercial packaged boilers to regulate their standby mode and off mode energy consumption. AHRI, Raypak, and Lochinvar supported DOE's preliminary findings on the standby mode and off mode energy consumption and discouraged DOE from pursuing the development of standards for these modes of operation. (AHRI, No. 37 at p. 2; Raypak, No. 35 at p. 2; Lochinvar, No. 34 at p. 2) Lochinvar stated that the data on standby mode and off mode is very
As part of the rulemaking analysis, DOE identifies technology options that are currently used in commercial packaged boilers at different efficiency levels available on the market. This helps DOE to assess the technology changes that would be required to increase the efficiency of a commercial packaged boiler from baseline to other higher efficiency levels. Initially, these technologies encompass all those DOE believes are technologically feasible.
As a starting point, DOE typically uses information relating to existing and past technology options as inputs to determine what technologies manufacturers use to attain higher performance levels. DOE also researches emerging technologies that have been demonstrated in prototype designs. DOE developed its list of technologically feasible design options for the considered equipment through consultation with manufacturers, including manufacturers of components and systems, and from trade publications and technical papers.
In the preliminary analysis, DOE presented a list of technologies for improving the efficiency of commercial packaged boilers. Based on comments received in response to the preliminary analysis (discussed in detail in section IV.B of this document), DOE retained all the technology options that were identified in the preliminary analysis. However, for “pulse combustion burners,” DOE is now considering the technology as a path to achieve condensing operation and categorizing it as a condensing boiler design. Additionally, in research for the NOPR, DOE identified a new technology option: oxygen trim system. The technology options that DOE identified for this NOPR analysis are listed in Table IV.3:
After DOE identified the technologies that might improve the energy efficiency of commercial packaged boilers, DOE conducted a screening analysis. The goal of the screening analysis is to identify technology options that will be considered further, and those that will be eliminated from further consideration, in the rulemaking analyses. DOE applied the following set of screening criteria to each of the technologies identified in the technology assessment to determine which technology options are unsuitable for further consideration in the rulemaking:
•
•
•
•
Additionally, DOE notes that these screening criteria do not directly address the propriety status of design options. DOE only considers efficiency levels achieved through the use of proprietary designs in the engineering analysis if they are not part of a unique path to achieve that efficiency level (
In the preliminary analysis TSD, DOE applied the screening criteria to the technology options that were considered in the market and technology assessment and sought comments and feedback on the technology options that passed the screening analysis.
DOE received several general comments on the options that passed the screening analysis in the preliminary analysis TSD chapter. Lochinvar agreed with technology options that passed the screening test, noting that the options identified are technologically feasible. (Lochinvar, No. 34 at p. 2) AHRI and Raypak agreed with the technology options that successfully passed the screening analysis, with the exception of pulse combustion (as discussed in further detail later in this section). (AHRI, No. 37 at p. 3; Raypak No. 35 at p. 2)
ACEEE commented that the deficiencies in the current test procedure have led to the exclusion of modulating gas burners as an efficiency improving technology. (ACEEE, Public Meeting Transcript, No. 39 at p. 29)
Regarding modulating boilers, DOE notes that in the equipment database it found several CPB models at baseline and near baseline efficiency levels that utilize a modulating burner. As noted by ACEEE, the test procedure currently does not provide an efficiency advantage for modulating burners. DOE notes that the February 2016 test procedure NOPR also does not provide an efficiency benefit for the inclusion of a modulating burner for reasons explained further in that notice. As a result, DOE did not consider modulating burners as a technology option for improving the efficiency of commercial packaged boilers for this NOPR.
The technology options that were identified in the market and technology assessment are presented immediately below, along with whether or not the technology was ultimately considered further in the analysis.
Optimizing jacket insulation thickness reduces the heat loss from commercial packaged boiler to the
DOE considered several heat exchanger improvement options that can increase thermal and combustion efficiencies of commercial packaged boilers. These options include incorporation of baffles and turbulators; improved fin designs such as micro-fins and louvered fins; improved tube designs such as corrugated tubes and internally rifled tubes; and addition of a condensing heat exchanger. In response to these technology options, Lochinvar commented that options such as increased heat exchanger surface area, baffles and creative pin/fin arrangements are all viable options for natural draft boilers and have been implemented by manufacturers for decades. Lochinvar also stated that DOE needs to consider that design changes are complex and often involve significant redesign to achieve efficiency targets without sacrificing safety and reliability. (Lochinvar, No. 34 at p. 2) Raypak commented that consideration of any additional restrictions of the heat exchanger must be balanced with the need to ensure safe operation and venting. (Raypak No. 35 at p. 2) AHRI commented that DOE must avoid considering heat exchanger designs that are so restrictive that they adversely affect safe operation and venting of the boiler. (AHRI, No. 37 at p. 3)
DOE reviewed the comments and examined whether the extent of heat exchanger improvements considered are restrictive such that any of these options would potentially adversely impact safe operation and venting of the commercial packaged boiler. In considering improved heat exchanger designs, DOE focused on technology options that are currently being used by commercial packaged boilers available on the market, as a vast array of heat exchanger designs and efficiencies was observed. DOE examined product literature and operation manuals and is not aware of potential safety concerns for commercial packaged boilers with heat exchanger designs that achieve the efficiency levels analyzed in this NOPR. Where upgraded venting is required for potential condensate formation in the vent piping, DOE considered such cost in its analysis of installation costs (see section IV.F.2 of this document). Consequently, the technology option of heat exchanger improvements passed the screening analysis and is considered as a design option to improve CPB thermal or combustion efficiency.
Burner derating increases the ratio of the heat transfer area to fuel input by reducing the burner input rating while maintaining the same heat exchanger, which can increase the thermal efficiency of commercial packaged boilers. In the preliminary analysis public meeting, AHRI commented that burner derating has already been used by the industry to achieve the current efficiency standards, so there is not much more potential for this option to further improve efficiency. (AHRI, Public Meeting Transcript, No. 39 at pp. 25-26)
As in the preliminary analysis, DOE proposes to screen out burner derating as it reduces the usable heat output, and would reduce utility. Therefore, DOE did not consider this technology option further in the analysis.
Burner technologies that were considered under this technology option include pulse combustion, premix burners and low pressure, air atomized oil burners. In the preliminary analysis TSD, all three burner technology options passed the screening analysis and were considered as options to improve thermal and combustion efficiency. In response to the inclusion of the three burner technologies, AHRI and Raypak commented that they do not consider pulse combustion as a technology option. Raypak stated that it views pulse combustion more as a fundamental aspect of the boiler design comparable to whether the boiler is water tube or fire tube. (Raypak No. 35 at p. 2) AHRI also stated pulse combustion is one way to create a boiler that condenses. (AHRI, No. 37 at p. 3)
After considering the comments discussed above, DOE has re-classified pulse combustion as a type of condensing boiler technology, rather than a design option that would be applied to a less efficient boiler to make it more efficient. In the screening analysis of the NOPR TSD, DOE included pulse combustion under heat exchanger improvement technology options and premix burners and low pressure air atomized oil burners under improved burner technology options. All three technology options passed the screening analysis.
Combustion air pre heaters use a gas to gas heat exchanger to transfer heat from the flue gases to the incoming combustion air. Although this option can increase the operating efficiency of a commercial packaged boiler in the field, this efficiency is not measured by the current test procedure, because the current test procedure requires inlet air to be within ± 5°F of the room ambient temperature. Therefore, DOE did not consider this technology option further in its analysis.
Economizers are gas to water heat exchangers that are used to transfer residual heat in the flue gases to the inlet water to the commercial packaged boiler. Unlike a condensing commercial packaged boiler that operates on the same principle, economizers are used as an add-on to the existing commercial packaged boilers and improve efficiency by pre heating the incoming water before it enters the primary heat exchanger. Although this technology option has the potential to improve efficiency by reducing the fuel input required to heat the water, the improvement in efficiency is not measured by the current test procedure, because the current test procedure requires the inlet water to have a set temperature before it enters the primary heat exchanger of the commercial packaged boiler. Therefore, DOE did not consider economizers as a technology option for improving commercial packaged boiler efficiency ratings.
Some large commercial steam boilers require a blowdown operation to remove dissolved solids and salts that are left behind after the boiling process. These solids are usually dissolved in water that is hot and can be utilized to pre heat incoming water before it enters the primary heat exchanger of the commercial packaged boiler. Although this option can improve operating efficiency, measurement of the improvement in efficiency can only occur is there is sufficient deposit left behind in the boiler after continuous boiler operation. The current DOE test procedure is a laboratory based test that uses a commercial packaged boiler that is not previously installed or commissioned. During the test, the commercial packaged boiler will not be able to extract the waste heat from a blowdown operation. Therefore, DOE did not consider blowdown waste heat recovery further in the analysis.
DOE added this technology option in the market and technology assessment chapter at the NOPR stage of the rulemaking. An oxygen “trim” system is a control strategy that can be used to minimize excess combustion air and optimize the air-to-fuel ratio. These systems can increase efficiencies by 1 to 2 percentage points. This option passed the screening analysis.
For this NOPR the following technology options were found to have an impact on the rated efficiency metric and passed the screening analysis to be considered further in the downstream analyses: (1) Heat exchanger improvements (including condensing heat exchanger), (2) improvement in burner technology, and (3) oxygen trim systems.
The engineering analysis establishes the relationship between manufacturer selling prices (MSP) and energy-efficiency of commercial packaged boilers. This price-efficiency relationship serves as a basis for subsequent cost-benefit calculations for individual consumers, manufacturers, and the nation.
To determine this price-efficiency relationship, DOE uses data from the market and technology assessment, publicly available equipment literature and research reports, and information from manufacturers, distributors, and contractors. For this rulemaking, DOE first used information from the market and technology assessment to identify efficiency levels and representative equipment for analysis. In the market assessment DOE compiled a set of data containing the rated performance information and various characteristics of all CPB equipment available on the market. In the engineering analysis DOE refers to this as the “equipment database”. The equipment database contains all commercial packaged boilers that are listed in AHRI's Directory of Certified Product Performance
DOE has identified three basic methods for developing price-efficiency curves: (1) The design-option approach, which provides the incremental manufacturing costs of adding design options to a baseline model that will improve its efficiency; (2) the efficiency-level approach, which provides the incremental price of moving to higher efficiency levels without regard to any particular design option; (3) the reverse-engineering (or cost-assessment) approach, which provides “bottom-up” manufacturing cost assessments for achieving various levels of increased efficiency based on teardown analyses (or physical teardowns) providing detailed data on costs for parts and material, labor, shipping/packaging, and investment for models that operate at particular efficiency levels.
For this rulemaking, DOE has decided to use the efficiency-level approach to conduct the engineering analysis. This methodology generally involves calculating prices of commercial packaged boilers for a given fuel input rate (representative fuel input rate) for each manufacturer at different efficiency levels spanning from the minimum allowable standard (
In the preliminary analysis, as noted previously, DOE classified commercial packaged boilers into sixteen equipment classes and analyzed each class separately. DOE received CPB price information for several mechanical draft equipment classes that was sufficient to develop a price-efficiency trend. However, DOE was unable to collect sufficient pricing data to develop a price-efficiency trend for the condensing efficiency levels, and the large mechanical draft steam and all natural draft equipment classes, and instead relied on alternate methodologies.
In the preliminary analysis for the classes that had sufficient price data, DOE calculated the incremental increase in price at each efficiency level analyzed for each manufacturer at the representative fuel input rate, and then took an average of these price at each efficiency level to get the final price efficiency curve for all equipment classes. For the other equipment classes that did not have adequate pricing information, DOE used alternate methods of calculating incremental prices. These methods include extrapolation of price efficiency curves or actual pricing data to other equipment classes. DOE requested comments and feedback from interested parties on various aspects of the engineering analysis performed for the preliminary analysis, and specifically on the methodology and results. In response, DOE received several comments, which are discussed further in the following applicable sections.
For the NOPR, as discussed in section IV.C.2 of this document, DOE was able to obtain more pricing information than it had for the preliminary analysis. As a result, DOE updated its approach for several equipment classes to include a direct analysis of that class using only pricing data obtained for that class. DOE also improved its methodology to account for the difference in equipment price as a function of capacity.
In the NOPR analysis, for each price obtained, DOE first calculated the ratio of the price of the commercial packaged boiler with respect to its fuel input rate to obtain all prices on a per unit fuel input rate basis (dollars per kBtu/h). DOE then used its equipment database to determine and apply appropriate weights to individual prices (on a per fuel input rate basis) based on the distribution of input capacities on the market. The weight given to each CPB price per fuel input rate represents the number of commercial packaged boilers of that fuel input rate available in the market. Thus, price per fuel input rate of models that are similar in capacity to higher numbers of models on the market were weighted more heavily than price per fuel input rate of models at a fuel input rate for which relatively few models are available. DOE applied these weights to calculate the weighted average price per fuel input rate and the weighted average fuel input rate for each efficiency level analyzed.
Next, DOE scaled the weighted average price (on a per fuel input rate basis) at each efficiency level from the weighted average fuel input rate (at
DOE performed a regression analysis on the weighted average price per input results at the representative fuel input rate and the efficiency levels to deduce the equation that best represents the price-efficiency relationship. Using the regression equation, DOE calculated the predicted weighted average price per input at the representative fuel input rate for all efficiency levels that were analyzed in each equipment class. DOE then multiplied the predicted weighted average price per input at the representative fuel input rate by the representative fuel input rate to get the manufacturer selling price at each efficiency level. As a final step, DOE calculated the incremental prices by subtracting the baseline price from the manufacturer selling price of each efficiency level above the baseline. Further details on the methodology and results are provided in the chapter 5 of the NOPR TSD.
DOE requests feedback on the methodology used to analyze all equipment classes and the results obtained. In particular DOE is interested in comments on whether the results are appropriate and representative of the current market prices for such type of equipment.
See section VII.E for a list of issues on which DOE seeks comment.
a. Overall Methodology and Extrapolation of Prices
DOE received several comments from interested parties in response to DOE's preliminary analyses on the overall methodology that was used to develop the price-efficiency relationships.
ACEEE, ASAP, and NRDC noted that in other rulemakings, DOE typically constructs cost estimates by conducting teardowns and generating a Bill of Materials (BOMs); however, for the current rulemaking, DOE has not conducted any teardowns for commercial packaged boilers. The commenters stated that in contractor-installed systems such as commercial packaged boilers, prices are highly variable and may be based on factors other than efficiency (
As discussed previously, DOE has decided to use the efficiency-level approach to conduct the engineering analysis. In this approach DOE collects prices at various efficiency levels and estimates the incremental price for higher efficiency models as an average or weighted average of the commercial packaged boilers available on the market. Although DOE commonly uses a reverse-engineering approach, DOE decided not to use this approach for commercial packaged boilers due to practical concerns involved in tearing down commercial packaged boilers, especially those belonging to large equipment classes. Commercial packaged boilers exhibit a large variety of designs depending on a number of factors including, size, efficiency, fuel used, heating medium, draft type, heat exchanger design/material, and whether it is fire-tube or water-tube. In the analysis for this rulemaking, DOE collected pricing information for 584 commercial packaged boilers, which covered a range of different types of CPB equipment. Tearing down enough units to perform a reverse-engineering analysis would be extremely time intensive given the large number of CPB designs at each efficiency level and within each equipment class, and the physical size of some commercial packaged boilers. In addition, there are several practical issues involved with tearing down large commercial packaged boilers, given the size and weight of this equipment, which can require upgraded infrastructure for handling the equipment. In view of these issues, DOE felt that a pricing survey to collect information on actual CPB prices at various efficiency levels for each equipment class is a more practical methodology for conducting the engineering analysis for commercial packaged boilers.
ACEEE, ASAP, and NRDC also encouraged DOE to ensure that the estimates of incremental prices only include the incremental price associated with the technology options required to meet a given efficiency level, and not the cost of auxiliary options that are often associated with premium products but are not associated with efficiency. (ACEEE, ASAP, and NRDC, No. 36 at pp. 3-4)
DOE shares the commenters' concerns regarding the incremental price options being influence by auxiliary options that are not associated with energy efficiency. To the extent possible, DOE normalized optional features when gathering pricing by specifying the same options for all CPB prices collected. For example, DOE noticed that in several CPB series, prices of burner systems are listed separately and the price of the burner system that is selected is added to the basic model trade price for the total price for the commercial packaged boiler. For such cases, DOE chose the same type of burner for all CPB models where a choice is offered. While selecting the prices DOE also encountered scenarios where (1) a feature that DOE has consistently selected for all CPB models is not offered for a particular series; and (2) a particular feature becomes inapplicable for commercial packaged boilers of higher capacity within the same CPB series. In such cases DOE selected a similar feature that would offer similar functionality. DOE believes this approach helped to minimize the effects of optional auxiliary components.
At the preliminary analysis public meeting ACEEE argued that the level field for comparing purchase options would be output capacity, and as a result it is time to migrate to output capacities, rather than input capacities, that are comparable across classes. (ACEEE, Public Meeting Transcript No. 39 at p. 44) DOE notes that in EPCA, commercial packaged boilers are defined as having “capacity (rated maximum input)” greater than or equal to 300 kBtu/h, and CPB equipment classes are currently divided based on fuel input rate. DOE notes that in adopting the existing equipment class divisions based on fuel input rate, DOE followed the approach in ASHRAE Standard 90.1 for dividing equipment based on fuel input rate. Moreover, while DOE agrees many purchasers would consider output capacity when purchasing a replacement commercial packaged boiler, DOE believes there is also a contingent of CPB purchasers that may only look at the fuel input rate for comparison purposes when choosing a new commercial packaged boiler, as both ratings are featured prominently in product literature. Therefore, DOE believes it appropriate to continue to use rated fuel input rate as the performance parameter for carrying out the analyses.
Another topic on which DOE received comments and feedback is related to large CPB pricing and its representative fuel input rate for analysis. AHRI commented that most of the analysis appears to be based on information for models with input rates of 5,000,000 Btu/h or less, and commercial packaged boilers that have input rates in the high millions of Btu per hour are very different products. AHRI stated that many factors that have been considered in the engineering analysis and the associated conclusions cannot be simply extrapolated up to characterize the particular factor as it applies to those very large commercial packaged boiler. (AHRI, No. 37 at p. 1) AHRI also commented that DOE should not assume a linear relationship between boiler size and component costs and encouraged DOE to review the data it has collected so far on the relationship and extrapolation between input rate and price, or obtain additional data for the analysis. (AHRI, No. 37 at p. 3 and p. 5) Raypak stated that DOE should not assume a linear relationship between commercial packaged boiler size and component costs and that as a commercial packaged boiler gets larger in input the cost of gas burner and blower components rises exponentially. (Raypak, No. 35 at pp. 2-4) Raypak also provided comments during the preliminary analysis public meeting stating that made-to-order units will be priced higher due to the engineering work necessary to create a custom boiler. (Raypak, Public Meeting Transcript, No. 39 at p. 49)
ABMA provided written comments on the methodology used for analyzing large commercial packaged boilers. In particular, ABMA expressed concern over the large commercial packaged boilers representative fuel input rate being 3,000 kBtu/h. ABMA argued that the representative fuel input rate of 3,000 kBtu/h is one of the smallest size boilers manufactured by ABMA member manufacturers and that it does not accurately represent the large boiler market. (ABMA, No. 33 at p. 2) ABMA advocated capping the scope of the analysis to 2.5 million Btu/h. (ABMA, No. 33 at p. 2; ABMA, Public Meeting Transcript, No. 39 at p. 65)
PGE & SCE commented that the comparison of small and large sized custom made boilers is not linear and DOE should look at methods for estimating very large equipment other than simply extrapolation. Further, PGE and SCE stated their concern that the methods used to estimate energy use, equipment classes and prices for medium sized commercial boilers are not appropriate for extrapolation to large commercial custom engineered boilers. (PGE & SCE, No. 38 at p. 3)
As discussed in section IV.A.2, DOE has proposed to establish separate equipment classes for very large commercial packaged boilers with input capacities of greater than10,000 kBtu/h, and DOE is not considering amended standards for the proposed very large equipment classes in this rulemaking. Instead, DOE's current energy conservation standards that are set forth at 10 CFR 431.87 for commercial packaged boilers with a fuel input rate greater than 2,500 kBtu/h would continue to apply to all commercial packaged boilers that have a fuel input rate above 10,000 kBtu/h. DOE believes this addresses many concerns that the analysis does not apply to very large commercial packaged boilers. As discussed previously, DOE noticed a smooth increase in prices (devoid of any inflection) from the low fuel input rate commercial packaged boilers (
DOE chose the representative fuel input rate in the preliminary analysis as 3,000 kBtu/h by considering CPB models offered in the market and information received during manufacturer interviews. Several commenters suggested that a fuel input rate of 3,000 kBtu/h would not be appropriate for representing very large commercial packaged boilers. However, as discussed above, for this NOPR DOE proposes to consider commercial packaged boilers with fuel input rate above 10,000 kBtu/h separately from the commercial packaged boilers in the large (
In the preliminary analysis, DOE used the price of two small commercial packaged boilers at 1,500 kBtu/h as a proxy for the price of one large 3,000 kBtu/h commercial packaged boiler, because DOE did not have sufficient price data in certain large CPB equipment classes to accurately establish the relationship between boiler size and price. In response to the preliminary analysis, DOE received comments from ACEEE, ASAP, and NRDC, questioning the accuracy of this approach. ACEEE, ASAP, and NRDC encouraged DOE to collect additional data to validate its assumption that the price of two 1,500 kBtu/h boilers is an accurate proxy for the price of a 3,000 kBtu/h boiler. The commenters elaborated that a large boiler will have only one burner, one heat exchanger, one shell, and one set of controls, possibly reducing prices for large boilers in comparison to two smaller boilers; however, there are far fewer 3,000 kBtu/h boilers sold than 1,500 kBtu/h boilers, so the allocation of design, testing, certification and other common costs will be much higher. (ACEEE, ASAP, and NRDC, No. 36 at pp. 2-3) The commenters also argued that DOE's methodology related to slope and inflection points of the efficiency curves for small gas-fired mechanical draft hot water boilers raises questions about the overall accuracy of the analysis. (ACEEE, ASAP, and NRDC, No. 36 at p. 3)
For the NOPR analysis, as discussed in section IV.C.2, DOE was able to collect an additional 258 CPB prices. Despite the additional data, there were still certain efficiency levels for large CPB equipment classes where DOE lacked enough data to perform a robust analysis. Generally these were levels where there are few models available on the market to begin with. In these cases, DOE again leveraged the pricing collected for the small CPB equipment classes to estimate the price of a large commercial packaged boiler. However, in the NOPR analysis, to address the concerns expressed by stakeholders, DOE used a modified approach to calculate the price of a large commercial packaged boiler based on two or more smaller sized boilers. In this approach, DOE first combined the price data of each small and large equipment classes that have the same characteristics (
As part of the engineering analysis, DOE collected CPB prices from manufacturers, wholesalers, distributors and contractors. In the preliminary analysis, DOE collected pricing data, but as discussed previously was able to conduct a direct analysis of only six equipment classes: (1) Small, gas-fired, mechanical draft hot water; (2) large, gas-fired, mechanical draft hot water; (3) small, oil-fired, mechanical draft, hot water; (4) large, oil-fired, mechanical draft, hot water; (5) small, gas-fired, mechanical draft, steam; and (6) small, oil-fired, mechanical draft, steam. For the remaining classes, DOE did not have enough data to analyze the equipment directly, and consequently relied upon extrapolation of results from the equipment classes with adequate pricing information. In response to the preliminary analysis, DOE received several comments urging DOE to collect additional data for the NOPR stage.
ACEEE, ASAP, and NRDC commented that the limited amount of price data available for classes other than small, gas-fired, mechanical draft boilers forces DOE to rely on very uncertain extrapolations. The commenters encouraged DOE to collect additional price data to supplement its analysis, as they are concerned that the price-efficiency curves in the preliminary TSD were developed using a limited data set that may yield inaccurate results. Further the commenters also expressed concern that the analysis does not contain any information about the number of individuals surveyed, number of useful results, etc. (ACEEE, ASAP, and NRDC, No. 36 at p. 2) ACEEE, ASAP, and NRDC encouraged DOE to collect additional price data through interviews with and surveys of those who write specifications (consulting engineers and others) and those who bid on projects (mechanical contractors). The commenters also suggested DOE could obtain data on CPB purchases by the Federal government. Finally, ACEEE, ASAP, and NRDC stated that DOE should ensure that the data reflects the prices that consumers are actually paying as opposed to the “list” price that are widely discounted in actual bids (ACEEE, ASAP, and NRDC, No. 36 at p. 3) AHRI and Raypak encouraged DOE to contact additional contractors and others involved in selling and installing commercial packaged boilers to obtain more prices for natural draft models. (AHRI, No. 37 at p. 3; Raypak, No. 35 at p. 2) PGE and SCE recommended that DOE pursue other options for obtaining sales and price figures for commercial boilers that will generate more accurate results, and suggested the use of use market surveys or working with industry to gain insight into costs for larger boiler equipment. PGE and SCE also recommended that DOE explore California's Database of Energy Efficiency Resources for incremental costs of commercial boilers. (PGE & SCE, No. 38 at p. 3) ACEEE commented during the public meeting that the Building Services Research and Information Association (BSRIA) is a resource that has done cost comparisons, including condensing boilers, and various commercial sizes. ACEEE also suggested reviewing the comments from the transcripts of negotiated rulemaking of 2013 on certification, compliance, and enforcement (CCE) where many CPB manufacturers were represented. (ACEEE, Public Meeting Transcript No. 39 at p. 54)
DOE explored the suggestions provided by stakeholders, and found that the most reliable and complete price information was obtained directly from manufacturers, contractors, and distributors. DOE was able to collect a significant number of additional CPB prices in the NOPR stage, which were used to conduct a direct analysis of each equipment class. This eliminated the need to extrapolate price results between two different equipment classes, addressing the concerns of ACEEE, ASAP, and NRDC.
DOE agrees with ACEEE, ASAP, and NRDC that the list price is different from the actual manufacturer selling price and that this should be accounted for in the analysis. DOE accounted for this in both the preliminary analysis and in this NOPR analysis. A distributor or wholesaler is usually the first consumer in the distribution chain and typically receives a discount compared to the list price when purchasing equipment from the manufacturer. This discount varies by manufacturer and also depends on the business relationship between the manufacturer and the purchaser (
In the NOPR analysis, DOE used prices collected in the preliminary analysis stage with additional CPB prices that were collected in the NOPR stage.
DOE selects baseline efficiency levels as reference points for each equipment class, against which DOE calculates potential changes in energy use, cost, and utility that could result from an amended energy conservation standard. A baseline unit is one that meets, but does not exceed, the required existing energy conservation standard, as applicable, and provides basic consumer utility. A CPB model that has a rated efficiency equal to its applicable
As discussed previously in section IV.A.2 of this document, DOE has proposed to modify the equipment classes for commercial packaged boilers for this analysis. If the proposed equipment classes are ultimately adopted in the final rule, then the equipment classes that are set forth in the current regulations would be consolidated such that the current draft-specific classes (
As part of its engineering analysis, DOE determined the maximum technologically feasible (“max-tech”) improvement in energy efficiency for each equipment class of commercial packaged boilers. DOE surveyed the CPB market and the research literature relevant to commercial packaged boilers to determine the max-tech efficiency levels. Additionally, for each equipment class, DOE generally identifies several intermediate efficiency levels between the baseline efficiency level and max-tech efficiency level. These efficiency levels typically represent the most common efficiencies available on the market or a major design change (
During the market assessment, DOE conducted an extensive review of publicly available CPB equipment literature. DOE used the equipment database compiled during the market assessment to identify intermediate and max-tech efficiency levels for analysis. The efficiency levels for each equipment class that DOE considered in the NOPR TSD are presented in Table IV.6
In the preliminary analysis, DOE selected several efficiency levels for consideration in the analysis, many of which were retained in this NOPR. In response to the preliminary analysis, ACEEE, ASAP, and NRDC encouraged DOE to evaluate at the least one additional condensing level for the small, oil-fired, mechanical draft, hot water and the large, oil-fired, mechanical draft, hot water equipment classes at a level that could be considered “baseline” condensing equipment (
DOE considered these comments carefully and examined whether there is a need to add interim condensing efficiency levels between max-tech and the level below max tech in the oil-fired hot water CPB equipment classes. While selecting intermediate efficiency levels for this rulemaking, DOE examined the distribution of commercial packaged boilers available in the market at all efficiency levels.
Given the absence of such boilers available in the market and the challenges and uncertainties inherent to analyzing a product that does not exist, DOE has decided not to analyze additional interim condensing efficiency levels below max-tech for the oil-fired hot water equipment classes. DOE believes the consideration of the max-tech levels in these classes, which include condensing technology, are adequate for determining the cost-effectiveness of condensing designs.
DOE notes that for the small gas-fired hot water equipment class, efficiency levels of 93 percent and 95 percent were included in the analysis and represent interim condensing efficiency levels. Similarly, for the large gas-fired hot water equipment class, DOE has analyzed 94 percent as an interim condensing efficiency level below the max-tech. For these classes, the availability of commercial packaged boilers at these efficiency levels in the dataset in sufficiently large numbers justifies DOE's selection of intermediate efficiency levels.
The final results of the engineering analysis are a set of price-efficiency curves that represent the manufacturer selling price for higher efficiency models. DOE uses these results as inputs to the downstream analyses such as the life cycle cost analysis.
DOE received several comments on the incremental price results and the price-efficiency curves published in the preliminary analysis TSD. Lochinvar commented that the variation in manufacturing cost and the markup at each stage of distribution makes an accurate projection of incremental costs difficult, but that the methodology seems sound. Lochinvar also stated that the projected cost to the consumer appears to be a little high (5‐10%) across the board and suggested a modest underestimation of markup as a reason. (Lochinvar, No. 34 at p. 2) ACEEE, ASAP, and NRDC commented that DOE's results for condensing efficiency levels of small gas mechanical draft hot water equipment class appear to be inconsistent with DOE's statements that
DOE appreciates Lochinvar's comments comparing the results to their own pricing, but also notes that the analysis performed covered a wide variety of manufacturers and CPB models. Thus, DOE does not believe that a 5- to 10-percent variation from Lochinvar's results would be unexpected, as each individual manufacturer will set its prices differently.
DOE also examined the issue regarding the step change in prices of condensing boilers. More specifically, DOE investigated why there exists a relatively flatter trend in the incremental prices when going from non-condensing efficiency levels to condensing efficiency levels given the step change in technology from non-condensing to condensing. From the pricing data collected for small gas-fired hot water commercial packaged boilers, it is evident that the price of a commercial packaged boiler generally increases as it approaches the highest non-condensing efficiency levels, then displays a relatively flat trend to achieve lower condensing levels. The prices then increase as the efficiency approaches the mid-condensing efficiency levels, suggesting that achieving lower condensing levels is only slightly more costly than achieving the highest non-condensing levels.
There could be several reasons for this trend. First, commercial packaged boilers achieving efficiencies at the highest end of the non-condensing range sometimes incorporate designs that anticipate formation of condensate under certain conditions, such as high-grade stainless steel vent connectors, which will increase the cost and price of the commercial packaged boiler. DOE also notes from the market and technology assessment that only about 5 percent of all the small gas hot water boilers have a thermal efficiency that is greater than 86 percent and less than 90 percent. The comparatively lower production volumes of these commercial packaged boilers could also contribute to the higher prices. In this NOPR, DOE is analyzing the efficiency levels 93% and 95% for the small gas hot water equipment class. These efficiency levels represent the mid-level condensing levels that are a step higher than the other non-condensing and low condensing efficiency levels. As explained in section IV.A.2 of this document, these levels were chosen due to the high number of models already available on the market at these efficiencies. The price-efficiency curves for all equipment classes including small gas hot water are shown in chapter 5 of the NOPR TSD. Table IV.7 shows the incremental manufacturer selling price results for all eight equipment classes along with the baseline prices.
The markups analysis develops appropriate markups in the distribution chain (
Four different markets exist for commercial packaged boilers: (1) New construction in the residential buildings sector, (2) new construction in the commercial buildings sector, (3) replacements in the residential buildings sector, and (4) replacements in the commercial buildings sector. In the preliminary analyses, DOE characterized eight distribution channels to address these four markets.
For both the residential and commercial buildings sectors, DOE characterizes the replacement distribution channels as follows:
• Manufacturer → Wholesaler → Mechanical Contractor → Consumer
• Manufacturer → Manufacturer Representative → Mechanical Contractor → Consumer
DOE characterizes the new construction distribution channels for both the residential and commercial buildings sectors as follows:
• Manufacturer → Wholesaler → Mechanical Contractor → General Contractor → Consumer
• Manufacturer → Manufacturer Representative → Mechanical Contractor → General Contractor → Consumer
In addition to these distribution channels, there are scenarios in which manufacturers sell commercial packaged boilers directly to a consumer through a national account (assumed as 17.5% of sales in the preliminary analysis; other distribution channels previously discussed make up the remaining 82.5% market share). These scenarios occur in both new construction and replacements markets and in both the residential and commercial sectors. The relative shares for these are dependent on product class and details may be found in chapter 6 of the TSD. In these instances, installation is typically accomplished by site personnel. These distribution channels are depicted as follows:
• Manufacturer → Commercial Consumer (National Account)
To develop markups for the parties involved in the distribution of the commercial packaged boilers, DOE utilized several sources, including (1) the Heating, Air-Conditioning & Refrigeration Distributors International (HARDI) 2013 Profit Report
During the preliminary analysis public meeting and in written comments responding to DOE's preliminary analyses, DOE received feedback regarding distribution channels and market share of equipment through different channels. Lochinvar, Plumbing-Heating-Cooling Contractors National Association (PHCC), and Raypak commented that DOE's considered distribution channels seem accurate. Lochinvar estimates that commercial sales for all CPB sizes are primarily (80% or more) through manufacturer's representatives. (Lochinvar, No. 34 at p. 2) PHCC noted that boilers below 4,000,000 Btu/h are likely to have wholesaler presence, but anything larger would most likely be sold through a manufacturer's representative. (PHCC, Public Meeting Transcript, No. 39 at p. 79) Raypak stated that, due to complexity of installation of commercial packaged boilers, sales are done primarily through a manufacturer's representative that provides additional equipment and expertise needed, and that wholesalers do not really apply to commercial packaged boilers. (Raypak, Public Meeting Transcript, No. 39 at p. 81)
DOE received contradictory comments from stakeholders regarding the presence of wholesalers in the distribution chain for commercial packaged boilers. However, for the NOPR analysis, consistent with the preliminary analysis, the impact on markups from sales through wholesalers and sales through manufacturer's representatives are assumed to be equal. As a result, the distinction would not result in any impact on the overall markups. For its NOPR analysis DOE retained the distribution channels, and the assumed share of equipment
In addition, DOE received comments on the value of the markups, the applicability of the markups to small businesses, and tax exemption for commercial packaged boilers used for manufacturing purposes. Lochinvar suggested that DOE's markups in the preliminary analysis were 5-10% higher than they expected, resulting in overestimation of consumer price of the same order. (Lochinvar, No. 34 at pp. 2-3) PVI Industries, LLC (PVI) noted that the markups established from publicly traded companies are not reflective of smaller manufacturers that may not benefit from higher volume sales and economies of scale. (PVI, Public Meeting Transcript, No. 39 at p. 82) PHCC noted that, in some states, a tax exemption may exist for commercial packaged boilers if they are used for manufacturing purposes, citing Indiana and Michigan as states where such tax exemptions exist. (PHCC, Public Meeting Transcript, No. 39 at p. 77)
Based on these comments, DOE reexamined the markups and encountered errors in its preliminary analysis calculations resulting in overly high markups. DOE has corrected this issue in the NOPR markups analysis. With respect to adequately representing markups for small businesses that may not benefit from high volume sales, and thus certain economies of scale, DOE is not generally privy to financial data for non-publically traded firms and cannot assess the likely impact, or magnitude of impact, on overall markups of smaller firms with reduced sales. With respect to tax exemptions that may exist for commercial packaged boilers used for manufacturing purposes, this rulemaking does not cover process boilers that are not used for space heating. In addition, based on the information available to DOE, DOE did not identify any tax exemptions available for the commercial packaged boilers covered in this rulemaking. As such, DOE did not consider tax exemptions in its NOPR analyses for this rulemaking.
Chapter 6 of the NOPR TSD provides further detail on the estimation of markups.
DOE requests information or insight that can better inform its markups analysis.
See section VII.E for a list of issues on which DOE seeks comment.
The purpose of the energy use analysis is to determine the annual energy consumption of commercial packaged boilers in use in the United States and assess the energy savings potential of increases in efficiency (thermal efficiency (E
In its preliminary analyses, DOE estimated the energy consumption of commercial packaged boilers in commercial buildings and multi-family housing units by developing building samples for each of eight equipment classes examined based on the Energy Information Administration's (EIA) 2003 Commercial Building Energy Consumption Survey
DOE acknowledges there is benefit to the use of more recent CBECS data. However, EIA, so far, has released only a single microdata file (“Building Characteristics Public Use Microdata,” June 25, 2015) covering the “building characteristics” portion of the 2012 CBECS survey sample results.
DOE's energy characterization modeling approach calculates CPB energy use based on rated thermal efficiency and building heat load (BHL), accounting for the conversion from combustion efficiency to thermal efficiency when applicable, part-load operation (in the case of multi-stage equipment), and cycling losses (for single-stage equipment), as well as return water temperature (RWT) and climate zones. In the preliminary analyses, DOE analyzed CPB annual energy use based on the building sample, equipment efficiency characteristics, and equipment performance at part-load conditions.
In the preliminary analyses, in determining building heat load, DOE adjusted the building heat load to reflect the expectation that buildings in 2019 would have a somewhat different building heat load than buildings in the CBECS 2003 and RECS 2009 building sample. The adjustment involved multiplying the calculated BHL for each CBECS 2003 or RECS 2009 building by the building shell efficiency index from
DOE requests feedback on the methodology and assumptions used for the building heat load adjustment.
See section VII.E for a list of issues on which DOE seeks comment.
For its preliminary analyses, DOE adjusted the rated thermal efficiency of evaluated commercial packaged boilers based on RWT, cycling losses, and part-load operation. High RWT is applied to all non-condensing boiler installations. For condensing boiler installations, low
DOE received comments on the preliminary analysis regarding the energy modeling approach. Regarding DOE's approach to converting combustion efficiency to thermal efficiency, Lochinvar suggested that, in order to avoid confusion, DOE should not convert one to the other. (Lochinvar, No. 34 at p. 7) Relative to adjusting rated thermal efficiency of commercial packaged boilers using return water temperature, Lochinvar urged DOE not to attempt correcting the efficiency of hot water commercial packaged boilers based on expected return water temperature conditions, noting that certain aspects of the BTS-2000 test procedure are being overlooked, such as the use of a recirculating loop used in some instances allowing for higher return water temperature into the boiler. Lochinvar also noted that efficiency curves over a wide range of return water temperatures used to derive conversion factors in the analysis are not based on BTS-2000 methodology, and using data created without a consistent test procedure is certain to introduce errors. (Lochinvar, No. 34 at p. 3) Similarly, AHRI expressed concerns regarding DOE's decision to try to adjust rated thermal efficiency and annual energy consumption estimates of commercial packaged boilers to account for differences in return and supply water temperatures, noting the lack of field data and the use of outdoor reset in many installations, a field condition variable that adjusts return water temperature based on building heating load and ambient air temperature. AHRI furthered stated that such efficiency adjustment would be an estimate not supported by adequate field data. (AHRI, No. 37 at p. 4) Raypak noted that return water temperature is unique to every boiler application, building design, and engineering plans for building operation. Raypak stated that there is no representative profile of return water temperature in the field. (Raypak, No. 35 at p. 3)
AHRI commented that, given the trends toward multiple boilers, the energy use calculations in buildings where multiple boilers are installed should be considered in DOE's energy use analysis. (AHRI, Public Meeting Transcript, No. 39 at pp. 95-96) DOE's analysis of non-condensing boilers considers cycling loss curves that reflect staging with multiple boilers, where multiple boilers exist, reducing the cycling adjustment factor based on the modulation capability of multiple-boiler systems. For condensing boilers, the part-load curves do not consider effects of multiple boilers but instead consider impact on efficiency due to modulation.
With respect to the adjustments made to CPB efficiencies and annual energy use based on return water temperature conditions, DOE understands that field conditions may be variable but recognizes that one of the key drivers impacting CPB efficiency is return water temperature. In its analysis, DOE sought to estimate the energy use of equipment in the field and, as such, considered factors that may impact CPB efficiency, including return water temperature conditions. DOE's energy use analysis has been designed to reflect conditions in the field, considering the expectations for existing buildings and the potential in new construction, as well as the proposed testing conditions in DOE's concurrent test procedure rulemaking.
Regarding DOE's approach to converting combustion efficiency to thermal efficiency, Lochinvar stated that DOE's conversion factor where every 1 percent increase in combustion efficiency equates to a 1.0867 percent increase in thermal efficiency could be misleading when reversing the conversion factor to prescribe new minimum combustion standards. Lochinvar believes such reversed conversions would require DOE to justify a greater energy savings for large commercial packaged boilers in order to justify an increase in combustion efficiency. Lochinvar suggested that, in order to avoid confusion, DOE should not convert one to the other. (Lochinvar, No. 34 at p. 7)
DOE disagrees that its method of converting combustion efficiency to thermal efficiency for applicable large commercial packaged boilers is misleading. As detailed in chapter 7 of the NOPR TSD, DOE calculated annual energy use of covered commercial packaged boilers based on the thermal efficiency of the equipment while accounting for cycling loss, part load operating conditions, and return water temperature. For equipment classes rated in combustion efficiency, DOE converted the combustion efficiency levels defined in the engineering analysis to thermal efficiency levels in order to appropriately characterize the energy use of the equipment. However, DOE did not reverse the conversion when establishing standard levels in combustion efficiency. Rather, DOE identified combustion efficiency levels through its engineering analysis by evaluating technologically feasible options. DOE then calculated energy use and associated operating cost savings through converting combustion efficiency to thermal efficiency when determining economic justification of each identified combustion efficiency level. As such, DOE disagrees with Lochinvar's point that the conversion from combustion efficiency to thermal efficiency is misleading or will create confusion. DOE did review the conversion factor that DOE developed in the preliminary analysis and adjusted it to ensure the NOPR analysis does not result in a conversion where the thermal efficiency value is higher than the combustion efficiency. DOE applied the same methodology to convert combustion efficiency to thermal efficiency to determine energy use of equipment rated in combustion efficiency in its energy analysis for the NOPR.
DOE also received comments related to system considerations that may impact return water temperature conditions, and the resulting impact on the expected performance of condensing units that replace non-condensing commercial packaged boilers. ABMA commented that unless the boiler sizing closely follows the seasonal load profile, and the control system is capable of selecting the correct boiler for the prevailing load, the efficiency savings will not be maximized. (ABMA, No. 33 at p. 3) Raypak similarly commented that DOE should be aware of the distribution system considerations for ensuring proper operation with lower boiler water temperatures, as needed for
DOE acknowledges that there are system considerations that can negatively impact the performance of a condensing commercial packaged boiler, resulting in less than optimum CPB efficiency. The analysis considered the return water temperature's effect on condensing boiler efficiency and took into account climate zone data to account for expected differences in operation and performance between different climates. DOE's analysis developed a heating load-weighted average return water temperature for two scenarios. In one scenario, a low return water temperature is provided for commercial packaged boilers that are installed in a system that would allow for condensation to occur. In a second scenario, a high return water temperature is provided for commercial packaged boilers that are installed in a system that does not allow for condensation to occur. For buildings in new construction, DOE assumed that all buildings will be designed to allow for condensing boilers to condense for a significant part of the heating season and therefore used low return water temperatures for its analysis. For buildings built after 1990, DOE assumed that 25% of buildings will be capable of low return water temperatures to allow condensing during part of the heating season. For buildings built before 1990, DOE assumed that 5% of buildings will be capable of low return water temperatures to allow condensing during part of the heating season. For the remainder of buildings, DOE's analysis used the average high return water temperature scenario. DOE tentatively concluded that it has appropriately considered the building hot water and steam distribution systems to appropriately account for the performance impact on commercial packaged boilers resulting from return water temperature conditions in the field.
DOE received feedback from Lochinvar, AHRI, ABMA, and PHCC relative to the various control options for commercial packaged boilers, particularly those used in multiple-boiler installations. Some of these controls may include fixed thermostats, fixed lead/lag thermostats with rotation on lead, individual thermistors with modulation, individual modulation with rotating lead, and group modulation. Lochinvar notes that some of the control options may be integral or external to the CPB, a point also echoed by AHRI, which commented on the variety of control systems and that some (
For the NOPR, DOE modified the energy use characterization conducted in the preliminary analysis to improve the modeling of equipment performance. The modifications that DOE performed included changes to the cycling loss factors for individual commercial packaged boilers, improved accounting for estimating performance of multiple-boiler installations, and improving the return water temperature efficiency adjustment factors.
A more detailed description of the energy use characterization approach can be found in appendix 7B of the NOPR TSD.
In its energy analysis for this NOPR, DOE's estimation of the annual energy savings of commercial packaged boilers from higher efficiency equipment alternatives relies on building sample data from CBECS 2003, RECS 2009, and CBECS 2012.
The subset of CBECS 2003 and RECS 2009 building records used in the analysis met the following criteria. The CPB application
• used commercial packaged boiler(s) as one of the main heating equipment components in the building,
• used a heating fuel that is natural gas (including propane and LPG) or fuel oil or a dual fuel combination of natural gas and fuel oil,
• served a building with estimated design condition building heating load exceeding the lower limit of CPB qualifying size (300,000 Btu/hr), and
• had a non-trivial consumption of heating fuel allocable to the commercial packaged boiler.
DOE analyzed commercial packaged boilers in the qualifying building samples. DOE disaggregated the selected sample set of commercial packaged boilers into subsets based on the fuel types (gas or oil), fuel input rate (small or large), heating medium (steam or hot water). DOE then used these CPB subsets to group the sample buildings equipped with the same class of equipment evaluated in its NOPR analysis. In the LCC analysis, DOE used the ratio of the weighted floor space of the groups of commercial and residential building samples associated with each equipment class to determine the respective sample weights for the commercial and residential sectors. In absence of the newer sample data from CBECS 2012, DOE's new construction sample was based on the same selection algorithms as the replacement sample but included only buildings built after 1990, which DOE tentatively concluded would have building characteristics more similar to the new construction buildings in the start of the analysis period in 2019 (
To disaggregate a selected set of commercial packaged boilers into large and small equipment classes, DOE uses a sizing methodology to determine the sizes of the commercial packaged boilers installed in the building. In the preliminary analysis, DOE used a rule-based sizing methodology (
First, the total sizing of the heating equipment is determined from the heated square footage of the building, the percentage of area heated, a uniform heating load requirement of 30 Btu/h per square foot of heated area, and an assumed equipment efficiency mapped to the construction year. DOE's sizing methodology also takes outdoor design conditions into consideration. The outdoor design condition for the building is based on the specific weather location of the building. The estimated total CPB sizing (MMBtu/h) is the aggregate heating equipment sizing prorated using the area fraction heated by the commercial packaged boilers and multiplied by an oversize factor of 1.1. For the sample of residential multi-family buildings, the heating equipment sizing methodology for commercial buildings is modified to calculate the heating load for each residential unit of the multi-family buildings and this value is multiplied by the number of units, assuming each unit to have identical area and design heating load. The modified methodology for residential multi-family buildings further assumes that a centrally located single or a multiple-boiler installation would meet the entire design heating load of the building.
DOE computed the size of each commercial packaged boiler in each sample building by dividing the aggregate CPB sizing heating load (MMBtu/hr) by an estimated number of boilers of equal capacity. To estimate the number of commercial packaged boilers in a given sample building, DOE established a CPB count distribution for a given sizing load range in a set of sample buildings from CBECS data of 1979 and 1983—the only two CBECS surveys where the CPB count data were available for the sample buildings. DOE assigned the number of commercial packaged boilers to all the qualified sample buildings of 2003 CBECS based on this distribution. The number of commercial packaged boilers in each sample building was multiplied by the respective building sample weights in CBECS to obtain an estimate of the overall CPB population and their respective capacities. The CPB size distributions obtained by this method were compared with the size distribution of the space heating boilers obtained in an EPA database
DOE received several comments pertaining to its sizing methodology used in the preliminary analyses—
The CBECS 2003 and RECS 2009 weightings for each building sample indicate how frequently each commercial building or household unit occurs on the national level in 2003 and 2009, respectively. DOE used these weightings from CBECS 2003 and RECS 2009 buildings for estimation of individual equipment class sample weights. Appendix 7A of the NOPR TSD presents the variables included and their definitions, as well as further information about the derivation of the building samples, the adjustments to the CPB weights, and sampling fractions for each of the four samples: Commercial and residential, each divided between new construction and retrofit.
DOE received multiple comments regarding the sizing methodology and other assumptions used in estimation of the equipment sample weights. PHCC pointed out that in the retrofit situation, though there are contractors who just replace the boilers on “like for like” basis, most contractors look at the overall system load and then size the installation appropriately considering the design heating load, particularly when a higher efficiency system is being considered. (PHCC, Public Meeting Transcript, No. 39 at p. 98) AHRI noted that it is not unusual to have a backup boiler in installations of some building types, creating some redundancy, in particular where absence of heating is unacceptable. (AHRI, Public Meeting Transcript, No. 39 at p. 94-95) AHRI further observed that this has been a historical practice, and current design practice mostly provides for multiple-boiler installations. ACEEE commented that installations needing 100-percent backup may use a second large boiler, or some may opt for having various small boilers that together cover 130 or 120 percent of the peak load. (ACEEE, Public Meeting Transcript, No. 39 at pp. 101-103). DOE's use of data-driven boiler count distributions to estimate the number of boilers in a given installation obviates the need for assumptions on the percent of the sample buildings requiring redundancy in the boiler installation and the extent of redundancy. For example, DOE estimated that 30% of the sample buildings having design heating loads between 570,000 and 865,000 Btu/hr would have two commercial packaged boilers, the rest being single boiler installations. While the capacity of the single commercial packaged boiler is based on an oversize factor of 110%, in the two-boiler situation each commercial packaged boiler has half the capacity of the single large commercial packaged boiler. The two-boiler situation creates redundancy only to the extent of 55% of the design load but has no provision for 100% redundancy under design heating condition. In the NOPR analysis, the maximum number of commercial packaged boilers assigned to any sample building is eight, implying redundancy of 96% of the design heating load. PHCC commented that fully redundant boilers are less frequent now than it has been in the past. (PHCC, Public Meeting Transcript, No. 39 at pp. 103-104) PHCC further noted that reasonable degree of redundancy can be created even when only 100% of the design load is shared by multiple boilers in an installation. PHCC observed that presently building owners are unwilling to spend a significant amount of additional funds to ensure redundancy as there are acceptable and safe alternatives. (PHCC, Public Meeting Transcript, No. 39 at p. 104) DOE's NOPR analysis assumes an average oversize factor of 110%, which appear reasonable.
The issues of redundant, modular, and multiple-boiler use in a given installation are intertwined, and DOE received several comments in this area. AHRI, Lochinvar, and Raypak noted that ASHRAE Standard 90.1-2013 requires a 3:1 turndown ratio for boiler systems with an input rate of 1 MMBtu/hr or more (accomplished with a modulating boiler or multiple boilers) to provide some measure of load following. (AHRI, No. 37 at p. 4; Lochinvar, No. 34 at p. 4; Raypak, No. 35 at p. 3). Raypak commented that trends show that more buildings, new and existing, are being provided with multiple smaller boilers instead of a single large boiler, and that buildings such as hospitals, hotels, colleges, and prisons are examples where redundant equipment may be used, though not necessarily providing 100% coverage. ACEEE also commented that there is some shift away from larger boilers to multiple smaller boilers. (ACEEE No. 39 at p. 33)
DOE notes that one of the key drivers of the trend toward installation of multiple or modular commercial packaged boilers in any installation would be ASHRAE standard 90.1-2013,
Raypak noted that DOE's assumption in the preliminary analysis that all multiple boilers are of the same size and type when installed in the same building is incorrect. Raypak stated that it is seeing more “hybrid” systems that include both condensing and non-condensing boilers on the same system, with some of these hybrid systems having the ability to monitor the return water temperature and initiate condensing boiler operation. (Raypak, No. 35 at p. 3) PHCC commented that use of one low-efficiency and one high-efficiency boiler in a new installation could be rare but may happen in retrofit scenarios. (PHCC, Public Meeting Transcript, No. 39 at p. 104) DOE agrees with PHCC that hybrid installations are possible in retrofit situations where new condensing boiler(s) operating in the “base load mode” combine with the pre-existing non-condensing boilers to meet the design load. In new construction, DOE's analysis can be limited only to single efficiency levels for all commercial packaged boilers as any mandated efficiency standards stipulate a single minimum efficiency level only. It is likely that operation in the hybrid configuration may improve the economics of the “condensing boiler” efficiency option in DOE's NOPR analysis because of higher utilization of the condensing boilers in the hybrid retrofitted systems vis-à-vis utilizations currently estimated in the sample buildings under a “uniform configuration.” However to quantify this impact, DOE needs to develop a reasonable baseline assumption regarding the current degree of adoption of the hybrid configuration practice in retrofit situations.
DOE requests information on what constitutes a reasonable baseline assumption about the current degree of adoption of hybrid boiler configurations in retrofit situations and on other related parameters such as percentage of total installed capacity typically assigned to the new condensing boilers, climate zones where it may be more prevalent and any other supporting documentation.
See section VII.E for a list of issues on which DOE seeks comment.
Building sampling methodology is detailed in NOPR TSD appendix 7A.
The annual energy used by commercial packaged boilers, in some cases, may include energy used for non-space heating use such as water heating. In the preliminary analysis, DOE assumed that if the CBECS data indicates that the CPB fuel is the same as the fuel used for water heating then in 50% of the sample buildings, the same commercial packaged boiler is also used for water heating. Several stakeholders commented on the reasonableness and validity of this assumption. AHRI stated that in the collective opinion of its members, the fraction of boilers used for both space heating and hot water in commercial building is far less than the 50% assumed in the preliminary analysis. (AHRI, No. 37 at p. 5) Raypak agreed with AHRI's comment and further pointed out that this practice, though common in Europe for condensing boilers in residential applications, is not commonly observed in commercial buildings in the United States. (Raypak, No. 35 at p. 4) Lochinvar expressed that possibly a greater percentage of residential boilers are used for both space and water heating than boilers in commercial buildings. ACEEE pointed out that using packaged boilers also for hot water heating is a wasteful practice because of the presence of long recirculating loops, which are restricted in the new building codes. (ACEEE, Public Meeting Transcript, No. 39 at p. 113) ACEEE further pointed out that the current system design practice is moving away from having dual-use installations in commercial buildings. DOE agrees with the previous comments and consequently limited the fraction of occurrence of dual-use boilers to 20% of the samples in the NOPR analysis compared to the previously considered level of 50%.
Other associated energy consumption is due to electricity use by electrical components of commercial packaged boilers including circulating pump, draft inducer, igniter, and other auxiliary equipment such as condensate pumps. In evaluating electricity use, DOE considered electricity consumed by commercial packaged boilers both in active mode as well as in standby and off modes in the preliminary analysis.
DOE received several comments regarding energy use by pumps. AHRI noted that there has been significant progress on ASHRAE 90.1 in requiring or specifying more efficient mode of pumps for the circulating pumps and that there is a parallel rulemaking on commercial industrial pumps, and the impact of such rulemaking should be considered in this analysis and rulemaking as it relates to pumps used in commercial packaged boilers. (AHRI, Public Meeting Transcript, No. 39 at pp. 108-109 and 114) PHCC noted that the analysis should be clear as to whether pump power refers to a system pump, boiler pump, or both, and commented that small boilers are probably all provided with a system circulating pump, but, as systems get larger, the pumps may be field selected, and coming up with an average efficiency would be complicated given the various pump options available out there. (PHCC, Public Meeting Transcript, No. 39 at pp. 109-110 and 112-113) Similarly, Raypak noted that boiler pumps may not be included with the commercial packaged boiler but rather be a purchase decision made by the manufacturer's representative or contractor to meet the CPB flow and head requirements, and that care should be taken when taking this energy consumption into consideration. (Raypak, Public Meeting Transcript, No. 39 at pp. 115-116) ACEEE noted that care must be taken in the analysis to include only energy use for pumps integral to the operation of the boiler and not for those that are used for distribution to the system. (ACEEE, Public Meeting Transcript, No. 39 at p. 111)
With respect to the electricity use of pumps, DOE wishes to clarify that the current analysis only considered the electricity use of pumps needed for proper operation of the commercial packaged boiler, but not the electricity use of additional pumps that may be necessary used for distributing water throughout a system since the circulating pumps are not part of the commercial packaged boiler itself and inclusion of its energy consumption would not be appropriate to the development of the standard.
In its NOPR analysis, DOE maintained the electricity use analysis method used for the preliminary analysis.
The purpose of the LCC and PBP analysis is to analyze the effects of potential amended energy conservation standards on consumers of commercial packaged boilers by determining how a potential amended standard affects their operating expenses (usually decreased) and their total installed costs (usually increased).
The LCC is the total consumer cost of owning and operating an appliance or equipment, generally over its lifetime. The LCC calculation includes total installed cost (equipment manufacturer selling price, distribution chain markups, sales tax, and installation costs), operating costs (energy, repair, and maintenance costs), equipment lifetime, and discount rate. Future operating costs are discounted to the time of purchase and summed over the lifetime of the appliance or equipment. The PBP is the amount of time (in years) it takes consumers to recover the assumed higher purchase price of more energy-efficient equipment through reduced operating costs. DOE calculates the PBP by dividing the change in total installed cost (normally higher) due to a standard by the change in annual operating cost (normally lower) that result from the standard.
For any given efficiency level, DOE measures the PBP and the change in LCC relative to an estimate of the no-new-standards efficiency distribution. The no-new-standards estimate reflects the market in the absence of amended energy conservation standards, including market trends for equipment that exceed the current energy conservation standards.
DOE analyzed the net effect of potential amended CPB standards on consumers by calculating the LCC and PBP for each efficiency level of each sample building using the engineering performance data, the energy-use data, and the markups. DOE performed the LCC and PBP analyses using a spreadsheet model combined with Crystal Ball (a commercially available software program used to conduct stochastic analysis using Monte Carlo simulation and probability distributions) to account for uncertainty and variability among the input variables (
EPCA establishes a rebuttable presumption that a standard is economically justified if the Secretary finds that the additional cost to the consumer of purchasing a product complying with an energy conservation standard level will be less than three times the value of the energy (and, as applicable, water) savings during the first year that the consumer will receive as a result of the standard, as calculated under the test procedure in place for that standard. For each considered efficiency level, DOE determines the value of the first year's energy savings by calculating the quantity of those savings in accordance with the applicable DOE test procedure and then multiplying that amount by the average energy price forecast for the year in which compliance with the amended standards would be required.
DOE calculated the LCC and PBP for all consumers of commercial packaged boilers as if each were to purchase new equipment in the year that compliance with amended standards is required. The projected compliance date for amended standards is early 2019. Therefore, for purposes of its analysis, DOE used January 1, 2019 as the beginning of compliance with potential amended energy standards for commercial packaged boilers.
As noted in this section, DOE's LCC and PBP analysis generates values that calculate the payback period for consumers of potential energy conservation standards, which includes, but is not limited to, the 3-year payback period contemplated under the rebuttable presumption test. However, DOE routinely conducts a full economic analysis that considers the full range of impacts, including those to the consumer, manufacturer, Nation, and environment. The results of the full economic analysis serve as the basis for DOE to definitively evaluate the economic justification for a potential standard level (thereby supporting or rebutting the results of any preliminary determination of economic justification).
Inputs to the LCC and PBP analysis are categorized as (1) inputs for establishing the purchase cost, otherwise known as the total installed cost, and (2) inputs for calculating the operating cost (
For each distribution channel, DOE derives the consumer equipment cost for the baseline equipment by multiplying the baseline equipment manufacturer production cost and the baseline overall markup (including any applicable sales tax). For each efficiency level above the baseline, DOE derives the consumer equipment cost by adding baseline equipment consumer cost to the product of incremental manufacturer cost and the appropriate incremental overall markup (including any applicable sales tax). This consumer equipment cost is reflective of the representative equipment size analyzed for each equipment class in the engineering analysis. Since the LCC analysis considers consumers whose CPB capacities vary from the representative equipment size, the consumer equipment cost is adjusted to account for this.
DOE examined whether CPB equipment prices changed over time. DOE tentatively determined that there is no clear historical price trend for CPB equipment and used costs established in the engineering analysis directly for determining 2019 equipment prices for the LCC and PBP analysis.
The installation cost is the cost incurred by the consumer for installing the commercial packaged boiler. The cost of installation covers all labor and material costs associated with the replacement of an existing commercial packaged boiler for replacements or the installation of a commercial packaged boiler in a new building, removal of the existing boiler, and any applicable permit fees. DOE estimates the
DOE received feedback regarding installation costs for commercial packaged boilers, including comments related to installation locations within buildings, venting materials and sizes, and common venting. AHRI commented that boilers located within buildings are usually in the basement or penthouse, and in high-rise buildings, they are often located in intermediate floors, and that vertical vent termination is most common. (AHRI, No. 37 at p. 6) Raypak commented that there is no “typical” boiler installation, and that boilers may be located in basements, mechanical rooms, penthouses, or outdoors and, in high-rise buildings, boilers are often located in intermediate floors due to other system limitations. (Raypak, No. 35 at p. 6) PHCC also noted that likely places for boiler installations are boiler rooms, equipment rooms, basements of hotels, and powerhouses in hospitals. Venting in these installations could be through sidewalls, roofs, masonry, chimneys, or stainless steel vents. (PHCC, No. 39 at p. 138) Lochinvar noted that they do not have specific information but speculate that less than 10% of installations will require significant additional installation expenses, and that most likely this expense would occur for condensing boilers with long vent runs that require custom-designed common vent systems with modulating draft control systems. (Lochinvar, No. 34 at p. 5) ACEEE suggested getting in touch with ASHRAE technical committees to obtain more specific information on design practices, and engaging the engineering community, system designers, and contractors to get a better handle on installation costs. (ACEEE, No. 39 at pp. 105 and 128) PHCC suggested that information on this topic may be more succinctly gathered from a survey sent to contractors, engineers, and manufacturers. (PHCC, No. 39 at p. 135)
Regarding costs associated with venting, AHRI, Lochinvar, and Raypak noted that venting material selection is a function of system design, but generally vents 8 inches and larger are metal, 4 inches and smaller are PVC/CPVC/PP,
With respect to common venting, Lochinvar commented that multiple-boiler installations are often commonly vented (10% and growing), but that common venting commercial packaged boilers with water heaters is rare, and they advise against mixing unlike product types when venting. (Lochinvar, No. 34 at p. 6) AHRI noted that the National Fuel Gas Code (NFGC) requires condensing boilers to be separately vented, and that it is customary to commonly vent non-condensing boilers, but that commercial water heaters are usually not commonly vented with commercial packaged boilers. (AHRI, No. 37 at p. 6) AHRI further elaborated on this point during the public meeting, stating that common venting may become problematic for the water heater when the boiler is not firing and the vent size is very large. (AHRI, No. 39 at p. 141) Raypak, in their comments submitted in response to the public meeting, also noted that the NFGC addresses common venting of non-condensing Category I equipment, but when it comes to common venting of condensing boilers or other category boilers, the NFGC calls for “Engineered Vent Systems,” resulting in additional costs for the design, including a Registered Professional Engineer's stamp (approving the venting system design), and equipment over and above the cost of the vent materials alone. (Raypak, No. 35 at p. 6) Similarly, PVI noted that non-condensing boilers are commonly vented together; condensing boilers are most commonly vented individually, but some (research) projects are investigating what it would
DOE acknowledges that the number of possible variations in venting arrangements is significant and has utilized this input in a logic sequence based upon probability distribution of venting conditions to provide representative venting costs for the range of products analyzed. See chapter 8 and appendix 8D of the NOPR TSD for details on DOE's analysis of installation costs including venting costs.
DOE seeks input on its characterization and development of representative installation costs, including venting costs, in new and replacement commercial package boiler installations, including data to support assumptions on vent sizing, vent length distributions, and vent materials.
See section VII.E for a list of issues on which DOE seeks comment.
DOE estimated annual natural gas, fuel oil, and electricity consumed by each class of CPB equipment, at each considered efficiency level, based on the energy use analysis described in section IV.E of this document and in chapter 7 of the NOPR TSD.
DOE conducted a literature review on the direct rebound effect in commercial buildings, and found very few studies, especially with regard to space heating and cooling. In a paper from 1993, Nadel describes several studies on takeback in the wake of utility lighting efficiency programs in the commercial and industrial sectors.
EIA includes a rebound effect for several end-uses in the commercial sector, including heating and cooling, as well as improvements in building shell efficiency in its AEO reports.
DOE requests comment and seeks data on the assumption that a rebound effect is unlikely to occur for these commercial applications.
See section VII.E for a list of issues on which DOE seeks comment.
DOE derives average monthly energy prices for a number of geographic areas in the United States using the latest data from EIA and monthly energy price factors that it develops. The process then assigns an appropriate energy price to each commercial building and household in the sample, depending on its type (commercial or residential), and its location. DOE derives 2014 annual electricity prices from EIA Form 826 data.
To arrive at prices in future years, DOE multiplies the prices by the forecasts of annual average price changes in
The maintenance cost is the routine cost incurred by the consumer for maintaining equipment operation. The maintenance cost depends on CPB capacity and heating medium (hot water or steam). DOE used the most recent “RS Means Facility Maintenance and Repair Cost Data” to determine labor and materials costs and maintenance frequency associated with each maintenance task for each CPB equipment class analyzed.
DOE requested comments regarding the frequency and typical cost of maintenance of minimum- and high-efficiency commercial packaged boilers. ABMA commented that the maintenance costs shown in the analysis seem low and more along the lines of residential maintenance costs. (ABMA, Public Meeting Transcript, No. 39 at p. 65) Similarly, Raypak believes that DOE should not assume that there is a linear relationship between the size of the boiler and the cost of its components. (Raypak, No. 35 at p. 4) Additionally, Raypak commented that the frequency and cost of maintenance, major repairs,
Two stakeholders proposed that DOE implement additional data collection techniques. ACEEE encouraged DOE to look at international experience/comparisons relative to maintenance, maintenance contracts, incremental costs, and lifetime estimates, especially where it related to condensing technology where other regions have more history of condensing technology use. (ACEEE, Public Meeting Transcript, No. 39 at p. 209) PVI suggested that surveying boiler service companies regarding maintenance and frequency of repairs, as well as self-service versus external, may help provide some answers for the analysis. (PVI, No. 39 at p. 153) DOE appreciates the recommendations made by commenters. However, DOE considers the information it was able to collect and examine through publically available sources to be sufficient to perform the NOPR analyses.
With respect to adherence to a maintenance schedule on commercial packaged boilers, Lochinvar noted that CPB manufacturers recommend annual maintenance, but evidence supports that it is often neglected. (Lochinvar, No. 34 at p. 4) Raypak also noted the lack of maintenance requirements on boilers and the impact that lack of maintenance can have on boiler lifetime. (Raypak, Public Meeting Transcript, No. 39 at p. 208)
DOE appreciates the stakeholder comments received regarding CPB equipment maintenance frequency and costs. DOE notes that for the NOPR, DOE is not changing the maintenance cost calculation methodology used in the preliminary analysis as it risks oversimplifying the maintenance cost estimating methodology, which may result in costs that are not reflective of the recommended preventive maintenance tasks performed in the facilities and boiler plants, and not significantly different from one equipment class to another.
The cost estimates used in the analysis are specific to preventive maintenance tasks performed by the in-plant engineer/technician. DOE notes that RS Means is a representative, well-documented, and widely accepted data resource specifically developed for cost estimating purposes depicting typical preventive maintenance tasks and associated costs at different CPB capacities, which is the requirement for the purposes of the LCC analysis. Furthermore, the version of RS Means used for the LCC purposes specifically looked at facilities that used CPB plants and larger commercial packaged boilers to ensure that the costs used are appropriate.
The repair cost is the cost to the commercial consumer for replacing or repairing components that have failed in the commercial packaged boiler (such as the ignition, controls, heat exchanger, mechanical vent damper, or power vent blower). In its preliminary analysis, DOE used the latest version of the “RS Means Facility Maintenance and Repair Cost Data” to determine labor and materials costs associated with repairing each CPB equipment class analyzed.
DOE received comments regarding repair costs for commercial packaged boilers. AHRI commented that DOE should not assume a linear relationship between boiler size and component costs, and both AHRI and Raypak noted that repair costs shown in the analysis may be representative of historical models, but newer commercial models require more specialized equipment and technicians, resulting in an underestimation of repair costs in the analysis for higher efficiency equipment. (AHRI, No. 37 at p. 5; Raypak, No. 35 at p. 4) With respect to heat exchanger repairs, Raypak notes that a replacement heat exchanger would show up simply in replacement parts orders and a replacement boiler would show up as a boiler shipment, but it has no knowledge of the instances of heat exchanger replacements versus boiler replacements in repair/replace decisions. (Raypak, No. 35 at p. 5) Lochinvar comments that in cases where they are involved in the decision to repair or replace a heat exchanger, about 80% of the times the heat exchanger is replaced, and that it is consistent for condensing and non-condensing commercial packaged boilers they manufacture. Lochinvar has no data on repair or replacement percentages for cases in which they are not involved in the decision-making process. (Lochinvar, No. 34 at p. 5) Lochinvar further notes that the type of boiler impacts whether heat exchanger failure will result in replacement rather than repair. (Lochinvar, No. 34 at p. 4) PHCC opines that for smaller boilers, it is likely that the entire boiler would be replaced if there is a heat exchanger failure, but for larger boilers, it is more likely that the heat exchanger would be
DOE appreciates the comments it received regarding repair costs for commercial packaged boilers. Regarding the comments noting an underestimation of repair costs, DOE notes that it used “RS Means Facility Maintenance and Repair Cost Data”
In the NOPR, DOE used the latest “RS Means Facility Maintenance and Repair Cost Data” to determine labor and materials costs associated with repairing each CPB equipment class analyzed. DOE assumes that all commercial packaged boilers have a 1-year warranty for parts and labor and a 10-year warranty on the heat exchanger. For a detailed discussion of the development of repair costs, see appendix 8E of the NOPR TSD.
DOE requests comments on the representativeness of using 1-year as warranty for parts and labor, and 10-years as warranty for the heat exchanger.
See section VII.E for a list of issues on which DOE seeks comment.
Equipment lifetime is defined as the age at which equipment is retired from service. DOE uses national survey data, published studies, and projections based on manufacturer shipment data to calculate the distribution of CPB lifetimes. DOE based equipment lifetime on a retirement function, which was based on the use of a Weibull probability distribution, with a resulting mean lifetime of 24.8 years. DOE assumed that the lifetime of a commercial packaged boiler is the same across the different equipment classes and efficiency levels. For a detailed discussion of CPB lifetime, see appendix 8F of the NOPR TSD. In the Framework and preliminary analysis documents, DOE sought comment on how it characterized equipment lifetime. DOE also requested any data or information regarding the accuracy of its 24.8-year lifetime and whether equipment lifetime varies based on equipment class.
DOE received various comments regarding CPB lifetime. ABMA, AHRI, and Raypak commented that the average life assumption developed by DOE in the analysis for both condensing and non-condensing boilers is incorrect, noting that condensing boilers have only been on the market for about 15 years, so using an average life of 24.8 years for them in the analysis is unwarranted. ABMA further notes that the preliminary analysis TSD Table 8-F.2.1 shows condensing boilers listed as having 10-15 year life, but the analysis sets lifetime as 24.8 years regardless of CPB technology. ABMA, and Raypak believe the average life of condensing boilers to be in the neighborhood of 15 years, and Lochinvar suggested that condensing product life should be in the range of 19 to 20 years. (ABMA, Public Meeting Transcript, No. 39 at p. 152; Lochinvar, No. 34 at p. 6; Raypak, No. 35 at p. 6; Raypak, Public Meeting Transcript, No. 39 at p. 208) PHCC stated that 25 year lifetime is high for condensing technology. (PHCC, Public Meeting Transcript, No. 39 at p. 149) Lochinvar commented that non-condensing product lifetime estimates are consistent with their experience, but that lifetime calculations must not aggregate condensing and non-condensing products for average lifetime cost calculations. (Lochinvar, No. 34 at p. 6) ACEEE commented that the material the heat exchanger is made of is likely to be as relevant as the condensing versus non-condensing operation of the boiler. (ACEEE, No. 39 at p. 154) AHRI also suggested that lifetime for condensing commercial packaged boilers be determined differently based on their limited history. (AHRI, No. 37 at p. 6) PVI agreed that there is insufficient historical data on condensing boilers to confirm that their lifetime is similar to traditional boilers, but that early evidence suggests they have shorter lives. (PVI, Public Meeting Transcript, No. 39 at p. 151) ABMA and PVI suggested that the life-cycle cost of a condensing boiler installation should consider accelerated replacement of commercial packaged boilers, with ABMA noting that calculations using this proposed lifetime is highly suspect unless the life cycle cost of a condensing boiler installation includes the cost of two condensing boilers, rather than one. (ABMA, No. 33 at p. 2)
In response, DOE notes that in developing the residential Boilers Specification Version 3.0 for the ENERGY STAR® program in 2013, the Environmental Protection Agency (EPA) held numerous discussions with manufacturers and technical experts to explore the concern that condensing boilers may have a shorter lifetime. In the absence of data showing otherwise, EPA concluded that if condensing boilers are properly installed and maintained, the life expectancy should be similar to noncondensing boilers.
EPA also discussed boiler life expectancy with the Department for Environment, Food & Rural Affairs (DEFRA) in the United Kingdom, and stated that DEFRA has no data which contradict EPA's conclusion that with proper maintenance, condensing and non-condensing modern boilers have similar life expectancy.
Details on how DOE adjusted the repair costs for heat exchangers may be found in appendix 8E of the NOPR TSD. For more details on how DOE derived the CPB lifetime, see appendix 8F of the NOPR TSD.
The discount rate is the rate at which future expenditures and savings are discounted to establish their present value. DOE estimates discount rates separately for commercial and residential end users. For commercial end users, DOE calculates commercial discount rates as the weighted average cost of capital (WACC), using the Capital Asset Pricing Model (CAPM). For residential end users, DOE calculates discount rates as the weighted average real interest rate across consumer debt and equity holdings.
DOE derived the discount rates by estimating the cost of capital of companies that purchase commercial packaged boilers. Damodaran On line is a widely used source of information about company debt and equity financing for most types of firms, and was the primary source of data for the commercial discount rate analysis.
For the LCC analysis, DOE analyzes the considered efficiency levels relative to a no-new-standards-case (
In its preliminary analysis, DOE used the AHRI directory to analyze trends in product classes and efficiency levels from 2007 to 2014 to determine the anticipated no-new-standards-case efficiency distribution in 2019, the assumed compliance year for amended standards. The trends show the market moving toward higher efficiency commercial packaged boilers, and DOE accounted for the trend in its no-new-standards-case projection.
In the preliminary analysis, DOE requested data on current CPB efficiency market shares (of shipments) by equipment class, and also similar historical data. DOE also requested information on expected trends in efficiency over the next five years.
DOE received various comments regarding the data contained in the AHRI database and its use in the analysis. PVI commented that there is no link between the number of listings in the AHRI directory and sales volumes of any particular product type. (PVI, Public Meeting Transcript, No. 39 at pp. 158-159) Raypak noted that the trend toward condensing technologies for some product classes is evident in the number of series of boilers now in their catalog that are condensing, compared to 10 years ago when only one single system was available. (Raypak, No. 35 at p. 4) AHRI similarly noted the continuing growth in condensing boilers and improvements in overall efficiencies and offered to provide additional data related to distribution of equipment by efficiencies. (AHRI, Public Meeting Transcript, No. 39 at p. 158) Relative to trends in condensing oil boilers, AHRI commented that oil condensing products are rare and there may not be a big enough sample to establish any trends in the technology. (AHRI, Public Meeting Transcript, No. 39 at pp. 176-177)
DOE recognizes that the AHRI directory of commercial packaged boilers is not an indicator of shipments in the industry, but it does reflect the general trends taken by manufacturers to meet their consumer's needs. Due to the lack of any other data source documenting the historical trend for product efficiency and condensing technology, the NOPR analysis used the AHRI directory to analyze trends in product classes and efficiency levels from 2007 to 2015 to determine the anticipated no-new-standards-case efficiency distribution in 2019, the assumed compliance year for amended standards. The trends show the market moving toward higher efficiency commercial packaged boilers, and DOE accounted for the trend in its no-new-standards-case projection. As it relates to condensing oil boilers, DOE observed, as a result of incorporating 2015 AHRI directory data, that for a second year in a row (in 2014 and 2015), the number of condensing oil boilers in the AHRI directory was lower than in previous years. As a result, DOE adjusted the condensing boiler trends for small and large oil commercial packaged boilers. DOE considered alternatives to estimate sales, and the shipments methodology has been updated to not depend on the AHRI directory. An overview of the shipments methodology is provided in section IV.G of this document.
Table IV.8 presents the estimated no-new-standards-case efficiency market shares for each analyzed CPB equipment class in 2019.
DOE calculated the LCC and PBP for all consumers as if each were to purchase new equipment in the year that compliance with amended standards is required. EPCA directs DOE to publish a final rule amending the standard for the equipment covered by this NOPR not later than 2 years after a notice of proposed rulemaking is issued. (42 U.S.C. 6313(a)(6)(C)(iii)) As discussed previously in section III.A of this document, for purposes of its analysis, DOE used 2019 as the first year of compliance with amended standards.
The payback period is the amount of time it takes the consumer to recover the additional installed cost of more-efficient equipment, compared to baseline equipment, through energy cost savings. Payback periods are expressed in years. Payback periods that exceed the life of the equipment mean that the increased total installed cost is not recovered in reduced operating expenses.
The inputs to the PBP calculation are the total installed cost of the equipment to the consumer for each efficiency level and the average annual operating expenditures for each efficiency level. The PBP calculation uses the same inputs as the LCC analysis, except that discount rates are not needed.
EPCA establishes a rebuttable presumption that a standard is economically justified if the Secretary finds that the additional cost to the consumer of purchasing equipment complying with an energy conservation standard level will be less than three times the value of the energy (and, as applicable, water) savings during the first year that the consumer will receive as a result of the standard, as calculated under the test procedure in place for that standard. For each considered efficiency level, DOE determines the value of the first year's energy savings by calculating the quantity of those savings in accordance with the applicable DOE test procedure and multiplying that amount by the average energy price forecast for the year in which compliance with the amended standards would be required. The rebuttable presumption criteria of less than 3-year payback was not achieved for any of the equipment classes analyzed for this rulemaking. More details on this may be found in Table V.27.
In its shipments analysis, DOE developed shipment projections for commercial packaged boilers and, in turn, calculated equipment stock over the course of the analysis period. DOE uses the shipments projection and the equipment stock to calculate the national impacts of potential amended energy conservation standards on energy use, NPV, and future manufacturer cash flows. DOE develops shipment projections based on estimated historical shipment and an analysis of key market drivers for each kind of equipment.
In the preliminary analysis, DOE estimated historical shipments of commercial packaged boilers based on historical shipments of residential boilers and percent share of equipment classes in the AHRI model directory. During the preliminary public meeting and in written comments in response to DOE's preliminary analysis, the stakeholders questioned the data sources DOE used in its shipment analysis. PVI commented that the number of listings in the AHRI model directory and sales volumes of any particular equipment class are not correlated. (PVI, Public Meeting Transcript, No. 39 at pp. 158-159)
DOE recognizes that the AHRI directory of commercial packaged boilers is not an indicator of shipments in the industry and DOE modified its analysis approach to project shipments from 2014 through the end of the thirty year analysis period 2018-2047. DOE estimated historical shipments in its NOPR analysis from stock estimates based on the CBECS data series from 1979 to 2012. Since no CBECS survey was conducted prior to 1979, DOE used the trends in historical shipment data for residential boilers to estimate the historical shipments for the 1960-1978 time period. For estimation of stocks of gas and oil boilers, DOE used the data on growth of commercial building floor space for nine building types from AEO reports, percent floor space heated by CPB data from CBECS for these building types, and estimated saturations of commercial packaged boilers in these building types. From these stock estimates, DOE derived the shipments of gas-fired and oil-fired commercial packaged boilers using separate correlations between stock and shipment for gas and oil boilers. As noted in section IV.E.2 of this document, to obtain individual equipment class shipments from the aggregate values, DOE used the steam to
To project equipment class shipments for new construction, DOE relied on building stock and floor space data obtained from the
In addition, DOE received several comments on results of the preliminary shipment analysis. Lochinvar commented that the flat shipment projection from 2020 shown in the preliminary analysis is unrealistic under the growing national economy. (Lochinvar, No.34 at p. 6) Lochinvar further commented that the rapid decline of natural draft boilers assumed in the preliminary shipment analysis is highly overstated and the impact of any proposed efficiency standard on shipment of non-condensing, natural draft and steam boilers would be insignificant under less stringent efficiency standards, but could be significant under very stringent standards. (Lochinvar, No.34 at pp. 6 and 7) In the NOPR analysis, DOE analyzed eight equipment classes that are no longer separated by different draft types. Consequently, DOE's shipment projections were made on an aggregate basis including both natural draft and mechanical draft equipment for each equipment class examined. As to the impact of the stringency of standards on shipments of lower efficiency boilers like natural draft and steam boilers, DOE notes that its method of analysis takes how consumers and manufacturers are impacted by the proposed standards into full consideration.
AHRI commented that DOE should make an effort to determine the trend for numbers of boilers installed in new building construction in order to improve the shipments projection. (AHRI, Public Meeting Transcript, No. 39 at p. 168-169) In the NOPR shipment analysis, DOE used a different methodology that takes into consideration the current trends of usage of commercial packaged boilers for heating in commercial buildings as evidenced in CBECS 2012. This analysis could be refined further as more data from CBECS 2012 become available. AHRI also indicated that it is in discussions with its members to estimate shipments in different efficiency bins and historical shipment weighted efficiency levels. (AHRI, Public Meeting Transcript No. 39 at p. 96) DOE has not received this data from AHRI. ACEEE commented that it would like to see capacity class shipment estimates. (ACEEE, No. 39 at p. 50) DOE estimated percent share of different capacity bins across the equipment classes as detailed in the TSD chapter 9 of this document.
DOE seeks feedback on the assumptions used to develop historical and projected shipments of commercial packaged boilers and the representativeness of its estimates of projected shipments. DOE also requests information on historical shipments of commercial packaged boilers including shipments by equipment class for small, large, and very large commercial packaged boilers.
See section VII.E for a list of issues on which DOE seeks comment.
Commercial consumer purchase decisions are influenced by the purchase price and operating cost of the equipment, and therefore may be different across standards levels. To estimate the impact of the increase in relative price from a particular standard level on CPB shipments, DOE assumes that a portion of affected commercial consumers are more price-sensitive and would repair equipment purchased prior to enactment of the standard (in 2019) rather than replace it, extending the life of the equipment by 6 years. DOE models this impact using a relative price elasticity approach. When the extended repaired units fail after 6 more years, DOE assumes they will be replaced with new ones. A detailed description of the extended repair
In response to the extrapolation of a residential product price elasticity to commercial packaged boilers used in the preliminary analyses, interested parties noted concerns regarding the application of residential data to commercial equipment. Specifically, AHRI noted that residential and commercial boiler consumers have a different pricing structure and consumer relationship, and expressed concern over the use of residential data for commercial packaged boilers. (AHRI, Public Meeting Transcript, No. 39 at p. 169-170)
AHRI also noted that, because of the higher installation costs and time involved, commercial boiler owners would be more likely to repair an existing boiler than to replace it. (AHRI, No. 37 at p. 6) Similarly, ACEEE expressed concerns regarding price sensitivity and the application of a residential price elasticity to a commercial equipment and how the resulting numbers will be interpreted in downstream analyses. (ACEEE, Public Meeting Transcript, No. 39 at p. 172-173) Both AHRI and Raypak remarked that while an incremental increase in the cost associated with a new standard would not be expected to have a significant effect on shipments, larger increases associated with the cost of the standard would result in lower shipments as existing consumers would be more likely to repair an existing boiler rather than replace it. (AHRI, No. 37 at p. 7; Raypak, No. 35 at p. 7)
Given the AHRI and Raypak comments regarding the impact of increased repairs on shipments, DOE determined that use of price elasticity to model the extended repair option should be maintained for the NOPR analysis. In response to the AHRI and ACEEE comments, DOE revised the price elasticity from a residential product study to use sales and price data for commercial unitary air conditioners
The resulting shipment projection is shown in Table IV.10.
Because the estimated energy usage of CPB equipment differs by commercial and residential setting, the NIA employs the same fractions of shipments (or sales) to commercial and to residential commercial consumers as is used in the LCC analysis. The fraction of shipments by type of commercial consumer is shown in Table IV.11.
DOE requests feedback on the assumptions used to estimate the impact of relative price increases on commercial packaged boiler shipments due to proposed standards.
See section VII.E for a list of issues on which DOE seeks comment.
The national impact analysis (NIA) analyzes the effects of a potential energy conservation standard from a national perspective. The NIA assesses the national energy savings (NES) and the national NPV of total consumer costs and savings that would be expected to result from amended standards at specific efficiency levels. The NES and NPV are analyzed at specific efficiency levels (
To make the analysis more accessible and transparent to all interested parties, DOE uses a computer spreadsheet model to calculate the energy savings and the national consumer costs and savings from each TSL.
DOE evaluated the impacts of potential new and amended standards for commercial packaged boilers by comparing no-new-standards-case projections with standards-case projections. The no-new-standards-case projections characterize energy use and consumer costs for each equipment class in the absence of new and amended energy conservation standards. DOE compared these projections with those characterizing the market for each equipment class if DOE were to adopt amended standards at specific energy efficiency levels (
Unlike the LCC analysis, the NES analysis does not use distributions for inputs or outputs, but relies on national average equipment costs and energy costs. DOE used the NES spreadsheet to perform calculations of energy savings and NPV using the annual energy consumption, maintenance and repair costs, and total installed cost data from the LCC analysis. The NIA also uses projections of energy prices and building stock and additions from the
A detailed description of the procedure to calculate NES and NPV and inputs for this analysis are provided in chapter 10 of the NOPR TSD. Table IV.12 summarizes the inputs and methods DOE used for the NIA analysis.
As described in section IV.F.9 of this document, DOE uses a no-new-standards-case distribution of efficiency levels to project what the CPB equipment market would look like in the absence of amended standards. DOE applied the percentages of models within each efficiency range to the total unit shipments for a given equipment class to estimate the distribution of shipments for the no-new-standards case. Then, from those market shares and projections of shipments by equipment class, DOE extrapolated future equipment efficiency trends both for a no-new-standards-case scenario and for standards-case scenarios.
For each efficiency level analyzed, DOE used a “roll-up” scenario to establish the market shares by efficiency level for the year that compliance would be required with amended standards. The analysis starts with the no-new-standards-case distributions wherein shipments are assumed to be distributed across efficiency levels. When potential standard levels above the base level are analyzed, as the name implies, the shipments in the no-new-standards case that did not meet the efficiency standard level being considered would roll up to meet the amended standard level. This information also suggests that equipment efficiencies in the no-new-standards case that were above the standard level under consideration would not be affected.
The estimated efficiency trends in the no-new-standards-case and standards cases are described in chapter 10 of the NOPR TSD.
For each year in the forecast period, DOE calculates the national energy savings for each standard level by multiplying the shipments of commercial packaged boilers by the per-unit annual energy savings. Cumulative energy savings are the sum of the annual energy savings over the lifetime of all equipment shipped during 2019-2048.
The inputs for determining the NES are (1) annual energy consumption per unit, (2) shipments, (3) equipment stock, and (4) site-to-source and full-fuel-cycle conversion factors.
DOE calculated the NES associated with the difference between the per-unit energy use under a standards-case scenario and the per-unit energy use in the no-new-standards case. The average energy per unit used by the CPB equipment stock gradually decreases in the standards case relative to the no-new-standards case as more-efficient CPB units gradually replaces less-efficient units.
Unit energy consumption values for each equipment class are taken from the LCC spreadsheet for each efficiency level and weighted based on market efficiency distributions. To estimate the total energy savings for each efficiency level, DOE first calculated the per-unit energy reduction (
DOE has historically presented NES in terms of primary energy savings. In the case of electricity use and savings, primary energy savings includes the energy lost in the power system in the form of losses as well as the energy input required at the electric generation station in order to convert and deliver the energy required at the site of consumption. DOE uses a multiplicative factor called “site-to-source conversion factor” to convert site energy consumption to primary energy consumption. In response to the recommendations of a committee on “Point-of-Use and Full- Fuel-Cycle Measurement Approaches to Energy Efficiency Standards” appointed by the National Academy of Sciences, DOE announced its intention to use full-fuel-cycle (FFC) measures of energy use and greenhouse gas and other emissions in the national impact analyses and emissions analyses included in future energy conservation standards rulemakings. 76 FR 51281 (August 18, 2011). While DOE stated in that notice that it intended to use the Greenhouse Gases, Regulated Emissions, and Energy Use in Transportation (GREET) model to conduct the analysis, it also said it would review alternative methods, including the use of EIA's NEMS. After evaluating both models and the approaches discussed in the August 18, 2011 notice, DOE published a statement of amended policy in the
The inputs for determining the NPV of the total costs and benefits experienced by consumers of the considered equipment are (1) total annual installed cost, (2) total annual savings in operating costs, and (3) a discount factor. DOE calculates the lifetime net savings for equipment shipped each year as the difference between total operating cost savings and increases in total installed costs. DOE calculates lifetime operating cost savings over the life of each commercial packaged boiler shipped during the forecast period.
DOE determined the difference between the equipment costs under the standard-level case and the no-new-standards case in order to obtain the net equipment cost increase resulting from the higher standard level. As noted in section IV.F.1 of this document, DOE used a constant real price assumption as the default price projection; the cost to manufacture a given unit of higher efficiency neither increases nor decreases over time.
DOE determined the difference between the no-new-standards-case operating costs and the standard-level operating costs in order to obtain the net operating cost savings from each higher efficiency level. DOE determined the difference between the net operating cost savings and the net equipment cost increase in order to obtain the net savings (or expense) for each year.
DOE discounted the annual net savings (or expenses) to 2015 for CPB equipment bought on or after 2019 and summed the discounted values to provide the NPV for an efficiency level.
In accordance with the OMB's guidelines on regulatory analysis,
In analyzing the potential impacts of new or amended standards, DOE evaluates impacts on identifiable groups (
DOE performed an MIA to determine the financial impact of amended energy conservation standards on manufacturers of commercial packaged boilers and to estimate the potential impact of such standards on employment and manufacturing capacity. The MIA has both quantitative and qualitative aspects. The quantitative part of the MIA primarily relies on the Government Regulatory Impact Model (GRIM), an industry cash-flow model with inputs specific to this rulemaking. The key GRIM inputs are industry cost structure data, shipment data, product costs, and assumptions about markups and conversion costs. The key output is the industry net present value (INPV). DOE used the GRIM to calculate cash flows using standard accounting principles and to compare changes in INPV between a no-new-standards case and various TSLs (the standards case). The difference in INPV between the no-new-standards case and standards cases represents the financial impact of amended energy conservation standards on CPB manufacturers. DOE used different sets of assumptions (markup scenarios) to represent the uncertainty surrounding potential impacts on prices and manufacturer profitability as a result of amended standards. These different assumptions produce a range of INPV results. The qualitative part of the MIA addresses the proposed standard's potential impacts on manufacturing capacity and industry competition, as well as any differential impacts the proposed standard may have on any particular subgroup of manufacturers. The qualitative aspect of the analysis also addresses product characteristics, as well as any significant market or product trends. The complete MIA is outlined in chapter 12 of the NOPR TSD.
DOE conducted the MIA for this rulemaking in three phases. In Phase 1 of the MIA, DOE prepared an industry characterization based on the market and technology assessment, preliminary manufacturer interviews, and publicly available information. As part of its profile of the residential boilers industry, DOE also conducted a top-down cost analysis of manufacturers in order to derive preliminary financial inputs for the GRIM (
In Phase 2 of the MIA, DOE prepared an industry cash-flow analysis to quantify the potential impacts of amended energy conservation standards. In general, energy conservation standards can affect manufacturer cash flow in three distinct ways. These include: (1) Creating a need for increased investment; (2) raising production costs per unit; and (3) altering revenue due to higher per-unit prices and possible changes in sales volumes. DOE estimated industry cash flows in the GRIM at various potential standard levels using industry financial parameters derived in Phase 1.
In Phase 3 of the MIA, DOE conducted structured, detailed interviews with a variety of manufacturers that represent approximately 40 percent of domestic CPB product offerings covered by this rulemaking. During these interviews, DOE discussed engineering, manufacturing, procurement, and financial topics to validate assumptions used in the GRIM. DOE also solicited information about manufacturers' views of the industry as a whole and their key concerns regarding this rulemaking. See section IV.J.3 for a description of the key issues manufacturers raised during the interviews.
Additionally, in Phase 3, DOE also evaluated subgroups of manufacturers that may be disproportionately impacted by amended standards or that may not be accurately represented by the average cost assumptions used to develop the industry cash-flow analysis. For example, small manufacturers, niche players, or manufacturers exhibiting a cost structure that largely differs from the industry average could be more negatively affected by amended energy conservation standards. DOE identified one subgroup (small manufacturers) for a separate impact analysis.
To identify small businesses for this analysis, DOE applied the small business size standards published by the Small Business Administration (SBA) to determine whether a company is considered a small business. 65 FR 30836, 30848 (May 15, 2000), as amended at 65 FR 53533, 53544 (Sept. 5, 2000) and codified at 13 CFR part 121. To be categorized as a small business under North American Industry Classification System (NAICS) code 333414, “Heating Equipment (except Warm Air Furnaces) Manufacturing,” a residential boiler manufacturer and its affiliates may employ a maximum of 500 employees. The 500-employee threshold includes all employees in a business's parent company and any other subsidiaries. Based on this classification, DOE identified 34 CPB companies that qualify as small businesses. The CPB small manufacturer subgroup is discussed in section 0 of this document and in chapter 12 of the NOPR TSD.
DOE uses the GRIM to analyze the financial impacts of amended energy conservation standards on the CPB industry. Standards will potentially require additional investments, raise production costs, and affect revenue through higher prices and, possibly, lower sales. The GRIM is designed to take into account several factors as it calculates a series of annual cash flows for the year standards take effect and for several years after implementation. These factors include annual expected revenues, costs of sales, increases in labor and assembly expenditures, selling and general administration costs, and taxes, as well as capital expenditures, depreciation and maintenance related to new standards. Inputs to the GRIM include manufacturing costs, shipments forecasts, and price forecasts developed in other analyses. DOE also uses
After calculating industry cash flows and INPV, DOE compared changes in INPV between the no new standards case and each standard level. The difference in INPV between the no new standards case and a standards case represents the financial impact of the amended energy conservation standard on manufacturers at a particular TSL. As discussed previously, DOE collected this information on GRIM inputs from a number of sources, including publically-available data and confidential interviews with a number of manufacturers. GRIM inputs are discussed in more detail in the next section. The GRIM results are discussed in section V.B.2. Additional details about the GRIM, discount rate, and other financial parameters can be found in chapter 12 of the NOPR TSD.
Manufacturing a higher-efficiency product is typically more expensive than manufacturing a baseline product due to the use of more complex components, which are typically more costly than baseline components. The changes in the manufacturer production cost (MPC) of the analyzed products can affect the revenues, gross margins, and cash flow of the industry, making these product cost data key GRIM inputs for DOE's analysis.
In the MIA, DOE used the MPCs for each considered efficiency level that were calculated using product pricing found in the engineering analysis, as described in section IV.C and further detailed in chapter 5 of the NOPR TSD. In addition, DOE used information from its teardown analysis (described in chapter 5 of the TSD) to disaggregate the MPCs into material, labor, and overhead costs. To determine the industry manufacturer selling price-efficiency relationship, DOE used data from the market and technology assessment, publicly available equipment literature and research reports, and information from manufacturers, distributors, and contractors. Using these resources, DOE calculated manufacturer selling prices of commercial packaged boilers for a given fuel input rate (representative fuel input rate) for each manufacturer at different efficiency levels spanning from the minimum allowable standard (
The GRIM estimates manufacturer revenues based on total unit shipment forecasts and the distribution of these values by efficiency level. Changes in sales volumes and efficiency mix over time can significantly affect manufacturer finances. For this analysis, the GRIM uses the NIA's annual shipment forecasts derived from the shipments analysis from 2015 (the base year) to 2048 (the end year of the analysis period). The shipments model divides the shipments of commercial packaged boilers into specific market segments. The model starts from a historical base year and calculates retirements and shipments by market segment for each year of the analysis period. This approach produces an estimate of the total product stock, broken down by age or vintage, in each year of the analysis period. In addition, the product stock efficiency distribution is calculated for the no-new-standards case and for each standards case for each product class. The NIA shipments forecasts are, in part, based on a roll-up scenario. The forecast assumes that a product in the no-new-standards case that does not meet the standard under consideration would “roll up” to meet the amended standard beginning in the compliance year of 2019. See section IV.G of this document and chapter 9 of the NOPR TSD for additional details.
Amended energy conservation standards would cause manufacturers to incur one-time conversion costs to bring their production facilities and product designs into compliance. DOE evaluated the level of conversion-related expenditures that would be needed to comply with each considered efficiency level in each product class. For the MIA, DOE classified these conversion costs into two major groups: (1) Capital conversion costs; and (2) product conversion costs. Capital conversion costs are one-time investments in property, plant, and equipment necessary to adapt or change existing production facilities such that new compliant product designs can be fabricated and assembled. Product conversion costs are one-time investments in research, development, testing, marketing, and other non-capitalized costs necessary to make product designs comply with amended energy conservation standards.
To evaluate the level of capital conversion expenditures, manufacturers would likely incur to comply with amended energy conservation standards, DOE used manufacturer interviews to gather data on the anticipated level of capital investment that would be required at each efficiency level. Based on equipment listings provided by AHRI and ABMA, DOE developed a market-share-weighted manufacturer average capital expenditure which it then scaled up and applied to the entire industry. DOE supplemented manufacturer comments and tailored its analyses with information obtained during engineering analysis described in chapter 5 of the TSD.
DOE assessed the product conversion costs at each considered efficiency level by integrating data from quantitative and qualitative sources. DOE considered market-share-weighted feedback regarding the potential costs of each efficiency level from multiple manufacturers to estimate product conversion costs (
In general, DOE assumes that all conversion-related investments occur between the year of publication of the final rule and the year by which manufacturers must comply with the amended standards. The conversion cost figures used in the GRIM can be found in section V.B.2 of this notice. For additional information on the estimated product and capital conversion costs, see chapter 12 of the NOPR TSD.
DOE received limited information on the conversion costs for oil-fired products in interviews. Using product listing counts, DOE scaled the feedback on gas-fired equipment to estimate the conversion cost for oil-fired equipment.
DOE requests additional information from manufacturers regarding conversion costs for oil-fired products. Specifically, DOE is interested in estimates of capital conversion costs at each TSL and the change in manufacturing equipment associated with those costs.
See section VII.E for a list of issues on which DOE seeks comment.
As discussed in the previous section, MSPs include direct manufacturing production costs (
Under the preservation of gross margin percentage markup scenario, DOE applied a single uniform “gross margin percentage” markup across all efficiency levels, which assumes that following amended standards, manufacturers would be able to maintain the same amount of profit as a percentage of revenue at all efficiency levels within a product class. As production costs increase with efficiency, this scenario implies that the absolute dollar markup will increase as well. Based on publicly-available financial information for manufacturers of commercial packaged boilers, as well as comments from manufacturer interviews, DOE assumed the average non-production cost markup—which includes SG&A expenses, R&D expenses, interest, and profit—to be 1.41 for small gas-fired hot water, small gas-fired steam boilers, large gas-fired hot water boilers, and large oil-fired hot water boilers; 1.40 for small oil-fired hot water boilers; 1.38 for small oil-fired steam boilers; and 1.37 for large gas-fired and oil-fired steam boilers. This markup scenario represents the upper bound of the CPB industry's profitability in the standards case because manufacturers are able to fully pass through additional costs due to standards to consumers.
DOE decided to include the preservation of per-unit operating profit scenario in its analysis because manufacturers stated that they do not expect to be able to mark up the full cost of production in the standards case, given the highly competitive nature of the CPB market. In this scenario, manufacturer markups are set so that operating profit one year after the compliance date of amended energy conservation standards is the same as in the no-new-standards case on a per-unit basis. In other words, manufacturers are not able to garner additional operating profit from the higher production costs and the investments that are required to comply with the amended standards; however, they are able to maintain the same operating profit in the standards case that was earned in the no-new-standards case. Therefore, operating margin in percentage terms is reduced between the no-new-standards case and standards case. DOE adjusted the manufacturer markups in the GRIM at each TSL to yield approximately the same earnings before interest and taxes in the standards case as in the no-new-standards case. The preservation of per-unit operating profit markup scenario represents the lower bound of industry profitability in the standards case. This is because manufacturers are not able to fully pass through to consumers the additional costs necessitated by CPB standards, as they are able to do in the preservation of gross margin percentage markup scenario.
DOE interviewed manufacturers representing approximately 95 percent of the CPB market by revenue. DOE contractors endeavor to conduct interviews with a representative cross section of manufacturers (including large and small manufacturers, covering all equipment classes and product offerings). DOE contractors reached out to all the small business manufacturers that were identified as part of the analysis, as well as larger manufacturers that have significant market share in the CPB market. These interviews were in addition to those DOE conducted as part of the engineering analysis. The information gathered during these interviews enabled DOE to tailor the GRIM to reflect the unique financial characteristics of the CPB industry. The information gathered during these interviews enabled DOE to tailor the GRIM to reflect the unique financial characteristics of the CPB industry. All interviews provided information that DOE used to evaluate the impacts of potential amended energy conservation standards on manufacturer cash flows, manufacturing capacities, and employment levels.
In interviews, DOE asked manufacturers to describe their major concerns with potential standards arising from a rulemaking involving commercial packaged boilers. Manufacturer interviews are conducted under non-disclosure agreements (NDAs), so DOE does not document these discussions in the same way that it does public comments in the comment summaries and DOE's responses throughout the rest of this notice. The following sections highlight the most significant manufacturers' statements that helped shape DOE's understanding of potential impacts of an amended standard on the industry. Manufacturers raised a range of general issues for DOE to consider, including a diminished ability to serve the replacement market, concerns that condensing boilers may not perform as rated without heating system modifications, and concerns about reduced product durability. Below, DOE summarizes these issues, which were raised in manufacturer interviews, in order to obtain public comment and related data.
Several manufacturers expressed concern regarding the testing burden associated with amended energy conservation standards. Manufacturers noted that amended standards and an altered test procedure will result in them having to retest all of their equipment, which they pointed out is a costly and logistically challenging process due to the large size of the equipment and the fact that a lot of commercial packaged boilers are customized for particular customers. Manufacturers stated that retesting all of their models would put a strain on their lab resources and would be financially burdensome.
Several manufacturers expressed concern that they would only be able to
Manufacturers also pointed out that condensing boilers may not save energy in commercial applications, even if they were to operate in condensing mode. Several manufacturers argued that condensing equipment requires higher pump force power and higher horsepower blower motors, and thus they consume more electricity. They noted that even if the boiler were operating in condensing mode, the fuel savings could be partially offset by higher electricity use.
Several manufacturers expressed concern that if DOE were to mandate efficiency levels that could only be achieved with condensing technology for gas-fired hot water equipment, companies would likely face high conversion costs. While many companies in the U.S. currently produce condensing equipment, most condensing heat exchangers are sourced from European or Asian companies. American companies would have to decide whether to develop their own condensing heat exchanger production capacity or assemble a baseline product around a condensing heat exchanger. Developing condensing heat exchanger production capacity would require large capital investments in new production lines and new equipment to handle the different metals that are required. Companies that are currently heavily invested in lower-efficiency products may not be able to make these investments. The other option would be for companies to drop their noncondensing equipment and assemble equipment around a sourced heat exchanger. In this scenario, companies would lose a significant piece of the value chain.
Several manufacturers commented that higher-efficiency condensing boilers on the market have not demonstrated the same level of durability and reliability as lower-efficiency products. Manufacturers stated that condensing products require more upkeep and maintenance and generally do not last as long as non-condensing products. Several manufacturers pointed out that they generally incur large after-sale costs with their condensing products because of additional warranty claims. Maintenance calls for these boilers require more skilled technicians and occur more frequently than they do with non-condensing boilers.
During the preliminary analysis public meeting, interested parties commented on the assumptions and results of the preliminary analysis. Oral and written comments addressed several topics, including concerns regarding the impact condensing technology has on the industry.
In written comments, Lochinvar expressed concern that setting a stringent standard, specifically at condensing levels, will cause significant impacts to the CPB industry. If a condensing level is adopted by DOE, it is possible that natural draft boilers and steam boilers will become obsolete in the CPB industry. To limit significantly negative industry impacts on manufacturers and product offerings, Lochinvar recommends that DOE does not set a standard that requires condensing technology. (Lochinvar, No. 31 at p. 6)
Additionally, Lochinvar states that a majority of heat exchangers for condensing technology are imported. Lochinvar believes overhead and equipment used to produce non-condensing heat exchangers may become obsolete if condensing technology is effectively mandated. (Lochinvar, Public Meeting Transcript, No. 39 at p. 205)
While DOE acknowledges that a stringent standard, specifically condensing technology, may negatively impact INPV and limit industry product offerings, the proposed standards in this document do not mandate condensing technology. Moreover, EPCA requires DOE to set forth energy conservation standards that are technologically feasible and economically justified and would result in significant additional energy conservation, supported by clear and convincing evidence. 42 U.S.C. 6313(a)(6)(A)(ii)(II) and (C)(i). In determining whether a standard is economically justified, DOE considers, to the greatest extent practicable, the following factors: (1) The economic impact of the standard on the manufacturers and on the consumers of the products subject to such standard; (2) the savings in operating costs throughout the estimated average life of the covered products in the type (or class) compared to any increase in the price, or in the initial charges for, or maintenance expenses of the covered products which are likely to result from the imposition of the standard; (3) the total projected amount of energy (or as applicable, water) savings likely to result directly from the imposition of the standard; (4) any lessening of the utility or performance of the covered products likely to result directly from the imposition of the standard; (5) the impact of any lessening competition, as determined in the writing by the Attorney General, that is likely to result from the imposition of the standard; (6) the need for national energy and water conservation; and (7) other factors the Secretary considers relevant.
As such, DOE assesses impacts on competition, manufacturing capacity, employment, cumulative regulatory burden and impacts on INPV in the Manufacturer Impact Analysis, which is discussed in greater detail in chapter 12 of the CPB NOPR TSD.
The emissions analysis consists of two components. The first component estimates the effect of potential energy conservation standards on power sector and site (where applicable) combustion emissions of CO
The analysis of power sector emissions uses marginal emissions factors that were derived from data in
Combustion emissions of CH
The emissions intensity factors are expressed in terms of physical units per MWh or MMBtu of site energy savings. Total emissions reductions are estimated using the energy savings calculated in the national impact analysis.
For CH
Because the on-site operation of commercial packaged boilers requires use of fossil fuels and results in emissions of CO
The
SO
EIA was not able to incorporate CSAPR into
The attainment of emissions caps is typically flexible among EGUs and is enforced through the use of emissions allowances and tradable permits. Under existing EPA regulations, any excess SO
Beginning in 2016, however, SO
CAIR established a cap on NO
The MATS limit mercury emissions from power plants, but they do not include emissions caps and, as such, DOE's energy conservation standards would likely reduce Hg emissions. DOE estimated mercury emissions reduction using emissions factors based on
As part of the development of this proposed rule, DOE considered the estimated monetary benefits from the reduced emissions of CO
The SCC is an estimate of the monetized damages associated with an incremental increase in carbon emissions in a given year. It is intended to include (but is not limited to) changes in net agricultural productivity, human health, property damages from increased flood risk, and the value of ecosystem services. Estimates of the SCC are provided in dollars per metric ton of CO
Under section 1(b)(6) of Executive Order 12866, “Regulatory Planning and Review,” 58 FR 51735 (Oct. 4, 1993), agencies must, to the extent permitted by law, assess both the costs and the benefits of the intended regulation and, recognizing that some costs and benefits are difficult to quantify, propose or adopt a regulation only upon a reasoned determination that the benefits of the intended regulation justify its costs. The purpose of the SCC estimates presented here is to allow agencies to incorporate the monetized social benefits of reducing CO
As part of the interagency process that developed the SCC estimates, technical experts from numerous agencies met on a regular basis to consider public comments, explore the technical literature in relevant fields, and discuss key model inputs and assumptions. The main objective of this process was to develop a range of SCC values using a defensible set of input assumptions grounded in the existing scientific and economic literatures. In this way, key uncertainties and model differences transparently and consistently inform the range of SCC estimates used in the rulemaking process.
When attempting to assess the incremental economic impacts of CO
Despite the limits of both quantification and monetization, SCC estimates can be useful in estimating the social benefits of reducing CO
It is important to emphasize that the interagency process is committed to updating these estimates as the science and economic understanding of climate change and its impacts on society improves over time. In the meantime, the interagency group will continue to explore the issues raised by this analysis and consider public comments as part of the ongoing interagency process.
In 2009, an interagency process was initiated to offer a preliminary assessment of how best to quantify the benefits from reducing CO
After the release of the interim values, the interagency group reconvened on a regular basis to generate improved SCC estimates. Specifically, the group considered public comments and further explored the technical literature in relevant fields. The interagency group relied on three integrated assessment models commonly used to estimate the SCC—the FUND, DICE, and PAGE models. These models are frequently cited in the peer-reviewed literature and
Each model takes a slightly different approach to model how changes in emissions result in changes in economic damages. A key objective of the interagency process was to enable a consistent exploration of the three models while respecting the different approaches to quantifying damages taken by the key modelers in the field. An extensive review of the literature was conducted to select three sets of input parameters for these models—climate sensitivity, socio-economic and emissions trajectories, and discount rates. A probability distribution for climate sensitivity was specified as an input into all three models. In addition, the interagency group used a range of scenarios for the socio-economic parameters and a range of values for the discount rate. All other model features were left unchanged, relying on the model developers' best estimates and judgments.
In 2010, the interagency group selected four sets of SCC values for use in regulatory analyses. Three sets of values are based on the average SCC from three integrated assessment models, at discount rates of 2.5 percent, 3 percent, and 5 percent. The fourth set, which represents the 95th-percentile SCC estimate across all three models at a 3-percent discount rate, is included to represent higher than expected impacts from climate change further out in the tails of the SCC distribution. The values grow in real terms over time.
Additionally, the interagency group determined that a range of values from 7 percent to 23 percent should be used to adjust the global SCC to calculate domestic effects,
The SCC values used for this NOPR analysis were generated using the most recent versions of the three integrated assessment models that have been published in the peer-reviewed literature, as described in the 2013 update from the interagency working group (revised July 2015).
Table IV.14 shows the updated sets of SCC estimates from the latest interagency update in five-year increments from 2010 to 2050. Appendix 14B of the NOPR TSD provides the full set of values and a discussion of the revisions made in 2015. The central value that emerges is the average SCC across models at a 3-percent discount rate. However, for purposes of capturing the uncertainties involved in regulatory impact analysis, the interagency group emphasizes the importance of including all four sets of SCC values.
It is important to recognize that a number of key uncertainties remain, and that current SCC estimates should be treated as provisional and revisable since they will evolve with improved scientific and economic understanding. The interagency group also recognizes that the existing models are imperfect and incomplete. The National Research Council report mentioned above points out that there is tension between the goal of producing quantified estimates of the economic damages from an incremental ton of carbon and the limits of existing efforts to model these effects. There are a number of analytic challenges that are being addressed by the research community, including research programs housed in many of the Federal agencies participating in the interagency process to estimate the SCC. The interagency group intends to periodically review and reconsider those estimates to reflect increasing knowledge of the science and economics of climate impacts, as well as improvements in modeling. Although uncertainties remain, the revised estimates used for this NOPR are based on the best available scientific information on the impacts of climate change. The current estimates of the SCC have been developed over many years, and with input from the public. In November 2013, OMB announced a new opportunity for public comments on the interagency technical support document underlying the revised SCC estimates. 78 FR 70586 (Nov. 26, 2013). In July 2015, OMB published a detailed summary and formal response to the many comments that were received.
In summary, in considering the potential global benefits resulting from reduced CO
DOE multiplied the CO
As noted previously, DOE has estimated how the considered energy conservation standards would reduce site NO
The utility impact analysis estimates several effects on the electric power industry that would result from the adoption of new or amended energy conservation standards. The utility impact analysis estimates the changes in installed electrical capacity and generation that would result for each TSL. The analysis is based on published output from the NEMS associated with
The output of this analysis is a set of time-dependent coefficients that capture the change in electricity generation, primary fuel consumption, installed capacity, and power sector emissions due to a unit reduction in demand for a given end use. These coefficients are multiplied by the stream of electricity savings calculated in the NIA to provide estimates of selected utility impacts of new or amended energy conservation standards. See chapter 15 of the NOPR TSD for further details regarding the utility impact analysis.
Employment impacts from new or amended energy conservation standards include direct and indirect impacts. Direct employment impacts are any changes in the number of employees of manufacturers of the equipment subject
One method for assessing the possible effects on the demand for labor of such shifts in economic activity is to compare sector employment statistics developed by the Labor Department's Bureau of Labor Statistics (BLS). BLS regularly publishes its estimates of the number of jobs per million dollars of economic activity in different sectors of the economy, as well as the jobs created elsewhere in the economy by this same economic activity. Data from BLS indicate that expenditures in the utility sector generally create fewer jobs (both directly and indirectly) than expenditures in other sectors of the economy. There are many reasons for these differences, including wage differences and the fact that the utility sector is more capital intensive and less labor intensive than other sectors. Energy conservation standards have the effect of reducing consumer utility bills. Because reduced consumer expenditures for energy likely lead to increased expenditures in other sectors of the economy, the general effect of efficiency standards is to shift economic activity from a less labor intensive sector (
For the standard levels considered in this document, DOE estimated indirect national employment impacts using an input/output model of the U.S. economy called Impact of Sector Energy Technologies, Version 3.1.1 (ImSET). ImSET is a special-purpose version of the “U.S. Benchmark National Input-Output” (I-O) model, which was designed to estimate the national employment and income effects of energy-saving technologies. The ImSET software includes a computer-based I-O model having structural coefficients that characterize economic flows among the 187 sectors. ImSET's national economic I-O structure is based on a 2002 U.S. benchmark table specially aggregated to the 187 sectors most relevant to industrial, commercial, and residential building energy use. DOE notes that ImSET is not a general equilibrium forecasting model and understands the uncertainties involved in projecting employment impacts, especially changes in the later years of the analysis. Because ImSET does not incorporate price changes, the employment effects predicted by ImSET may over-estimate actual job impacts over the long run. For the NOPR analysis, DOE used ImSET only to estimate short-term employment impacts.
For more details on the employment impact analysis, see chapter 16 of the NOPR TSD.
The following sections address the results from DOE's analyses with respect to potential amended energy conservation standards for the CPB equipment that is the subject of this rulemaking. They address the TSLs examined by DOE, the projected impacts of each of these levels if adopted as energy conservation standards for CPB equipment, and the standard levels that DOE is proposing in this NOPR. Additional details regarding DOE's analyses are contained in the relevant TSD chapters supporting this NOPR.
At the NOPR stage, DOE develops trial standard levels (TSLs) for consideration. DOE established TSLs for this document by grouping different efficiency levels, which are potential standard levels for each equipment class. DOE analyzed the benefits and burdens of the TSLs developed for this proposed rule. DOE examined five TSLs for commercial packaged boilers.
Table V.1 and Table V.2 present the TSLs analyzed and the corresponding efficiency levels for each equipment class. The efficiency levels in each TSL can be characterized as follows:
• TSL 5 corresponds to the max-tech efficiency level for each equipment class.
• TSL 4 is composed of the efficiency levels corresponding to the maximum NPV at a 7% discount rate for each equipment class.
• TSL 3 is composed of a mixture of condensing and non-condensing efficiency levels.
• TSL 2 and TSL 1 are each composed of a mixture of non-condensing efficiency levels only.
A more detailed description of TSLs may be found in appendix 10C of the TSD.
As discussed in section II.A of this document, EPCA provides seven factors to be evaluated in determining whether a more stringent standard for commercial packaged boilers is economically justified. (42 U.S.C. 6313(a)(6)(B)(ii) and (C)(i)) The following sections generally discuss how DOE is addressing each of those factors in this rulemaking.
DOE analyzed the economic impacts on CPB consumers by looking at the effects standards would have on the LCC and PBP. DOE also examined the impacts of potential standards on consumer subgroups. These analyses are discussed below.
To evaluate the net economic impact of proposed standards on CPB consumers, DOE conducted LCC and PBP analyses for each TSL. In general, higher-efficiency equipment would affect consumers in two ways: (1) Annual operating expense would decrease, and (2) purchase price would increase. LCC and PBP include total installed costs (
DOE's LCC and PBP analyses provided key outputs for each efficiency level above the baseline for each equipment class, as reported in Table V.3 to Table V.18. Two tables are presented for each equipment class. The first table presents the results of the LCC analysis by efficiency levels and TSLs and shows installed costs, first year's operating cost, lifetime operating cost, and mean LCC, as well as simple PBP. The second table presents the percentage of consumers who experience a net cost, as well as the mean LCC savings for all commercial consumers.
In the consumer subgroup analysis, DOE estimated the impacts of the considered TSLs on low-income residential and small business consumers. Given the magnitude of the installation and operating expenditures in question for each equipment class, the LCC savings and corresponding payback periods for low-income residential and small business consumers are generally similar to the impacts for all consumers, with the residential low-income subgroup showing somewhat higher than average benefits and the small business consumers showing slightly lower benefits when compared to the overall CPB consumer population. DOE estimated the average LCC savings and PBP for the low-income residential subgroup compared with average CPB consumers, as shown in Table V.19 through Table V.26. DOE also estimated LCC savings and PBP for small businesses, and presented the results in Table V.19 through Table V.26. Chapter 11 of the NOPR TSD presents detailed results of the consumer subgroup analysis.
As discussed in section III.E.2 of this document, EPCA provides a rebuttable presumption that an energy conservation standard is economically justified if the increased purchase cost for equipment that meets the standard is less than three times the value of the first-year energy savings resulting from the standard. DOE calculated a rebuttable-presumption PBP for each TSL to determine whether DOE could presume that a standard at that level is economically justified.
DOE calculated a rebuttable presumption payback period for each TSL using average installed cost to the commercial consumers and first year energy savings. As a result, DOE calculated a single rebuttable-presumption payback value, and not a distribution of PBPs, for each TSL. Table V.27 shows the rebuttable-presumption PBPs for the considered TSLs. The rebuttable presumption is fulfilled in those cases where the PBP is three years or less. However, DOE routinely conducts an economic analysis that considers the full range of impacts to the consumer, manufacturer, Nation, and environment, as required by EPCA. The results of that analysis serve as the basis for DOE to definitively evaluate the economic justification for a potential standard level (thereby supporting or rebutting the results of any three-year PBP analysis). Section V.C of this document addresses how DOE considered the range of impacts to select the proposed standards.
As noted above, DOE performed an MIA to estimate the impact of amended energy conservation standards on manufacturers of commercial packaged boilers. The following section describes the expected impacts on manufacturers at each considered TSL. Chapter 12 of the NOPR TSD explains the analysis in further detail.
Table V.28 and Table V.29 depict the estimated financial impacts (represented by changes in INPV) of amended energy conservation standards on manufacturers of commercial packaged boilers, as well as the conversion costs that DOE expects manufacturers would incur for all product classes at each TSL. To evaluate the range of cash-flow impacts on the CPB industry, DOE modeled two different markup scenarios using different assumptions that correspond to the range of anticipated market responses to amended energy conservation standards: (1) The preservation of gross margin percentage scenario; and (2) the preservation of per-unit operating profit scenario. Each of these scenarios is discussed immediately below.
To assess the upper (less severe) bound of the range of potential impacts, DOE modeled a preservation of gross margin percentage markup scenario, in which a uniform “gross margin percentage” markup is applied across all potential efficiency levels. In this scenario, DOE assumed that a manufacturer's absolute dollar markup would increase as production costs increase in the standards case.
To assess the lower (more severe) bound of the range of potential impacts, DOE modeled the preservation of operating profit markup scenario, which assumes that manufacturers would not be able to generate greater operating profit on a per-unit basis in the standards case as compared to the no-new-standards case. Rather, as manufacturers make the necessary investments required to convert their facilities to produce new standards-compliant products and incur higher costs of goods sold, their percentage markup decreases. Operating profit does not change in absolute dollars and decreases as a percentage of revenue.
As noted in the MIA methodology discussion (see IV.J.1), in addition to markup scenarios, the MPC, shipments, and conversion cost assumptions also affect INPV results.
The results in Table V.28 and Table V.29 show potential INPV impacts for CPB manufacturers, Table V.28 reflects the upper bound of impacts, and Table V.29 represents the lower bound.
Each of the modeled scenarios in the analysis results in a unique set of cash flows and corresponding industry values at each TSL. In the following discussion, the INPV results refer to the difference in industry value between the no-new-standards case and each standards case that results from the sum of discounted cash flows from the base year 2014 through 2048, the end of the analysis period.
To provide perspective on the short-run cash flow impact, DOE discusses the change in free cash flow between the no-new-standards case and the standards case at each TSL in the year before new standards would take effect. These figures provide an understanding of the magnitude of the required conversion costs at each TSL relative to the cash flow generated by the industry in the no-new-standards case.
TSL 1 represents EL 3 (84%) for small gas-fired hot water boilers, EL 2 (84%) for large gas-fired hot water boilers, EL 4 (87%) for small oil-fired hot water boilers, EL 1 (86%) for large oil-fired hot water boilers, EL 3 (80%) for small gas-fired steam boilers, EL 4 (81%) for large gas-fired steam boilers, EL 1 (83%) for small oil-fired steam boilers, and EL 1 (83%) for large oil-fired steam boilers. At TSL 1, DOE estimates impacts on INPV for CPB manufacturers to range from −7.4 percent to −3.6 percent, or a change in INPV of −$13.4 million to −$6.4 million. At this potential standard level, industry free cash flow would be estimated to decrease by approximately 43.9 percent to $7.2 million, compared to the no-new-standards case value of $12.8 million in 2018, the year before the compliance date. Overall, DOE expects industry to incur product conversion costs of $10.7 million and capital conversion costs of $4.8 million to reach this standard level.
TSL 2 sets the efficiency level at EL 4 (85%) for small gas-fired hot water boilers, EL 3 (85%) for large gas-fired hot water boilers, EL 4 (87%) for small oil-fired hot water boilers, EL 2 (88%) for large oil-fired hot water, EL 4 (81%) for small gas-fired steam boilers, EL 5 (82%) for large gas-fired steam boilers, EL 2 (84%) for small oil-fired steam boilers, and EL 2 (85%) for large oil-fired steam boilers. At TSL 2, DOE estimates impacts on INPV for commercial packaged boilers manufacturers to range from −13.2 percent to −7.3 percent, or a change in INPV of −$23.8 million to −$13.1 million. At this potential standard level, industry free cash flow would be estimated to decrease by approximately 78.7 percent to $2.7 million, compared to the no-new-standards case value of $12.8 million in 2018, the year before the compliance date. Overall, DOE estimates manufactures would incur product conversion costs of $18.2 million and capital conversion costs of $9.3 million at this standard level.
TSL 3 represents EL 6 (95%) for small gas-fired hot water boilers, EL 5 (85%) for large gas-fired hot water boilers, EL 4 (87%) for small oil-fired hot water boilers, EL 2 (88%) for large oil-fired hot water boilers, EL 4 (81%) for small gas-fired steam boilers, EL 5 (82%) for large gas-fired steam boilers, EL 2 (84%) for small oil-fired steam boilers, and EL 2 (85%) for large oil-fired steam boilers. At TSL 3, DOE estimates impacts on INPV for CPB manufacturers to range from −35.5 percent to −12.4 percent, or a change in INPV of −$64.0 million to −$22.4 million. At this potential standard level, industry free cash flow would be estimated to decrease by approximately 121.7 percent in 2018, the year before compliance to −$2.8 million compared to the no-new-standards case value of $12.8 million. DOE estimates manufactures would incur product conversion costs of $19.3 million and capital conversion costs of 20.8 million to reach this standard level.
TSL 4 represents EL 7 (99%) for small gas-fired hot water boilers, EL 5 (97%) for large gas-fired hot water boilers, EL 5 (88%) for small oil-fired hot water boilers, EL 3 (89%) for large oil-fired hot water boilers, EL 5 (83%) for small gas-fired steam boilers, EL 6 (84%) for large gas-fired steam boilers, EL 3 (86%) for small oil-fired steam boilers, and EL 3 (87%) for large oil-fired steam boilers. At TSL 4, DOE estimates impacts on INPV for CPB manufacturers to range from −68.9 percent to −19.0 percent, or a change in INPV of −$124.1 million to −$34.3 million. At this potential standard level, industry free cash flow would be estimated to decrease by approximately 171.5 percent in the year before compliance (2018) to −$9.2 million relative to the no-new-standards case value of $12.8 million. DOE estimates that manufacturers would incur product conversion costs of $20.8 million and capital conversion costs of $33.9 million to reach this standard level.
TSL 5 represents EL 7 (99%) for small gas-fired hot water boilers, EL 5 (97%) for large gas-fired hot water boilers, EL 6 (97%) for small oil-fired hot water boilers, EL 4 (97%) for large oil-fired hot water boilers, EL 5 (83%) for small gas-fired steam boilers, EL 6 (84%) for large gas-fired steam boilers, EL 3 (86%) for small oil-fired steam boilers, and EL 3 (87%) for large oil-fired steam boilers. TSL 5 represents max-tech for all product classes. At TSL 5, DOE estimates impacts on INPV for CPB manufacturers to range from −71.6 percent to −18.6 percent, or a change in INPV of -$128.9 million to −$33.4 million. At this potential standard level, industry free cash flow would be estimated to decrease by approximately 177.4 percent in the year before compliance (2018) to −$9.9 million relative to the no-new-standards case value of $12.8 million. DOE estimates manufacturers would incur product conversion costs of $21.4 million and capital conversion costs of $35.2 million to reach this standard level.
To quantitatively assess the impacts of energy conservation standards on direct employment in the CPB industry, DOE used the GRIM to estimate the domestic labor expenditures and number of employees in the no-new-standards case and at each TSL in 2019. DOE used statistical data from the U.S. Census Bureau's 2013 Annual Survey of Manufacturers (ASM)
The total labor expenditures in the GRIM are converted to domestic production employment levels by dividing production labor expenditures by the annual payment per production worker (production worker hours times the labor rate found in the U.S. Census Bureau's 2013 ASM). The estimates of production workers in this section cover workers, including line-supervisors who are directly involved in fabricating and assembling a product within the manufacturing facility. Workers performing services that are closely associated with production operations, such as materials handling tasks using forklifts, are also included as production labor. DOE's estimates only account for production workers who manufacture the specific products covered by this rulemaking. The total direct employment impacts calculated in the GRIM are the sum of the changes in the number of production workers resulting from the amended energy conservation standards for commercial packaged boilers, as compared to the no-new-standards case. In general, more-efficient commercial packaged boilers are more complex and more labor intensive and require specialized knowledge about control systems, electronics, and the different metals needed for the heat exchanger. Per-unit labor requirements and production time requirements increase with higher energy conservation standards. As a result, the total labor calculations described in this paragraph (which are generated by the GRIM) are considered an upper bound to direct employment forecasts.
DOE estimates that in the absence of amended energy conservation standards, there would be 464 domestic production workers in the CPB industry in 2019, the year of compliance. DOE estimates that 80 percent of commercial packaged boilers sold in the United States are manufactured domestically. Table V.30 shows the range of the impacts of potential amended energy conservation standards on U.S. production workers of commercial packaged boilers.
At the upper end of the range, all examined TSLs show positive impacts on domestic employment levels. Producing more-efficient commercial packaged boilers tends to require more labor, and DOE estimates that if CPB manufacturers chose to keep their current production in the U.S., domestic employment could increase at each TSL. In interviews, some manufacturers who produce high-efficiency boiler products stated that a standard that went to condensing levels could cause them to hire more employees to increase their production capacity.
To establish a lower bound end of production worker employment, DOE assumes no manufacturer chooses to invest in redesign of products that do not meet the proposed standard. Production worker employment drops in proportion with the percentage of products which are retired. Since this is a lower bound, DOE does not account for additional production labor needed for higher efficiency products. Several manufacturers expressed that they could lose a significant number of employees at TSL 3, TSL 4 and TSL 5, due to the fact that these TSLs contain condensing efficiency levels for the gas-fired hot water boiler product classes and oil-fired hot water boiler product classes. These manufacturers have employees who work on production lines that produce cast iron sections and carbon steel or copper heat exchangers for lower to mid-efficiency products. If amended energy conservation standards were to require condensing efficiency levels, these employees would no longer be needed for that function, and manufacturers would have to decide whether to develop their own condensing heat exchanger production, source heat exchangers from Asia or Europe and assemble higher-efficiency products, or leave the market entirely.
DOE notes that the employment impacts discussed here are independent of the indirect employment impacts to the broader U.S. economy, which are documented in chapter 15 of the NOPR TSD.
Most CPB manufacturers stated that their current production is only running at 50-percent to 75-percent capacity and that any standard that does not propose efficiency levels where manufacturers would use condensing technology for hot water boilers would not have a large effect on capacity. The impacts of a potential condensing standard on manufacturer capacity are difficult to quantify. Some manufacturers who are already making condensing products with a sourced heat exchanger said they would likely be able to increase production using the equipment they already have by utilizing a second shift. Others said a condensing standard would idle a large portion of their business, causing stranded assets and decreased capacity. These manufacturers would have to determine how to best increase their condensing boiler production capacity. DOE believes that some larger domestic manufacturers may choose to add production capacity for a condensing heat exchanger production line.
Manufacturers stated that in a scenario where a potential standard would require efficiency levels at which manufacturers would use condensing
Small manufacturers, niche equipment manufacturers, and manufacturers exhibiting a cost structure substantially different from the industry average could be affected disproportionately. Using average cost assumptions developed for an industry cash-flow estimate is inadequate to assess differential impacts among manufacturer subgroups.
For the CPB industry, DOE identified and evaluated the impact of amended energy conservation standards on one subgroup—small manufacturers. The SBA defines a “small business” as having 500 employees or less for NAICS 333414, “Heating Equipment (except Warm Air Furnaces) Manufacturing.” Based on this definition, DOE identified 34 manufacturers in the CPB industry that qualify as small businesses. For a discussion of the impacts on the small manufacturer subgroup, see the regulatory flexibility analysis in section 0 of this document and chapter 12 of the NOPR TSD.
While any one regulation may not impose a significant burden on manufacturers, the combined effects of recent or impending regulations may have serious consequences for some manufacturers, groups of manufacturers, or an entire industry. Assessing the impact of a single regulation may overlook this cumulative regulatory burden. In addition to energy conservation standards, other regulations can significantly affect manufacturers' financial operations. Multiple regulations affecting the same manufacturer can strain profits and lead companies to abandon product lines or markets with lower expected future returns than competing products. For these reasons, DOE conducts an analysis of cumulative regulatory burden as part of its rulemakings pertaining to equipment efficiency.
For the cumulative regulatory burden analysis, DOE looks at other regulations that could affect CPB manufacturers that will take effect approximately three years before or after the 2019 compliance date of amended energy conservation standards for these products. In interviews, manufacturers cited Federal regulations on equipment other than commercial packaged boilers that contribute to their cumulative regulatory burden. The compliance years and expected industry conversion costs of relevant amended energy conservation standards are indicated in Table V.31. Included in the table are Federal regulations that have compliance dates beyond the six year range of DOE's analysis.
In addition to Federal energy conservation standards, DOE identified other regulatory burdens that would affect manufacturers of commercial packaged boilers:
Any amended standard that DOE establishes would also impose accompanying CC&E requirements for manufacturers of commercial packaged boilers. DOE conducted a rulemaking to expand AEDM coverage to commercial HVAC, including commercial packaged boilers, and issued a final rule on December 31, 2013. (78 FR 79579) An AEDM is a computer modeling or mathematical tool that predicts the performance of non-tested basic models. In the final rule, DOE is allowing manufacturers of commercial packaged boilers to rate basic models using AEDMs, reducing the need for sample units and reducing burden on manufacturers. The final rule establishes revised verification tolerances CPB manufacturers. More information can be found at
For each TSL, DOE projected energy savings for commercial packaged boilers purchased in the 30-year period that begins in the year of anticipated compliance with amended standards (2019-2048). The savings are measured over the entire lifetime of equipment purchased in the 30-year period. DOE quantified the energy savings attributable to each TSL as the difference in energy consumption between each standards case and the no-new-standards-case. Table V.32 presents the estimated primary energy savings for each considered TSL, and Table V.33 presents the estimated FFC energy savings for each TSL. Table V.34 shows cumulative primary national energy savings by TSL as a percentage of the no-new-standards-case primary energy usage. The approach for estimating national energy savings is further described in section IV.H of this document.
Circular A-4 requires agencies to present analytical results, including separate schedules of the monetized benefits and costs that show the type and timing of benefits and costs.
DOE estimated the cumulative NPV of the total costs and savings for consumers that would result from the TSLs considered for commercial packaged boilers. In accordance with OMB's guidelines on regulatory analysis,
Table V.37 and Table V.38 show the consumer NPV results at 3-percent and 7-percent discount rates respectively for each TSL considered for commercial packaged boilers covered in this rulemaking. In each case, the impacts cover the lifetime of equipment purchased in 2019-2048.
The NPV results based on the aforementioned nine-year analytical period are presented in Table V.39 and Table V.40. The impacts are counted over the lifetime of commercial packaged boilers purchased in 2019-2027. As mentioned previously, this information is presented for informational purposes only and is not indicative of any change in DOE's analytical methodology or decision criteria.
DOE expects energy conservation standards for commercial packaged boilers to reduce energy costs for equipment owners, and the resulting net savings to be redirected to other forms of economic activity. Those shifts in spending and economic activity could affect the demand for labor. As described in section IV.N of this document, DOE used an input/output model of the U.S. economy to estimate indirect employment impacts of the TSLs that DOE considered in this rulemaking. DOE understands that there are uncertainties involved in projecting employment impacts, especially changes in the later years of the analysis. Therefore, DOE generated results for near-term time frames (2019-
The results suggest that the proposed standards are likely to have negligible impact on the net demand for labor in the economy. The net change in jobs is so small that it would be imperceptible in national labor statistics and might be offset by other, unanticipated effects on employment. Chapter 16 of the NOPR TSD presents detailed results.
DOE has tentatively concluded that the standards it is proposing in this document would not lessen the utility or performance of commercial packaged boilers.
DOE considers any lessening of competition that is likely to result from amended standards. The Attorney General determines the impact, if any, of any lessening of competition likely to result from a proposed standard, and transmits such determination to the Secretary, together with an analysis of the nature and extent of such impact. (42 U.S.C. 6313(a)(6)(B)(ii)(V) and (C)(i))
To assist the Attorney General in making such determination, DOE has provided DOJ with copies of this document and the TSD for review. DOE will consider DOJ's comments on the proposed rule in preparing the final rule, and DOE will publish and respond to DOJ's comments in that document.
Enhanced energy efficiency, where economically justified, improves the Nation's energy security, strengthens the economy, and reduces the environmental impacts (costs) of energy production. Reduced electricity demand due to energy conservation standards is also likely to reduce the cost of maintaining the reliability of the electricity system, particularly during peak-load periods. As a measure of this reduced demand, chapter 15 in the NOPR TSD presents the estimated reduction in generating capacity, relative to the no-new-standards case, for the TSLs that DOE considered in this rulemaking.
Potential energy savings from the proposed amended standards for the considered CPB equipment classes could also produce environmental benefits in the form of reduced emissions of air pollutants and greenhouse gases. Table V.41 provides DOE's estimate of cumulative emissions reductions expected to result from the TSLs considered in this rulemaking. The table includes both power sector emissions and upstream emissions. The upstream emissions were calculated using the multipliers discussed in section IV.K of this document. DOE reports annual CO
As part of the analysis for this NOPR, DOE estimated monetary benefits likely to result from the reduced emissions of CO
Table V.42 presents the global value of CO
DOE is well aware that scientific and economic knowledge continues to evolve rapidly regarding the contribution of CO
DOE also estimated the cumulative monetary value of the economic benefits associated with NO
The NPV of the monetized benefits associated with emissions reductions can be viewed as a complement to the NPV of the consumer savings calculated for each TSL considered in this rulemaking. Table V.44 presents the NPV values that result from adding the estimates of the potential economic benefits resulting from reduced CO
In considering the above results, two issues are relevant. First, the national operating cost savings are domestic U.S. commercial consumer monetary savings that occur as a result of market transactions, while the value of CO
The Secretary of Energy, in determining whether a standard is economically justified, may consider any other factors that the Secretary deems to be relevant. (42 U.S.C. 6313(a)(6)(B)(ii)(VII)) No other factors were considered in this analysis.
To adopt national standards more stringent than the current standards for commercial packaged boilers, DOE must determine that such action would result in significant additional conservation of energy and is technologically feasible and economically justified. (42 U.S.C. 6313(a)(6)(A)(ii) and (C)(i)) In determining whether a standard is economically justified, the Secretary must determine whether the benefits of the standard exceed its burdens by, to the greatest extent practicable, considering the seven statutory factors discussed previously. (42 U.S.C. 6313(a)(6)(B)(ii)(I)-(VII) and (C)(i))
For this NOPR, DOE considered the impacts of amended standards for commercial packaged boilers at each TSL, beginning with the maximum technologically feasible level, to determine whether that level was economically justified. Where the max-tech level was not justified, DOE then considered the next most efficient level and undertook the same evaluation until it reached the highest efficiency level that is both technologically feasible and economically justified and saves a significant amount of energy.
To aid the reader in understanding the benefits and/or burdens of each TSL, tables in this section present a summary of the results of DOE's quantitative analysis for each TSL. In addition to the quantitative results presented in the tables, DOE also considers other burdens and benefits that affect economic justification. These include the impacts on identifiable subgroups of consumers who may be disproportionately affected by a national standard.
Table V.45, Table V.46, and Table V.47 summarize the quantitative impacts estimated for each TSL for commercial packaged boilers. The national impacts are measured over the lifetime of commercial packaged boilers purchased in the 30-year period that begins in the year of compliance with amended standards (2019-2048). The energy savings, emissions reductions, and value of emissions reductions refer to full-fuel-cycle results.
TSL 5 corresponds to the max-tech level for all the equipment classes and offers the potential for the highest cumulative energy savings through the analysis period from 2019 through 2048. The estimated energy savings from TSL 5 are 2.37 quads of energy. TSL 5 has an estimated NPV of consumer benefit of $0.60 billion using a 7-percent discount rate, and $6.0 billion using a 3-percent discount rate.
The cumulative emissions reductions at TSL 5 are 131 million metric tons of CO
At TSL 5, the average LCC savings range from $1,656 to $65,128 depending on equipment class. The fraction of consumers incurring a net cost range from 1 percent for large oil-fired steam CPB equipment class to 56 percent for small gas-fired hot water CPB equipment class.
At TSL 5, the projected change in INPV ranges from a decrease of $128.9 million to a decrease of $33.4 million, which corresponds to a change in INPV of −71.6 percent to −18.6 percent, respectively. The industry is expected to incur $56.6 million in total conversion costs at this level. Approximately 98.7 percent of industry equipment listings would require additional engineering expertise and production lines, or possibly source parts from other manufacturers.
Accordingly, the Secretary tentatively concludes that at TSL 5 for commercial packaged boilers, the benefits of energy savings, NPV of consumer benefits, emission reductions, and the estimated monetary value of the CO
TSL 4 corresponds to the efficiency level within each equipment class that provides the highest consumer NPV at a 7% discount rate over the analysis period from 2019 through 2048. The estimated energy savings from TSL 4 are 2.34 quads of energy. TSL 4 has an estimated NPV of consumer benefit of $0.67 billion using a 7-percent discount rate, and $5.9 billion using a 3-percent discount rate.
The cumulative emissions reductions at TSL 4 are 128 million metric tons of CO
At TSL 4, the average LCC savings range from $1,656 to $65,128 depending on equipment class. The fraction of consumers incurring a net cost range from 1 percent for large oil-fired steam CPB equipment class to 56 percent for small gas-fired hot water CPB equipment class.
At TSL 4, the projected change in INPV ranges from a decrease of $124.1 million to a decrease in $34.3 million, which corresponds to a change of −68.9 percent to −19.0 percent, respectively. The industry is expected to incur $54.7 million in total conversion costs at this level. Approximately 98.4 percent of industry equipment listings require redesign to meet this standard level today.
Accordingly, the Secretary tentatively concludes that at TSL 4 for commercial packaged boilers, the benefits of energy savings, NPV of consumer benefits, emission reductions, and the estimated monetary value of the CO
TSL 3 corresponds to the intermediate level with both condensing and high efficiency noncondensing standard levels, depending on equipment class, and offers the potential for significant cumulative energy savings over the analysis period from 2019 through 2048. The estimated energy savings from TSL 3 are 0.97 quads of energy. TSL 3 has an estimated NPV of consumer benefit of $0.33 billion using a 7-percent discount rate, and $2.6 billion using a 3-percent discount rate.
The cumulative emissions reductions at TSL 3 are 53 million metric tons of CO
At TSL 3, the average LCC savings range from $302 to $36,128 depending on equipment class. The fraction of consumers incurring a net cost range from 1 percent for large oil-fired steam CPB equipment class to 42 percent for small gas-fired hot water CPB equipment class.
At TSL 3, the projected INPV ranges from a decrease of $64.0 million to a decrease of $22.4 million, which corresponds to a change of −35.5 percent to −12.4 percent, respectively. The industry is expected to incur $40.1 million in total conversion costs at this level. Approximately 73.8 percent of industry equipment listings require redesign to meet this standard level today.
The Secretary carefully considered proposing TSL 3. However, in weighing the benefits of energy savings, NPV of consumer benefits, emission reductions, and the estimated monetary value of the CO
TSL 2 corresponds to the highest noncondensing efficiency level analyzed for the gas-fired hot water equipment classes and efficiency levels for oil-fired hot water equipment classes that are 2 or 3 percentage points above the equivalent size gas-fired hot water equipment classes, depending on equipment class, and one level below max tech for all steam CPB equipment classes and offers the potential for significant energy savings through the analysis period from 2019 through 2048. The estimated energy savings from TSL 2 are 0.39 quads of energy. TSL 2 has an estimated NPV of consumer benefit of $0.41 billion using a 7-percent discount rate, and $1.69 billion using a 3-percent discount rate.
The cumulative emissions reductions at TSL 2 are 22 million metric tons of CO
At TSL 2, the average LCC savings range from $521 to $36,128 depending on equipment class. The fraction of consumers incurring a net cost range from 1 percent for large oil-fired steam CPB equipment class to 27 percent for large gas-fired hot water CPB equipment class.
At TSL 2, the projected INPV ranges from a decrease of $23.8 million to a decrease of $13.1 million, which corresponds to a change of −13.2 percent to −7.3 percent, respectively. The industry is expected to incur $27.5 million in total conversion costs at this level. Approximately 52.5 percent of industry equipment listings require redesign to meet this standard level today.
Accordingly, the Secretary tentatively concludes that at TSL 2 for commercial packaged boilers, the benefits of energy savings, NPV of consumer benefits, emission reductions, and the estimated monetary value of the CO
After carefully considering the analysis results and weighing the benefits and burdens of TSL 2, DOE believes that setting the standards for commercial packaged boilers at TSL 2 represents the maximum improvement in energy efficiency that is technologically feasible and economically justified. TSL 2 is technologically feasible because the technologies required to achieve these levels already exist in the current market and are available from multiple manufacturers. TSL 2 is economically justified because the benefits to the nation in the form of energy savings, consumer NPV at 3 percent and at 7 percent, and emissions reductions outweigh the costs associated with reduced INPV. Therefore, DOE proposes to adopt amended energy conservation standards for commercial packaged boilers at the levels established by TSL 2 and presented in
However, the only difference between TSL 2 and TSL 3 is in the small gas-fired hot water CPB equipment class. TSL 3 includes the 95% TE level while TSL 2 includes the 85% TE level for that equipment class. TSL 3 results in energy savings that are 250 percent greater than TSL 2. Approximately 72 percent of small gas-fired hot water CPB equipment manufacturers offer at least one product that meets TSL 3.
DOE requests comment on whether DOE should adopt TSL 3.
See section VII.E for a list of issues on which DOE seeks comment.
Table V.48.
However, the only difference between TSL 2 and TSL 3 is in the small gas-fired hot water CPB equipment class. TSL 3 includes the 95% TE level while TSL 2 includes the 85% TE level for that equipment class. TSL 3 results in energy savings that are 250 percent greater than TSL 2. Approximately 72 percent of small gas-fired hot water CPB equipment manufacturers offer at least one product that meets TSL 3.
DOE requests comment on whether DOE should adopt TSL 3.
See section VII.E for a list of issues on which DOE seeks comment.
The benefits and costs of this NOPR's proposed energy conservation standards, for covered commercial packaged boilers sold in 2019-2048, can also be expressed in terms of annualized values. The monetary values for the total annualized net benefits are the sum of: (1) The annualized national economic value (expressed in 2014$) of the benefits from consumer operation of equipment that meets the proposed standards (consisting primarily of operating cost savings from using less energy, minus increases in equipment purchase and installation costs), and (2) the annualized value of the benefits of CO
The national operating savings are domestic private U.S. consumer monetary savings that occur as a result of purchasing these equipment. The national operating cost savings is measured for the lifetime of commercial packaged boilers shipped in 2019-2048.
The CO
Estimates of annualized benefits and costs of the proposed standards for commercial packaged boilers under TSL 2 are shown in Table V.49. The results under the primary estimate are as follows. Using a 7-percent discount rate for benefits and costs other than CO
Section 1(b)(1) of Executive Order 12866, “Regulatory Planning and Review,” 58 FR 51735 (Oct. 4, 1993), requires each agency to identify the problem that it intends to address, including, where applicable, the failures of private markets or public institutions that warrant new agency action, as well as to assess the significance of that problem. The problems that this standards address are as follows:
(1) Insufficient information and the high costs of gathering and analyzing relevant information leads some consumers to miss opportunities to make cost-effective investments in energy efficiency.
(2) In some cases the benefits of more efficient equipment are not realized due to misaligned incentives between purchasers and users. An example of such a case is when the equipment purchase decision is made by a building contractor or building owner who does not pay the energy costs.
(3) There are external benefits resulting from improved energy efficiency of appliances that are not captured by the users of such equipment. These benefits include externalities related to public health, environmental protection, and national security that are not reflected in energy prices, such as reduced emissions of air pollutants and greenhouse gases that impact human health and global warming.
The Administrator of the Office of Information and Regulatory Affairs (OIRA) in the OMB has determined that the proposed regulatory action is a significant regulatory action under Executive Order 12866. Accordingly, pursuant to section 6(a)(3)(B) of the Order, DOE has provided to OIRA: (i) The text of the draft regulatory action, together with a reasonably detailed description of the need for the regulatory action and an explanation of how the regulatory action will meet that need; and (ii) An assessment of the potential costs and benefits of the regulatory action, including an explanation of the manner in which the regulatory action is consistent with a statutory mandate. DOE has included these documents in the rulemaking record.
In addition, the Administrator of OIRA has determined that the proposed regulatory action is an “economically significant regulatory action” under section (3)(f)(1) of Executive Order 12866. Accordingly, pursuant to section 6(a)(3)(C) of the Order, DOE has provided to OIRA an assessment, including the underlying analysis, of benefits and costs anticipated from the regulatory action, together with, to the extent feasible, a quantification of those costs; and an assessment, including the underlying analysis, of costs and benefits of potentially effective and reasonably feasible alternatives to the planned regulation, and an explanation why the planned regulatory action is preferable to the identified potential alternatives. These assessments can be found in the technical support document for this rulemaking.
DOE has also reviewed this regulation pursuant to Executive Order 13563. 76 FR 3281 (Jan. 21, 2011). Executive Order 13563 is supplemental to and explicitly reaffirms the principles, structures, and definitions governing regulatory review established in Executive Order 12866. To the extent permitted by law, agencies are required by Executive Order 13563 to: (1) Propose or adopt a regulation only upon a reasoned determination that its benefits justify its costs (recognizing that some benefits and costs are difficult to quantify); (2) tailor regulations to impose the least burden on society, consistent with obtaining regulatory objectives, taking into account, among other things, and to the extent practicable, the costs of cumulative regulations; (3) select, in choosing among alternative regulatory approaches, those approaches that maximize net benefits (including potential economic, environmental, public health and safety, and other advantages; distributive impacts; and equity); (4) to the extent feasible, specify performance objectives, rather than specifying the behavior or manner of compliance that regulated entities must adopt; and (5) identify and assess available alternatives to direct regulation, including providing economic incentives to encourage the desired behavior, such as user fees or marketable permits, or providing information upon which choices can be made by the public.
DOE emphasizes as well that Executive Order 13563 requires agencies to use the best available techniques to quantify anticipated present and future benefits and costs as accurately as possible. In its guidance, the OIRA has emphasized that such techniques may include identifying changing future compliance costs that might result from technological innovation or anticipated behavioral changes. For the reasons stated in the preamble, DOE believes that this NOPR is consistent with these principles, including the requirement that, to the extent permitted by law, benefits justify costs and that net benefits are maximized.
The Regulatory Flexibility Act (5 U.S.C. 601
The Small Business Administration (SBA) considers a business entity to be a small business, if, together with its affiliates, it employs less than a threshold number of workers specified in 13 CFR part 121. These size standards and codes are established by the North American Industry Classification System (NAICS). The threshold number for NAICS classification code 333414, which applies to “heating equipment (except warm air furnaces) manufacturing” and includes commercial packaged boilers, is 500 employees.
A statement of the need for, objectives of, and legal basis for, the proposed rule is stated elsewhere in the preamble and not repeated here.
To estimate the number of companies that could be small business manufacturers of products covered by this rulemaking, DOE conducted a market survey using publically-available information to identify potential small manufacturers. DOE's research involved industry trade association membership directories (including AHRI), public databases (
DOE initially identified 45 potential manufacturers of commercial packaged boilers sold in the U.S. DOE then determined that 15 are large manufacturers, manufacturers that are foreign owned and operated. DOE was able to determine that 30 manufacturers meet the SBA's definition of a “small business.” Of these 30 small businesses, DOE estimates that 23 domestically manufacture commercial packaged boilers covered by this rulemaking.
Before issuing this NOPR, DOE attempted to contact all the small business manufacturers of commercial packaged boilers it had identified. Six small businesses agreed to take part in an MIA interview. DOE also obtained information about small business impacts while interviewing large manufacturers.
In the engineering analysis, DOE compiled an equipment database based on equipment listing information provided by the AHRI and ABMA trade associations. However, DOE notes that it does not have product listings data for 11 of the identified 30 small manufacturers since they are not AHRI or ABMA trade association members. The following discussion reflects the available data provided by AHRI and ABMA and assumes the distribution of equipment efficiencies data to be representative of the industry. Additionally, despite extensive interviews with small and large companies, DOE was not able to obtain sufficient financial or sales data to determine typical small manufacturer revenue, operating profit and market share. The small manufacturers provided insufficient data to determine the effect these standards will have on small business revenue or operating profit.
However, in an effort to gauge the relative impacts of this rulemaking on small manufacturers, DOE has conducted a detailed product availability analysis. The analysis investigates the portion of small manufacturers that are currently able to meet the proposed standard. Additionally, it looks that number of equipment models small manufacturers must redesign or eliminate relative to the industry-at-large.
DOE identified 18 small manufacturers and 13 large manufactures that produce gas-fired equipment covered by this rulemaking based on companies included in DOE's equipment database. Roughly 56% of gas-fired equipment listings in the database already meet the proposed standard at TSL 2. This would suggest that TSL 2 already has a strong market presence. DOE's engineering analysis concludes that no proprietary technology is required to meet today's proposed standard level. Manufacturers would likely need to adopt one or a combination of different technology options: (1) Switch from natural or atmospheric draft systems to mechanical draft boilers; (2) improve heat exchanger design using tabulators, fins and multi-pass designs; (3) use high efficiency burner technology such as pulse combustion; or (4) increase jacket insulation (
Assuming the equipment database used in the engineering analysis is representative of the industry as a whole, small manufacturers have similar portions of product listings at TSL 2 as their larger competitors in the gas-fired sector. Industry conversion costs for gas-fired product at TSL 2 total $18.3 million. This results in an average conversion cost of approximately $0.42 million per manufacturer.
Table VI.1 and Table VI.2 looks at the differential impacts of the standard on small manufacturers versus the industry at large. Table VI.1 estimates the percent of small manufacturers and their listings that currently comply with TSL 2. Table VI.2 estimates the percent of all manufacturers, both large and small, and their listings that currently comply with TSL 2.
Using product listings as representative market data, DOE estimates average conversion costs of $0.63 million for large manufacturers and $0.31 million for small manufacturers of gas-fired equipment. Since this is a relatively low volume market where most products are built-to-order, DOE assumes that capital conversion costs do not vary significantly between large and small manufacturers.
In the market for oil-fired equipment, DOE identified seven small manufacturers and six large manufacturers producing equipment covered by this rulemaking based on the equipment database. Combined, they sell roughly 1,000 units per year, or 5% of the total annual market for CPB equipment. Due to the small size of the oil-fired market, DOE expects that the manufacturing processes and production costs to be similar for both small and large manufacturers. DOE notes that the market for oil-fired commercial packaged boilers is shrinking. Some manufacturers, both small and large, may choose not to invest in product redesign given the small market size and projected decline in shipments. For manufacturers that do stay in the oil-fired market, DOE's analysis indicates that there are no proprietary technologies required to meet TSL 2. Manufacturers would likely need to adopt one or a combination of different technology options: (1) Integrate oxygen trimmers; (2) improve heat exchanger design; (3) use high efficiency burner technology such as pulse combustion; or (4) increase jacket insulation. Thus, DOE would expect similar conversion costs for small and large manufacturers on a per product basis.
Table VI.3 estimates the percent of small manufacturers and their listings that currently comply with TSL 2.
Table VI.4 estimates the percent of all manufacturers, both large and small, and their listings that currently comply with TSL 2.
Using product listings as representative market data, DOE estimates average conversion costs of $0.90 million for large manufacturers and $0.28 million for small manufacturers of oil-fired equipment. Since this is a relatively low volume market where most products are built-to-order, DOE assumes that capital conversion costs do not vary significantly between large and small manufacturers.
DOE assumed the data for small manufacturer's products in the AHRI and ABMA databases are representative of all small manufacturers.
DOE requests comment on the appropriateness of the Manufacturer Impact Analysis' assumption that the AHRI and ABMA equipment databases are representative of all small manufacturers.
DOE also requests product listing data from small manufacturers that are not AHRI or ABMA trade association members—including model numbers, capacity, and efficiency ratings.
DOE also continues to seek financial, sales, and market share data from small manufacturers to better understand and analyze the impact of these proposed standards and conversion costs on the revenue and operating profit of a small business.
See section VII.E for a list of issues on which DOE seeks comment.
DOE is not aware of any rules or regulations that duplicate, overlap, or conflict with the rulemaking being proposed today.
The discussion above analyzes impacts on small businesses that would result from DOE's proposed rule. In addition to considering other TSLs in this rulemaking, DOE considered several policy alternatives in lieu of standards that could potentially result in energy savings while reducing burdens on small businesses. DOE considered the following policy alternatives: (1) No change in standard; (2) consumer rebates; (3) consumer tax credits; (4) voluntary energy efficiency targets; and (5) bulk government purchases. While these alternatives may mitigate to some varying extent the economic impacts on small entities compared to the standards, DOE determined that the energy savings of these alternatives are significantly smaller than those that would be expected to result from adoption of the proposed standard levels. Accordingly, DOE is declining to adopt any of these alternatives and is proposing the standards set forth in this rulemaking. (See chapter 17 of the NOPR TSD for further detail on the policy alternatives DOE considered.)
Additional compliance flexibilities may be available through other means. For example, individual manufacturers may petition for a waiver of the applicable test procedure. (See 10 CFR 431.401) Further, EPCA provides that a manufacturer whose annual gross revenue from all of its operations does not exceed $8 million may apply for an exemption from all or part of an energy conservation standard for a period not longer than 24 months after the effective date of a final rule establishing the standard. Additionally, section 504 of the Department of Energy Organization Act, 42 U.S.C. 7194, provides authority for the Secretary to adjust a rule issued under EPCA in order to prevent “special hardship, inequity, or unfair distribution of burdens” that may be imposed on that manufacturer as a result of such rule. Manufacturers should refer to 10 CFR part 430, subpart E, and Part 1003 for additional details.
Manufacturers of commercial packaged boilers must certify to DOE that their equipment comply with any applicable energy conservation standards. In certifying compliance, manufacturers must test their equipment according to the DOE test procedures for commercial packaged boilers, including any amendments adopted for those test procedures. DOE has established regulations for the certification and recordkeeping requirements for all covered consumer equipment and commercial equipment, including commercial packaged boilers. 76 FR 12422 (March 7, 2011). The collection-of-information requirement for the certification and recordkeeping is subject to review and approval by OMB under the Paperwork Reduction Act (PRA). This requirement has been approved by OMB under OMB control number 1910-1400. DOE requested OMB approval of an extension of this information collection for three years, specifically including the collection of information proposed in the present rulemaking, and estimated that the annual number of burden hours under this extension is 30 hours per company. In response to DOE's request, OMB approved DOE's information collection requirements covered under OMB control number 1910-1400 through November 30, 2017. 80 FR 5099 (January 30, 2015).
Notwithstanding any other provision of the law, no person is required to respond to, nor shall any person be subject to a penalty for failure to comply with, a collection of information subject to the requirements of the PRA, unless that collection of information displays a currently valid OMB Control Number.
Pursuant to the National Environmental Policy Act (NEPA) of
Executive Order 13132, “Federalism.” 64 FR 43255 (Aug. 10, 1999) imposes certain requirements on Federal agencies formulating and implementing policies or regulations that preempt State law or that have Federalism implications. The Executive Order requires agencies to examine the constitutional and statutory authority supporting any action that would limit the policymaking discretion of the States and to carefully assess the necessity for such actions. The Executive Order also requires agencies to have an accountable process to ensure meaningful and timely input by State and local officials in the development of regulatory policies that have Federalism implications. On March 14, 2000, DOE published a statement of policy describing the intergovernmental consultation process it will follow in the development of such regulations. 65 FR 13735. DOE has examined this proposed rule and has tentatively determined that it would not have a substantial direct effect on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government. EPCA governs and prescribes Federal preemption of State regulations as to energy conservation for the equipment that are the subject of this proposed rule. States can petition DOE for exemption from such preemption to the extent, and based on criteria, set forth in EPCA. (42 U.S.C. 6297) No further action is required by Executive Order 13132.
With respect to the review of existing regulations and the promulgation of new regulations, section 3(a) of Executive Order 12988, “Civil Justice Reform,” imposes on Federal agencies the general duty to adhere to the following requirements: (1) Eliminate drafting errors and ambiguity, (2) write regulations to minimize litigation, and (3) provide a clear legal standard for affected conduct rather than a general standard and promote simplification and burden reduction. 61 FR 4729 (Feb. 7, 1996). Section 3(b) of Executive Order 12988 specifically requires that Executive agencies make every reasonable effort to ensure that the regulation: (1) Clearly specifies the preemptive effect, if any, (2) clearly specifies any effect on existing Federal law or regulation, (3) provides a clear legal standard for affected conduct while promoting simplification and burden reduction, (4) specifies the retroactive effect, if any, (5) adequately defines key terms, and (6) addresses other important issues affecting clarity and general draftsmanship under any guidelines issued by the Attorney General. Section 3(c) of Executive Order 12988 requires Executive agencies to review regulations in light of applicable standards in section 3(a) and section 3(b) to determine whether they are met or it is unreasonable to meet one or more of them. DOE has completed the required review and determined that, to the extent permitted by law, this proposed rule meets the relevant standards of Executive Order 12988.
Title II of the Unfunded Mandates Reform Act of 1995 (UMRA) requires each Federal agency to assess the effects of Federal regulatory actions on State, local, and Tribal governments and the private sector. Pub. L. 104-4, sec. 201 (codified at 2 U.S.C. 1531). For a proposed regulatory action likely to result in a rule that may cause the expenditure by State, local, and Tribal governments, in the aggregate, or by the private sector of $100 million or more in any one year (adjusted annually for inflation), section 202 of UMRA requires a Federal agency to publish a written statement that estimates the resulting costs, benefits, and other effects on the national economy. (2 U.S.C. 1532(a), (b)) The UMRA also requires a Federal agency to develop an effective process to permit timely input by elected officers of State, local, and Tribal governments on a proposed “significant intergovernmental mandate,” and requires an agency plan for giving notice and opportunity for timely input to potentially affected small governments before establishing any requirements that might significantly or uniquely affect small governments. On March 18, 1997, DOE published a statement of policy on its process for intergovernmental consultation under UMRA. 62 FR 12820. DOE's policy statement is also available at
Although this proposed rule does not contain a Federal intergovernmental mandate, it may require expenditures of $100 million or more on the private sector. Specifically, the proposed rule will likely result in a final rule that could require expenditures of $100 million or more. Such expenditures may include (1) investment in research and development and in capital expenditures by commercial packaged boilers manufacturers in the years between the final rule and the compliance date for the new standards, and (2) incremental additional expenditures by consumers to purchase higher-efficiency commercial packaged boilers, starting at the compliance date for the applicable standard.
Section 202 of UMRA authorizes a Federal agency to respond to the content requirements of UMRA in any other statement or analysis that accompanies the proposed rule. 2 U.S.C. 1532(c). The content requirements of section 202(b) of UMRA relevant to a private sector mandate substantially overlap the economic analysis requirements that apply under section 325(o) of EPCA and Executive Order 12866. The
Under section 205 of UMRA, the Department is obligated to identify and consider a reasonable number of regulatory alternatives before promulgating a rule for which a written statement under section 202 is required. 2 U.S.C. 1535(a). DOE is required to select from those alternatives the most cost-effective and least burdensome alternative that achieves the objectives of the proposed rule unless DOE publishes an explanation for doing otherwise, or the selection of such an alternative is inconsistent with law. As required by 42 U.S.C. 6313(a), this proposed rule would establish energy conservation standards for commercial packaged boilers that are designed to achieve the maximum improvement in energy efficiency that DOE has determined to be both technologically feasible and economically justified. A full discussion of the alternatives considered by DOE is presented in the “Regulatory Impact Analysis” section of the TSD for this proposed rule.
Section 654 of the Treasury and General Government Appropriations Act, 1999 (Pub. L. 105-277) requires Federal agencies to issue a Family Policymaking Assessment for any rule that may affect family well-being. This proposed rule would not have any impact on the autonomy or integrity of the family as an institution. Accordingly, DOE has concluded that it is not necessary to prepare a Family Policymaking Assessment.
DOE has determined, under Executive Order 12630, “Governmental Actions and Interference with Constitutionally Protected Property Rights” 53 FR 8859 (Mar. 15, 1988), that this regulation would not result in any takings that might require compensation under the Fifth Amendment to the U.S. Constitution.
Section 515 of the Treasury and General Government Appropriations Act, 2001 (44 U.S.C. 3516, note) provides for Federal agencies to review most disseminations of information to the public under guidelines established by each agency pursuant to general guidelines issued by OMB. OMB's guidelines were published at 67 FR 8452 (Feb. 22, 2002), and DOE's guidelines were published at 67 FR 62446 (Oct. 7, 2002). DOE has reviewed this NOPR under the OMB and DOE guidelines and has concluded that it is consistent with applicable policies in those guidelines.
Executive Order 13211, “Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use” 66 FR 28355 (May 22, 2001), requires Federal agencies to prepare and submit to OIRA at OMB, a Statement of Energy Effects for any proposed significant energy action. A “significant energy action” is defined as any action by an agency that promulgates or is expected to lead to promulgation of a final rule, and that: (1) is a significant regulatory action under Executive Order 12866, or any successor order, and (2) is likely to have a significant adverse effect on the supply, distribution, or use of energy, or (3) is designated by the Administrator of OIRA as a significant energy action. For any proposed significant energy action, the agency must give a detailed statement of any adverse effects on energy supply, distribution, or use should the proposal be implemented, and of reasonable alternatives to the action and their expected benefits on energy supply, distribution, and use.
DOE has tentatively concluded that this regulatory action, which sets forth energy conservation standards for commercial packaged boilers, is not a significant energy action because the proposed standards are not likely to have a significant adverse effect on the supply, distribution, or use of energy, nor has it been designated as such by the Administrator at OIRA. Accordingly, DOE has not prepared a Statement of Energy Effects on the proposed rule.
On December 16, 2004, OMB, in consultation with the Office of Science and Technology Policy (OSTP), issued its Final Information Quality Bulletin for Peer Review (the Bulletin). 70 FR 2664 (Jan. 14, 2005). The Bulletin establishes that certain scientific information shall be peer reviewed by qualified specialists before it is disseminated by the Federal Government, including influential scientific information related to agency regulatory actions. The purpose of the bulletin is to enhance the quality and credibility of the Government's scientific information. Under the Bulletin, the energy conservation standards rulemaking analyses are “influential scientific information,” which the Bulletin defines as scientific information the agency reasonably can determine will have, or does have, a clear and substantial impact on important public policies or private sector decisions. 70 FR 2667.
In response to OMB's Bulletin, DOE conducted formal in-progress peer reviews of the energy conservation standards development process and analyses and has prepared a Peer Review Report pertaining to the energy conservation standards rulemaking analyses. Generation of this report involved a rigorous, formal, and documented evaluation using objective criteria and qualified and independent reviewers to make a judgment as to the technical/scientific/business merit, the actual or anticipated results, and the productivity and management effectiveness of programs and/or projects. The “Energy Conservation Standards Rulemaking Peer Review Report” dated February 2007 has been disseminated and is available at the following Web site:
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Factors of interest to DOE when evaluating requests to treat submitted information as confidential include: (1) A description of the items; (2) whether and why such items are customarily treated as confidential within the industry; (3) whether the information is generally known by or available from other sources; (4) whether the information has previously been made available to others without obligation concerning its confidentiality; (5) an explanation of the competitive injury to the submitting person which would result from public disclosure; (6) when such information might lose its confidential character due to the passage of time; and (7) why disclosure of the information would be contrary to the public interest.
It is DOE's policy that all comments may be included in the public docket, without change and as received, including any personal information provided in the comments (except information deemed to be exempt from public disclosure).
Although DOE welcomes comments on any aspect of this proposal, DOE is particularly interested in receiving comments and views of interested parties concerning the following issues:
(1) DOE requests data on manufacturer selling prices, shipments and conversion costs of very large commercial packaged boilers with fuel input rate above 10,000 kBtu/h that can be used to supplement the analyses of such equipment in this rulemaking.
(2) DOE requests feedback on the methodology used to analyze all equipment classes and the results obtained. In particular DOE is interested in comments on whether the results are appropriate and representative of the current market prices for such type of equipment.
(3) DOE requests information or insight that can better inform its markups analysis.
(4) DOE requests feedback on the methodology and assumptions used for the building heat load adjustment.
(5) DOE requests information on what constitutes a reasonable baseline assumption about the current degree of adoption of hybrid boiler configurations in retrofit situations and on other related parameters such as percentage of total installed capacity typically assigned to the new condensing boilers, climate zones where it may be more prevalent and any other supporting documentation.
(6) DOE seeks input on its characterization and development of representative installation costs, including venting costs, in new and replacement commercial package boiler installations, including data to support assumptions on vent sizing, vent length distributions, and vent materials.
(7) DOE requests comment and seeks data on the assumption that a rebound effect is unlikely to occur for these commercial applications.
(8) DOE requests comments on the representativeness of using 1-year as warranty for parts and labor, and 10-years as warranty for the heat exchanger.
(9) DOE seeks feedback on the assumptions used to develop historical and projected shipments of commercial packaged boilers and the representativeness of its estimates of projected shipments. DOE also requests information on historical shipments of commercial packaged boilers including shipments by equipment class for small, large, and very large commercial packaged boilers.
(10) DOE requests feedback on the assumptions used to estimate the impact of relative price increases on commercial packaged boiler shipments due to proposed standards.
(11) DOE requests additional information from manufacturers regarding conversion costs for oil-fired products. Specifically, DOE is interested in estimates of capital conversion costs at each TSL and the change in manufacturing equipment associated with those costs.
(12) DOE requests comment on whether DOE should adopt TSL 3.
(13) DOE requests comment on the appropriateness of the Manufacturer Impact Analysis' assumption that the AHRI and ABMA equipment databases are representative of all small manufacturers.
(14) DOE also requests product listing data from small manufacturers that are not AHRI or ABMA trade association members—including model numbers, capacity, and efficiency ratings.
(15) DOE also continues to seek financial, sales, and market share data from small manufacturers to better understand and analyze the impact of these proposed standards and conversion costs on the revenue and operating profit of a small business.
The Secretary of Energy has approved publication of this proposed rule.
Administrative practice and procedure, Confidential business information, Energy conservation, Household appliances, Imports, Intergovernmental relations, Reporting and recordkeeping requirements, and Small businesses.
For the reasons set forth in the preamble, DOE proposes to amend part 431 of chapter II, subchapter D, of title 10 of the Code of Federal Regulations, as set forth below:
42 U.S.C. 6291-6317.
(a) Each commercial packaged boilers listed in Table 1 to § 431.87 and manufactured on or after March 2, 2012 and prior to [DATE 3 YEARS AFTER PUBLICATION IN THE
(b) Each commercial packaged boilers listed in Table 2 to § 431.87 and manufactured on or after [DATE 3 YEARS AFTER PUBLICATION IN THE
Office of Labor-Management Standards, Department of Labor.
Final rule.
The Office of Labor-Management Standards of the Department of Labor (“Department”) is revising the Form LM-20 Agreement and Activities Report and the Form LM-10 Employer Report upon review of the comments received in response to its June 21, 2011 Notice of Proposed Rulemaking (NPRM). In the NPRM, the Department proposed to revise its interpretation of the advice exemption in section 203(c) of the Labor-Management Reporting and Disclosure Act (LMRDA) to better effectuate section 203's requirement that employers and their labor relations consultants report activities undertaken with an object, directly or indirectly, to persuade employees about how to exercise their rights to union representation and collective bargaining. Under the prior interpretation, reporting was effectively triggered only when a consultant communicated directly with employees. This interpretation left a broad category of persuader activities unreported, thereby denying employees important information that would enable them to consider the source of the information about union representation directed at them when assessing the merits of the arguments and deciding how to exercise their rights. The Department proposed to eliminate this reporting gap. The final rule adopts the proposed rule, with modifications, and provides increased transparency to workers without imposing any restraints on the content, timing, or method by which an employer chooses to make known to its employees its position on matters relating to union representation or collective bargaining. The final rule also maintains the LMRDA's section 203(c) advice exemption and the traditional privileges and disclosure requirements associated with the attorney-client relationship. The Department has also revised the forms and instructions to make them more user-friendly and to require more detailed reporting on employer and consultant agreements. Sections of the Department's regulations have also been amended consistent with the instructions. Additionally, with this rule, the Department requires that Forms LM-10 and LM-20 be filed electronically. This rule largely implements the Department's proposal in the NPRM, with modifications of several aspects of the revised instructions as proposed.
This final rule is effective on April 25, 2016. The rule will be applicable to arrangements and agreements as well as payments (including reimbursed expenses) made on or after July 1, 2016.
Andrew R. Davis, Chief of the Division of Interpretations and Standards, Office of Labor-Management Standards, U.S. Department of Labor, 200 Constitution Avenue NW., Room N-5609, Washington, DC 20210;
The purpose of this rule is to revise the Department's interpretation of section 203 of the Labor-Management Reporting and Disclosure Act (LMRDA) to require reporting of “indirect” persuader activities and agreements. The LMRDA and the National Labor Relations Act (NLRA) address generally the obligations of unions and employers to conduct labor-management relations in a manner that protects the rights of employees to exercise their right to choose whether to be represented by a union for purposes of collective bargaining. While the NLRA, enforced by the National Labor Relations Board (NLRB), ensures compliance with these rights by investigating and prosecuting unfair labor practice complaints, the LMRDA promotes these rights by requiring unions, employers, and labor relations consultants to publicly disclose information about certain financial transactions, agreements, and arrangements.
Section 203(b) of the Labor Management Reporting and Disclosure Act (LMRDA), 29 U.S.C. 433(b), requires employers and labor relations consultants to report their agreements pursuant to which the consultant undertakes activities with “an object . . . ,
Section 203(c) of the LMRDA exempts “advice” from triggering the reporting requirement. Specifically, employers and consultants are not required to file a report covering the services of a consultant “by reason of his giving or agreeing to give advice” to the employer. Under the Department's original, 1960 interpretation of the “advice” exemption, labor relations consultants were required to report arrangements to draft speeches or other written materials to be delivered or disseminated to employees for the purpose of persuading them as to their right to organize and bargain collectively. Two years later, the Department revised its position to say that reporting was not required if the consultant limited his or her activity to providing the employer with materials that the employer had the right to accept or reject. In the early 1980s, the Department again reduced the reporting obligation of contractors: No reporting was required unless they had direct contact with employees. Under this interpretation, labor relations consultants to employers avoided reporting a broad category of activities undertaken with a clear object to persuade employees regarding their rights to organize or bargain collectively. In this rule, the Department revises its interpretation of the advice exemption, consistent with the Department's original interpretation of section 203, to better effectuate section 203's requirement that consultants report persuader activities. Based upon the Department's consideration of contemporary practices under the federal labor-management relations system, and the comments received on its proposal, the final rule expands reporting of persuader agreements and provides employees with information about the use of labor relations consultants by employers, both openly and behind the scenes, to shape how employees exercise their union representation and collective bargaining rights. The final rule promotes the statute's purposes while also protecting employer free speech rights and the relationship between an attorney and his or her client. Although employees may hear a strong message from their employer about how they should make choices concerning the exercise of their rights, in the absence of indirect persuader reporting requirements, they generally do not know the source of the message. By knowing that a third party—the consultant hired by their employer—is the source of the information, employees will be better able to assess the merits of the arguments directed at them and make an informed choice about how to exercise their rights. This information promotes transparency and helps employees assess the applicability of those messages and the extent to which they reflect the genuine view of their employer and supervisors about issues in their particular workplace or instead, may reflect a strategy designed by the consultant to counter union representation whenever its services are hired.
As noted above, this rule requires employers and their consultants to report not only their agreements for “direct persuader activities,” but also to report their agreements for “indirect persuader activities.” The rule takes fully into account section 203(c), which exempts from reporting “services of [a consultant] by reason of his giving or agreeing to give advice to [an] employer.” Based on the traditional meaning of “advice,” the Department believes, contrary to its prior interpretation, that section 203(c) (known as the “advice exemption”) does not shield employers and their consultants from reporting agreements in which the consultant has no face-to-face contact with employees but nonetheless engages in activities behind the scenes (known as indirect persuader activities) where an object is to persuade employees concerning their rights to organize and bargain collectively.
This rule ensures that indirect reporter activity, as intended by Congress, is reported and disclosed to
Although the statute explicitly requires reporting of agreements involving the consultant's direct or indirect persuasion of employees, the Department's prior interpretation had the practical effect of relieving employers and labor relations consultants from reporting any persuader agreements, except those involving direct communication with employees. The Department had based its position on its interpretation of section 203(c), known as the “advice” exemption. The previous interpretation left workers unaware of the majority of persuader agreements. In fact, the Department only receives a small number of direct persuader reports, covering only a fraction of organizing campaigns. This lack of awareness by workers of consultant activity is reflected in many of the comments submitted on the NPRM.
It is the Department's view, based on its experience in administering and enforcing the LMRDA and its review of comments submitted in response to the proposed rule, that full disclosure of both direct and indirect persuasion activities protects employee rights to organize and bargain collectively and promotes transparency and the peaceful and stable labor-management relations sought by Congress. The disclosure required under this rule will provide employees with essential information about the underlying source of the views, materials, and policies directed at them and designed to influence how they exercise their statutory rights to union representation and collective bargaining. They will be better able to understand the role that labor relations consultants play in their employers' efforts to shape their views about union representation and collective bargaining.
As explained in the NPRM and in this preamble, the Department maintains that section 203 is better read to require employers and labor relations consultants to report activities that clearly are undertaken with an object to persuade employees, but which were viewed under the prior interpretation as the giving of “advice” to the employer. The prior interpretation failed to achieve the very purpose for which section 203 was enacted—to disclose to workers, the public, and the Government activities undertaken by labor relations consultants to persuade employees—directly or indirectly, as to how to exercise their rights to union representation and collective bargaining. Under this rule, exempt “advice” activities are now limited to those activities that meet the plain meaning of the term: An oral or written recommendation regarding a decision or course of conduct. The rule restores the traditional meaning to the term whereby an attorney or a labor relations consultant does not need to report, for example, when he counsels a business about its plans to undertake a particular action or course of action, advises the business about its legal vulnerabilities and how to minimize those vulnerabilities, identifies unsettled areas of the law, and represents the business in any disputes and negotiations that may arise. It draws a line between these activities, which do not have to be reported, and those activities that have as their object the persuasion of employees—activities that manage or direct the business's campaign to sway workers against choosing a union—that must be reported. An employer's ability to “accept or reject” materials provided, or other actions undertaken, by a consultant, common to the usual relationship between an employer and a consultant and central to the prior interpretation's narrow scope of reportable activity, no longer shields indirect persuader activities from disclosure.
The prior interpretation construed the advice exemption in a manner that failed to give full effect to the requirement that indirect persuasion of employees, as well as direct persuasion, triggers reporting. It did so in a manner that allowed the advice exemption to override this requirement. Upon our consideration of the comments received on the proposal and further review of the issue, we can find no policy justification, and only slender legal support, for the Department's earlier interpretation of section 203. The position effectively denied employees, the public, and the Government information about labor relations consultants that Congress had determined was necessary for employees to effectively exercise their rights to support or refrain from supporting a union as their collective bargaining representative, thereby impeding the national labor policy as established in the NLRA and the LMRDA. Under the interpretation embodied in this final rule, both the language of the advice exemption and the other components of section 203 are given effect in a manner that clearly tracks the language of section 203 more closely and better effectuates the purposes underlying the section.
The rule imposes no restrictions on what employers may say or do when faced with a union organizing campaign. Rather, the premise of the rule is that with knowledge that the source of the information received is an anti-union campaign managed by an outsider, workers will be better able to assess the merits of the arguments directed at them and make an informed choice about how to exercise their rights. With this information, they will be able to better discern whether the views and specific arguments of their supervisors about the benefits and drawbacks of union representation are truly the supervisors' own, reflect their company's views, or rather reflect a scripted industrywide (or even wider) antipathy towards union representation and collective bargaining. Once they have learned that a consultant has been hired to persuade them, employees will be able to consider whether the consultant is serving as a neutral, disinterested third party, hired to guide the employer in adhering to NLRB election rules or rather as one who has been hired as a specialist in defeating union organizing campaigns. They will also be better able to consider the weight to attach to the common claim in representational campaigns that bringing a union, as a third party, into the workplace will be counterproductive to the employees' interests. In the context of an employer's reliance on a third party to assist it on a matter of central importance, it is possible that an employee may weigh differently any messages characterizing the union as a third party. In these instances, it is important for employees to know that if the employer claims that employees are family—a relationship will be impaired, if not destroyed, by
In crafting the final rule, the Department has focused on providing workers with information about the source of persuader activities so they can make informed decisions. The Department has been careful, just as Congress was in prescribing reporting by employers and consultants, to allow unions and employers to engage in an informed debate about the advantages and disadvantages of union representation, consistent with the First Amendment and the NLRA. Neither the statute nor the final rule restrains in any way the content of an employer's message—whether delivered by itself or with the assistance, directly or indirectly of a consultant—its timing, or the means by which it is delivered on matters relating to union representation and collective bargaining. Likewise, as discussed below, the rule also does not infringe upon the attorney-client relationship. The affected employees and the public interest benefit from the exchange of competing ideas. This can best be done by requiring that employers and labor relations consultants disclose their agreement to engage in persuader activities. Both the statute and this regulation fulfill the Government's important interest in ensuring that workers and the public are informed about such agreements. Regardless of the choices made by employees on whether to support or oppose representation in their workplace, the rule will ensure that they are more informed decision makers, which will result in more stable and peaceful labor-management relations.
The Department recognizes that most employers and their consultants, like most unions, conduct their affairs in a manner consistent with federal law. The law encourages debate, imposing only broad bounds in the labor relations context, imposing sanctions only in limited circumstances and without prior restraint—where employers “interfere with, restrain or coerce employees in the exercise of their rights guaranteed in [29 U.S.C. 157] or unions “to restrain or coerce” employees in the exercise of those rights. 29 U.S.C. 158(a)(1); 29 U.S.C. 158(b)(1). Congress intended the LMRDA, including the reporting requirements, to complement the NLRA, a result achieved by the final rule without abridging the right of employers and their consultants to engage in a robust debate about the advantages and disadvantages of union representation and collective bargaining. Thus, it is important to note that the Department has not attempted to regulate the content, timing, or veracity of communications by labor relations consultants or employers.
Research indicates that the number of firms engaged in persuader activities has grown substantially since the LMRDA was enacted. Recent studies show that in somewhere between 71% and 87% of employee organizing drives, the employer retains one or more consultants. See n. 9. 76 FR 36186. The size of the industry, per se, is not a concern of the Department's, but its growth exacerbates the transparency concerns: As the size has increased, employees in a substantial majority of representation campaigns are increasingly left unaware of information that may be important to them and may affect their decisions to support or oppose union representation in their workplaces. As noted in the NPRM, these studies demonstrate that employer campaigns against unions have become standardized, almost formulaic, because employers frequently turn to labor relations consultants, including law firms, to manage their efforts to oppose unionization. Those efforts utilize indirect persuasion almost exclusively. Despite the growth of this industry, historically, only a relatively small number of reports about persuader agreements and arrangements have been filed with the Department. The Department attributes this fact to the overly narrow view of the activities reportable under the prior interpretation, which essentially restricted reporting to just direct persuasion. By issuing this rule, the Department ensures that persuader activities receive the transparency that Congress intended, but was never attained under the prior rule—a need that has become more important over time as the use of consultants by employers to resist union representation has become the norm.
The rule, by revising the instructions to forms filed by employers (Form LM-10) and labor relations consultants (Form LM-20) to report persuader agreements and arrangements, helps them to comply with their reporting obligations. Reports must be filed if the labor relations consultant undertakes activities that fall within the categories described below:
• The obligation to report direct persuasion by consultants remains. Consultants must report if they engage in any conversation or other direct communication with any employee, where the consultant has an object to persuade the employee about how he or she should exercise representation or collective bargaining rights. For example, reporting would be required if the consultant speaks directly with employees (in person or by telephone or other medium) or disseminates materials directly (such as by email or mail) that are intended to persuade. This contrasts, as it also does in indirect persuader activities, with situations in which the employer or its regular staff communicates directly with employees, a situation in which reporting is not required, as provided by 29 U.S.C. 433(e). This aspect of the rule is unchanged from the Department's prior interpretations.
• Planning, Directing, or Coordinating Supervisors or Managers. Reporting is required if the consultant—with an object to persuade—plans, directs, or coordinates activities undertaken by supervisors or other employer representatives. This includes both meetings and other less structured interactions with employees.
• Providing Persuader Materials. Reporting is required if the consultant provides—with an object to persuade—material or communications to the employer, in oral, electronic (including,
• Conducting a Seminar for Supervisors or Other Employer Representatives. Some labor relations consultants hold seminars on a range of labor-management relations matters, including how to persuade employees concerning their organizing and bargaining rights. Seminar agreements must be reported if the consultant develops or assists the attending employers in developing anti-union tactics and strategies for use by the employer, the employers' supervisors or other representatives. As explained below, however, employers whose representatives attend such seminars generally will have no reporting obligation. Additionally, trade associations are required to report only if they organize and conduct the seminars themselves, rather than subcontract their presentation to a law firm or other consultant. We note that not all seminars will be reportable. For example, a seminar where the consultant conducts the seminar without developing or assisting the employer-attendees in developing a plan to persuade their employees would not be reportable, nor would a seminar where a consultant merely makes a sales pitch to employers about persuader services it could provide.
• Developing or Implementing Personnel Policies or Actions. Reporting is only required if the consultant develops or implements personnel policies or actions for the employer with an object to persuade employees. For example, a consultant's identification of specific employees for disciplinary action, or reward, or other targeting based on their involvement with a union representation campaign or perceived support for the union would be reportable. As a further example, a consultant's development of a personnel policy during a union organizing campaign in which the employer issues bonuses to employees equal to the first month of union dues, would be reportable. On the other hand, a consultant's development of personnel policies and actions are not reportable merely because they improve the pay, benefits, or working conditions of employees, even where they could subtly affect or influence the attitudes or views of the employees. Rather, to be reportable, the consultant must undertake the activities with an object to persuade employees, as evidenced by the agreement, any accompanying communication, the timing, or other circumstances relevant to the undertaking.
These aspects of the rule effectuate the statute's requirement, largely negated by the Department's longstanding interpretation, that “indirect activities” undertaken by a labor relations consultant must be reported. The final rule, however, ensures that no reporting is required by reason of a consultant merely giving “advice” to the employer, such as, for example, when a consultant offers guidance on employer personnel policies and best practices, conducts a vulnerability assessment for an employer, conducts a survey of employees (other than a push survey,
As noted above, the final rule does not require employers to file a report solely by reason of their attendance at a union avoidance seminar. The Department determined that the aggregated burden associated with such reporting by large numbers of employers outweighed the marginal benefit that would be derived by requiring reports from both attendees and the firms presenting the seminars. Under the rule, the firms presenting the seminar will report essentially the same information that would have been reported by the attending employers.
To further reduce burden under the rule, the Department has determined that it is appropriate to treat trade associations somewhat differently than other entities insofar as reporting is concerned. Trade associations as a general rule will only be required to report in two situations—where the trade association's employees serve as presenters in union avoidance seminars or where they undertake persuader activities for a particular employer or employers (other than by providing off-the shelf materials to employer-members). The Department expects that trade associations typically will sponsor union avoidance seminars but rely on other consultants to actually present the seminar.
In response to comments, the Department emphasizes that the interpretation embodied in this rule does not interfere with free speech or other rights under the U.S. Constitution or free speech under section 8(c) of the National Labor Relations Act. Similarly, contrary to the view of some commenters, the Department's revised interpretation does not infringe on the common law attorney-client privilege, which is still preserved by section 204, or on an attorney's ethical duty of confidentiality. None of the information required to be reported under the revised interpretation is protected by the attorney-client privilege. To the extent the agreement provides confidential details about services other than reportable persuader/information-supplying activities, the principles of attorney-client privilege would apply and such information is not reportable absent consent of the client. We have carefully reviewed comments submitted by the American Bar Association (ABA), other associations of attorneys, law firms representing employers, and other commenters, urging the Department to adopt an interpretation that would differentiate between attorneys and other labor relations consultants and essentially exempt attorneys from reporting any activities other than those in which they communicate directly with employees. Importantly, although the ABA sought to include a provision in the bill that became the LMRDA that would have achieved this result, Congress struck that provision from what became law. The commenters' position has been rejected by the courts in cases where attorneys engaged in persuader activities unsuccessfully raised this privilege argument as a defense to their failure to report such activities. Moreover, the ABA and other commenters on this point have failed to advance any argument that attorneys who engage in the same activities as non-attorney consultants to counter union organizing campaigns—activities and circumstances significantly different from those typically involved with legal practice—should be able to avoid disclosing activities identical to those performed by their non-attorney colleagues in guiding employers through such campaigns. While some of the comments submitted in this rulemaking concern issues that may arise in connection with the Form LM-21 Receipts and Disbursements Report, such as the scope and detail of reporting about service provided to other employer clients, that report is not the subject of this rulemaking.
In the final rule, the Department has eliminated the term “protected concerted activities” from the definition of “object to persuade employees,” as
Finally, the Department has revised the forms and instructions to require more detailed reporting on persuader agreements and to make the forms and instructions more user-friendly. The final rule requires that they be filed electronically with the Department.
The qualitative benefits associated with the rule are substantial. As discussed in the preceding section and throughout the preamble, employees, unions, the public, and this Department will benefit from the disclosure associated with this rule by requiring that both direct and indirect persuader activities be reported. This disclosure will particularly benefit employees involved in a representation campaign, enabling them to better consider the role that labor relations consultants play in their employer's efforts to persuade them about how they should exercise their rights as employees to union representation and collective bargaining matters. This rule promotes the important interests of the Government and the public by ensuring that employees will be better informed and thus better able to exercise their rights under the NLRA.
The Department estimates annual totals of 4,194 Form LM-20 reports and 2,777 Form LM-10 reports under this rule (the first number compares to the 2,601 estimate in the NPRM; the second figure compares to 3,414 in the NPRM). The Form LM-20 total represents an increase of 3,807 Form LM-20 reports over the total of 387 reports estimated in the Department's most recent Information Collection Request (ICR) submission to the Office of Management and Budget (OMB). The Form LM-10 total represents a 1,820 increase over the average of 957 Form LM-10 reports estimated in the Department's most recent ICR submission to OMB. The total estimated annual burden for all reports is approximately 6,851 hours for Form LM-20 reports and 6,804 hours for Form LM-10 reports. The total annual cost for the estimated 4,194 Form LM-20 reports is $633,932.16, which is $576,743.16 greater than the $57,189 estimated for the most recent ICR submission. The total annual cost for the estimated 2,777 Form LM-10 reports/filers is $629,567.34, which is $417,003.34 greater than the $212,564 estimated for the most recent ICR submission. The average cost per Form LM-20 form is $151.14. The average annual cost per Form LM-10 filer is $226.70.
The legal authority for this rule is set forth in sections 203 and 208 of the LMRDA, 29 U.S.C. 432, 438. Section 208 of the LMRDA provides that the Secretary of Labor shall have authority to issue, amend, and rescind rules and regulations prescribing the form and publication of reports required to be filed under Title II of the Act and such other reasonable rules and regulations as she may find necessary to prevent the circumvention or evasion of the reporting requirements. 29 U.S.C. 438. The Secretary has delegated her authority under the LMRDA to the Director of the Office of Labor-Management Standards and permits re-delegation of such authority. See Secretary's Order 8-2009, 74 FR 58835 (Nov. 13, 2009).
Section 203(a) of the LMRDA, 29 U.S.C. 433(a), requires employers to report to the Department of Labor “any agreement or arrangement with a labor relations consultant or other independent contractor or organization” under which such person“undertakes activities where an object thereof, directly or indirectly, is to persuade employees to exercise or not to exercise,” or how to exercise, their rights to union representation and collective bargaining. 29 U.S.C. 433(a)(4).
The report must be one “showing in detail the date and amount of each such payment, . . . agreement, or arrangement . . . and a full explanation of the circumstances of all such payments, including the terms of any agreement or understanding pursuant to which they were made.” 29 U.S.C. 433. The Department of Labor's implementing regulations require employers to file a Form LM-10 (“Employer Report”) that contains this information in a prescribed form. See 29 CFR part 405.
LMRDA section 203(b) imposes a similar reporting requirement on labor relations consultants and other persons. It provides, in part, that every person who enters into an agreement or arrangement with an employer and undertakes activities where an object thereof, directly or indirectly, is to persuade employees to exercise or not to exercise, or how to exercise, their rights to union representation and collective bargaining “shall file within thirty days after entering into such agreement or arrangement a report with the Secretary . . . containing . . . a detailed statement of the terms and conditions of such agreement or arrangement.” 29 U.S.C. 433(b). Section 203(b) also requires persons subject to this requirement to report receipts and disbursements of any kind “on account of labor relations advice and services.”
LMRDA section 203(c) ensures that sections 203(a) and 203(b) are not construed to require reporting of “advice.” Section 203(c) provides in pertinent part that “nothing in this section shall be construed to require any employer or other person to file a report covering the services of such person by reason of his giving or agreeing to give advice to such employer.” 29 U.S.C.
Finally, LMRDA section 204 exempts from reporting attorney-client communications, which are defined as “information which was lawfully communicated to [an] . . . attorney by any of his clients in the course of a legitimate attorney-client relationship.” 29 U.S.C. 434.
The Secretary of Labor administers and enforces the Labor-Management Reporting and Disclosure Act of 1959, as amended (LMRDA), Public Law 86-257, 73 Stat. 519-546, codified at 29 U.S.C. 401-531. The LMRDA, in part, establishes labor-management transparency through reporting and disclosure requirements for labor organizations and their officials, employers, labor relations consultants, and surety companies.
In enacting the LMRDA in 1959, a bipartisan Congress expressed the conclusion that the public interest is served by continuing “to protect employees' rights to organize, choose their own representatives, bargain collectively . . . that it is essential that labor organizations, employers, and their officials adhere to the highest standards of responsibility and ethical conduct in administering the affairs of their organizations, particularly as they affect labor-management relations,” and that “[this Act] will afford necessary protection of the rights and interests of employees and the public generally as they relate to the activities of labor organizations, employers, labor relations consultants, and their officers and representatives.” 29 U.S.C. 401(a), (b).
The LMRDA was the direct outgrowth of a highly-publicized investigation conducted by the Senate Select Committee on Improper Activities in the Labor or Management Field, commonly known as the McClellan Committee, which convened in 1958. The committee's investigation focused on racketeering and corruption among certain unions, union officials, employers, and labor relations consultants. See generally,
Among the concerns that prompted Congress to enact the LMRDA was conduct by some labor relations consultants retained by employers, usually undertaken behind the scenes, that Congress had found impeded the right of employees to organize labor unions and to bargain collectively under the National Labor Relations Act (NLRA), 29 U.S.C. 151
The reporting requirements on employers and their consultants under LMRDA section 203 resemble those prescribed for labor organizations and their officials under LMRDA sections 201 and 202, respectively. 29 U.S.C. 431, 432. Under LMRDA section 208, the Secretary of Labor is authorized to issue, amend, and rescind rules and regulations prescribing the form and publication of required reports, as well as “such other reasonable rules and regulations . . . as he may find necessary to prevent the circumvention or evasion of such reporting requirements.” 29 U.S.C. 438. The Secretary also is authorized to bring civil actions to enforce the LMRDA's reporting requirements. 29 U.S.C. 440. Willful violations of the reporting requirements, knowing false statements made in a report, and knowing failures to disclose a material fact in a report are subject to criminal penalties. 29 U.S.C. 439.
A notable, contemporary account of the McClellan hearings demonstrates the breadth of the activities to be reported. Prior to becoming Attorney General and then Senator, Robert F. Kennedy served as staff director for the special committee that conducted those hearings. In his book,
With the Department's 1962 interpretation of the advice exemption to require reporting in only limited circumstances in which the employer was not free to “accept or reject” materials offered by the consultant, the reporting of persuader activities (activities which, by their nature, are most often “indirect”) largely came to an end. At the same time, the consultant industry expanded as employer use of its services became increasingly common until the present day, where an employer's decision to rely solely on its own existing staff to meet a union campaign is uncommon. As a consequence, without the disclosure intended by Congress in enacting section 203, the work of consultants in helping employers oppose union representation remains undisclosed to employees.
Many employers engage consultants to conduct union avoidance or counter-organizing efforts to prevent workers from successfully organizing and bargaining collectively. In recent times, the use of law firms in particular to orchestrate such campaigns has been documented by several industrial relations scholars. John Logan,
Typically at the first sign of union activity at a facility management seeks the advice and counsel of one or more attorneys. In some cases the attorney's role is largely one of providing legal assistance, such as advising supervisors on what constitutes an unfair labor practice under the NLRA, with overall direction of the firm's campaign entrusted to either top management or an outside consultant. In other situations, the attorney not only provides legal counsel but also plays an important (sometimes dominant) role in developing and implementing the company's anti-union strategy and campaign tactics.
Many lawyers no longer confine their practice to traditional services such as representing employers in administrative and judicial proceedings or advising them about the requirements of the law. They also advise employers and orchestrate the same strategies as non-lawyer consultants for union “prevention,” union representation election campaigns, and union decertification and de-authorization. Lawyers conduct management seminars, publish widely, and often form their own consulting organizations.
Subcommittee on Labor-Management Relations, H. Comm. on Education and Labor,
Adapted from
Employees are often unaware that their employer has retained a third party to orchestrate a campaign against the union. See Logan,
The purpose of this rule is disclosure—not to express a view regarding the hire of labor relations consultants, the utility of their services, the growth of the industry, nor to single out particular firms or tactics for praise or criticism. The Department agrees with comments submitted in this rulemaking suggesting diversity in the labor relations consultant arena—both in terms of the types of services offered by consultants and the reasons employers seek to retain consultants. We acknowledge that the consultants may, in fact, be hired solely to help employers adhere to the law. The disclosure of the employer's persuader agreement or arrangement with a consultant allows workers to evaluate the source of the arguments and information designed to influence the exercise of their representation and collective bargaining rights. With this information, employees can better evaluate the merits of the views expressed by the employer's supervisors and managers, allowing employees to make more informed choices regarding their protected rights.
Union avoidance efforts often utilize supervisors and other management representatives to persuade employees. The reason for this approach is that these individuals, as co-workers, are generally known and more easily trusted by the employees than would be an outside consultant. See Logan,
In contrast to the limited information available to employees about consultants under the Department's prior interpretation, employees already have a great deal of information available to them concerning the union or unions seeking to represent or currently representing them, including the amount that unions spend on organizing activities and who they engage to assist them in those organizing activities.
Under this rule, employees, as intended by Congress in requiring the reporting of direct and indirect persuader activities, will gain considerable information about the amount of money involved in disbursements to the consultant, and many details about the nature and extent of the persuader agreement. They will benefit from publicly-available information that bears on the exercise of their rights as employees. Employers and consultants already have access to comprehensive reports filed with the Department pursuant to the LMRDA by unions and union officers that detail various financial arrangements and transactions. This rule restores the
The Department addresses comments concerning the rule's impact on employees' need for transparent information in Sections V.C.1, 3.
The impetus for this rulemaking was the Department's recognition that, while employers routinely use consultants to orchestrate counter-organizing campaigns, most agreements or arrangements with such consultants went unreported. Underlying the paucity of reports was the Department's interpretation to essentially require consultants to report only agreements in which a consultant agrees to directly persuade employees on matters relating to union representation and collective bargaining. We recognized that despite the significant growth of the persuader industry and employers' increasing reliance on their services since the LMRDA's enactment, there had been no uptick in the number of reports received on persuader activity.
As stated in the NPRM, recent studies place the contemporary consultant-utilization rate of employers who face employee organizing drives somewhere between 71% and 87%.
The lack of reporting of employer-consultant agreements, despite the increase in employer utilization of consultants to orchestrate anti-union campaigns and programs, stems from the interpretative decisions of the Department. The prior interpretation effectively exempts agreements for activities consisting of indirect persuasion of employees. Indeed, the prior interpretation did not properly take into account the widespread use of indirect tactics, such as directing the persuader activities of the employer's supervisors and providing persuasive materials to the employer for dissemination to employees, and thus did not result in the reporting of most persuader agreements. This conclusion has also been reached by observers of the consultant industry. See John Logan, “
Members of the consultant industry have also cited the Department's interpretation as the cause of underreporting of persuader agreements. A former consultant, Martin Jay Levitt, observed:
The law states that management consultants only have to file financial disclosures if they engage in certain kinds of activities, essentially attempting to persuade employees not to join a union or supplying the employer with information regarding the activities of employees or a union in connection with a labor relations matter. Of course, that is precisely what anti-union consultants do, have always done. Yet I never filed with [LMRDA] in my life, and few union busters do . . . As long as [the consultant] deals directly only with supervisors and management, [the consultant] can easily slide out from under the scrutiny of the Department of Labor, which collects the [LMRDA] reports.
Within a couple of weeks I had identified the few supervisors who were willing to
As discussed further below, a congressional subcommittee concluded that there is significant underreporting of persuader agreements, as a result of the Department's interpretation. The 1980 Subcommittee Report characterizes the extent and effectiveness of employer and consultant reporting under the LMRDA as a “virtual dead letter, ignored by employers and consultants and unenforced by the Department of Labor.” 1980 Subcommittee Report, at 27. The Subcommittee concluded that the “current interpretation of the law has enabled employers and consultants to shield their arrangements and activities[,]” and called upon the Department to “adopt . . . a more reasonable interpretation so the Act can reach consultants who set and control the strategy for employer anti-union efforts but who do not themselves communicate directly with employees.” Id. at 44.
This recommendation came about, in part, as the result of testimony before the Subcommittee by Assistant Secretary of Labor for Labor-Management Relations William Hobgood, who “acknowledged that Department [enforcement] activity had `declined significantly' since the first few years after the enactment of [the LMRDA].” 1980 Subcommittee Report at 45. Hobgood testified that the Department's interpretation of advice “ `troubles' him,” and that the Department was “reviewing the question of where advice ends and persuasion begins to make sure the Department's position is consistent with the law and adequate to deal with the approaches to persuader activities that have evolved since the law was enacted more than 20 years ago.” Id. at 44.
Subsequent subcommittee hearings, conducted in 1984, also addressed labor relations consultants' and employers' compliance with the LMRDA's reporting and disclosure requirements. Subcommittee on Labor-Management Relations, H. Comm. on Education and Labor,
The Department addresses comments concerning the underreporting of persuader agreements in Section V.C.2.
The Department views disclosure of third-party persuader agreements, as did Congress, as a key “to protect employee rights to organize, choose their own representatives, [and] bargain collectively.” 29 U.S.C. 401(a). The Senate Labor Committee explained why the provision that ultimately became section 203(b) of the LMRDA was necessary, stating that just as “unions are required to report all their expenditures, including expenses in organizing campaigns, reports should be required from employers who carry on, or engage such persons to carry on, various types of activity, often surreptitious, designed to interfere with the free choice of bargaining representatives by employees and to provide the employer with information concerning the activities of employees or a union in connection with a labor dispute.” S. Rep. No. 86-187, at 39-40, 1 LMRDA Leg. Hist., at 435-436. As this passage suggests, section 203(b) requires not only the disclosure of consultant activity that interferes with, restrains, or coerces employees in their protected rights under the NLRA,
Although the Department's primary role insofar as Title II of the Act is concerned is to prescribe, administer, and enforce regulations implementing the Act's reporting and disclosure provisions, this role also comes within the Department's charge in its organic statute “to foster promote, and develop the welfare of the wage earners of the United States, to improve their working conditions, and to advance their opportunities for profitable employment,” a role congruent with the Department's responsibility to assist in ensuring “industrial peace.” Act to Create the Department of Labor, Public Law 426, 37 Stat. 736 (1913), sections 1, 8 (codified as amended at 29 U.S.C. 551). As we have noted, this rule effectuates the intention of Congress to require the disclosure of persuader activity—both direct and indirect. In fashioning this rule, our target has been to achieve this purpose—not to encourage or discourage the use of labor relations consultants, nor to attribute to the industry as a whole the recognized failure by some members of the industry to adhere to responsible, lawful standards.
Insofar as questions concerning employee choice about union representation are concerned, the integrity of the union election certification process is strengthened when voters become better informed—by virtue of union disclosure, as well as by consultant and employer disclosure. Even if the votes of certain workers are not affected by the knowledge of the persuader agreement with a consultant where this information is provided to the employees, they, along with the employer and the public, can be more confident in the integrity of the election process and that the election outcomes reflect the sound and informed intent of
The need to disclose an employer's use of consultants during an organizing campaign is a pivotal theme in this rulemaking. However, such disclosure also is important where an employer has engaged the persuader services of a consultant following a union's certification while the parties are negotiating a first contract. See 29 U.S.C. 401(a) (a purpose of LMRDA is to protect employees right to bargain collectively); 29 U.S.C. 143 (under the NLRA, it is the declared policy of the United States to “encourage[ ] the practice and procedure of collective bargaining . . . for the purpose of negotiating the terms and conditions of their employment”). As further explained in the margin, industrial relations research demonstrates that newly certified unions are much less likely to secure a first contract in cases in which the employer has hired a consultant.
Concern about the impact of consultant activity on labor-management relations emanated from the Executive Branch as well. In March 1993, the Secretaries of Labor and Commerce announced the establishment of the U.S. Commission on the Future of Worker-Management Relations (Commission), which was charged with investigating and making recommendations regarding enhancement of workplace productivity and labor-management cooperation, among other areas. The Commission, also called the Dunlop Commission after its chairman, former Labor Secretary and Professor John T. Dunlop of Harvard University, held public hearings and took testimony on the state of labor relations in the early 1990s. The Commission issued a fact-finding report in June 1994 and a final report in December of the same year, and the reports provide further support for the need for the revision of the interpretations involving consultant reporting.
In assessing economic costs that labor and management face in the competition surrounding representation elections, the Commission found that “[f]irms spend considerable internal resources and often hire management consulting firms to defeat unions in organizing campaigns at sizable cost.”
The Department concludes that, as was true in the 1950s, the
The “advice” exemption of LMRDA section 203(c) is reflected in the Department's implementing regulations, but, historically, the regulations simply tracked the language of the statute and did not set forth the Department's interpretation of the exemption. 29 CFR 405.6(b), 406.5(b). Before this rule, the Department's interpretation of the advice exemption had been communicated primarily in documents intended to guide Department staff in administering the statute. See 76 FR 36179-82.
In 1960, one year after the passage of the Act, the Department issued its initial interpretation (sometimes referred to herein as the “original interpretation”), which was reflected in a 1960 technical assistance publication to guide employers. In this interpretation, the Department took the position that employers were required to report any “arrangement with a `labor relations consultant' or other third party to draft speeches or written material to be delivered or disseminated to employees for the purpose of persuading such employees as to their right to organize and bargain collectively.” Department of Labor, Bureau of Labor-Management Reports,
In 1962, the Department changed its view of what must be reported. It limited reporting by construing the advice exemption more broadly, excluding from reporting the provision of materials to the employer that the employer could then “accept or reject.” This interpretation appeared as guidance in section 265.005 (Scope of the “Advice” Exemption) (1962) of the LMRDA Interpretative Manual (IM or Manual). The Manual reflects the Department's official interpretations of the LMRDA. The IM was prepared by OLMS predecessor agencies for use by staff in administering the LMRDA. OLMS maintains the IM and makes it available to the public upon request. Section 265.005 of the Manual stated:
The question of application of the “advice” exemption requires an examination of the intrinsic nature and purpose of the arrangement to ascertain whether it essentially calls exclusively for advice or other services in whole or in part. Such a test cannot be mechanically or perfunctorily applied. It involves a careful scrutiny of the basic fundamental characteristics of any arrangement to determine whether giving advice or furnishing some other services is the real underlying motivation for it.
[I]t is plain that the preparation of written material by a lawyer, consultant, or other independent contractor which he directly delivers or disseminates to employees for the purpose of persuading them with respect to their organizational or bargaining rights is reportable. . . .
However, it is equally plain that where an employer drafts a speech, letter or document which he intends to deliver or disseminate to his employees for the purpose of persuading them in the exercise of their rights, and asks a lawyer or other person for advice concerning its legality, the giving of such advice, whether in written or oral form, is not in itself sufficient to require a report. Furthermore, we are now of the opinion that the revision of the material by the lawyer or other person is a form of written advice given the employer which would not necessitate a report.
A more difficult problem is presented where the lawyer or middleman prepares an entire speech or document for the employer. We have concluded that such an activity can reasonably be regarded as a form of written advice where it is carried out as part of a bona fide undertaking which contemplates the furnishing of advice to an employer. Consequently, such activity in itself will not ordinarily require reporting unless there is some indication that the underlying motive is not to advise the employer.
[T]here is no purely mechanical test for determining whether an employer-consultant agreement is exempt from reporting under the section 203(c) advice exemption. However, a usual indication that an employer-consultant agreement is exempt is the fact that the consultant has no direct contact with employees and limits his activity to providing to the employer or his supervisors advice or materials for use in persuading employees which the employer has the right to accept or reject.
In 2001, the Department, without seeking public comment, published a revised interpretation, which expanded the scope of reportable activities, by focusing on whether an activity constitutes “direct or indirect” persuasion of employees, rather than categorically exempting activities in which a consultant had no direct contact with employees. See Interpretation of the “Advice” Exemption in Section 203(c) of the Labor-Management Reporting and Disclosure Act, 66 FR 2782 (Jan. 11, 2001). However, later in 2001 this interpretation was rescinded, and the Department returned to its prior view. See Interpretation of the “Advice” Exemption in Section 203(c) of the Labor-Management Reporting and Disclosure Act, 66 FR 18864 (Apr. 11, 2001).
In its Fall 2009 Regulatory Agenda, the Department stated that it would revisit the interpretation to ensure that agreements involving persuader activities were not improperly excluded from reporting. On May 24, 2010, a public meeting was held on this issue. See 75 FR 27366. On June 21, 2011, the Department published the notice of proposed rulemaking (NPRM) on this issue. The comment period on the proposed rule closed on September 21, 2011.
This final rule adopts with some modifications the interpretation of the “advice” exemption outlined in the NPRM. The revised interpretation gives full effect to the statutory language, which requires disclosure of consultant activities that are intended “directly or
Under the revised interpretation, like the prior interpretation, activities that are clearly advice do not trigger reporting. Thus, “an oral or written recommendation regarding a decision or course of conduct”—what traditionally has been viewed as the role of a consultant or attorney in counseling a client—does not trigger reporting.
No longer exempt from reporting are those agreements or arrangements in which the consultant engages in the indirect persuasion of employees. Such indirect persuader activities are no longer considered to be “advice” under LMRDA section 203(c), and, if undertaken, they now trigger reporting under sections 203(a) and (b). With this rule, the Department effectively reverses its prior interpretation of the advice exemption and will, accordingly, no longer utilize the “accept or reject” test. See Section III.C.
The revised instructions to the Form LM-10 Employer Report and the Form LM-20 Agreement and Activities Report provide examples of reportable and non-reportable agreements or arrangements. See Section IV.E and Appendices. The revised instructions largely implement those proposed by the Department in the NPRM, but in response to comments received there are six changes: (1) Modifications to the text and layout of the instructions to ensure clarity, such as the inclusion of examples of indirect persuader activities that are now grouped into four categories (directing and coordinating supervisors' activities; providing persuasive materials; conducting union avoidance seminars for supervisors or other employer representatives; and developing and implementing personnel policies or actions); (2) restriction of the term “object to persuade employees” to only organizing and collective bargaining rights, and not the larger category of “protected concerted activity”; (3) clarification regarding the reportability of union avoidance seminars and the elimination of duplicative reporting by employer-attendees;
This rule also implements changes to the employer and consultant reporting standards on the Forms LM-10 and LM-20 by expanding the reporting detail concerning reportable agreements and arrangements. The Department also modifies the layout of the LM-10 and LM-20 forms and instructions to better set forth the reporting requirements and improve the readability of the information. Finally, this rule requires that Form LM-10 and Form LM-20 reports be submitted to the Department electronically and provides a process to apply for an electronic filing exemption on the basis of specified criteria. These changes to the forms are discussed in more detail in Section IV.D.
This rule supersedes any inconsistent interpretation or other guidance issued by the Department concerning the persuader reporting requirements of the Act insofar as Forms LM-10 and LM-20 are concerned.
The comments submitted on the proposed rule reflected strongly divergent views as to how the reporting requirements of section 203 should be applied, how section 203 and the proposed interpretation squares with the NLRA, whether the proposed interpretation unconstitutionally impedes the First Amendment rights of employers, and whether it is inconsistent with the principles protecting the attorney-client relationship. The Department has carefully considered the comments, which have been helpful in informing the Department's judgment. For the reasons stated in this preamble, however, the Department has concluded that the proposed and final rules correctly effectuate the purposes of section 203 and faithfully adhere to national labor policy, as articulated in the NLRA and the LMRDA, without impeding any constitutional rights of employers or interfering with the attorney-client relationship as properly understood in the context of sections 203 and 204 of the LMRDA.
This rule restores the focus of section 203 persuader reporting to whether a consultant's activities, undertaken pursuant to an agreement or arrangement with the employer, have an object to persuade employees about their union representation and collective bargaining rights. This focus forecloses an interpretation that allowed non-reporting of most activities simply by avoiding direct contact with employees. The revised instructions, consistent with the language and purpose of sections 203 and 204 of the LMRDA, provide that an agreement or arrangement is reportable if the consultant undertakes activities with an object to persuade employees, for example, by managing a union
There are five general scenarios in which the underlying test for persuasion is to be applied, one in which the consultant engages in direct contact with employees and four in which the consultant does not engage in direct contact:
Reporting of an agreement or arrangement is triggered when:
(1) A consultant engages in
(2) A consultant who has no direct contact with employees undertakes the following activities with an object to persuade employees:
(a) Plans, directs, or coordinates activities undertaken by supervisors or other employer representatives, including meetings and interactions with employees;
(b) provides material or communications to the employer, in oral, written, or electronic form, for dissemination or distribution to employees;
(c) conducts a seminar for supervisors or other employer representatives; or
(d) develops or implements personnel policies, practices, or actions for the employer.
The consultant's development or implementation of personnel policies or actions that improve employee pay, benefits, or working conditions do not trigger reporting merely because the policies or actions could subtly affect or influence the attitudes or views of the employees; rather, to be reportable, the consultant must undertake such activities with an object to persuade employees, as evidenced by the agreement, any accompanying communications, the timing, or other circumstances relevant to the undertaking.
The activity that triggers the consultant's requirement to file the Form LM-20 also triggers the employer's obligation to report the agreement on the Form LM-10, with the exception of union avoidance seminars, as explained below.
As to a consultant's revision of employer-created materials, including edits, additions, and translations, if an “object” of the revisions is to ensure legality as opposed to persuasion, then they do not trigger reporting. An object to persuade is also not present if the consultant merely corrects typographical or grammatical errors or translates the document. In contrast, if such revisions are intended to increase the persuasiveness of the material, then they trigger reporting. The principle here is that the revision of materials is no different than the initial creation of the materials: The consultant still plays a role in completing them. The only issue is whether there is an object to persuade.
As for the provision of “off-the-shelf” materials, as explained below, the Department has revised the application of the advice exemption in these situations. As noted, “off-the-shelf” materials refer to pre-existing material not created for the particular employer who is party to the agreement. Where a consultant merely provides an employer with such material selected by the employer from a library or other collection of pre-existing materials prepared by the consultant for all employer clients, then no reporting is required. The consultant may provide information concerning the materials, such as explaining their content and origin, but such guidance does not trigger reporting. As mentioned above, the provision of off-the-shelf materials, without more, is not reportable. In contrast, if the consultant plays an active role in selecting the materials for its client's employees from among pre-existing materials based on the specific circumstances faced by the employer-client, then this activity would trigger reporting, because it demonstrates the consultant's intent to influence the decisions of those employees. However, where a trade association selects off-the-shelf materials for its members, no reporting is required. See Section V.E.3, discussing trade associations.
Seminar agreements must be reported when the consultant develops or assists the attending employers in developing anti-union tactics and strategies for use by the employers' supervisors or other representatives. In those cases, the consultant is not advising an employer as the term “advise” is traditionally defined and understood (
In no case, however, is the employer required to file a Form LM-10 for attendance at a multiple-employer union avoidance seminar. Additionally, see below, under “Exempt Agreements or Arrangements,” for specific application to trade associations.
As an example, if the consultant, in response to employee statements about the need for a union to protect against firings, develops a policy under which employees may arbitrate grievances, reporting would be required. On the other hand, if the grievance process was set up in response to a request by employees—without any history of a desire by them for union representation—or as a policy developed as part of a company's startup of operations, without any indication in the agreement or accompanying communications that the policy was established to avoid union representation of the employer's workforce, no reporting would be required. The key questions to ask in this situation are: Did the consultant develop the policy? If so, did the consultant develop the policy with an object to persuade employees? To reiterate, one must look at the object of the consultant, as evidenced in the agreement or arrangement, any communication accompanying the policy or action, the timing (including any labor dispute involving the employer), or other circumstances relevant to the undertaking.
For personnel actions, this rule requires reporting if the consultant identifies or assists in identifying specific employees for reward or discipline, or other targeted persuasion, because of the employees' exercise or potential exercise of organizing and collective bargaining rights or the employees' views concerning such rights. Even if another motive for a personnel action is shown, as long as an object is to persuade, then reporting is triggered. In contrast, if a lawyer merely reviews proposed employee actions presented by the employer, drafts notices, and settles any litigation, the lawyer has not triggered reporting.
As a result, the Department clarifies in this rule that the consultant's development of personnel policies and actions is not reportable merely because the consultant develops policies or implements actions that improve the pay, benefits, or working conditions of employees, even where they could subtly affect or influence the attitudes or views of the employees. To be reportable, as with the other categories of persuasion, the
Agreements or arrangements in which the consultant does not undertake activities with an object to persuade employees are not reportable. A lawyer or other consultant who exclusively counsels employer representatives on what they may lawfully say to employees, ensures a client's compliance with the law, offers guidance on employer personnel policies and best practices, or provides guidance on NLRB or National Mediation Board (NMB) practice or precedent is providing “advice.” “Advice” means an oral or written recommendation regarding a decision or a course of conduct.
The revised instructions also clarify that a lawyer's review of documents, as a general rule, does not trigger the reporting requirements. For example, the revision of an employer-created persuasive document to ensure its legality does not trigger reporting. Further, a consultant explaining to the employer NLRB decisions concerning lawful and unlawful conduct would not trigger reporting. Correcting spelling or grammar mistakes in the document will also not trigger reporting. However, the creation of a speech or flyer by the consultant or revising an employer created document to further dissuade employees from supporting the union, will trigger reporting. Similarly, other services outlined in section 203(c), concerning representation of the employer before a court or similar tribunal or during collective bargaining negotiations, do not trigger reporting, as they also do not evidence an object to persuade employees. Instead, these services involve the representation of employers.
Additionally, as stated, this rule clarifies the reporting of seminars. (Seminars that are reportable are explained above and in this section; differences with the NPRM are explained in “Changes from the NPRM,” below, and Part V.E.1 (Seminars).) No consultant report is required for an agreement or arrangement to offer a seminar in which the consultant does not develop or assist the attending employers in developing anti-union tactics or strategies for use by the employers' supervisors or other representatives. Such seminars consist of only guidance to the employers in attendance, and therefore do not demonstrate that the consultant has an object to persuade employees. Moreover, as explained in the next section of the rule focusing on the remainder of the revised instructions, employers will not be required to file reports concerning their attendance at union avoidance seminars.
The Department has also revisited the reportability of employee attitude surveys and, in the larger context, union “vulnerability assessments,” in which a consultant evaluates an employer's proneness to union-related activity and offers possible courses of action. The Department concludes that agreements or arrangements for consultants to conduct these types of surveys and assessments are generally not reportable. The use of employee attitude surveys do not ordinarily evince an object to persuade employees, although they may do so in rare circumstances, such as with “push surveys,” which seek to persuade employees rather than gather insight into their views. Certain employee attitude surveys could nonetheless trigger reporting as an information-supplying activity, if the feedback more specifically concerns employee activities during a labor dispute. However, generally speaking, such employee attitude surveys are not reportable, as they consist of general guidance and recommendations to the employer.
Also, no reporting is required for an agreement or arrangement that exclusively includes an employer's purchase or acquisition of pre-existing or off-the-shelf persuasive materials, without coordination by the consultant concerning the selection, tailoring, or
Where, however, a consultant drafts for an employer, in whole or part, a persuasive speech or creates a persuasive video or any other communication intended to be disseminated to particular employees, such activity triggers reporting because the activity has an object to persuade. Similarly, if an employer contacts a consultant to coordinate the selection and purchase of pre-existing persuasive materials, or to direct or coordinate the use of the materials by the employer, then this would be evidence of an object to persuade by the consultant, and such an activity would trigger reporting of the underlying agreement or arrangement.
Finally, trade associations are not required to file a report, where by reason of their membership agreements, the associations select off-the-shelf persuader materials for their member-employers, or distribute newsletters addressed to their member-employers.
As explained in more detail in Part V of this rule, the Department has made several changes to the revised advice exemption instructions, in response to comments received.
First, the Department has made significant changes to the text and format of the instructions in order to ensure clarity. These changes include the categorizing of indirect persuasion; the determination to not infer an “object to persuade” from a consultant's development or implementation of personnel policies that merely improve pay, benefits, or working conditions; and other rewording and reorganization, including additional material on information-supplying and further examples in the exempt agreements or arrangements section.
Second, the Department clarifies that consultant-led seminars are reportable if the consultant develops or assists the employers in developing anti-union tactics and strategies to be utilized by their supervisors and other representatives. In this regard, the Department has also limited the reporting of union avoidance seminars sponsored by trade associations and eliminates the obligation for employers to report their attendance. Where reporting is triggered by presenting a union avoidance seminar, a report is not due until 30 days after the date of the seminar. Section 406.2(a) has been revised to reflect this change from the general rule that a report is due within 30 days after a persuader agreement is reached, rather than the date on which the activity undertaken by the agreement occurs.
Third, the Department exempts from reporting agreements or arrangements exclusively involving vulnerability assessments, including employee surveys other than the “push” variety. Generally these assessments are not reportable as they provide guidance on an employer's proneness to union-related activity by its employees. Surveys would only trigger reporting if they are persuasive, such as push surveys, or if they are information-supplying activities in the context of a labor dispute, such as information gained through the consultant's use of surveillance technology. See Section V.E.1 (Employee Attitude Surveys/Employer Vulnerability Assessments).
Fourth, the Department has exempted agreements exclusively consisting of providing pre-existing or off-the-shelf materials, unless the materials were selected by the consultant. (As noted above, a trade association is not required to file a report if it selects such materials for its member-employers.)
Fifth, the Department in this rule distinguishes between trade associations and other labor relations consultants for some reporting purposes, including the elimination of reporting by trade associations where they merely sponsor union avoidance seminars or select off-the-shelf persuader materials for member-employers.
Finally, the Department has dropped the term “protected concerted activities” from the definition of “object to persuade employees.” Instead, reporting is required only for agreements in which the consultant engages in activities with an object to persuade employees concerning representational and collective bargaining activities, but not “other protected concerted activities.” This better comports with the language of section 203, which, in contrast to the NLRA, does not expressly refer to “concerted activities.”
The final rule does not make any changes to reporting requirements for information-supplying activities, including the information-supplying checklist on Form LM-10 and LM-20. In the revised advice exemption section of the Form LM-10 and LM-20 instructions, however, the Department has added language that explains reporting in such situations, and has included a description of the term “labor dispute” from section 3(g) of the statute.
The amended Form LM-10 and LM-20 instructions appear in full in the appendices to this rule.
This rule reflects the language and purpose of sections 203 and 204 of the LMRDA, effectuating the intent of Congress and resolving any tension or ambiguity in those sections, consistent with the authority and discretion embodied in the statute.
Section 203(c) exempts any employer, labor relations consultant, or other person from filing a report under section 203(a) or (b) “covering the services of such person by reason of his giving or agreeing to give advice to such employer.” 29 U.S.C. 433(c). Section 203(c) makes explicit what is left implicit in section 203(a) and (b): The statute exempts an employer or its labor relations consultant from having to file the Form LM-10 or LM-20, respectively, if the activities undertaken by the consultant on behalf of the employer merely constitute “advice.”
The Department recognizes, however, as it has in the past, that the LMRDA is ambiguous as to whether the coverage provisions in sections 203(a) and (b) or the advice exemption in section 203(c) control in situations where the consultant undertakes indirect activities to persuade employees. See
As discussed in the NPRM, the Department originally interpreted section 203 to require reporting of all persuader activities, but it changed that interpretation in 1962 by establishing the “accept or reject” test, which over time essentially limited reporting to activities involving direct communication between consultants and employees. 76 FR 36180. In this rule, we have identified both direct and indirect persuader activities and distinguished these from activities that constitute non-reportable “advice.” “Advice” ordinarily is understood to mean a recommendation regarding a decision or a course of conduct. See,
The prior “advice” standard in section 265.005 of the IM treats as advice not only the situation in which a lawyer consultant reviews drafts of persuasive material for compliance with the NLRA—actions which under this rule continue to not trigger reporting—but also covers the preparation of persuasive material to be disseminated or distributed to employees—actions which under this rule do trigger reporting. As discussed in the NPRM, the Department views preparation of material designed to persuade employees as “quintessential persuader activity.” See 76 FR 36183.
Under this rule, reporting is required when, pursuant to an arrangement or agreement, the consultant does not limit its activities to advising the employer, but engages in activities, either directly or indirectly, aimed at persuading or influencing, or attempting to persuade or influence, employees as to how to exercise their union representation and collective bargaining rights. See discussion in Section V.B.
The Department notes that section 203(c) exempts from the reporting requirement a consultant's services “
The Department has carefully considered the comments that discussed the interpretative questions presented in this rulemaking, and we conclude that the prior interpretation of the advice exemption, while permissible, was not the best interpretation. The Department remains of the view that its revised approach is faithful to the language and purpose of the LMRDA. This approach restores a more appropriate balance between reportable persuader activities and those that are properly characterized as “advice” than achieved under the Department's prior interpretation. The prior interpretation largely exempted from reporting persuader agreements that exclusively involved indirect persuasion. As a consequence, despite the widespread growth of the labor relations consultant industry—and its extensive involvement in all but a small and shrinking number of campaigns to persuade employees to reject union representation—very few reports are being filed by consultants or employers. Further, the literature discussed in this preamble and the NPRM and the experiences related by many commenters indicate that this practical impact is quite large because most employers hire consultants to manage anti-union campaigns or programs, with most of these consultants using exclusively indirect persuasion. This information illustrates why the prior interpretation did not implement the full persuader-reporting regime envisioned by Congress. The prior interpretation therefore resulted in underreporting of persuader agreements, to the detriment of an informed workforce, collective bargaining rights, and stable labor relations.
The Department has not revised the Form LM-20 and Form LM-10 since the republication of the forms in 1963. See 28 FR 14381. With these changes to the interpretation of the advice exemption of section 203(c), the Department revises Form LM-20 and Form LM-10 and their instructions. The Department is also revising §§ 405.5 and 405.7 of title 29 of the Code of Federal Regulations to update cross-references in those sections to the instructions.
While some of the revisions are minor stylistic and layout modifications there are four significant changes: (1) The revised interpretation of the advice exemption, including examples of activities that will trigger reporting and those that do not; (2) the mandating of electronic filing for each form, with language in each set of instructions depicting such process and guidance concerning the application for a hardship exemption from such electronic filing; (3) the addition of a detailed checklist that Form LM-20 and Form LM-10 filers must complete to disclose the scope of activities that consultants have engaged, or intend to engage, in under a reportable agreement or arrangement; (3) the changes to the Forms LM-20 and LM-10 and their instructions, including the requirement for filers to report their Employee Identification Number, as applicable, and explanations for terms “agreement or arrangement” and “employer”; and (4) a revamped layout for the Form LM-10, which divides the report into four parts, each presenting aspects of the reportable transactions, agreements, and arrangements required by sections 203(a)(1)-(5) of the LMRDA, in a more user-friendly manner.
Unless otherwise noted in this preamble, each of these changes is identical to what the Department proposed in the NPRM.
This rule requires that employers and consultants file Form LM-20 and Form LM-10 reports electronically. An electronic filing option is planned for all LMRDA reports as part of an information technology enhancement. Electronic reporting contains error-checking and trapping functionality, as well as online, context-sensitive help, which improves the completeness of the reporting. Electronic filing is more efficient for reporting entities, results in more immediate availability of the reports on the agency's public disclosure Web site, and improves the efficiency of OLMS in processing the reports and in reviewing them for reporting compliance. In contrast, paper reports must be scanned and processed for data entry before they can be posted online for disclosure, which delays their availability for public review.
Currently, labor organizations that file the Form LM-2 Labor Organization Annual Report are required by regulation to file electronically, and there has been good compliance with this requirement. Like labor unions, employers and consultants have the information technology resources and capacity to file electronically. Further, OLMS has improved the technology utilized in its electronic filing process and eliminated the expenses formerly associated with such filing.
The revised forms will be completed online, signed electronically, and submitted with any required attachments to the Department using the OLMS Electronic Forms System (EFS). The electronic forms can be downloaded from the OLMS Web site at
The revised Form LM-20 and Form LM-10 instructions outline a process for seeking an exemption from the electronic filing requirement that is identical to the Form LM-2 process. See Form LM-2 Instructions, Part IV: How to File, located at:
The prior instructions to the Form LM-20 and Form LM-10 did not provide detailed guidance to the filer concerning how to report the nature of the activities undertaken by a consultant pursuant to an agreement or arrangement to persuade. For example, the prior Form LM-20 instructions
For each activity to be performed, give a detailed explanation of the following:
11a.
Similarly, the prior Form LM-10 instructions
[You] must provide a full explanation identifying the purpose and circumstances of the payments, promises, agreements, or arrangements included in the report. Your explanation must contain a detailed account of services rendered or promised in exchange for promises or payments you have already made or agreed to make. Your explanation must fully outline the conditions and terms of all listed agreements.
In practice, the Department received only vague descriptions of persuader or information-supplying activity, such as “employed to give speeches to employees regarding their rights to organize and bargain collectively” and “presented informational meetings to company employees relative to the process of unionization, the role of the NLRB, and collective bargaining.”
As the review of the literature above has demonstrated, a wide range of activities and tactics have been utilized by employers, and employees and the public have a need to know in detail the types of activities in which consultants engage.
The revised Form LM-20 and instructions (see Appendix A) largely follow the layout of the prior form and instructions, although the style has been altered. The revised form is two pages in length and contains 14 items. The first page includes the first five items, which detail contact and identifying information for the consultant: The file number (Item 1.a.) and contact information for the consultant (Item 2), including information detailing alternative locations for records (Item 3), the date the consultant's fiscal year ends (Item 4), and the type of filer (Item 5),
Additionally, the first page includes three items describing the employer agreement: The employer's contact information, which adds the requirement to report the employer's EIN (Item 6), the date the agreement was entered into (Item 7), and the person(s) through whom the agreement was made (Item 8). Item 8 has been amended to distinguish between the employer representative through whom the reported agreement or arrangement has been made and a prime consultant through whom an indirect party entered the agreement or arrangement. As revised, an indirect party to an employer-consultant agreement or arrangement must identify in a new Item 8.b the consultant with whom he or she entered into the reportable agreement or arrangement. This specificity is added to clarify the reporting that continues to be required on the Form LM-20 when such indirect parties, or “sub-consultants,” are engaged by a primary consultant to assist in implementing a reportable agreement or arrangement. The primary consultant would report the employer representative in a new Item 8.a. This requirement has been included in the Form LM-20 Instructions in Part II, Who Must File, but its addition on the form itself will enable the Department, employees, and the public to more easily understand the nature of the activities conducted pursuant to the agreement or arrangement and determine if additional reports are owed.
In response to comments received on the NPRM, the revised Form LM-20 instructions also clarify, in Items 6-8, the manner in which the consultant reports agreements or arrangements concerning reportable union avoidance seminars, webinars, and conferences. The consultant is not required to file separate Form LM-20 reports for each employer attendee to a seminar. Rather, the consultant will identify each employer attendee in Item 6 by checking the box indicating that the report covers a reportable union avoidance seminar. The consultant will be able to either enter the necessary information manually, or it can import the data through a CSV file. For seminar reporting, the consultant is not required to provide the EIN for each attending employer, because there is no corresponding Form LM-10 reporting for the employers. While more employers may register for a seminar than actually attend, the consultant must identify each
As proposed, the front page also includes the signature blocks for the president (Item 13) and the treasurer (Item 14), including the date signed and telephone number.
The second page provides more detail concerning the agreement. Items 9 and 10 are unchanged. Item 9 requires the filer to indicate if the agreement called for activities concerning persuading employees, supplying the employer with information concerning employees or a labor organization during a labor dispute, or both. Item 10 asks for the terms and conditions of the agreement, and requires written agreements to be attached. In response to comments received on the NPRM, information has been added to the instructions for Item 10 concerning the reporting of persuader seminars, webinars, or conferences, as well as clarification on the scope of the “detailed explanation” required in this item. For example, the instructions now state that filers must explain whether the consultant was hired to manage a union-avoidance campaign, to provide assistance to an employer in such a campaign through the persuader activities identified in Item 11, or conduct a union avoidance seminar. An attorney who provides legal advice and representation, in addition to persuader services, is only required to describe such portion of the agreement as the provision of “legal services,” without any further description.
Item 11 calls for the provision of certain details concerning any covered agreement or arrangement, and a new Item 11.a, as described above in Section IV.B, requires filers to check boxes indicating specific activities undertaken as part of the agreement or arrangement. There is also an “Other” box, which requires the filer to provide a narrative explanation of any other reportable activities planned or undertaken that are not specifically contained on the list.
Additionally, Items 11.b, 11.c, and 11.d, respectively, require the consultant, as before the proposed revisions, to indicate the period during which activity was performed, the extent of performance, and the name and address of the person(s) through whom the activity was performed. Item 11.d. has been revised to ask filers to specify if the person or persons performing the activities is employed by the consultant or serves as an independent contractor. In the latter scenario, the person or persons performing the activities is an indirect party to an employer-consultant agreement or arrangement, who would owe a separate Form LM-20 report. This requirement is not new, and it has been incorporated in the Form LM-20 instructions in Part II, Who Must File, but this addition on the form itself will enable the Department, employees, and
The revised Form LM-20 instructions are similar to the previous version, and they follow the layout of the revised form. There are five significant modifications. First, a clarification of the term “agreement or arrangement” has been added to Part II, Who Must File. As there stated: “The term `agreement or arrangement' should be construed broadly and does not need to be in writing.” Second, as discussed above, the revised form would be submitted electronically, and the Department has made changes to the instructions describing the signature and submission process, as well as a procedure for filers to apply for an exemption from the electronic filing requirement. This procedure is modeled on the procedure for filers of the Form LM-2, Labor Organization Annual Report. Third, the revised instructions include guidance on the application of the “advice” exemption, in the general guidance on reporting agreements, arrangements, and activities section. The revised instructions provide examples, beyond those contained in the proposed rule, of activities that would trigger reporting requirements and those that will not. Fourth, as discussed, the revised instructions refer to the new checklist of activities undertaken pursuant to the reportable agreement or arrangement (see Item 11.a). Fifth, the instructions address new exceptions from certain reporting requirements applicable to trade associations, franchisors and franchisees, and special reporting procedures for union avoidance seminars.
Additionally, the Department has clarified in Part V (When to File) that, for reporting of union avoidance seminars, reporting is not required until 30 days after the conclusion of the seminar. Section 406.2(a) of the Department's regulations, 29 CFR 406.2(a), has been revised to reflect this change from the general rule that a report is due within 30 days after a persuader agreement is reached, rather than the date on which the activity undertaken by the agreement occurs.
The revised Form LM-10 and Instructions (see Appendix B) are significantly different in layout and style from the previous form and instructions, although the reporting requirements have been altered only in two respects: The interpretation of the “advice” exemption is now included, and the form now requires detailed information regarding specific activities undertaken pursuant to the agreement or arrangement.
The revised form is four pages in length and contains 19 items. It is to be filed electronically. The first page includes the first seven items (and the signature block), which provide the contact information for the employer. This information includes the file number (Item 1.a.), fiscal year covered (Item 2), contact information for the employer (Item 3), employer's president or corresponding principal officer (Item 4), any other address where records necessary to verify the report will be available for examination (Item 5), at which of the listed addresses records are kept (Item 6), and type of organization that the employer is, such as an individual, partnership, or corporation (Item 7). Item 3 is revised to require the employer to provide its EIN, which will assist the Department and public in identifying the employer and analyzing the employer's filings. Item 1.b. is for the filer to indicate if the report is filed pursuant to a hardship exemption from the proposed electronic filing requirement and Item 1.c. is for the filer to indicate whether the filing is an amended report. These items were not on the previous form. The front page also includes the signature blocks, for the president (Item 18) and the treasurer (Item 19), including the date signed and telephone number.
The remainder of the revised form is divided into four parts: Parts A, B, C, and D. This layout is designed to clarify Item 8, which had required the filer to check those box(es) (Items 8.a-8.f) that depicted the reportable transaction, arrangement, or agreement, and required in a Part B to detail the transaction, arrangement, or agreement. The Department views the steps required by Item 8 in the prior form as unnecessary and confusing. Part B in that form added to the confusion, because it applied a “one size fits all” approach to reporting the diverse information required by section 203(a). To remove this confusion, the Department has adopted a more convenient four-part structure to capture the required information.
Revised Part A requires employers to report payments to unions and union officials. The employer must report on the form the contact information of the recipient in Item 8. In Item 9, the employer must report detailed information concerning the payment(s), including: The date of the payment (Item 9.a), the amount of each payment (Item 9.b), the kind of payment (Item 9.c), and a full explanation for the circumstances of the payment (Item 9.d). There are no changes to the substantive reporting requirements for payments in Part A, which are required pursuant to LMRDA section 203(a)(1).
Revised Part B requires employers to report certain payments to any of their employees, or any group or committee of such employees, to cause them to persuade other employees to exercise or not to exercise, or as to the manner of exercising, the right to organize and bargain collectively through representatives of their own choosing. The employer must report the contact information of the recipient of the payment in Item 10. In Item 11, the employer must report detailed information concerning the payment(s): The date of the payment (Item 11.a), the amount of each payment (Item 11.b), the kind of payment (Item 11.c), and a full explanation for the circumstances of the payment (Item 11.d). There are no changes to the substantive reporting requirements in Part B, which are required by LMRDA section 203(a)(2).
Revised Part C requires employers to detail any agreement or arrangement with a labor relations consultant or other independent contractor or organization in which the consultant, contractor, or organization undertakes activities with the object to persuade employees or supply information regarding employees and a labor organization involved in a labor dispute. The employer must indicate whether the agreement or arrangement involves one or both of the above purposes by checking the appropriate box in Part C. Next, the employer must provide contact information for the consultant in Item 12. A revision to Item 12 requires the employer to provide the consultant's EIN, if applicable. In response to comments received, the revised instructions exempt employers from filing Form LM-10 reports for attendance at multiple-employer persuader seminars, webinars, or conferences. The date of the agreement or arrangement and a full explanation of its terms and conditions would be reported in Items 13.a and 13.b, respectively. In response to comments received on the NPRM, the instructions for Item 13.b concerning the scope of reporting required in this item have been clarified. The instructions now state that filers must explain whether the consultant was hired to manage a union-avoidance campaign or to provide assistance to an employer in such a campaign through the persuader activities identified in Item 14. An attorney who provides legal advice and representation, in addition to persuader services, is only required to describe such portion of the agreement as the provision of “legal services,” without any further description.
Item 14 calls for detail concerning the agreements undertaken. Item 14.a, as described above in Item 11.a. for the revised Form LM-20, requires filers to check boxes indicating specific activities undertaken or to be undertaken. There is also an “Other” box, which requires the filer to provide a narrative explanation for any activities not specified on the list provided on the form. Items 14.b, 14.c, and 14.d, respectively, require, as before, the employer to indicate the period during which the activity was performed, the extent of performance, and the name and address of persons through whom the activity was performed. As with Item 11.d of the revised Form LM-20, Item 14.d requires filers to specify whether the person performing the activity is employed by the consultant or works as an independent contractor. Items 14.e and 14.f require the consultant to identify the employees and any labor organization that are targets of the persuader activity. Item 14.e requires a description of the department, job classification(s), work location, and/or shift of the employees targeted. Finally, the employer must provide detailed information concerning any payment(s) made pursuant to the agreement or arrangement: The date of each payment (Item 15.a), the amount of each payment (Item 15.b), the kind of payment (Item 15.c), and a full explanation for the circumstances of the payment(s) (Item 15.d). Information reported in Part C is required by LMRDA sections 203(a)(4) and (5).
Revised Part D requires employers to report certain expenditures designed to “interfere with, restrain, or coerce” employees regarding their rights to organize or bargain collectively, as well as expenditures to obtain information concerning the activities of employees or a labor organization in connection with a labor dispute involving such an employer. The employer must indicate the object of the expenditure by checking a box. The employer must report the contact information of the recipient of the expenditure in Item 16. In Item 17, the employer must report detailed information concerning the expenditure(s): The date of each expenditure (Item 17.a), the amount of each expenditure (Item 17.b), the kind of expenditure (Item 17.c), and a full explanation for the circumstances of the expenditure (Item 17.d). There are no changes to the substantive reporting requirements in Part D, which are required by LMRDA section 203(a)(3).
The revised Form LM-10 instructions follow the layout of the revised form. Insofar as the reporting of persuader activities is concerned, the revised instructions correspond with the changes discussed above in connection with the Form LM-20.
The Department received approximately 9,000 comments on the proposed rule. The vast majority focused on general observations. The supportive comments came largely from labor unions, union officials, and law firms, as well as public policy organizations and Members of Congress. Commenters opposing the rule included business associations, public policy organizations, law firms and labor relations consultants, as well as numerous businesses, and a senator and congressman. General comments are discussed immediately below.
Most of the comments submitted by labor organizations, law firms representing unions, public policy organizations, and private citizens expressed general support for the proposed rule and the increased disclosure it would provide. Some of these commenters stated that the proposed changes will finally give employees the information that Congress intended. Others described the Department's proposal as a “common-sense interpretation” that would close the “advice loophole” that has led to circumvention of employer-consulting reporting requirements. One commenter stated that the rule would restore a balance to election campaigns where, in its view, companies have long held an unfair advantage. This commenter stated that employees have a right to organize unions, and that they should be given more information that would aid them in their organizing efforts. Another commenter voiced support of the proposed interpretation, which, in its view, would increase transparency in a way that would be beneficial to employees, unions, and employers. Some private citizens submitted brief statements in support of the proposal. Other commenters submitted examples of consultant-prepared materials that have been used by employers in campaigns against unions.
Many employer and trade associations, law firms representing employers, labor relations consultants, and public policy groups provided substantive comments, almost all uniformly calling for the proposed rule to be withdrawn or at least substantially modified to reduce the proposed scope of the reporting requirement and what they viewed as an undue burden. Some law firms and local and national bar associations focused their comments on what they viewed as an improper intrusion on attorney-client relationships and potential concerns that the proposed rule, if adopted, would impede employers in exercising their free speech rights under the NLRA and pose substantial First Amendment and other constitutional issues. Many commenters stated that the proposed changes would hamper job creation and result in job losses. Other commenters expressed the view that the proposed rule was too vague. The vast majority of the comments received in response to the proposed rule, however, were either templates (
Several commenters framed their opposition in terms of their own experience with union organizing campaigns at their companies. One such commenter stated that the proposed rule tilts in favor of unions, stating that employers need a fair opportunity to educate their employees about unionization and dispel any false information disseminated by the union organizers. In this commenter's view, the proposed rule impeded this opportunity. Many other commenters opposed to the proposed rule simply expressed general anti-union and anti-regulation sentiments, others voiced general criticism of the current administration, claiming that the rule is a “political payback” to unions. Further, some commenters voiced concern about publicly disclosing companies' financial information. Other commenters urged that the LMRDA be abolished. Some commenters apparently confused the proposed rule with other rules proposed by NLRB or proposed or contemplated legislation, and others submitted comments consisting of general statements that were not germane to any aspect of the proposed rule.
The Department disagrees with the general points made by those opposing the proposed rule. Simply put, the commenters offered no persuasive argument that the Department's revised reporting requirements for persuader activities will hamper job growth or reduce jobs. As explained in Section VI, there is minimal burden on individual filers and the economy as a whole. Further, several commenters that supported the Department's proposal referenced the large amount of money that employers spend on consultants, which greatly exceeds the cost for employers and consultants to publicly disclose their agreements.
The Department also disagrees with the suggestion made by some commenters that the revised interpretation is motivated to advance efforts by unions to organize employees or to somehow impede the ability of employers to advance any lawful arguments designed to persuade employees in the exercise of their union representation and collective bargaining rights. Rather, this rule is an effort by the Department to fairly and effectively administer the LMRDA, a statute passed with bipartisan support in 1959, which requires reporting of both sides in labor-management relations. This rule will improve disclosure from employers and consultants. The Department plainly understands the right of employers to express, in robust fashion, their views on the advantages and disadvantages of union representation or collective bargaining issues, and to hire consultants to implement that goal. This rule does not encourage or discourage employer speech or involvement in organizing campaigns and representation elections. Apart from requiring reporting in prescribed situations, it regulates no speech or conduct.
The Department is also well aware of the primacy of the NLRB in resolving representation issues and investigating and resolving charges of unfair labor practices. This rule is in no way at odds with the statutory scheme administered by the NLRB, nor does it concern any proposed legislation. Instead, the rule effectuates the Department's limited, complementary role assigned to it by Congress in the LMRDA to provide workers with information that is helpful to them in assessing communications from their employers, provide the public information about the administration of these statutes, and provide the Government with information that will better enable it to secure compliance with these statutes. As noted in Sections I.A., III.B, and V.C of the preamble, it is critically important that workers, as recognized by Congress in crafting section 203, are provided this information.
This rule and its interpretation of section 203 advance these purposes. The Department's prior interpretation of this section effectively denied employees, as well as the public and the Government, most of the information about labor relations consultants that Congress wanted to be publicly disclosed. This rule, consistent with the intent of Congress, will make known to employees information that will allow them to more thoughtfully and effectively exercise their right to support or refrain from supporting a union as their collective bargaining representative. Under the rule, employees will learn, many for the first time, that their employer has hired a labor relations consultant to help it to persuade them how to exercise their individual and collective rights to union representation and collective bargaining. With this information, employees will be better able to assess the extent to which their employer's spokesperson is conveying the employer's own take on union representation and its ideas about what is truly best for the company and its employees, or instead making arguments that other employers have successfully used to defeat union representation; the extent to which the employee's supervisors are conveying their full and honest opinions about union representation (such as whether there is a need for an “outsider” to look out for employee interests) or merely following the direction of the company's own behind the scenes “outsider.” It will be up to each individual employee to make his or her own choice about the merit of the claims articulated by the employer (just as each must make a similar assessment about the union's claims). This rule does not restrict the claims that may be made, their timing, or the person or means by which they are made. Instead, the rule only requires employers that engage labor relations consultants in order to persuade employees about how they should exercise their workplace rights and the consultants that engage in these activities to disclose to employees, the public, and the Government the terms of their agreements. Such disclosure is required under the LMRDA and necessary to actualize the rights accorded employees under the LMRDA and the NLRA—a requirement ill served by the Department's prior interpretation of section 203.
In the sections that follow the Department summarizes and addresses comments on particular aspects of the rule: Textual analysis of the statutory language; the Department's policy justification for revised interpretation; the clarity of revised interpretation; activities that trigger persuader reporting; the asserted bias in favor of unions; particular aspects of the revised forms and instructions; asserted constitutional and statutory infirmities with the revised interpretation; and the asserted conflict between the revised interpretation and the attorney-client privilege and an attorney's duty to protect confidential information.
The NPRM proposed additions to the Form LM-20 and LM-10 and corresponding instructions that would implement the revised interpretation of the “advice” exemption. The revised interpretation focused on the plain meaning of the term “advice” in the statute's text, and contrasted that plain meaning with those activities undertaken by consultants that have an object, directly or indirectly, to persuade employees with respect to their statutory rights. The revised interpretation defined reportable “persuader activities” as all actions, conduct, or communications that have an object, directly or indirectly, to persuade employees. The Department proposed this interpretation to replace the prior interpretation. The prior interpretation distinguished between
Several commenters provided their views on whether the proposed reporting requirements were consistent with the statutory provisions. Only a relatively small number, however, addressed the interpretative issues in detail, most simply stating that the proposed interpretation properly applied the provisions or that the prior interpretation reflected the sole reasonable construction of the provisions.
The following key aspects of the Department's proposed interpretation provide context for the comments and discussion below:
• “Advice” means an oral or written recommendation regarding a decision or a course of conduct.
• “Persuader activity,” in contrast, refers to a consultant's providing material or communications to, or engaging in other actions, conduct, or communications on behalf of an employer that, in whole or in part, have the object directly or indirectly to persuade employees concerning their rights to organize or bargain collectively.
• Reporting is required whenever the agreement or arrangement, in whole or part, calls for the consultant to engage in persuader activities, regardless of whether or not advice is also given.
See the Department's NPRM (76 FR 36192).
These aspects of the proposal have been revised in the final LM-10 and LM-20 instructions to read as follows:
An agreement or arrangement is reportable if a consultant undertakes activities with an object, directly or indirectly, to persuade employees to exercise or not to exercise, or to persuade employees as to the manner of exercising, the right to organize and bargain collectively through representatives of their own choosing (hereinafter “persuade employees”). Such “persuader activities” are any actions, conduct, or communications with employees that are undertaken with an object, explicitly or implicitly, directly or indirectly, to affect an employee's decisions regarding his or her representation or collective bargaining rights. Under a typical reportable agreement or arrangement, a consultant manages a campaign or program to avoid or counter a union organizing or collective bargaining effort, either jointly with the employer or separately, or conducts a union avoidance seminar.
No report is required covering the services of a labor relations consultant by reason of the consultant's giving or agreeing to give advice to an employer. “Advice” means an oral or written recommendation regarding a decision or a course of conduct. For example, a consultant who, exclusively, counsels employer representatives on what they may lawfully say to employees, ensures a client's compliance with the law, offers guidance on employer personnel policies and best practices, or provides guidance on National Labor Relations Board (NLRB) or National Mediation Board (NMB) practice or precedent is providing “advice.”
Commenters in favor of the revised interpretation, principally unions, endorsed the proposed rule's focus on the object of the activities performed under an agreement between a consultant and an employer. They generally viewed this approach as natural and best suited to meeting the intent of Congress. In their view, this approach is consistent with the Department's original (until 1962) and its proposed 2001 interpretations of the reporting requirements. These commenters strongly objected to the view that required persuader reporting only when a consultant directly persuaded employees on how to exercise their protected rights. Commenters supporting the rule argued that the
Opponents of the proposed rule embraced the prior interpretation. According to them, the prior interpretation better comports with the statutory language and provides a more practical approach because it sets forth a “bright-line” standard for consultants and employers to understand and apply. The proposed rule, in their view, was ambiguous. Some commenters read
However, several commenters expressed their view that the LMRDA covers “direct and indirect” persuasion. They argued that the Department's prior interpretation, by limiting reporting to activities involving only “direct contact” with employees, is “illogical” because it ignores the statute's direction that “indirect” activities must be reported and leaves unreported activities specifically intended to persuade employees.
One international union declared that the statute, properly construed, requires that any “affirmative act” with an object to persuade be reported. That union stated that the common and ordinary understanding of “advice” provides a “principled distinction” between exempt advice and reportable persuasion. The union stated the proper inquiry focuses on the “nature and object” of the consultant's activities, not whether the employer accepts or rejects the consultant's “work product.” In this regard, according to the commenter, a “recommendation regarding a decision or course of conduct” does not have an object to persuade employees. Any “affirmative act,” in the commenter's view, with an object to persuade should trigger reporting. This commenter also emphasized its support for the Department's original 1960 interpretation. In its view, the Department's original interpretation, unlike the interpretation adopted in 1962, did not restrict the scope of persuader activities to narrow, direct contact situations. Rather, the original interpretation required reporting of a consultant's preparation of persuader materials as well as any other circumstance in which “the consultant's activity went beyond the mere providing of such advice or where it was impossible to separate advice from persuader activity.”
An international union asserted that the prior interpretation allowed consultants to avoid reporting by hiding activities under the “guise” of “advice.” This union contended that activities such as creating videos, Web site content, or fully-scripted presentation materials, and planning or conducting meetings with supervisors and managers are not normally considered to be advice. Instead, it asserted that these activities are nothing less than “pre-packaged, full-service anti-union campaigns” designed to defeat employee efforts to organize and bargain collectively and, as such, are reportable under a correct reading of the statute. In its view, the fact that these activities may be carried out without any direct contact with employees makes them no less activities with an object to persuade; thus, these activities should trigger reporting. A federation of unions similarly contended that a consultant directing an employer's supervisor to distribute persuasive material to employees does not transform the materials or their content into advice for the employer, particularly when the underlying motive is clearly not to advise the employer but to persuade employees.
Another international union endorsed the revised interpretation because it ensured that the advice exemption did not “swallow the rule requiring disclosure of direct and indirect persuader activity.” Instead, in the union's view, the Department properly construed section 203(c) in a manner that effectuates the purposes of the statute. It emphasized that reporting is triggered where “
In contrast to these views, multiple commenters opposed the Department's revised interpretation. Although most commenters were untroubled by the definition of “advice,” they were concerned that the Department's proposed rule would deny the term its broad intended reach.
Several commenters described the Department's revised interpretation as a “catch-all,” sweeping in all activities that are “related” to persuasion, including advice, thus conflating “advice” and “persuasion.” Several relied on their reading of the legislative history, as reported in judicial decisions, to support their position. In challenging the Department's analysis, some commenters argued that the Department's proposed interpretation was the opposite of the approach required by the statute. As stated by one law firm, the reporting requirements in sections 203(a) and (b) cannot be reasonably interpreted without giving full play to the broad exemption established by section 203(c). Thus, as it reads the statute, any and all advice, even advice combined with persuader activity, is within the exemption. Another law firm commented that the Department's proposed interpretation was improper because the exemption would no longer have a “broad scope,” as intended by Congress. Instead, in its view, the proposed interpretation was “probably the
Several commenters stressed that a “recommendation” implies the ability of the employer to “accept or reject” the recommendations or suggestions offered (
Another commenter asserted that the Department was mistaken in thinking that “advice” could be limited to just “yes or no,” without also including the preparation of materials. In its view, labor law is a complicated area and that the only “practical” way of advising the employer is to draft materials for the employer's use. In any event, the commenter argued, the materials simply constitute “recommendations” for the employer to accept or reject; the material is still advice if the employer, and not the consultant, does the persuasion.
An employer association stated that “advice” is provided by consultants, including attorneys, trade associations, and other third parties, in a variety of forms, such as seminars, “fully drafted documents,” “tactics and communications tools” to be used in
Some commenters suggested that the interpretation as applied would be too narrow, limiting the advice exemption to just “legal advice.” These comments cited the three examples provided in the first paragraph of the proposed instructions under “Exempt Agreements”—“exclusively counsels employer representatives on what they may lawfully say to employees, ensures a client's compliance with the law or provides guidance on NLRB practice or precedent.” 76 FR 36191. In their view, these examples demonstrate that the Department is misreading the intended reach of “advice,” which they believed extends well beyond the bounds suggested by the examples. One commenter claimed that the Department “craftily avoids” making explicit its position that the “proposed rule limits advice to `legal advice,' ” while at the same time narrowly defining and taking a “jaundiced view” of what may constitute such advice. In its view, the Department seeks to narrow the advice exemption to legal advice in its purest and most technical form.
Another commenter suggested that the Department's revised interpretation renders section 203(c) superfluous, because section 204 would encompass the same activities. Some commenters viewed “legal advice” by a consultant as not having an object to persuade, regardless of the circumstances, even if the advice was used by the employer in its persuasion of employees. As a result, “advice” must mean more than “legal advice,” the commenters assumed, or otherwise section 203(c) would be rendered meaningless. A national bar association contended that section 203(c) clearly contemplates that at least some of the advice that a lawyer provides to the employer client will be designed to help the employer to persuade employees on unionization issues. This is self-evident, in the association's view, because if all of the lawyer's advice to the employer-client was unrelated to persuader activities, it would not be covered by the statute at all, with or without an advice exemption, and no exemption would be needed.
Several commenters stated that the requirement to report in situations in which “legal advice” is “intertwined” with persuader activity misapplies the concept of attorney-client privilege under which legal advice intertwined with non-legal advice (including “specific tactics” and “alternative strategies”) is privileged. In the opinion of one commenter, the Department's revised interpretation renders the exemption “meaningless”: “Legal advice is never given in a vacuum, but is always provided to support a client's desired goals. For example, an attorney who reviews an employer's speech to employees regarding a union organizational drive, but only comments on the legality or illegality of its content (rather than suggesting lawful means to enhance its persuasive content) may violate his/her ethical responsibilities.”
Other commenters challenged the Department's statement in the NPRM that the employer is a “conduit for persuasive communication.” See 76 FR 36183. In their view, it is the employer that chooses to accept, reject, or modify the advice and materials provided by the consultant. As one commenter put it, to suggest that a consultant who provides such advice and materials without any personal interaction with employees is engaged in persuader activities “is preposterous.” A law firm made a similar point, albeit less emphatically: “[T]he persuasive message given by the employer is the employer's message, not the consultant's sent through a conduit or middleman. The giving of the message is the employer's `decision or course of action' based on the `recommendation' of the consultant—a recommendation that is plainly `advice' within the [accepted] definitions [of the term].”
In response to these comments, the Department first notes the “undisputed” requirements prescribed by sections 203 and 204 of the LMRDA:
• A report shall be filed by a labor relations consultant who has agreed with an employer that the consultant will undertake activities that have an object, directly or indirectly, to persuade employees in the exercise of their union representation or collective bargaining rights. This report must contain a statement of the terms and conditions of the agreement or arrangement and must be filed within 30 days after entering into such agreement or arrangement.
• Both the consultant and the employer shall each file, later, an annual report showing payments made and received under the agreement or arrangement (Form LM-10 by an employer; Form LM-21 by a consultant).
• Nothing in section 203 shall be construed to require a report by reason of a consultant's giving or agreeing to give advice to the employer or representing or agreeing to represent the employer in a court, administrative, or arbitration proceeding or engaging in or agreeing to engage in collective bargaining on behalf of the employer.
• Nothing in the LMRDA shall be construed to require an attorney to include in a report any information lawfully communicated to him by his clients in the course of an attorney-client relationship.
Neither the language of the statute nor the legislative history provides clear direction about where Congress intended the line to be drawn between reportable persuader activities and nonreportable advice.
The exemption is not, as [the attorney-consultant] contends “as broad as the reporting requirement itself.” Almost consistently, the purpose of § 203(c) was explained [in the legislative history] not to carve out a broad exemption of activities which would otherwise be covered by § 203(b), but to make explicit what was already implicit in § 203(b), to guard against misconstruction of § 203(b). Generally, it was felt that the giving of legal advice was something inherently different from the exertion of persuasion on employees, and section 203(c) was inserted only to remove from the coverage of § 203(b) those grey areas where the giving of advice and participation on legal proceedings and collective bargaining could possibly be characterized as exerting indirect persuasion on employees, . . . not to remove activities which are directly persuasive, but indirectly connected to the giving of advice and representation.
For the purposes of this case, it is unnecessary for us to ascertain the precise location of the line between reportable persuader activity and nonreportable advice. . . . We conclude only that not everything which a lawyer may properly, or should, do in connection with representing his client and not every activity within the scope of the legitimate practice of labor law is on the nonreportable side of the line. At least some of the [consultant-attorney's] activities . . . no matter how traditional, ethical, or commendable—were those of a persuader.
In proposing a revised interpretation that returns to the Department's original view about where the line separating reportable persuader activities and exempt advice is properly drawn, the Department rejects the position under the prior interpretation that a consultant's activities would be reportable only if they involved face-to-face, or other direct, contact with employees. There is nothing in the statutory language that compels this reading. While the legislative history specifically enumerates some of the types of improper actions which might be avoided if employers were required to report their persuader agreements with consultants, such as coercion, bribery, surveillance of employees, and unfair labor practices undermining employee rights, it sheds little light on what
The prior interpretation did not represent the best reading of the statute, as it left unreportable indirect persuader activities, with the attendant loss of transparency intended by Congress. Commenters supporting the prior interpretation have shed no new light on the interpretative challenges posed by the statutory language. In particular, they have failed to explain how the prior interpretation better satisfied the requirement that both indirect and direct persuader activity must be reported. Their arguments are based on threads taken from reported opinions in the case law, which have underscored the tension between reportable activities and advice. For example, while in
The Department disagrees with the suggestion by some commenters, relying by analogy on language in
Further, as stated, agreements to exclusively provide advice do not trigger reporting. Thus, even where an employer, who has an agreement with a consultant for providing legal services, itself undertakes actions to persuade employees to vote against union representation, such as by delivering a speech the employer has prepared to employees, no reporting is required where the consultant has only reviewed the speech for legality and has refrained from preparing materials, scripting supervisor interaction with employees, or otherwise undertaking activities with an object to persuade.
Section 203(c) provides, in relevant part: “Nothing in this section shall be construed to require any employer or other person [
Section 203(c), by providing a rule of construction, serves to clarify that sections 203(a) and (b) establish which types of employer-consultant agreements are reportable and which are exempt. This language is similar to other sections of the LMRDA, which serve to make explicit what is already implicit. See section 202(c) (clarifying that union officials are not required to report unless they hold a reportable interest); 203(d) (accord for employers or “other persons”). It also should be noted that each of these sections uses introductory language similar to that used in section 203(c) (“Nothing shall be construed to require”). However, unlike section 203(c), other LMRDA provisions use language that creates “blanket” exemptions from their reporting requirements for particular activities. Compare with section 202(b) (exempting from reporting by union officials their holdings in exchange-traded stock) and section 203(b) (requiring reporting of agreements in which consultants supply certain information to employers, “except information for use solely in conjunction with an administrative or arbitral proceeding or a criminal or civil judicial proceeding”). See also sections 202(a)(5) (excepting from reporting by union officials payments received as a bona fide employee and purchases or sale of goods in the regular course of business); and section 203(a)(1) (excepting from employer reporting loans and other payments made by banks).
Section 203(c) does not contain language creating a blanket exemption. Unlike the provisions just cited, section 203(c) contains language that limits the availability of the exemption to instances where a consultant acts “
Thus, section 203(c) is best understood as making explicit what sections 203(a) and (b) make implicit: That consultant activity undertaken without an object to persuade employees, such as advisory and representative services for the employer, do not trigger reporting.
In contrast, the prior interpretation framed the reporting obligation to exclude indirect persuader activities from reporting by characterizing them as “advice,” even where the consultant engaged in an activity with an object to persuade employees, as long as the activity had any tenuous connection with advice. As noted approvingly in a form letter opposing the Department's proposed interpretation rule, under the prior rule “[a]s long as my company was free to accept or reject
In contrast, as noted in both the NPRM and the final rule, the Department gives “advice” its ordinary meaning: “an oral or written recommendation regarding a decision or course of conduct.” The preparation of persuader materials is more than a recommendation to the employer that it should communicate its views to employees on matters affecting representation and their collective bargaining rights. See 76 FR 36183. Although some commenters stated that they disagreed with the Department's interpretation of the term “advice,” it appears that their disagreement lies primarily or entirely with the Department's proposed application, which would expand the reporting obligation beyond the direct contact trigger under the prior interpretation and would include the preparation of persuader material.
Some commenters have suggested that if an employer, not the consultant, is the “final” actor under the parties' agreement, the consultant has no reporting obligation. A consultant drafting persuader materials as part of an anti-union campaign for the employer is also likely providing advice to the employer (which by itself would not trigger reporting). However, by engaging in a persuader activity, the consultant has triggered a reporting
Some commenters took the view that the Department has misread section 203(c) because, in their view, it can be given effect only if persuader activities are exempted as advice. Otherwise, they assert, there would be no obligation to report and no need to provide an exemption. Thus, in their view, the prior interpretation of section 203(c) recognized that Congress intended to “carve out” activities that would otherwise be reportable. For this reason, they contended that the proposed rule created a “false dichotomy” between advice to the employer and persuasion of employees. In the commenters' view, sections 203(a) and (b) require consultants to report upon all agreements, and the proposed interpretation treats section 203(c) as mere “surplusage.”
The Department disagrees. What the commenters overlook is that section 203(c) is still given effect as a rule of construction if it is read, as put forth in this rule, to underscore that advice
Section 202(c), which addresses financial reporting by union officials, serves a similar role under the statute, by emphasizing that a union official is not required to file an annual report unless he or she has engaged in a particular financial matter during the reporting period. Section 202(a) for union officials, like sections 203(a) and (b) for employers and consultants, prescribes that only particular financial payments are to be reported. Thus, section 202(c), like section 203(c), was not necessary to “exempt” officials from a reporting obligation. Nonetheless, its inclusion shows that the statute's drafters wanted to not only articulate reporting requirements but also to plainly demonstrate when reporting was not required.
Many commenters criticized the Department for failing to give “advice” the breadth that they believe the term demands. As noted, the Department does not interpret section 203(c) as a blanket exemption from reporting by a consultant. Instead, the Department reads this provision in conjunction with the general reporting requirement prescribed by sections 203(a) and (b)—to require the reporting by an employer and a consultant of any agreement or arrangement under which a consultant “undertakes activities where an object thereof, directly or indirectly, is to persuade employees” in their exercise of their representation and collective bargaining rights. Further, the Department only characterizes as “advice” those activities that meet the term's plain meaning. The Department's reading of section 203(c) gives effect to all the statute's provisions and is consistent with the common sense and interpretative canons that an exemption should not swallow the rule.
A few commenters provided arguments that the Department's revised interpretation was inconsistent with the statute's legislative history, which they read to create a broad or sweeping exemption from reporting. In this regard, they advance two separate points: first, that Congress explicitly characterized the exemption as broad; and second, that the legislative history demonstrates Congress intended that reporting would be limited to activities of the notorious-type of middlemen identified by the McClellan Committee. We here address the first argument; the second is discussed later in Section V.C.1.d.
Commenters drew on the legislative history, as discussed in a handful of cases in which persuader reporting has been an issue, including
• Counseling on NLRB, NMB, or similar agency practices;
• legal services (as distinct from persuader activities undertaken by a lawyer);
• guidance on employer personnel policies and best practices, as well as the development of such policies and practices except where undertaken with an object to persuade (such as by introducing a particular benefit at issue in an organizing campaign or reassigning union supporters to jobs where they have less contact with co-workers);
• employee surveys (other than push surveys);
• vulnerability assessments;
• off-the-shelf material (where selected by a trade association for its member-employers or in other circumstances where selected by the employer without assistance by the consultant);
• trade association newsletters addressed to member-employers; and
• conducting a seminar for employers in which the consultant does not develop or assist the attending employers in developing anti-union tactics or strategies.
The commenters additionally relied on the following passage from the legislative history, quoting Professor Archibald Cox's testimony on the proposed legislation:
Payments for advice are proper. If the employer acts on the advice it may influence the employees. But when an employer hires an independent firm to exert the influence, the likelihood of coercion, bribery, espionage, and other forms of interference is so great that the furnishings of a factual report showing the character of the expenditure may be fairly required. . . . Since attorneys at law and other responsible labor-relations advisers do not themselves engage in influencing or affecting employees in the exercise of their rights under the [NLRA], an attorney or other consultant who confined himself to giving advice, taking part
In the Department's view, these statements and those referenced in note 46 merely reflect that attorneys and others providing advice would not be required to file reports. Indeed, under this rule no reporting is triggered by attorneys who exclusively engage in legal services, or by any consultants who merely provide recommendations or suggestions. The statements provide no support for the position that Congress intended that the particular activities, identified as reportable under this rulemaking, would be exempted from reporting as “advice.” The general statement that advice by “responsible” advisers would not be reportable is not a useful guide in distinguishing among particular activities undertaken by consultants, nor does it signal that exempt advice includes within it consultant activities that have an object to persuade. In any event, the rule recognizes that consultant activities that exclusively constitute the giving of advice do not trigger reporting.
The commenters here advanced two arguments. First, they argued, in effect, that the Department misconstrues “advice” by limiting it to “legal advice,” and, in the process, fails to properly consider section 204, which they view as providing protection for “legal advice.” Second, they argued that the Department arbitrarily defines “legal advice” in a stilted fashion, effectively ignoring both the manner in which attorneys conduct their management law practices and how they must conduct their practices as a matter of ethics.
The Department disagrees with the commenters who asserted that the revised interpretation limits the advice exemption to just legal advice. As stated, the Department defines “advice” by its plain meaning: “an oral or written recommendation regarding a decision or course of conduct.” Only those activities that fall outside that definition trigger reporting, such as those activities listed on pages 3-4 of the instructions to Form LM-20 (see Appendix A) and on page 6 of the instructions to Form LM-10 (see Appendix B). For example, a consultant is not required to report his or her activities in
Additionally, the commenters are also mistaken in their suggestion that the few examples they cited from the proposed instructions were intended by the Department to constitute the entire universe of activities that are within the scope of “giving advice” to an employer. Rather, they are merely examples illustrative of the term, and they are not meant to be exhaustive. For instance, if a consultant merely recommends that the employer conduct employee surveys or hold meetings, then no reporting is required because such recommendations are “advice.” On the other hand, if the consultant, after having recommended a meeting, then prepares the persuasive speeches and presentations for the employer to present at the meeting, or identifies which employees to meet with at a certain location and time (see factors in Section IV.B.1), then the consultant has gone beyond providing advice to the employer and has engaged in the indirect persuasion of employees. Reporting would then be required under this rule. In addition, certain consultant undertakings, such as conducting vulnerability assessments and revising materials for legality and grammar, are not considered persuader activities. See discussion above in Section IV.B.2. As we have explained, recommendations regarding best practices in matters of personnel management do not, by themselves, trigger reporting. Rather, the consultant must develop such best practices with an object to shape employees' views against union representation. A consultant advising businesses on personnel management practices, therefore, becomes subject to reporting only if developing such practices with that object present, hardly a likely occurrence unless the consultant has been hired to deter union representation, which is often a question of timing. Therefore, while legal advice and other services do not trigger the reporting requirements, the advice exemption is not limited to legal advice under the revised interpretation.
Furthermore, several commenters stated that the requiring of reporting in situations in which legal advice is “intertwined” with persuader activity misapplies the common law definition of “advice,” which states that legal advice intertwined with non-legal advice (including concerning “specific tactics” and “alternative strategies”) is privileged under the attorney-client privilege. The Department disagrees with these comments and reiterates that all consultant activity that meets the plain definition of advice does not trigger reporting, whether legal or non-legal. Further, the advice exemption of section 203(c) determines whether or not an agreement is reportable, while section 204 states that privileged information is not required to be reported. See Section V.H. In this regard, the Department notes that—consistent with the interpretation that section 204 has received from the courts—it always has construed section 204 as roughly equivalent to the limited attorney-client privilege under the common law. The Department has never embraced the view that section 204 creates a broad, separate exemption for attorneys that supplants section 203(c). The Department proposed no change to this interpretation of section 204.
Finally, commenters are mistaken that the Department's proposal would impede a consultant's ability to provide an employer with documents that not only comply with the law but also best convey the employer's position on union and collective bargaining related materials. In support of their position, they rely on case law defining “advice,” or explaining an attorney's legal duties. As noted above, some also rely on
In contrast, agreements that have their sole purpose to provide guidance to an employer, as distinct from having a purpose to persuade employees, do not trigger reporting. No reporting is required where the consultant has reviewed for legality a speech prepared by the employer to dissuade employees from giving their support to the union. The typical situation in which a consultant must report its activities will be where the consultant has orchestrated the employer's union opposition campaign, prepared materials designed to persuade employees or enhanced their persuasive value, scripted supervisor interaction with employees, undertaken surveillance of employees engaged in union activities, or otherwise undertaken concrete actions with an object to persuade. Neither the proposed nor final rule prevents an employer from taking actions to persuade its employees to oppose union representation or to hire a consultant for this purpose. The content, timing, and mode of the message to employees remain entirely within the control of the employer and the labor relations consultant. The rule requires only that if the consultant engages in persuader activities the consultant and the employer must file Forms LM-10 and LM-20 to disclose such activities and the underlying agreement. See further discussion of this and related points in Section V.H.
Indeed, although not limited to just legal advice and representation, the Department's interpretation preserves the exemption for activities traditionally performed by attorneys. As explained by the Fourth Circuit:
Primarily, . . . the [disclosure] requirement is directed to labor consultants. Their work is not necessarily a lawyer's. Indeed, for a legal adviser, it would be extracurricular. True, a client may desire such extra-professional services, but, if so, the attorney must balance the benefits with the obligations incident to the undertaking.
In the NPRM, the Department outlined its justification for its revised interpretation for reporting consultant agreements that provide for direct and indirect persuader activities. The policy reasons for revising the interpretation are largely restated in the preamble to this rule. In discussing the comments received on the Department's policy reasons underlying the interpretation, we follow the order used in the NPRM: The needed disclosure of persuader agreements to enable employees to make informed decisions about their representation and collective bargaining rights; the significant underreporting under the prior interpretation where only agreements involving a consultant's direct contact with employees were reported; and the deterrent impact of transparency on practices harmful to peaceful and stable labor-management relations.
In the NPRM, the Department explained that many employers engage consultants to manage “union avoidance” or “counter-organizing” efforts to prevent workers from successfully organizing and bargaining collectively. See 76 FR 36187. These efforts include the dissemination of persuader material to workers, whether conveyed verbally or in written or electronic formats, as well as the development and implementation of personnel policies and actions with an object to persuade workers. The Department also explained that its proposed interpretation would require that agreements involving indirect persuasion of employees be reported, not merely those involving direct contact between consultants and employees. Reporting both types of agreements better informs employees as they choose how to exercise their protected rights to organize and bargain collectively. Such disclosure informs workers about the underlying source of the information they are receiving, helps them in assessing its content, and assists them in making decisions about union representation and collective bargaining issues.
Commenters that expressed support for the revised interpretation explained the need for workers to have more information concerning persuader agreements in deciding whether to support or oppose union representation. These commenters noted that workers are often unaware that employers are relying on the services of an outside consultant and that the disclosure of their involvement would allow workers to better assess the frequent position taken by employers to depict the union as an unwanted or unnecessary “third party” or “outsider” intruding between the employer and the workers.
A national union provided an example of a counter-organizing campaign where the consultant produced the employer's anti-union campaign literature and speeches, coached management on conducting “captive audience meetings,” and used materials and arguments that “repeatedly and consistently” referred to the union as an “outsider.” The national union supported the proposed rule, stating that requiring employers to disclose their relationships with consultants “would allow employees to scrutinize the source of the bogus information they receive about the merits of collective bargaining and let them decide . . . which party in the organizing campaign is the true outsider: a democratic federation of their fellow workers or paid outside consultants and attorneys.” To emphasize the importance of disclosure, the commenter quoted Justice Louis Brandeis, “Publicity is justly commended as a remedy for social and industrial diseases. Sunlight is said to be the best of disinfectants.” See Louis Brandeis,
According to another international union, disclosure of information about consultants allows workers to know who is behind a campaign so they can “cast an educated vote” on union representation. Another international union noted that such disclosure provides workers with “the opportunity to determine who is running an employer's anti-union campaign and
Union commenters asserted that consultants routinely run anti-union campaigns for employers, through the employer's supervisors. They provided examples of some of these indirect persuader activities. A national union noted that supervisors are used as the conduit to convey the consultant's message. As a result, the commenter agreed with the Department's characterization of supervisors in the NPRM as “the conduit for persuasive communications or material developed by an outside consultant or lawyer.” See 76 FR 36183. Similarly, a senator and congressman stated that consultants frequently are a “shadow management at a facility, making disciplinary decisions and drafting scripts for mid-level management to read.”
A federation of unions stated that modern campaigns rely heavily on supervisors as “the consultant's trusted intermediaries.” It also cited an industrial relations study that states that “consultants typically script supervisors' conversations, train them how to read employees' verbal and non-verbal reactions, and have them ask indirect questions without explicitly asking employees how they will vote.” Lafer,
One commenter reported its experience that the written and video materials used in these campaigns employ anti-union rhetoric, warning employees not to sign union authorization cards, asserting the union is a “third party,” describing the union as a business (out to make a profit, not serve its members), and warning about strikes. The commenter stated that although the consultant was careful not to trigger a reporting requirement under the current interpretation of the advice exemption by meeting with employees face-to-face, employees see unidentified strangers meeting with management officials and first-line supervisors during anti-union campaigns. An international union argued that Congress intended for workers to know that the source of persuader messages is a “paid agent” hired to persuade them. In its view, Congress knew and wanted employees to know that these agents may coach employers on the “spontaneous” formation of employee committees and design tests to identify pro-union workers. Disclosure of these tactics, according to the commenter, provides workers with information “important to assessing the credibility and motivations behind what they are seeing and hearing and thereby facilitates informed decision making.”
A national union presented examples of indirect persuasion by consultants during several recent union representation elections. The consultants created persuader handbills, posters, videos, and other materials. Literature was placed in “strategic places” such as employee changing rooms, the time clock area, and hallways that workers pass through when going to the polling area. Workers were often required to view videos portraying unions in a negative light and, like other messaging, encouraging employees, explicitly, to vote against the union. Another national union provided examples of indirect persuader activity from four separate campaigns. It explained that the consultants in those instances issued a manual for supervisors and trained them in conducting one-on-one and group meetings with employees designed to persuade them against supporting the union, and drafted emails, letters, and other literature for distribution by management.
A law firm representing unions submitted documents used by consultants to influence employee choice. It included campaign literature, a document outlining campaign strategies to defeat union representation, “captive audience” and other speeches opposing union representation, and training materials for supervisors.
A public policy organization provided several examples of consultant activities. It stated that a law firm had managers call workers at home and “turned supposed training seminars into anti-union captive audience meetings.” The commenter stated that another consultant developed anti-union literature that was circulated to employees, along with a calendar of anti-union events. The commenter described a law firm's extensive activities in directing and scheduling the employer's first four weeks of a campaign: sending nine letters to employees' homes; placing four notices on bulletin boards; passing out six leaflets to employees in the workplace; making three anti-union speeches in mandatory all staff meetings; holding one vote demonstration; and conducting five days of small group meetings where immediate supervisors tell employees that unions are bad. According to the commenter, another consultant encourages its clients to hold a “ `Vote No' saturation carnival,” which involves all supervisors wearing “Vote No” buttons, shirts, etc., and handing them out to employees. According to the commenter, these consultant-driven messages often use the following types of “selling points”: “Give the employer another chance; the union will take you out on strike; unions charge dues, fines, and assessments; unions cannot guarantee anything; the union is a third party that interferes in the employment
Local labor union officials also provided examples of “formulaic” campaigns managed by law firms. For example, a commenter discussed the mailing of 12 letters to employees that appealed to employees as a “family,” while characterizing unions as “third-parties” or “outsiders.” The letters also included a “give us another chance” theme, followed by letters “explaining” the law, and stating that unions operated on a “blank slate” and could promise nearly anything. The letters progressed to include a more negative anti-union tone, with direct references to “union corruption” and crime. The commenter noted that these would be followed by letters about the salaries of union officers, the amount of dues, and potential penalties against members for violating union bylaws. The final letter, the commenter described, would combine themes and “invariably” predict a strike.
Multiple commenters suggested that workers would benefit from knowing how much money employers spent on third-party consultants. A public policy organization cited a study estimating that the union avoidance industry was a $1 billion industry, with employers hiring individuals at, for example, $500 per hour to run a counter-organizing campaign, with one employer taking out a $100,000 loan to fund the campaign.
A senator and congressman stated that employees would be stunned at the amount of money employers pay anti-union consultants, especially when bombarded with anti-union rhetoric that a company lacks resources to offer raises, or that unionization may drive the company into bankruptcy. As an example, the commenters pointed to litigation documents revealing that a company paid a prominent law firm $2.7 million in fees to prevent employees from unionizing. They explained that this kind of information is of particular interest to employees whose motivation to unionize is “because they feel that management is denying them a fair share of the profits of their labor.” Further, the commenters stated that workers would “surely be interested” in knowing that management is “paying lavish fees for consultants to run” a counter-organizing campaign. The commenters concluded that the revised interpretation will “finally bring transparency to labor-management relations and will help ensure that employees are fully informed when they make a decision to exercise or not to exercise their rights. Another commenter suggested that such disclosure might also affect decision making by employers when faced with union representation or collective bargaining issues. The commenter stated that employers would have the ability to compare the costs of offering benefits and/or raises to their workers against the high fees charged by law firms to defeat union representation. In its view, if provided with this information, some employers, particularly smaller employers, might decide to negotiate in good faith rather than to pay law firms that have a strong interest in opposing unions, suggesting that “the harder law firms fight the union, the more they earn.”
The comments opposing the proposed rule put forth several policy arguments against the disclosure of indirect persuader agreements. First, the commenters contended that the source of persuader activities was not relevant in indirect persuasion situations. Second, the commenters maintained that Congress intended for the disclosure of “middlemen,” who, in the commenters' view, did not include indirect persuaders. Third, the commenters rejected the analogy between persuader disclosure and other public disclosure regimes. Finally, the commenters argued that the proposed reporting would not timely apprise employee voters about the source of the persuader materials. These comments are addressed in the following sections.
Despite disagreeing with the Department on the need for workers to have information concerning persuader agreements involving indirect persuasion by consultants, many commenters suggested or acknowledged that workers should have “accurate” and “balanced” information available to them when exercising their rights. For example, one commenter asserted its primary concern was to meet its “employees' interest in and right to [receive] full and complete information from both the union and the employer, in order to have an opportunity to understand and make a meaningful choice about representation.”
A congressman that opposed the Department's proposal stated that once employers disseminate a speech or deliver a speech, employees “know the employer stands by the material,” and the source of the material is “irrelevant.” In one commenter's view, the success of the employer's “campaign” relies upon its “reputation, demeanor, and actions.” According to the commenter, employees would have no reason to “care” about any influence a consultant or other third party exerted on the message, as it will not affect the “credibility” assigned by the employees to the employer and its representatives delivering the message. In another commenter's view, the reporting of agreements involving exclusively indirect persuasion would “mislead” workers as to the employer's intentions.
These commenters suggested that reporting should focus on the person who delivers the message, and not the person who drafts the remarks. A law firm and a trade association disagreed with the NPRM's purported assumption that positions expressed in the consultant-created persuader materials are not those of the employer. One trade association commenter disagreed with the notion that the consultant is a third party, since, in its view, the only “parties” to a collective bargaining agreement are the employer, the employees, and the union. Another trade association similarly rejected the Department's view.
In responding to these comments, both those in support of the proposed rule and those opposed to its adoption, it is the Department's view that workers need to know the source of information that is conveyed to them either directly by consultants—such as in “face-to-face encounters,” where the consultant openly acknowledges its role in opposing union representation—or indirectly, where the employer is delivering the message, without acknowledgment of the consultant's role in preparing the persuader materials.
The Department disagrees with the commenters who contend that workers do not need to know the source of the persuader materials directed at them in
Knowledge that the consultant may not be on the scene to help them understand their legal rights under the
Indeed, at least one commenter who opposed the revised reporting requirements recognized that, like advertising, workers must similarly “consider the source” when making a decision on exercising their rights. The commenter asserted that, in evaluating the source, workers can make an independent decision and assume that “pro-union” arguments are “bias[ed]” in favor of unionization and vice versa. The Department disagrees with this conclusion because it conflates perspective with actual knowledge of the source of the information. The issue is not whether workers will understand the perspective of the message, but whether they should know the source of the message,
A law firm representing employers acknowledged that many employers who have “consulted outside experts” inform their employees about their use of consultants, and noted that unions will often publicize an employer's use of consultants to shape an employer's anti-union message so that workers can weigh that fact in considering the employer's message. This comment underscores the value of such information to all workers. Further, even if the employer discloses that it has retained an outside party, without knowing the identity of the outside party and the terms of its agreement with the employer, employees may be deceived into thinking that the consultant has been retained merely to advise the employer on its legal obligations—and not to persuade them against supporting the union. Some employers may be open about their use of consultants; employees or unions, on their own, may become aware (or at least suspect or assume) that the employer has sought the assistance of a consultant in waging its campaign against union representation. However, the suggestion that employees typically possess such knowledge is belied by the rulemaking record, which indicates that employees are
• The employer had hired a labor relations consultant to manage its campaign against the union
• the consultant had scripted the speeches, letters, and leaflets used to deliver the employer's message during the campaign
• the consultant had instructed supervisors that they must address questions in a particular way without regard to whether that view reflected the supervisor's actual beliefs or the employer's independent views about particular questions that arise during representation or collective bargaining, and
• the employer used a formulaic message typical of that crafted by labor relations consultants, espousing a view antithetical to representation by a union, rather than one that appeared to have been drafted to respond to workplace-specific issues that had arisen during the campaign.
Many of the commenters supporting the rule submitted comments making these and similar points. We have credited those comments in fashioning this rule. OLMS also relies on its experience in generally administering the LMRDA. Union officers and union members, who have interacted with OLMS investigators, have expressed an interest in learning about consultant activities and agreements. At compliance assistance sessions conducted by OLMS in which attendees receive training on how to access and use the OLMS online public disclosure room (where reports filed by unions, union officers, employers, and consultants are available for viewing), attendees often raise questions about “missing reports,” referring to the absence of reports filed by employers and consultants. According to the attendees, they are aware of situations in which known and unknown third parties are involved in the employers' counter-organizing efforts, but no reports have been filed. Explanations from OLMS investigators on the “direct contact” rule did not satisfy their curiosity. Nor did it reduce their interest in seeing reports about the use of third-party consultants by employers.
Disclosure of indirect persuader agreements allows workers to know the actual source of the persuasive information provided to them by their supervisors, individuals that the workers may find more credible than higher-level management officials. As stated by some commenters, consultants utilize supervisors to disseminate the consultant-prepared persuader message. Thus disclosure will allow workers to better evaluate comments made by their supervisors (as the supervisor's own, or scripted, view about union representation) and other forms of communication.
When a consultant is used to indirectly persuade employees and such use is not disclosed to employees, that, per se, deprives the employees of being fully informed about all the circumstances regarding their decision on representation. In making this assessment, the Department is not questioning employers' intentions or making a judgment about employers' use of consultants, nor does it take a position on employers' exercise of their rights under the NLRA. The Department
Furthermore, the nature of the persuader arrangement is relevant. The persuader represents the employer, and never the employees whose decision to decide on union representation is the focus of the parties' concern. Where the consultant is involved in persuading employees about how they exercise this right, it has differentiated itself from the employer insofar as section 203 is concerned. By virtue of section 203(e), no reporting is required if the employer itself undertakes persuader activities. In such situation, workers may assume, correctly, that its employer, through its representatives, drafted the material. Workers are thus able to evaluate the employer's message on its face. In the absence of persuader reporting, workers have no independent means of determining whether the message truly derives from the employer or from a third-party source, and any assumptions they make about the source and its credibility may be incorrect.
In sum, as further discussed below, the issue is not just the activity itself (
Multiple commenters stated that the Department's focus should be on deceptive “middlemen” employed to spy on employees or otherwise “unlawfully and deceptively” interfere with their rights and defeat their organizing efforts. They suggested that Congress did not intend that labor relations consultants, as a general matter, would have to report what to these commenters are routine activities—whether done openly or not—but only to require “middlemen,” as unique-outliers among consultants, to report agreements to engage in “nefarious conduct.” They rely on the LMRDA's legislative history to advance their contention that the proposed rule does not address what they see as the congressional intent for section 203 to apply only to these types of middlemen who interacted directly and deceptively with employees. Further, these comments imply that such middlemen are an historical anomaly and, accordingly, the proposed rule addresses a problem that no longer exists.
Many of the commenters argued that the LMRDA's legislative history clearly evinces that reporting is only required in instances where a labor relations consultant is interacting directly with employees as a middleman for the employer. These commenters contended that it was the sole intent of Congress to curb abuses of unscrupulous middlemen, as opposed to the work of legitimate consultants and attorneys. One commenter noted that the evidence presented before the McClellan Committee was “largely focused” on the deceptive practices of Nathan W. Shefferman and his labor consulting firm. The commenter quoted the following excerpt from the Senate Report on the bill that became the LMRDA: “These middlemen have been known to negotiate sweetheart contracts. They have been involved in bribery and corruption as well as unfair labor practices. The middlemen have acted, in fact if not in law, as agents of management.” See S. Rep. No. 86-187, at 10, 1 LMRDA Leg. Hist., at 406. Another commenter noted that the practices targeted in the legislative history centered on the hiring of middlemen to spy on employee organizing activity, induce employees to join company unions, negotiate sweetheart contracts, and commit acts of bribery and corruption. The commenter claimed that the LMRDA has effectively eliminated these practices.
Other commenters contended that section 203 was never intended to regulate situations involving the indirect persuasion of employees, such as where “an employer accepts advice and materials prepared for them, applies that advice it received on its own behalf, adopts that advice and materials as its own, and itself delivers the message to its employees.” Another commenter, a public interest organization, stated that the term “middlemen” means “persons acting in the
Likewise, a trade association commented that Congress sought to expose labor consultants acting as middlemen who engaged in the direct persuasion of employees without revealing their true connection to the employer, essentially acting as “fronts for the employer's anti-union activity.” The trade association stated that the Department, in the NPRM, had failed to identify any legislative history to show that Congress intended to target consultants who merely advised employers on ways in which the “
Payments for advice are proper. If the employer acts on the advice it may influence the employees. But when an employer hires an independent firm to exert the influence, the likelihood of coercion, bribery, espionage, and other forms of interference is so great that the furnishing of a factual report showing the character of the expenditure may fairly be required.
See Hearings before the Subcommittee on Labor of the Senate Committee on Labor and Public Welfare on Labor-Management Legislation, 86th Cong., 1st Sess., at 128 (1959). The commenters construed this testimony as an indication that reporting should be required only when an employer hires a consultant to directly “exert the influence” on employees. According to another commenter, the legislative history confirms that Congress wanted only for employees to know whether a middleman was acting on behalf of the employer, and not whether the employer had consulted with a labor relations consultant or lawyer.
The Department accepts that some of the legislative history focuses on the deceptive and surreptitious activities of “middlemen” such as Shefferman. The Department disagrees, however, with the suggestion that Congress intended for the persuader reporting provisions of section 203 to be limited to persuasion that amounted to unlawful conduct by middlemen. Instead, section 203 is worded broadly to require both employers and consultants to report consultant activities where an object thereof, directly or indirectly, is to persuade employees, as well as the attendant details regarding their agreements or arrangements. The activities of individuals like Shefferman and his ilk provided the most blatant examples of the conduct to be regulated through reporting and disclosure, but nowhere in the legislative history was it suggested that Congress intended to exempt or exclude from reporting those persuader activities that do not rise to the level engaged in by Shefferman and his consulting firm.
As explained further in Section V.C.3, the LMRDA is designed, in large part, to rely on reporting and disclosure in order to promote lawful, constructive activities that bring stability and harmony to labor-management relations. Disclosure promotes the full exercise by individuals of their rights as employees and union members and discourages improper financial arrangements between unions, their officials, and employers (as provided by the NLRA and the various titles of the LMRDA). In its crafting of section 203, there is nothing to indicate that Congress sought to exclude from disclosure any agreements between an employer and a consultant under which a consultant agrees to undertake
In
The Department disagrees with the contention that Congress intended for section 203 to apply only to middlemen who
An employer association contended that the Department's conclusion that the reporting of both direct and indirect persuasion will further employees' ability to make informed choices concerning their bargaining rights is a policy judgment to be made by Congress, not the Department. Further, the commenter argued that such reporting provides no benefit to workers and interferes with employer rights. A law firm similarly asserted that “true persuaders” are currently required to report, and the NLRB's rules adequately protect employee rights in organizing campaigns.
The Department rejects these assertions. As discussed above, the legislative history and the wording of section 203 support the Department's interpretation that both lawful unlawful persuader activities are reportable and that such reporting is beneficial to employees. This rule furthers Congress's intent that section 203 supplement the NLRA in protecting the representation and collective bargaining rights of employees. See
Furthermore, nothing in the legislative history supports the commenters' view that section 203 was enacted to apply only to middlemen interacting directly with employees. As stated above, the broad language of section 203 suggests otherwise. Moreover, regardless of the broad or narrow scope of the term “middlemen,” the Department notes that the term “middlemen” is not mentioned in the text of the LMRDA and that no specific persuader activities are identified in the text. Section 203(a)(4) uses the phrase “labor relations consultant or other independent contractor or organization,” a phrase more inclusive than “middlemen.” Section 203(b), rather than identifying particular reportable activities, simply states that “[e]very person” who engages in persuader activities through an agreement or arrangement with an employer must report. 29 U.S.C. 433. Further, many of the activities cited in the legislative history are not strictly examples of “direct” persuasion, such as efforts to induce employees to form or join company unions through such devices as “spontaneous” employee committees, essentially fronts for the employer's anti-union activity. S. Rep No. 85-1417, at 255-300 (1958). The “middlemen” also engaged in other activities discussed in the legislative history, involving direct or indirect contact with employees, including organizing “vote no” committees during union campaigns and designing psychometric employee tests designed to weed out pro-union workers. Id.; see also S. Rep. No. 86-1139, at 871 (1960). Indeed, the legislative history discusses
Drawing upon the disclosure requirements applicable to unions under the LMRDA and various individuals and entities in other settings, several commenters objected to the need to identify the consultant as the source of persuader materials, arguing that such disclosure provides little or no benefit to workers. First, as a general matter, commenters argued that disclosure should focus on the person who delivers the message, and not the person who drafts the remarks. Referring to presidential speeches and regulatory documents as examples, one commenter asserted that it is the “oratory or signatory” who “owns” the words delivered, even if others assist in drafting or reviewing. This commenter argued that if an employer delivers remarks prepared by a consultant, the employer has adopted the remarks as his own and that the drafter thus, in effect, serves only an inconsequential role insofar as employees are concerned.
Other commenters disagreed that employer-consultant reporting is similar to union reporting, stating that union reporting was required to show how a union maintained their finances, a rationale unrelated to the reasoning underlying the Department's proposed rule. Another commenter suggested that the rule is not necessary to “even the playing field” between labor and management, as unions have won the majority of elections in recent years. An employer association suggested that the Department sought, without authority, to “redress the balance of `contemporary labor relations.' ”
A trade association, citing
The Department disagrees with these commenters. Initially, we disagree with the idea that whether an employer or its spokesperson delivers a persuader message prepared by a consultant—thereby, in the commenter's view, “owning” its content—is material to the question whether the consultant's involvement must be reported. By creating the message to be given by the employer, the consultant has engaged in indirect persuasion, which, as the statute requires, must be reported. Putting aside this statutory requirement, it remains our view, as expressed throughout the preamble, that workers benefit by knowing that a message is being scripted by a third party. For example, when the issue in a union election context is whether the workers want a representative, often portrayed as an unwanted “outsider” by the employer, then it is relevant that the employer's message opposing the union is crafted by an outsider. When, unknown to employees, a supervisor's day-to-day interactions and comments with the employees he or she supervises are scripted to defeat union representation, employees may view the message differently. If employees are unaware that a labor relations consultant has been hired to persuade them to oppose unionization, they may never learn that their supervisors may not be sharing their own, usually trusted, views about matters in the workplace. Thus, without disclosure, there is an unacceptable risk that employees may alter their decision concerning the exercise of their rights based upon the scripted message of “trusted” supervisors or those managers with whom the employees regularly interact—one part of a professional persuader's campaign strategy. See Part III.B.3 and V.C.1.c of the preamble.
With regard to the suggestion that the Department's proposed persuader rules have no analog in the Act's provisions relating to union reporting, the Department notes that the general disclosure principles are roughly analogous for section 201 and section 203 reporting, even if not all of the specific reporting goals or requirements are identical. Indeed, the Senate Committee that drafted what became section 203 indicated its belief that “if unions are required to report all their expenditures, including expenses in organizing campaigns, reports should be required from employers who carry on, or engage such persons to carry on, various types of activity, often surreptitious.” S. Rep. 187 at 39-40, 1 LMRDA Leg. Hist., at 435-436. Thus, the Department's goal in this rule is not to take sides in labor-management disputes, or promote “parity,” but, rather, to advance the interests of Congress in labor-management disclosure that benefits workers choosing to exercise their protected rights. As such, union success rates are not relevant. Further, the fact that the primary rationale for union disclosure does not apply strictly to employer and consultant disclosure has no bearing on the underlying merits of such disclosure. Disclosing this information, as stated, provides beneficial information to workers.
With regard to the comments that there are important differences between the disclosure proposed by the Department and the disclosure rules applicable to public elections, the Department recognizes such distinctions. However, the Department disagrees with these commenters to the extent they suggest there is no analogy between the benefit derived by voters under campaign disclosure laws and the benefits derived by workers from the disclosure provided by this rule. See
To illustrate, while voters are selecting among various candidates for office in the larger, political context, workers are choosing whether to be represented by a union, or they are choosing from among rival unions seeking their support. Although the dynamics differ, in each situation, outside parties use persuasive
Thus, in the Department's view, analogizing between the source of an employer's position and the sources that fund candidates' campaigns, and their related political action committees, is justified. Just as knowledge of special interests and campaign donors helps voters formulate opinions on candidates' positions, knowledge of employer reliance on outside parties can assist workers in evaluating the merit of employer positions. The benefit of knowing the source of persuader materials and other activities is apparent for either direct or indirect persuasion. Under the other reporting regimes, the contribution of money from an individual or entity may influence the candidate's position on an issue—and thereby affect a citizen's evaluation of the candidate—thus animating the need for disclosure. This contrasts with the situation that arises under the LMRDA; here, it is the contractual arrangement between the employer and the consultant to undertake persuader activities—without any apparent divergence of views between the consultant as agent and the employer, as principal—that would be significant to an employee. In the political sphere, a candidate's position on an important issue may be “bought” by a donation. In the union election context, an employer's general views about the union may be shaped and made coherent by a professional consultant. In each instance, however, the purpose served by disclosure is to provide information that allows the public (under the campaign analog) and the employees (under the LMRDA's) to exercise important governance duties (exercising their franchise and related “oversight” duties). In each situation, it is the risk that actions by third parties may impede voting rights if they are not disclosed that makes disclosure important. Although the political spheres and the nature of the relationship between donors and candidates, on the one hand, and consultants and employers, on the other, are different, Congress decided that disclosure is necessary to ensure that individuals can fully exercise their rights in an informed manner.
Finally, one law firm also objected to the Department's reference in the NPRM to “laboratory conditions” that the NRLB promotes in its representation elections, a test which ensures that employees have full and accurate information during campaigns. See
Several commenters suggested that workers could not benefit from this increased disclosure, because the statutory deadlines for reporting are later than the 38-day median timeframe between the filing of an NLRB petition and the ensuing election (additionally noting that 90% of the elections are held within 56 days). Further, much of the information from submitted reports would be available only 90 days after the conclusion of the filer's fiscal year. Additionally, some commenters stated that if the NLRB expedites representation elections, it will be even less likely that workers will actually benefit from the Department's proposed changes.
The Department rejects these contentions. The Department recognizes that the NLRB in December 2014 issued a final rule amending its representation case procedures. See 79 FR 74307. Critics of that rule argue that the time between the filing of a certification petition and the holding of the representation election will be significantly reduced. In the Department's view if this result is achieved, the rule will remain highly beneficial to employees and the public; it in fact makes the need for transparency even more compelling. Initially, the Department notes that section 203(b) requires consultants to file Form LM-20 reports within 30 days of entering into the persuader
As stated in the NPRM, while most employers utilize consultants to conduct counter-organizing campaigns, most persuader agreements are unreported because most consultants engage only in indirect—not direct—persuasion. This lack of reporting has persisted, despite the growth of the persuader industry and its widespread use by employers since the enactment of the LMRDA. See 76 FR 36185-87. As stated in the NPRM, the Department estimated that 75% of employers utilize labor relations consultants to manage union avoidance campaigns. 76 FR 36186. The widespread use of consultants to indirectly persuade employees has been documented in congressional hearings, executive branch commission reports, and industrial and labor-management relations research. Id. The NPRM also cited these sources to illustrate the practical effect of the prior interpretation and to demonstrate that it did not lead to the full reporting necessary for workers to effectively exercise their representation and collective bargaining rights as intended by Congress. 76 FR 36190.
Many commenters opposed to the revised interpretation criticized the Department's use of industrial relations research to support its position that the prior interpretation failed to provide the reporting intended by Congress. In response, the Department emphasizes that the proposed interpretation, embodied in this rule, is rooted in the statutory language and congressional intent. To reiterate points earlier made in this preamble, the text of section 203 is better read to require reporting of employer agreements with consultants who engage in both direct
Notwithstanding their criticism of the research cited in the NPRM, these commenters did not controvert the fundamental propositions concerning indirect consultant activity made in the NPRM. The commenters did not contest the Department's basic description of how employers routinely rely upon labor relations consultants, including lawyers, who work behind the scenes (engaging in legal and non-legal services) with supervisors and other employer representatives, who then directly persuaded employees. The commenters did not contradict the contention that workers are generally unaware of the extent to which consultants are involved in the “indirect activities” designed to affect how they make their choices about matters involving union representation and collective bargaining. Moreover, many of the commenters who supported the proposed rule concurred with the researchers' observations and the Department's determinations regarding the growth of the consultant industry and employers' routine reliance on consultants in persuading employees about how they should exercise their representation and collective bargaining rights. And, none contested that indirect persuader activities have gone unreported.
Several commenters voiced support of the research studies cited in the NPRM. Many more commenters (all opposed to the proposed rule) took issue with the studies cited, variously criticizing the research as outdated, unreliable, lacking credible analysis, flawed, and arbitrary. Other commenters criticized the research as having a pro-union bias and lacking objectivity. One commenter argued that the cited research does not address the problems identified by Congress in the enactment of the LMRDA. Another commenter called the studies cited in the NPRM “discredited,” and stated that they have been refuted by counter-studies (citing U.S. Chamber of Commerce,
Multiple commenters specifically criticized Bronfenbrenner's
Other commenters criticized the studies by John Logan, stating that they are based on qualitative analyses and interviews with union officials and union avoidance consultants, and that they lack credibility because Logan did not distinguish between legal and illegal campaign tactics when describing employers' consultant use. Another commenter took issue with Logan's
A law firm criticized Bronfenbrenner and Logan for not fairly portraying changes in union strategies for conducting representation campaigns. An employer association stated that labor unions and certain academic professionals believe that employers should refrain from playing any role in response to union organizing efforts, or at least that any employer actions should be subject to stringent regulation.
Further, a law firm stated that the Department should have provided its own evidence in support of its policy justification for the proposed rule, or, at a minimum, verified the authenticity or reliability of the data from the research cited in the NPRM. Another commenter urged the Department to conduct its own research and hold hearings to obtain stakeholder input and assess the need to change the current interpretation. The commenter argued that a “thorough, non-partisan review of the labor relations climate will demonstrate that labor relations consultants are in most, if not all, cases assisting employers in a lawful manner to respond to potentially devastating economic attacks by unions.”
In addressing these comments, the Department first wants to make clear that the foundation for this rule is the statutory language chosen by Congress to require the disclosure and reporting of agreements between employers and labor relations consultant to persuade employees about the exercise of their union representation and collective bargaining rights. Thus, we are not relying on research findings to establish whether it is appropriate to require reporting—Congress has answered the question in the affirmative. The chief value in the research findings, as discussed in the preambles to the NPRM and this final rule, is to show that the conduct that Congress intended to address by requiring disclosure and reporting persists.
In response to those commenters that stated the Department should have conducted its own research, the Department, as discussed below, had no basis to question the soundness of the research cited. While some may argue about some of the specific findings and recommendations in the studies cited, the studies firmly establish that labor relations consultants are heavily relied upon by employers in contesting union representation efforts, that consultants are heavily involved in persuader activities, and that many of these activities have had a negative impact on labor-management relations. Further, with regard to the criticism that the Department should have relied on its own data, its review of Form LM-10 and Form LM-20 reports would have revealed no useful information about the extent of indirect persuader activities because, under the prior
Despite these criticisms, no commenter introduced a single academic study that offered any reliable evidence that meaningfully controverted the Department-cited studies' conclusions regarding the labor relations consultant industry. While the commenters rely on a review of the literature prepared by an employer association that challenges some of the studies cited by the Department, this review presented no new data or peer-reviewed studies to refute those cited by the Department in the NPRM. Nor did the comments cite data more contemporaneous than the post-2001 studies in the NPRM.
Regarding the assertion that the NPRM failed to take into account the tactics of unions, the Department disagrees with this contention, as this rule concerns reporting for persuader agreements between employers and their consultants pursuant to section 203. Reporting and disclosure requirements for labor unions and their officials are covered by sections 201 and 202, and provide for much more comprehensive and detailed reporting. The Department also considers the reaction of employers and consultants to union tactics to be irrelevant to section 203 reporting, as the focus of this rule is on the agreements and activities that trigger employer-consultant reporting, and the purposes served by such disclosure.
In response to the commenters who criticized Bronfenbrenner's
Commenters criticized John Logan's research on the grounds that it failed to distinguish between legal and illegal conduct. Logan's listing of both lawful and unlawful tactics, however, fails to undermine the soundness of his reasoning in the article, the clear purpose of which, as stated by the author, is “to provide[] a qualitative analysis of the services that the consultants have offered employers and an account of the campaign tactics of several superstars of the union free movement.” See John Logan,
In response to commenters arguing that the Department has not independently verified the authenticity or reliability of data and methodology used in the studies cited in the NPRM, the Department again notes it has now, and had then, no reason to question the soundness of the data and methodologies used by the academic researchers. In fact, additional studies referenced by commenters in opposition to the rule utilized the very methodologies that the commenters had previously criticized. Several commenters referenced the Chamber of Commerce's white paper that leveled criticism at Bronfenbrenner and Logan's respective bodies of research. Yet, the Chamber of Commerce did not conduct its own research, publish its article in an academic journal, or produce any alternate research data that meaningfully contradicted that of Bronfenbrenner and Logan. In attempting to refute Bronfenbrenner's and Logan's research, it used many of the same methodologies as those researchers. Moreover, the document was not published in an academic journal, which further diminishes its analytical strength. Commenters' critique of a lack of data in fact only makes a stronger case for the need for the rule; because the advice exemption has in effect swallowed the reporting requirements, a neutral government source of information that all parties might access is entirely lacking. The studies that exist are the only possible source of information—the opposite of what the statute intended.
Multiple commenters agreed with the Department's determination that persuader activities were relatively underreported despite a substantial growth in the labor relations consultant industry. These comments were from local and international unions, a law firm representing unions, Congressional leaders, and a public policy organization.
A law firm representing unions stated that the majority of organizing efforts
Two international unions concurred with the Department's assessment that underreporting is a significant problem. The unions stated that, by limiting reporting to direct persuader activities, the prior interpretation has led to the increased retention of attorneys and other consultants to provide union avoidance services. A public policy organization concurred with the Department's underreporting estimates in the NPRM, and also provided examples (from its own research) of indirect persuader activities that were not reported.
Multiple commenters disagreed with the Department's claim that the underreporting of employer-consultant reports provides any justification for the proposed rule. A large employer association disagreed with the Department's claim of an underreporting problem, on the grounds that such claim is based on the views of pro-union academics who describe and criticize activities beyond the purview of the proposed rule.
Similarly, a trade association argued that an underreporting problem cannot exist, since, if consultants' activities do not by law have to be reported, then they do not qualify as reportable activities. Other commenters echoed the theme that employer-consultant reports are not being underreported since reports, which are being submitted under the current (not proposed) “advice” interpretation, are being filed exactly as they should be. Another commenter refuted the NPRM's underreporting claim on the grounds that it is based on what the commenter calls a “false connection” between the number of consultants and the number of reports that they should be filing.
Several commenters questioned the Department's determination that the prior interpretation has led to significant underreporting. A consulting firm argued that the Department has simply created the new category of “indirect” persuasion activity, which is considered “advice” under the prior interpretation. Another commenter stated that, even if consultants are hired in a majority of union organizing campaigns, the consultants are not necessarily hired for the purpose of engaging in persuader activity at all. Instead, they may be engaged in activities that the Department would concede would be exempt as advice. A public policy organization stated that the Department failed to justify its claim that the number of reports filed is 7.4% of those expected, and indicated that it is just as likely that most consultants have complied with the law and only provided advice, which is exempt from reporting. The commenter characterized the Department's reporting expectations as “grossly inflated.”
Multiple commenters stated that the Department did not provide adequate evidence that persuader activity is underreported. One law firm commenter argued that the underreporting claims were based on anecdotal evidence from biased sources. A trade association commenter disagreed with the Department's analysis of NLRB/NMB representation cases and levels of LM-20 reporting (76 FR 36186), and stated that the NPRM's analysis failed to prove the existence of an underreporting problem.
A law firm stated that the Department did not explain why it only looked at NMB and NLRB representation cases from 2005 through 2009, and questioned the Department's estimate of how many Form LM-20s should have been filed, based on that NMB and NLRB data. It asserted that there is no evidence that those consultants engaged in persuader activity, and also stated that there is no evidence that the Department's reporting expectations are reasonable and realistic.
One commenter argued that the cited studies did not substantiate that the 75% figure is an accurate estimate for elections conducted by the NMB in the airline and railroad industries. The commenter states that airline and railroad industries already have high unionization rates, so labor relations consultants are not hired as often, and employers in these industries respond differently to organizing campaigns.
In the Department's view, as reflected in the NPRM and reiterated here, the LMRDA, properly interpreted, requires the reporting of consultants' direct
The Department also notes that this rule does not establish retroactive obligations or penalties. Further, the Department has not created a new category of persuader activity. Rather, indirect persuasion activities (including orchestration of counter-organizing campaigns through the use of employer representatives or supervisors), practiced by consultants in the name of “advice,” come within the plainly-described category of activities reportable under section 203. Employees need to know about persuader activities in order to make informed decisions on whether to organize and collectively bargain.
In response to the comments stating that the NPRM did not provide sufficient evidence or analysis to justify its claims of underreporting, the Department notes that it did not purport to specify an exact reporting (or underreporting) rate. Rather, the Department, first, sought to develop an estimate of the underreporting of persuader agreements by generating a hypothesis from industrial relations research. The Department reiterates that such research is based on sound methodology and provides a solid basis for the Department's estimate that 75% of employers retain consultants to manage counter-organizing campaigns.
Second, the Department analyzed NLRB and NMB data to determine the number of election petitions filed.
Third, the Department developed its estimate for the number of reports covering consultants managing counter-organizing campaigns by applying the 75% percentage figure to the number of NLRB and NMB election petitions filed. The Department also took into account the number of reports received by OLMS in recent years in arriving at this estimate. This data supported the conclusions reached in congressional hearings, executive branch commission reports, and labor-management relations research—that information Congress intended to be reported has not been reported.
The commenters actually did not dispute the underlying factual premises of the Department's conclusion. That is, they did not reject the assertion that approximately 75% of employers' counter-organizing campaigns involve the use of outside consultants engaging largely in indirect activities. Rather, they disputed the Department's conclusion that indirect activity undertaken by consultants should be reportable. The Department emphasizes that the cited research characterized the consultants' activities as constituting the management or direction of the employer campaigns, and that many of the comments supporting the proposed rule concurred with that reading of the research and the conclusions of the studies.
Finally, multiple commenters suggested that the Department need only increase its enforcement initiatives and compliance assistance efforts under the current “advice” interpretation to achieve an increase in reporting rates. A consulting firm stated that the Department has not adequately demonstrated why simply following current reporting rules could not solve the underreporting problem. A law firm argued that if there is currently underreporting, there is no reason to assume that those who do not report would suddenly do so if the Department broadened the scope of reportable persuader activity. This commenter argued that the proposed changes would adversely impact employers who are not underreporting, and who are already in compliance with the LMRDA. This commenter also asserted that the Department underestimated the potential effectiveness of the prior interpretation, and argued that the current rules would allow for investigation and enforcement of some of the examples described in the NPRM. The commenter suggested attempting to apply the prior interpretative standards before rejecting them in favor of new ones.
In response to these comments, the Department acknowledges the importance of strengthening enforcement in all provisions of the LMRDA. However, increased enforcement alone would not be a sufficient substitute for the Department's revised interpretation of the reporting requirements. Limiting enforcement initiatives to those that address employer-consultant reporting under the prior interpretation would fail to secure reporting of indirect persuader activities (which predominate the persuader services provided by consultants). As a result, the “underreporting” referred to in the NPRM exists in relation to the reporting necessary to achieve the aims envisioned by Congress in enacting the LMRDA, not in relation to the full reporting of only direct persuasion. Although the Department received several comments anecdotally suggesting that some direct persuasion was going unreported, there is little support in the rulemaking record that non-compliance by consultants with regard to direct persuasion in some way indicates that they should be relieved from an obligation to disclose their indirect persuasion.
The Department remains committed to providing effective compliance assistance for employers, consultants, and unions subject to LMRDA reporting requirements, and will continue to do so with this rule. Further, the Department notes that “failure to file” situations would be handled by various enforcement mechanisms, similar to those routinely used to enforce labor unions' reporting obligations. The Department's robust reporting regime that has long been in place for labor unions has yielded “best practices” that will be helpful in establishing enforcement methods in the employer-consultant reporting realm.
As stated above, several commenters supported the Department's conclusions regarding the underreporting of persuader activities despite the growth of the persuader industry. Comments from several international unions and one public policy organization reported that hiring labor relations consultants has become a prevalent practice whenever an employer faces a representation election.
Multiple commenters argued that the Department had insufficient justification for its claim of growth in the labor relations consulting industry. One law firm commenter stated that the various studies citing percentages of consultant use over the years did not provide adequate evidence of significant industry growth. This commenter argued that the cited studies did not provide evidence of the number of consultants who actually engaged in reportable persuader activities, and did not provide data on the number of consultants or consulting firms in the United States.
A law firm stated that the supposed increase in consultant use does not sufficiently justify the proposed rule, and argued that if no reporting is now occurring the Department has no way to measure an increase in the use of union avoidance consultants. Further, a trade association stated that the Department claimed that the current “advice” interpretation itself has led to an increase in the union avoidance consulting industry. Another commenter claimed that the Department's goal is to reduce the number of consultants, regardless of their conduct, and argued that the fact that a majority of employers hire consultants during organizing campaigns is not germane to the Department's analysis. A trade association offered the interpretation that employers' increased use of consultants may simply mean that employers are working harder to ensure that they do not violate the Labor Management Relations Act (LMRA).
In response to these comments, the Department repeats its earlier statements in this preamble that the purpose of this rule is not to criticize the use of labor relations consultants or in any way to curtail or interfere with their use by employers.
On a more particular point, several commenters expressed confusion about the NPRM's discussion of the number and size of consulting firms. See 76 FR 36204-36206. In response to these comments, the Department notes that it was required to analyze financial burdens to covered employers and consultants in order to comply with the requirements of the Regulatory Flexibility Act (RFA), 5 U.S.C. 601
A law firm stated that the Department is suggesting that unions would win more elections if more Form LM-20s were filed, and then argued that historical union success rates in representation elections contradict that point, since union success rates have been higher in the past decade than at any time since the 1970s. This commenter stated that the NPRM did not explain why unions' success rates in representation elections would be increasing during a time of growth in employers' hiring of consultants. Characterizing the NPRM as asserting that employers' increased use of consultants has an impact on the success of union organizing efforts, this commenter stated that the Department has not adequately shown how increasing employer-consultant reporting requirements would produce a change in representation election outcomes.
One labor relations consulting firm questioned why the Department cited studies that suggest that losses by unions in representation elections are the result of anti-union tactics by consultants, given that “unions win nearly 70% of contested elections each year.” A law firm representing employers noted an increase in union win rates, stating that “unions won 48% of NLRB elections in 1996 and nearly 68% in 2010.” A trade association stated that the Department has not provided sufficient evidence that current employer-consultant reporting levels have any correlation to decreased unionization rates, noting that unions won 67.6% of elections in 2010.
Further, a labor relations consulting firm argued that “union tactics as a group play a greater role in explaining election outcome than any other group of variables, including employer characteristics and tactics.” Additionally, a construction-related trade association commented that the unionization in the construction industry has declined because of union failures, and noted that there is no evidence to show that consultants' LMRDA violations are responsible for the decline. Finally, another trade association asserted that the proposed rule fails to specify the types of persuader activities that have increased and that have resulted in union election losses.
Contrary to some commenters' assertions, the Department did not claim in the NPRM that the increasing usage of consultants has had a specific impact on unions' organizing success rates. Moreover, the issuance of this rule does not have an object to tilt the balance in favor of unions or against employers in representation matters. The object of the rule is to provide information that employees need, as intended by Congress, to be able to consider the extent to which an employer's choice to hire a labor relations consultant to manage the employer's campaign should affect their choice to accept or question the arguments presented in opposition to union representation. It seems beyond dispute that upon receipt of this information, workers will be better able to exercise their representation and collective bargaining rights, a particular benefit to them and a general benefit to the public.
In response to the commenters that stated that the Department did not adequately explain how unions could have increased success rates in representation elections during a time of growth in employers' use of consultants, the Department reiterates that election outcome is not germane to this rule. The Department concurs with commenters stating that consultants are hired by
In the NPRM, the Department, referring to several research studies, expressed its view that there is strong evidence that the undisclosed activities of some labor relations consultants are interfering with workers' protected rights and that this interference is disruptive to effective and harmonious labor relations. The research included findings that some consultants counsel their employer-clients to fire union activists for pretextual reasons other than their union activity, or engage in other unfair labor practices, particularly because the penalties for unlawful conduct are typically delayed and may be insignificant, from the employer's viewpoint, compared to the longer-term obligation to deal with employee representatives. See 76 FR 36189-90 and Section III.B.1 of the preamble to this rule. This is not a new phenomenon. It is not the Department's intent in referring to this research to suggest that the increased use of consultants is the cause of, or an accelerator to, unlawful conduct by employers during organizational campaigns. At the same time, however, it cannot be ignored that Congress was concerned about and reacted to what it considered to be conduct by some consultants that, even if lawful, was viewed as disruptive to stable and harmonious labor relations. The Department recognizes, as we presume Congress did, that in most instances employers and labor relations consultants will adhere to the requirements of the NLRA and other laws.
After a review of the pertinent comments, the Department continues to believe that its revised interpretation of consultant persuader activities will have a positive impact on labor relations.
A number of commenters applauded the proposed rule as a long-needed response to what they viewed as the disruptive effect consultants have on labor-management relations, especially during representation campaigns. Several commenters viewed consultants as their chief antagonists in attempting to secure employee rights and appeared to view consultants as the root cause of most unlawful conduct by employers. Many of these commenters supported the rule, and several provided examples of the consultant activities they have witnessed. Other commenters, however, were critical of the Department's assessment of consultant and employer practices, arguing that the studies cited were inadequate to make such an assessment. Two commenters also argued that the rule is superfluous, contending that unlawful consultant activities are already governed by the NLRA and enforced by the NLRB.
Several commenters opposing the revised interpretation disputed the idea that consultants have a harmful impact on labor relations. Many of these commenters challenged the research referenced in the NPRM and maintained that the Department has not provided sufficient evidence to justify this rule. For instance, the Department received a comment from an individual with more than thirty years of experience as a human resource and labor relations professional. This person stated that he had never intentionally committed an unfair labor practice, advised anyone to do so, nor received advice to do so from a labor relations consultant or attorney.
Two associations representing small businesses stated that their members do not have any interest in deceiving employees or committing unfair labor practices. A trade association for manufacturers contended that the NPRM contained no “substantial evidence” to support a change in the Department's prior interpretation and that the Department failed to provide any evidence that contemporary consultants engage in the types of activities to which the LMRDA was intended to deter.
Another trade association asserted that the NPRM, if implemented, would actually result in more election interference charges, despite the Department's stated goal of reducing improper conduct in representation elections. The association criticized the NPRM's reliance on the research of Kate Bronfenbrenner, Chirag Mehta, and John Logan. While the association admitted that certain consultants and lawyers engage in “shady” activities, it did not think the cited studies presented any evidence that “all, most, or even many” consultants engage in unlawful or unethical conduct.
Many commenters appear to have misunderstood the Department's position. Several commenters read the Department's proposal to reflect a finding
As we have reiterated throughout the rule, its purpose is to provide information to employees, consistent with section 203, where an employer has hired a consultant to engage in persuader activities, including those indirect, behind-the-scenes activities, that are currently left unreported. With this information, the employees can better assess the message they are receiving, including its content and tone, and the extent to which the message accurately reflects the employer's (or its supervisors') actual, concrete beliefs. Employees are entitled to receive this information under section 203 and this rule effectuates that provision without regard to whether the consultant, as we expect will be the norm, is fully compliant with the law.
Some commenters stated that many consultants have never employed any unlawful or unethical tactics. Although these specific commenters, like most other labor relations consultants and employers, may have never engaged in these types of tactics, there are some consultants that are less scrupulous and whose actions unfairly tarnish the reputation of others. In addition, the Department cannot ignore the research that establishes that a significant number of tactics used in union avoidance and counter-organizing campaigns, whether lawful or unlawful, are disruptive of harmonious labor relations when not fully disclosed, as many commenters attested. For example, an international union commented that some consultants operate behind the scenes by coaching
Several commenters recounted their experiences with consultants during union organizing campaigns, noting particular activities they had observed and noting that these activities had been left unreported. One commenter recounted his past experience with a law firm's tactics to oppose representation, explaining that the consultants conducted face-to-face and group meetings with employees where literature, clearly not authored by the employer, was distributed. Another commenter described a consultant's effort to contest the union's efforts to organize a nonprofit health provider. He described the consultant's emphasis on indirect persuasion by educating managers about their role in the organizing campaign and training supervisors and coordinating their efforts to prevent unionization. The commenter stated that the consultant told managers to pull nurses from their patient-care duties to attend mandatory union avoidance meetings.
A counsel for a labor organization stated that in the “hundreds” of organizing campaigns he has observed, consultants go far beyond merely advising employers. As he explained, consultants have undertaken the following activities: engaging in direct contact with employees in captive audience speeches and one-on-one meetings; routinely drafting and disseminating anti-union propaganda documents; interrogating employees about union sympathies; conducting polling and surveillance of employees; helping employers identify and fire union supporters; and bribing employees to vote the union down.
A law firm representing unions stated that in its 50-plus years in existence it has seen how the LMRDA reporting requirements have been largely ignored because of the prior interpretation of reportable activities. The firm listed numerous indirect persuader activities that it has observed over the years. In addition, the firm stated that managers and supervisors are taught many other activities and tactics, some of which are unlawful under the NLRA and others which are not. The firm noted, however, that virtually none of these activities is reported.
The Department recognizes that these comments in support of the NPRM, like the ones in opposition, are largely anecdotal. Nonetheless, the Department believes that these experiences from union members, organizers, and attorneys serve to confirm and buttress the research discussed in the NPRM and the preamble to this rule. Moreover, many of the commenters' experiences are akin to those heard before the Senate Subcommittee on Labor-Management Relations in 1980. The Subcommittee described as “distressing” a consultant's activities during a hospital organizing campaign, including the use of a captive audience meeting and staff changes, caused a decline in the quality of patient care. See 1980 Subcommittee Report at 42. The comment above concerning the recent efforts of a nonprofit health care provider to discourage its nurses from unionizing involved similar circumstances. This comment lends support to the Department's position that many consultant activities, hidden from employee view, which prompted the need for section 203, continue to be problematic in more contemporary times.
In addition, the Department finds unpersuasive the criticism leveled by some commenters that the revised interpretation will actually result in more interference charges before the NLRB. A consultant merely engaging in legal services does not trigger reporting, so the Department is not persuaded that this rule will reduce the ability of employers to receive legal counsel. See Sections V.G and H discussing the rule's potential impact on free speech and the attorney-client privilege. Without any supporting data or analysis, the theory that this rule would lead to an increase in unfair labor practice charges is purely speculative and conclusory.
Other commenters opposing the rule also challenged the Department's premise, as stated in the NPRM, that there is some correlation between “the proliferation of employers' use of labor relations consultants” and “the substantial utilization of anti-union tactics that are unlawful under the NLRA.” 76 FR 36190. A trade association for the construction industry contended that this premise is not supported by any empirical data. According to the commenter, the fact that employers are engaging legal counsel more frequently does not indicate a desire to act unlawfully, but rather, is merely a means for them to maximize their right to educate and inform employees.
Likewise, a law firm submitted comments disputing the view that the use of consultants is the cause of unfair labor practices or objections filed in NLRB-conducted elections. The firm pointed to the NLRB's well-established policy of requiring that elections be conducted under “laboratory conditions.” The firm then noted that objections are filed by parties in only approximately 5% of all NLRB elections, and of the cases in which objections are filed, the NLRB has found that 50% have no basis in fact or law. The firm also noted the low number of “test of certification” cases filed with the NLRB, which, in its view, is at odds with the Department's perception that a new interpretation was needed. In contrast, a national labor union commented that the available evidence shows a strong correlation between the hiring of a consultant and unlawful behavior by supervisors, thereby undercutting the assertion by some commenters that consultants are merely instructing supervisors on how to comply with the law.
As previously discussed, the Department finds no persuasive reason to doubt the studies cited in the NPRM, insofar as they conclude that the proliferation of employers' use of labor relations consultants has been accompanied by the substantial utilization of unlawful tactics. The Department clarifies, however, that it did not intend to conclude that a causal relationship exists between the use of consultants and unlawful activity. The Department also concurs with the comment by the trade association opposing the proposed rule, who asserted that there is no data showing that employers who hire consultants to engage in direct persuasion (and file LM reports under the prior rule) are more or less likely to interfere with employee rights than employers who hire consultants to engage in indirect activities.
The Department also does not find the NLRB statistics cited by the law firm above to be persuasive. Many unknown variables may factor into a union's decision to file an election petition, withdraw that petition prior to an election, or file or not file an election objection. That objections were filed in only about 5% of all NLRB elections has very little, if any, correlation with the number of improper activities undertaken by many consultants on behalf of employers. The rate of “test of certification” cases are even less related to the number of improper activities, as many of those cases challenge NLRB decisions on which persons can or cannot vote in an election.
Finally, a labor consulting company argued that the revised interpretation of the advice exemption would not address the Department's concerns about improper consultant activities. A significant number of identical or nearly
The Department rejects the contention that because unfair labor practices are already illegal under the NLRA and enforced by the NLRB, that this rule is unnecessary. The LMRDA is a companion statute to the NLRA. Disclosure helps employees understand the source of the information that is distributed. This type of exposure also discourages potential unlawful acts and reduces the appearance of impropriety. Id. at 708.
That the NLRA works toward those same goals by offering procedures to remedy unfair labor practices does not diminish the Department's responsibility or ability to fulfill its congressional mandate under the LMRDA. The LMRDA requires the reporting of direct and indirect consultant persuasion of employees without regard to whether these activities are unfair labor practices. “When enacting the LMRDA, Congress did not distinguish between disclosed and undisclosed persuaders or between legitimate and other types of persuader activities. Rather, Congress determined that persuasion itself was a suspect activity and concluded that the possible evil could best be remedied through disclosure.”
Multiple commenters contended that the revised interpretation is “subjective” and “vague,” unlike the “clear,” “objective,” and “bright-line” test described in the prior interpretation. They advocated retaining the prior interpretation, which focused on whether the employer could accept or reject advice or materials offered by the consultant. Under the prior interpretation, reporting was required only if the consultant had “direct contact” with employees.
One commenter contended that the proposed rule would inject “subjectivity” and would create “inconsistent and arbitrary outcomes.” Another commenter argued that the Department is ignoring the complexity of today's workplaces, in which the line between “union avoidance” and “positive employee relations” has been blurred, as employers may have one or both purposes attached to a single activity, making it difficult to determine the underlying purpose. A consultant expressed concern that the proposed rule would require employers and consultants to always look at the “intent behind consultant or attorney activities,” adding unwarranted complexity and cost to reporting. Another commenter, a trade association, argued that the “arbitrariness” of the proposal was exemplified by the requirement that persuasive communication submitted orally to the employer would not trigger reporting, but written ones would. This commenter also inquired into what the “evidentiary standard” would be for determining the intent of a consultant's activity, suggesting that the standard would unfairly impose a “strict liability” test.
The Department disagrees with the assertion that this rule exchanges a clear, bright-line test for one that is subjective and vague. Contrary to commenters' assertions, reporting under both the prior interpretation and this rule rests upon whether the consultant undertakes activities with an object to persuade employees, which is determined, generally, by viewing the content of the communication and the underlying agreement with the employer.
In response to the commenters' concerns that the indirect persuasion category is too amorphous, the Department notes that the term “persuade” is not ambiguous, uncertain, or vague. The Fourth Circuit in
Further, the test is not “subjective,” as has been suggested. To determine reportability of an employer-consultant agreement or arrangement, the consultant must engage in or agree to engage in direct or indirect persuasion of employees. The analysis has two parts: (a) Did the consultant engage in the direct and indirect contact activities identified in the instructions; and (b) did the consultant do so with an object to persuade employees? The latter does not require a review of all the actions undertaken for the employer. What is required is a consideration of specific, objective facts:
The “object to persuade” analysis focuses on whether the communication, explicitly or implicitly, disparaged unions, sought to demonstrate that a union is not needed, provided ways to defeat or remove a union, explained promises or threats made or benefits provided to the employees in connection with the exercise of their rights, or otherwise sought to affect employees' exercise of their rights. One would also look to see if the communication provided the employer's views, argument, or opinion concerning the exercise of employee rights to organize and bargain collectively, which would demonstrate persuasive-content. See IM 263.100 (Speech by Consultant).
In such cases, every communication from the consultant to the employer would not be analyzed; rather, only communications created by the consultant and intended for dissemination or distribution to employees. Similarly, where a consultant directs or coordinates the supervisors' activities, the object is inferred from the content of the supervisors' communications and actions. Further, as explained in more detail in Section IV.B and Section V.E.1.e, the Department has made clear that personnel polices developed by the consultant will not trigger reporting merely because they improve employee pay, benefits, or working conditions, absent evidence of an object to persuade employees in the agreement, accompanying communication, timing, or other circumstances relevant to the undertaking.
Regarding the commenter's inquiry concerning the “evidentiary standards” imposed by this rule, the commenter appears to be improperly conflating two principles: The reporting trigger created by section 203 and the criminal liability standard in section 209. Reporting is triggered by section 203(a)(4) and (b) by a showing that an employer and a consultant have entered into a persuader agreement or arrangement. Such an agreement involves the third-party undertaking activities with an object to persuade. This is the triggering mechanism for reporting, not a standard for civil or criminal liability. Section 209 imposes criminal liability if the employer or the third party willfully violates the statute. As a result, the consultant would not incur any criminal liability unless it willfully fails to report or otherwise willfully violates the Act. In either case, there is no “strict liability” standard.
In this section of the preamble, the Department further responds to comments concerning specific consultant activities and whether such activities trigger reporting. In response to these comments and to simplify reporting, the Department has revised the instructions to separately address direct and indirect persuader activities and to differentiate them from other activities undertaken by consultants that do not trigger reporting. To better address concerns about activities engaged in by consultants with an object,
Reporting is required, as it had been under the prior interpretation, whenever a consultant meets face-to-face with an employee or employees, or directly communicates with them in some manner in order to influence them concerning how they exercise their representation and collective bargaining rights. Reporting is also required where the consultant engages the services of a third party to directly communicate with an employee or employees.
Reporting is triggered when the consultant directs the employer representatives' meetings with employees or the consultant plans or coordinates such meetings. If the consultant establishes or facilitates employee committees (groups of bargaining unit or potential bargaining unit employees that advocate a particular position concerning organizing and collective bargaining), either directly or indirectly through the directing or coordinating of supervisors and similar employer representatives, reporting is triggered. If the consultant trains the supervisor to engage in union avoidance (lawfully or otherwise), reporting is triggered. As stated more fully in Section IV.B, consultants must report if they plan, direct, or coordinate activities undertaken by supervisors or other employer representatives with an object to persuade, including their meetings and interactions with employees. Merely advising supervisors or other employer representatives to comply with the NLRA or other laws, however, does not itself trigger reporting.
The Department disagrees with the suggestion that the NPRM focused on the persuasion of supervisors as opposed to employees. The Department clearly stated, at 76 FR 36191, and repeats here, that reporting is triggered by indirect persuasion of
For purposes of clarity, in the final rule the Department has modified the checkbox item, “Planning or conducting individual or group employee meetings,” by separating this activity into two items: “planning or conducting individual employee meetings” and “planning or conducting group employee meetings.”
The provision of materials includes—drafting, revising, or providing persuasive speeches, written material, Web site, audiovisual or multimedia content for presentation, dissemination, or distribution to employees, directly or indirectly (including the sale of generic or off-the shelf materials where the consultant assists the employer in the selection of materials). Obviously, the same information may be conveyed orally; to ensure consistent reporting, the Department requires reporting regardless of how the consultant chooses to convey the material.
Many of these activities were listed in the instructions to the proposed rule and were addressed in comments. See 76 FR 36225. They are also addressed in the instructions published as part of this rule. See Appendices.
Counseling an employer's representatives on what they can lawfully say to employees does not trigger reporting because it is “advice.” A consultant may provide services to an employer in any manner contemplated by their agreement; this rule imposes no restrictions on any such activities. This rule only affects whether certain activities undertaken by the consultant will trigger reporting. So long as the consultant engages only in advice, no reporting is triggered. Typical advice situations would include—providing the client with an overview of NLRB case law relating to the right of employees to organize and bargain collectively, including a recitation of examples of communication that has been found to be lawful and unlawful by the NLRB or other body; and reviewing and revising—to ensure legality or to correct typographical or grammatical errors—employer-prepared speeches, flyers, leaflets, posters, employee letters, or other materials to be used in presenting the employer's position on union representation or collective bargaining issues.
One law firm questioned the reportability of communications in connection with the collective bargaining process. The Department emphasizes that the presence of a labor dispute is not a prerequisite for reporting of persuader agreements, although it may provide important context to determine if the consultant engaged in persuader activities. Section 203 exempts from reporting activities involved in negotiating an agreement, or resolving any questions arising from the agreement. An activity, however, that involves the persuasion of employees would be reportable. For example, a communication for employees, drafted by the consultant, about the parties' progress in negotiations, arguing the union's proposals are unacceptable to the employer, encouraging employees to participate in a union ratification vote or support the union committee's recommendations, or concerning the possible ramifications of striking, would trigger reporting.
This rule, as described above in Section IV.B, makes clear that the provision of pre-existing, “off-the-shelf” materials does not evidence a consultant's object to persuade employees, therefore is not itself reportable, without any communication between the employer and consultant. However, the Department cautions that any tailoring of existing persuasive documents by the consultant for a particular employer triggers reporting, as does the consultant's communication with the employer to select the appropriate persuasive materials for that employer. However, as noted below, trade associations are not required to file a report by reason of their membership agreements, or by reason of selecting off-the-shelf persuader materials for individual member-employers.
On a different point, some commenters inquired about the reportability of communications, prepared by consultants or other persons, which do not have an object to persuade an employer's employees, such as those directed at vendors or customers of an employer that have engaged the consultant's services, or members of the public. Such communications would not trigger reporting because they do not involve the persuasion of employees. In contrast, for example, newspaper, Internet, or similar advertisements created by a consultant and targeted for employees will trigger reporting because they have an object to persuade. See IM Section 255.600 (Newspaper Ads of Employers' Views) (1960, rev. 1962), Example 4.
In the NPRM, seminars for supervisors or other employer representatives undertaken with an object to persuade employees are listed among the reportable activities identified on the proposed Forms LM-10 and LM-20. See 76 FR 36208, 36218. The preamble to the NPRM stated that such seminars, as well as webinars, conferences, and similar events offered by lawyers and consultants to multiple employer attendees concerning labor relations services, are reportable, to the extent that they involve a consultant undertaking activities with an object to persuade employees. See 76 FR 36191.
Commenters opposed the reporting of seminars, arguing that they should be exempt as “advice” and that, even if not exempt, such reporting would be overly burdensome. One law firm stressed that, in many cases, there was no “agreement or arrangement” in place for the presenter at the seminar. This law firm also inquired into whether it mattered if the consultant trained the employer attendees on what materials to disseminate to employees, or presented a “campaign in a can,” as opposed to a consultant reviewing materials communicated by employers in past campaigns. The comment also discussed the consultant's difficulty in determining whether it must report the seminar, particularly if the consultant merely volunteered to be a presenter at
Several commenters noted that presenters may lack some information about the employer attendees at a union avoidance seminar. One policy group stated that, “absent mind reading skills, it will be impossible for a law firm, consulting firm, . . . or other entity to comply with the rule unless they report all attendees to their events and the fees that they paid.” This requirement, stated the commenter, constitutes a grave violation of privacy and a tremendous administrative burden on providers and will reduce the number of informational programs and will increase their cost. It added that the proposed rule will lead to a less informed business and inevitably result in less, not more, compliance with the law. Additionally, a commenter stated that there is no textual or historical support to assert such coverage, and that the requirements could apply even where the instructor of the seminar has no familiarity with any individual employer and no knowledge of the employees. Further, it stated there is no evidence that programs of this type are sponsored with the promoters' advance knowledge that any materials or messages are being distributed specifically to any set of employees.
In response to comments received, the Department has modified and clarified the reporting of such union avoidance seminars. Initially, a trade association must report a seminar only if its own officials or staff members actually make a presentation at the event that includes employee persuasion as an object, as distinct from merely sponsoring or hosting the event. Further, in no case would an employer attending the seminar be required to file a Form LM-10 for attendance at a seminar. See Sections IV.B and D for more guidance concerning the reporting of seminars.
The Department acknowledges that seminars presented by labor relations consultants may provide guidance and recommendations to the employer attendees on a variety of labor relations topics, including the persuading of employees. Thus, some seminars may exclusively involve advice to employers, without the consultant intending any persuasion, direct or indirect, of employees. However, if the consultant develops or assists the employer with developing anti-union tactics and strategies to be used by the employers' supervisors or other representatives, such activity triggers reporting. In such cases, the consultant clearly has the goal of indirectly persuading similarly situated employees by helping their employers to direct or coordinate their supervisors and other representatives to engage in tactics designed to prevent union organizing. Such activities clearly involve more than merely providing recommendations to the employers, but, rather, are intended to assist the employers in persuading their employees.
Additionally, the Department shares the commenters' concerns about the potential reporting burden on the seminar organizer and presenter, as well as on the employer attendees. However, the Department disagrees with the suggestion by one commenter that requiring seminars to be reported is intended or operates as a penalty for attendance. Initially, the Department notes that only union avoidance seminars trigger reporting. Such seminars typically involve the development of persuader tactics that the employer and its supervisors and other representatives can use to persuade employees. These seminars do not include those focusing exclusively on maintaining a legally compliant workplace, one that is better for workers, more productive, efficient, tolerant, or diverse—nor do they include efforts to merely solicit business by recommending persuader services. Thus, this rule will not require reporting from lawyers and consultants who offer seminars that provide guidance to employers on labor law and practices. Further, this rule exempts employers from filing reports for agreements concerning attendance at union avoidance seminars, thus reducing burden for the thousands of employer representatives that commenters suggested attend such events. Moreover, trade associations will not need to report if they merely organize the seminar, and those entities that do file will only need to file one report for each seminar, listing employer attendees, as described in Section IV.E.
While these changes depart from the general approach that all parties to the agreement or arrangement must report persuader activities, the change, in the Department's view, is appropriate due to the unique characteristics of trade associations and the nature of seminars attended by multiple employers. Because an agreement arising from the seminar will be identical for all employers, there is little utility served by requiring separate reports for each employer attending the seminar, and any benefit from requiring each employer to file a report in such circumstances (potentially affecting thousands of employers in the view of some commenters) would be outweighed by the cumulative burden on employers. With regard to seminars that are sponsored or hosted by trade associations, requiring them to require reports would largely duplicate the information that will be reported by presenters. Importantly, this information will include the names of employer attendees, ensuring that this important information will be disclosed to employees and the public, as well as a description of the seminar. Furthermore, requiring the presenter to file the single Form LM-20 report, rather than the organizer, ensures that the most comprehensive information concerning the seminar is disclosed, such as which employees of the consultant made the presentation. See Form LM-20 Item 11.d in Appendix A.
Because persuader agreements stemming from attendance at seminars will arise when an employer registers for the seminar, thereby under the general rule triggering the 30-day deadline for filing a Form LM-20 upon entering into a persuader agreement, consultants could be faced with having to file a series of forms, a potentially significant burden. To ameliorate such burden, the instructions and § 406.2 of the Department's regulations, 29 CFR 406.2, have been amended so that a single Form LM-20, compiling information related to the employers that attend the seminar, may be filed. Such filing is due within 30 days after the date of the seminar.
Finally, the Department notes that the seminar presenter(s) would be required to report as indirect parties to the agreement, regardless of whether they volunteer or receive compensation for their services. In this regard, they incur the same obligation as they would in any circumstance in which they agree to provide persuader services.
Several commenters expressed a concern that under the proposed rule any personnel practice proposed by a consultant would be reportable. A consultant firm stated that “virtually any positive employee relations practice” could be reportable; even “facially neutral” activities could still trigger reporting if their “intent is to reduce the likelihood” of unionization. A trade association expressed concern that any communication from an attorney or consultant to the employer-client, which “could have any influence” on employer's communication with employees, would be reportable. A commenter expressed concern that even a seminar offered by a bar association on the drafting of employee handbooks would have to be reported.
A trade association expressed its view that under the Department's proposal a lawyer would be required to file a report if he or she drafted an employee handbook that contains policies supportive of the right of employees to choose whether or not to join a union through NLRB-conducted secret ballot elections. Another commenter expressed concern that under the proposal a report would be required whenever a consultant drafted a handbook that contained an open-door policy or other “employee-friendly” policies that encourage positive and lawful labor-management relations. The same commenter also thought that reporting would be required if a consultant made an audio-visual presentation for use in training employees about the employer's anti-discrimination or harassment policies. A law firm similarly expressed concern about the potential reporting requirements for employee handbooks, acknowledging that consultants often draft or revise such handbooks with the intent to cast the employer in a positive light and thus “persuade” employees. Another commenter stated that, on occasion, an employer asks a consultant to draft a “union-free” statement expressing the employer's policy against unions.
A law firm suggested that the proposed rule would require reporting from anyone whose work “affects employees,” including any communications between a lawyer and an employer, which could be viewed as an “indirect attempt” to persuade employees. It offered examples from the human relations industry, such as “benchmarking” best practices and other measures designed to ensure employee satisfaction, as well as the drafting of legally-compliant documents that meet the client's business purposes. The commenter also posed a number of hypothetical questions, which it proffered to illustrate the alleged compliance difficulties posed under the Department's proposal. Another law firm and a public policy organization also presented multiple hypothetical situations.
As stated in Section IV.B, reporting is not required merely because a consultant develops policies that improve the pay, benefits, or working conditions of employees, even where the policies or actions may subtly influence or affect the decisions of employees. However, reporting is triggered if the consultant undertakes the development of such policies with an object to persuade, as evidenced by the agreement, any accompanying communication, the timing, or other circumstances relevant to the undertaking.
For example, reporting is required if the consultant determines that a monthly bonus to employees should be the equivalent of one month's dues payments of the union involved in an election. Further, even outside of an organizing drive reportable events can occur if the consultant enters into a union avoidance agreement with the employer and then develops a policy in which employees can come to management to grieve certain matters, or otherwise establishes an “open door” policy. In this situation, the open door policy was implemented to dissuade employees from exercising their rights to seek a union, and thereby secure, through collective bargaining, a grievance procedure. It is not determinative if the consultant develops a personnel policy proactively or in response to employee complaints. The inquiry will focus on whether or not the consultant developed the policy with an object to persuade employees.
This position is consistent with prior Departmental policy. In IM section 261.120 (Management Consulting Service) (1959), the Department advised: “While the fact that a management consulting service is engaged in the development of `Company Policy Manuals' and `Job Evaluation and Classification' and `Wage Administration Plans' intended to improve employee-employer relations does not, alone and in itself, bring that service within the reporting requirements of section 203(b), if the purpose of the service were in fact, directly or indirectly, to persuade employees in relation to collective bargaining, then it would [be reportable].” Similarly, the fact that a management consulting service is engaged in the development of policies intended to improve workplace productivity or efficiency does not, alone and in itself, bring that service within the reporting requirements.
A consultant who develops a series of pay or benefit increases would not, merely because of this activity, trigger the reporting requirements, without some evidence that this was intended by the consultant to show the employees that a union is unnecessary. Communications explaining the reasons for the increase, drafted by the consultant, would not trigger reporting, unless circumstances indicated that the object was to persuade employees, such as how they should vote in an upcoming election. Merely providing advice on industry pay, FLSA classifications, NLRB posters, the use of surveillance cameras, or any other matter does not trigger reporting, as it is not undertaken with an object to persuade employees about their protected rights. For the same reason, if a consultant-lawyer's activities are limited to advice—such as reviewing personnel actions by the employer to ensure legal compliance, drafting documents unintended to influence the exercise of employee rights, or handling litigation or grievances—then the lawyer's activities will not trigger reporting. If the consultant-attorney, instead, identifies employees for targeted personnel actions as part of the strategy to defeat the union, then reporting is required.
If the consultant develops or revises a policy on the employer's use of social media or solicitation or distribution in the workplace—without doing so in a manner designed to influence employee decisions concerning union representation—then reporting would not be required. However, if there is evidence in the underlying agreement or accompanying communications that the policies were not established neutrally, but instead to affect the rights of employees to organize, then reporting would be required. That such a policy may potentially violate the NLRA is not relevant; it would trigger reporting because it was undertaken with an object to persuade.
Merely drafting an employee handbook without some evidence in the handbook or any accompanying communication of an object to persuade, such as language that explicitly or implicitly disparages unions, will not trigger reporting.
Similarly, in response to a hypothetical posed by one commenter, an employer who hires an interior decorator to improve the working conditions at its facilities would not trigger a reporting requirement, per se, merely because a possible effect of such workplace change could be the subtle influencing of employees concerning their right to organize. Rather, to trigger reporting the interior decorator, like any third party, must undertake its activities with that object in mind. That such a scenario would be reportable is highly unlikely. That an agreement between the parties would call for the design of a workplace -layout, furnishings, wall coverings, lighting, fixtures, and so forth—to create an anti-union ambience seems a remote prospect.
With regard to personnel actions, the key to the analysis, to be made in the first instance by the consultant and employer, is whether the employer and consultant have agreed that the consultant will undertake an activity or activities with an object to persuade employees about how they should exercise their union representation and collective bargaining rights. Timing, content, and context will be important factors in making this determination. As mentioned previously, it is unlikely that a particular task, by itself, will be the sole consideration in making this determination. Reporting, however, would be triggered where a consultant identifies a specific employee or group of employees for reward or discipline, or other targeted persuasion, because of the exercise or potential exercise of organizing and collective bargaining rights or his or her views concerning such rights. In assessing a complaint that a consultant or employer has engaged in persuader activity but failed to file the required reports, OLMS will consider the nature of the agreement between the consultant and employer, any accompanying documents or communications, the timing, such as whether the hire occurred in connection with a labor dispute, and any statements by persons with firsthand knowledge about the allegations in the complaint.
For purposes of clarity, the Department has modified the two personnel policies and actions checkbox items. In the NPRM, the proposed checklist included: “Developing personnel policies or practices” and “Deciding which employees to target for persuader activity or disciplinary action.” The checklist in this rule modifies these to read: “Developing employer personnel policies or practices” and “Identifying employees for disciplinary action, reward, or other targeting.”
Multiple commenters opposed to the NPRM expressed concern that employee attitude surveys are routine products offered by consultants to employers, products that seek to gain general insight in employee attitudes on compensation, benefits, and other employee concerns and complaints, without necessarily seeking to persuade employees or gather information on employee attitudes to unions. These surveys often do not mention unions, and the consultant may not be aware of the employer's interests concerning possible unionization.
One trade association asserted that given a concept as vague as “union . . . proneness,” almost any kind of survey could be characterized as persuasion. The proposal would deter employers from conducting employee surveys intended to improve working conditions and other initiatives related to positive employee relations (for example, opinions on benefits). Employers regularly survey their employees to assess overall job satisfaction, perceived effectiveness of management, and employees' attitudes toward current and potential new benefits.
In response to comments, the Department has removed this item from the list of persuader activities. The Department concurs with the comments stating that such surveys do not generally evidence an object to persuade, and therefore should not be separately listed. Further, the Department has added language to the revised instructions stating that, more broadly, vulnerability assessments conducted by the consultant are not reportable persuader agreements, as the consultant is merely providing advice concerning the employer's proneness to organizing, and possible recommended courses of conduct, but is not engaging in persuader activities. They may evidence such an object, however, if they are “push surveys” with leading questions designed to influence the views of the survey taker rather than ascertain the employees' views, or otherwise are intended to persuade employees. In such a case, the consultant (and employer) would check the appropriate box for the provision of persuasive materials.
In describing the reporting threshold in the NPRM, the Department stated that reporting would be required if a consultant, pursuant to an agreement or arrangement with an employer, “engages in activities that have as a direct or indirect object, explicitly or implicitly, to
Numerous commenters argued that section 203 should not be read to require reporting unless consultant activities relate to union representation and collective bargaining rights of employees, not other employee rights to engage in “any protected concerted activity.” These commenters noted that unlike section 7 of the NLRA, section 203 does not refer to “concerted activity.”
The Department concurs with the views expressed by these commenters. Section 203 requires reporting when consultants, pursuant to an agreement or arrangement with employers, undertake activities with an object to “persuade employees to exercise or not to exercise or persuade employees as to the manner of exercising, the right to organize and bargain collectively through representatives of their own choosing.” Thus, to be reportable, the persuasion must be keyed to organizing and collective bargaining, specifically, and not the larger “bundle” of employee rights protected by section 7 of the NLRA. As a result, the Department has revised the instructions in this rule by removing the “protected concerted activity” language. To avoid any ambiguity on this point, the Department also has deleted the language “forming, joining, or assisting” a union, terms which more closely resemble the text of section 7 of the NLRA.
The Department stresses, however, that the rights expressly protected by section 203 that trigger reporting—relating to union representation and collective bargaining—are not to be narrowly construed and would include, for example, actions regarding strikes over representation issues. Moreover, the reporting obligations imposed by section 203 are not limited to activities involving employers covered by the NLRA, but extend to activities undertaken by a consultant to persuade employees about their union representation and collective bargaining rights under the Railway Labor Act (RLA), or another statute that protects the rights of private sector employees to organize and bargain collectively.
Regarding the use of the term “influence,” the Department did not use that term in the proposed instructions based on its connection with the larger universe of NLRA section 7 rights that had been proposed for inclusion in the LMRDA, but was not enacted as part of the statute. Rather, its use was intended to further explain the term “persuade.” Moreover, the Department notes that reporting is triggered when the consultant undertakes activities
A law firm suggested that the proposed rule was overbroad in describing the scope of the terms “agreement or arrangement” and “undertakes activities.” It cited to the proposed instructions, which state that the term agreement or arrangement “should be construed broadly and does not need to be in writing” and that “a person undertakes activities not only when he/she performs the activity but also when he/she agrees to perform the activity or to have it performed.”
The Department declines to narrow the scope of the terms “agreement or arrangement” or “undertakes activities.” In this respect, the proposed instructions repeated the existing interpretation regarding the application of the term to oral agreements or arrangements. See prior Form LM-20 Instructions, Part X—Completing the Form LM-20, Item 10 (Terms and Conditions). The use of “agreement or arrangement” in the statute, without any limiting language, rather than the use of “contract,” or any other arguably less inclusive term, suggests that Congress intended the term to be broadly construed, including any informal understanding between the parties, and regardless of whether the agreement or arrangement is in writing. This broad construct of the term is consistent with the Department's longstanding reading of the statute. See IM Section 260.500 (Written Agreement Not Necessary) (1962)
Regarding the term “undertakes,” the prior instructions also state that the term includes both the actual performance of the activity and the agreement to perform it. See the prior Form LM-20 Instructions, Part II—Who Must File. This is consistent with the concept that reporting is based upon the agreement itself. Moreover, a narrower construction would enable persuaders to delay reporting the agreement or arrangement, beyond the statutory 30-day period, thus thwarting the statute's goal of transparency for workers. See response to comments on issue of timing in Section V.C.1.f.
Multiple commenters inquired about the reporting obligations of employer and trade associations and similar membership organizations composed of employers. In such organizations, employers pay annual dues and receive a variety of services, including persuader services; as well as employee relations videos, webinars and seminars; and materials and newsletters intended to advise member companies how to improve employee relations and lawfully respond to union organizing. Similarly, a human resources association inquired into the coverage of franchisors that provide persuader and similar services as described above for their franchisees.
In response, the Department clarifies that because these organizations agree to provide persuader services to their members, an employer's membership in those organizations constitutes an “agreement or arrangement.” The association provides services by virtue of the membership agreement, even if no fee is charged.
If engaged in reportable persuader activities for an employer, the trade association must file a separate report for each agreement that it enters into with a member-employer to engage in such persuader activities, with the employer filing a separate Form LM-10.
Additionally, in response to comments received, this rule modifies the Form LM-20 and LM-10 instructions to limit reporting for franchisor-franchisee arrangements. Although such franchise relationships would constitute an agreement or arrangement between separate legal entities, the Department considers that this relationship is substantially the same as would exist within a single corporate hierarchy (for which, generally, no reporting would be required for “in-house” activities by virtue of section 202(e)). In the Department's view, there would be limited utility in requiring disclosure of these activities by the franchisor, franchisee, or both. Employees and the public would generally know of the relationship between the parties, and they would naturally assume that the franchisee will follow the franchisor's approach to employment matters, including its views on union representation and collective bargaining matters. Limiting reporting in such fashion would therefore reduce burden on employers while not frustrating needed transparency. The Department cautions that this limitation does not affect the obligation of franchisors and franchisees (or their outside consultants) to report persuader agreements or arrangements with such consultants.
The consultant reporting requirements of section 203(b) cover “every person” who enters into a reportable agreement, and the Department did not propose any changes affecting this coverage. Some commenters, however, suggested that the Department's proposal could be read to require reporting by an employer's in-house labor relations specialists. Others expressed the view that the Department also should have required labor relations consultants who provide “persuader services” to unions to report their activities on behalf of the union. Other commenters expressed the view that certain industries would be particularly burdened by the reporting requirements, as proposed, stating that circumstances in these industries demonstrated a central flaw in the proposal. Additionally, other commenters addressed coverage of the reporting requirements to consultants engaging with employers covered by the RLA, as well as those employers and consultants who engage in activities outside of the U.S.
As stated in Section V.E.4 of this rule, the Department did not propose any substantive changes to the Form LM-10 reporting requirements prescribed by sections 203(a)(1)-(3), and this rule does not implement any changes. The changes concerning those sections relate only to the layout of the form and instructions. Nevertheless, the Department received comments regarding reporting pursuant to section 203(a)(2), expressing concern that employers would have to report certain payments made to their own employees related to persuader activities. In response, the Department clarifies that the changes in this rule do not affect the reporting requirements pursuant to section 203(a)(2), or Part B of the revised Form LM-10, and that employers are not required to file a report covering expenditures made to any regular officer, supervisor, or employee of the employer as compensation for service as a regular officer, supervisor, or employee of such employer. See section 203(e). See also IM section 254.300 (Industrial Relations Counselor) (1960), which states in part, “an employer will not be required to report in those parts payments made to an industrial relations counselor in his capacity as full-time director of industrial relations.” Rather, this rule implements changes to the employer reporting requirements pursuant to sections 203(a)(4) and (5), where employers must report on Part C of the revised Form LM-10 concerning agreements or arrangements with consultants and other third-party independent contractors or organizations. The Department also has retained language in the instructions to Form LM-20 to make clear that in-house employer representatives, who qualify as regular officers, supervisors, or employees of the employer, are not required to complete the Form LM-20 report in connection with services rendered to such employer. See LMRDA section 203(e), 29 U.S.C. 433(e).
Several commenters highlighted particular facets of certain industries, such as construction, healthcare, and higher education, as evidence of the particularly burdensome nature of the proposed rule. The Department is unpersuaded that the rule will unreasonably burden any particular industry. With the limited exception of some requirements applicable to trade associations and franchisees, the Department does not see any factual, legal, or policy reason why particular businesses or industries should be treated differently than the norm. See Section V.E.3, concerning trade associations and franchises.
Several commenters expressed the view that the proposed rule demonstrates that the Department applies the LMRDA more stringently to employers and consultants than to unions. In this regard, commenters expressed two principal arguments. First, the commenters asserted that the proposed rule fails to require consultants that advise unions on representation and collective bargaining matters (or, presumably, to persuade employees on such matters) to report such activities on the Form LM-10 and LM-20, even though unions may be employers and should be required, they assert, to file the same reports required
Regarding the first point, several commenters suggested that the employer-consultant reporting requirements would cover labor organizations that qualify as “employers” under the statute. According to these commenters, because unions are often employers, they and their consultants should also be covered by the section 203 reporting requirements. One law firm cited the Department's recent Form LM-30 rulemaking that exempted reporting by union officials for certain payments from unions as similarly contrary to the plain language and structure of the LMRDA. The commenter argued that the Department's justification for persuader reporting,
The Department has previously determined that the term “employer” in section 203(a)(1) does not include a “labor organization,” and this rule confirms this understanding with respect to the other subsections of 203. See 76 FR 66465-66. Section 260.005 of the IM provides that no report is required for activities performed by an attorney on behalf of a union (distinct from activities performed for an employer), even though the attorney meets the definition of “labor relations consultants” under section 3(m), because the only section of the Act which requires reports from labor relations consultants is section 203(b), which provides for reports from every person who has an agreement with an
Although unions are not required to file the Form LM-10 and their consultants incur no Form LM-20 obligation for providing union representation and collective bargaining services to the union, union members and the public receive information relating to such activities. The Form LM-2, filed by unions that have $250,000 or more in total annual receipts, provides detailed and itemized information, including separately identified disbursements of $5,000 or more, as well as all disbursements to any person or entity receiving a total of $5,000 or more from that union in that fiscal year. Such itemized disclosure reveals the amount and nature of the disbursement, the name and contact information of the recipient, as well as the purpose of the disbursement, in a variety of categories, including representational activities. See Form LM-2 Instructions, Schedules 14 through 19. This information reveals disbursements of $5,000 or more, or totaling more than $5,000 within a year to any person or entity, and the nature and purpose of the payments in a variety of categories, including representational activities. These disbursements would thus include payments to consultants hired by the union.
Additionally, unions must report all disbursements to their own internal staff on the Form LM-2, and they must provide functional reporting that details the percentage of time devoted to a variety of tasks, including organizing and representational activities. See Form LM-2 Instructions, Schedules 11-12 (All Officers and Disbursements to Officers; Disbursements to Employees). Furthermore, union members, for just cause, may view the Form LM-2 report's underlying documents. See section 201(c); 29 U.S.C. 431(c). Employers do not have to provide this level of detail, particularly concerning their internal staff, in this rule or the previous rule, nor are they required to disclose underlying documents.
Regarding the second point, that the confidentiality exception in the Form LM-2 allows union filers to avoid itemized disclosure of certain payments and information that would be required on the Form LM-10, the Department disagrees with the contention that its reporting requirements for persuader agreements should provide a similar exception. In contrast to section 201, which is silent on the question whether Congress intended that unions would have to specifically identify financial expenditures relating to their organizational efforts, the language of section 203 specifically targets reporting by employers and labor relations consultants of their efforts to persuade employees about their representation and collective bargaining rights. Notwithstanding this clear mandate to require such reporting, the Department has fashioned this rule in a manner consistent with the overall intent of Congress to balance the twin goals of labor-management transparency and the prevention of unnecessary intrusion into labor relations. See 74 FR 52405-06. Indeed, as explained further below, the exemptions in sections 203(c), 203(e), and 204 serve largely the same purpose and effect as the confidentiality exception in the Form LM-2 Instructions, with labor organizations reporting much of the same information concerning consultants as do employers. Further, in many cases, labor organizations report greater information than do employers, such as information concerning payments to their in-house staff. For example, unions are mandated to file initial and annual reports by virtue of their status as labor organizations, which disclose almost all payments of $5,000 or more, while employers and consultants are only required to file as a result of entering into particular agreements or arrangements or, for employers, making certain payments or entering into certain transactions. Compare sections 201 and 203.
More specifically, this rule protects the exemptions that promote employer free speech, the attorney-client relationship, and the role of management in labor relations. In the preamble to the 2003 rule that expanded the reporting required on the Form LM-2 report, the Department responded to comments that it was imposing more stringent reporting requirements on unions than for employers by stating: “[U]nlike the situation with regard to labor organizations, for over 40 years employers and their consultants have been statutorily required (29 U.S.C. 433(a) and (b)) to include particular `persuader' information in their annual reports, while labor organizations have not. Implementation of this statutory scheme by the Department cannot be considered as evidence of either antiunion or anti-employer bias, and the suggestion of a double standard is unwarranted.” See 68 FR 58397.
Under the Form LM-2, unions can avoid itemized reporting of certain
Further, unions can avoid itemized reporting of information in those situations where disclosure would endanger the health or safety of an individual. This provision is in the Form LM-2 instructions because commenters to the proposed changes to the form in 2002 indicated such itemization in certain cases could endanger the lives of foreign labor activists supported by the union. In response, the Department agreed that in “the extremely rare situation where disclosure would endanger the health or safety of an individual, the information need only be reported in the” aggregate, not itemized. 68 FR 58387. Concerning this rule, there is no indication in the rulemaking record that the lives of employer or consultant representatives may be endangered. As in all cases, however, individuals with questions or concerns about filing procedures or matters to be reported, including health and safety issues, should contact OLMS for assistance.
One commenter expressed the view that the rule is focused only on labor relations governed by the NLRA, as opposed to the RLA or other statutes. The Department rejects this contention, as the text of section 203's reporting obligations concerning the persuading of employees regarding their collective bargaining rights is not limited to the NLRA. Rather, it is written broadly to include, without qualification, the “right to organize and bargain collectively. . . .” As such, these collective bargaining rights include the RLA and any other statutes concerning these rights for private-sector employees.
One commenter, an international law firm, contended that persuader activities undertaken outside of the territorial United States need not be reported. The firm cited to
The Department recognizes the general presumption against reading a statute to have extraterritorial effect, absent congressional intent, as described in
While the Department takes the position that the reporting provisions of the LMRDA are limited to “activities of persons or organizations within the territorial jurisdiction of the United States,” its application in any particular case will depend on whether there is a substantial relationship between the transactions in question and United States property or interests which are the objects of the Act's protection.
In other words, each case would require evaluation of the substantiality of the official's contacts with the United States and of the impact on United States interests.
The Department proposed revisions to the layout and structure of the Form LM-20 and instructions, as well as the Form LM-10 and instructions. See 76 FR 36193-96 and Appendices. As described in Section IV.D of this rule,
Commenters supportive of this rule, as well as commenters opposed to it, provided feedback and offered suggestions on the proposed LM-20 and LM-10 forms and instructions. Multiple commenters voiced strong support of the revisions to Forms LM-20 and LM-10.
One international union commenter stated that the proposed changes to the Form LM-20 will improve both the quantity of reports received and the quality of the reports that are filed. An additional international union commenter urged the Department to make the Form LM-20 reports available online as soon as possible, so that workers can have the information when it will be relevant to them (
More specific comments are addressed below:
In the NPRM, the Department proposed to require employers and consultants to identify their employer identification number (EIN) and that of the other party, if applicable. Several commenters supported the requirement, stating that the EIN will help the Department and the public determine whether employers are complying with their own filing obligations. The Department concurs with these comments and retains this requirement in this rule.
Additionally, the Department proposed that under Item 8 of the Form LM-20 (Person(s) Through Whom Agreement or Arrangement Made) filers would identify the “prime consultant,” if the filer is a “sub-consultant” who entered into the agreement with the employer as an indirect party. Several commenters offered support for the requirement that the primary consultant be identified on the Form LM-20, stating that it will aid the Department in determining whether additional reports must be filed. One commenter added that disclosure of the primary consultant helps employees better understand the persuader activities at play. The Department concurs with these comments and adopts this proposal in the final rule.
In the NPRM, the Department proposed mandatory electronic filing for Form LM-20 and LM-10 filers, with a hardship exemption process modeled after the existing requirement for Form LM-2 labor organization filers. Several international union commenters supported the electronic filing requirement for employer-consultant reporting, stating that it will improve efficiency, facilitate more timely public disclosure, and provide a simpler filing method. One of these international union commenters urged the Department to limit electronic filing hardship exemptions, and stated that the proposed exemption language lacks adequate explanation of the required elements for demonstrating hardship. The commenter suggested that the Department not excuse electronic filing without a “compelling demonstration of serious technical difficulty, burden, or expense.”
After considering this suggestion regarding filing hardship exemptions, the Department has determined to retain the originally proposed language in order to maintain consistency with other the Form LM-2 hardship exemption guidelines, which have worked well in practice. The Department also notes that Forms LM-20 and LM-10 filers will benefit greatly from OLMS's new, web-based, and free Electronic Forms System (EFS), which, based upon Form LM-2 experience, will greatly ease burdens on filers and reduce hardship applications and exemptions. As such, the Department will not grant a continuing hardship exemption without a “compelling demonstration of serious technical difficulty, burden, or expense,” and under no circumstances would the exemption equal or exceed one year. Thus, all filers must file an electronic report via EFS, even if, under this stringent standard, they are granted a continuing hardship exemption of less than one year.
As with the prior Forms LM-20 and LM-10, the Department proposed that filers must provide a detailed statement concerning the terms and conditions of the persuader agreement or arrangement, including attaching a copy of any written agreement. A law firm representing unions concurred with this requirement, commenting that workers are entitled to know how much consultants charge for the activities they perform.
Some commenters raised questions about the reportability of particular arrangements. For example, a consulting firm raised questions about how to report the drafting of a “union free” statement in an employer handbook and how to report the fee associated with the reportable activity when drafting the “union free” paragraph may have required comparatively little time. A law firm provided a hypothetical example of an attorney who was primarily retained to represent an employer in an NLRB hearing, but also spent 15 minutes drafting a letter that the Department subsequently determined to be reportable because it was prepared with an object to persuade employees. The commenter queried how the fee for representing the employer in the NLRB hearing should be reported, and if the filer would need to report (in Item 10 of Form LM-20) the terms and conditions of the arrangement to represent the employer in both the hearing and the campaign. The commenter asked if the filer would need to select under Item 11.a all of the services performed for the NLRB hearing, or just the 15 minutes spent drafting the letter for the employer. The commenter also remarked that the form seems to be drafted for labor relations consultants who are retained to perform persuader services, and not for attorneys who provide primarily legal services for the employer. Further, the consulting firm questioned how fees should be reported since the firm does not track the billable hours worked by its attorneys and human resources advisers. The firm also asked if actual monthly membership dues paid by the firm's member companies to the firm would need to be calculated.
The Department reiterates in this rule that filers must provide a detailed explanation, in Item 10 of the Form LM-20 and Item 13.b in the Form LM-10, of the fee arrangement of the agreement or arrangement, as well as all other terms and conditions of the agreement. If the agreement or arrangement provided that the consultant would engage in persuader services, among other services, the filer must explain the full fee arrangement for all services required by the agreement or arrangement and describe fully the persuader services, regardless of the duration or extent of the persuader services in relation to other services provided. Regarding membership organizations, if they and their member-employers are required to file reports, then the membership organizations must explain all fee arrangements such as the details of membership dues. The explanation
Insofar as non-persuader services are concerned, the filer need provide only a brief, general description of the non-persuader services in Form LM-20, Item 10 or Form LM-10, Item 13.b; a description, such as “legal services were also provided,” will suffice.
Concerning reporting by business associations and similar employer membership organizations, in response to comments received and as explained in Section V.E.3 of this rule, trade associations are not required to file a report by reason of their membership agreements, or by reason of selecting off-the-shelf persuader materials for employers, or for distributing an employer newsletter to member-employers. Trade associations as a general rule will only be required to report in two situations—where the trade association's employees serve as presenters in union avoidance seminars or where they undertake persuader activities for a particular employer or employers (other than by providing off-the shelf materials to employer-members).
In the NPRM, the Department proposed to simplify reporting by allowing filers to describe reportable activities by using a checklist of common persuader and information-supplying activities. Filers are required to identify other persuader activities not appearing on the checklist by providing a narrative description. See proposed Form LM-20, Item 11, and proposed Form LM-10 Item 14, 76 FR 36207-36230.
Several commenters supported the checklist approach on Forms LM-20 and LM-10. These commenters stated that the checklist will allow for more “detailed” and “accurate” disclosure of persuader activities, and that the checklist will assist filers in accurately completing the forms. Commenters stated that the current forms allow filers to provide only vague descriptions of their activities that are unhelpful to employees who seek information about consultants' participation in counter-organizing campaigns. Another union commenter mentioned firsthand experience with the persuader reporting “loophole” used by consultants, and supports the form revisions because filers will be required to identify specific persuader and information-supplying activities, as opposed to only providing general information lacking details on a consultant's actions.
Other commenters voiced opposition to the proposed changes to Forms LM-20 and LM-10, describing them as “burdensome” and needing additional clarification. One commenter objected to the new questions about specific types of persuader activities, and, for example, described requiring specific information concerning employees identified for persuasion as “intrusive.” Several commenters opposed the addition of the checklist on Forms LM-20 and LM-10. One commenter criticized the list as being “specifically non-exhaustive.” Another commenter did not oppose the checklist concept, but suggested that the checklist be limited to items that are currently considered to be persuader activities under the prior interpretation.
One law firm took issue with the checklist item 14.a on Form LM-10, expressing concern that every time an employer revises work rules, the employer would need to guess whether the drafting consultant recommended a course of action for business reasons or to prevent employees from discussing collective bargaining. This commenter also took issue with the fact that the checklists on the proposed forms (Item 11.a on Form LM-20 Item and 14.a on Form LM-10) do not include a reference to the advice exemption. The commenter stated that an employer or consultant might provide “unnecessary and/or misleading information” without clarification that the activities need not be reported if they involved advice, as opposed to persuasion. Similarly, the commenter suggested that the information-supplying exemption (regarding information used solely in conjunction with an administrative, arbitral, or judicial proceeding) be added to Items 11.a and 14.a of Forms LM-20 and LM-10, respectively.
In response to these comments on the checklist, the Department retains the checklist format in the final rule, with some modifications of the checklist items, as explained in Section V.E.3. The checklist items were intended to cover the most common categories of persuader activity—not to represent an exhaustive list of all possible persuader services. Further, the checklist is specifically designed to include both direct and indirect persuader activities—not merely direct persuader services. To limit the checklist items to activities that are currently considered persuader activities—namely, only direct persuader activities—would defeat the purpose of this rule. Moreover, the Department disagrees with the suggestion that the list is burdensome or intrusive. Rather, it is less demanding than a narrative description and only focuses on persuader and information-supplying activities (as opposed to advice or other activities). The Department has also clarified in this rule what triggers reporting and how to determine if the consultant undertook activities with the object to persuade employees. See Section IV.B. In particular, the Department has explained the four sub-categories of indirect persuasion; the non-exhaustive list of persuader activities all fit within these four sub-categories or the category of direct persuasion. If an activity fits within those categories and is not on the list, then the filer must check “Other” and identify the activity. Filers will also have an opportunity to more fully explain a checked item in a narrative format, if they so choose.
In response to the commenter who suggested that the checklist include a reference to the “advice” exemption (and that the information-supplying exemption be added to Items 11.a and 14.a of Forms LM-20 and LM-10, respectively), an activity is not reportable unless it is undertaken by the consultant with an object to persuade employees or supply information to the employer. As such, persuader activities do not overlap with tasks that may constitute advice to the employer. The instructions to each form explain this point clearly, and the forms themselves alert filers that they should “read the instructions carefully before completing the form.” See Appendices.
A law firm suggested deleting the phrase “their right to engage in any protected concerted activity in the workplace” from Item 11.a in Form LM-20 and Item 14.a in Form LM-10. The
Several commenters offered support for the Department's revisions to the form concerning reporting of information-supplying activities by consultants, with several union commenters offering examples of such activity. One union stated that an attorney-consultant posed as a union member and asked questions of workers. Another union stated that consultants secretly took photos of individuals attending a union meeting attended by potential members. Another union stated that during a union organizing drive the consultant provided “significant research for management,” publicized union staff salaries, prepared persuader letters to be sent to employees, and conducted meetings with the employer's staff.
Several commenters contended that the Department's proposal expanded, without explanation, the Department's historical interpretation of the reporting obligations for “information supplying activities.” A commenter asserted that the Department's “silence” concerning the “intended scope” of this reporting area suggests that it is limited to past statements on “direct surveillance and spying” by outside consultants. One commenter argued that the Department proposed to expand the reporting requirements beyond exposing “labor spies” and surveillance of union activities, meetings, and communications.
One commenter requested that the Department amend the proposed instructions to make clear that there is no reporting for “information that is generally available to the public,” such as “newspaper clippings, law review articles, LM-2 reports, etc.” Thus, according to the commenter, it should not be reportable for the consultant to copy such material and supply it to the employer, pursuant to the Form LM-20 or Part C of the Form LM-10, nor should it be reportable on Part D of the Form LM-10 by the employer if it acquires such materials itself.
These commenters have mischaracterized the proposed rule. The revised forms merely provide a format to report consultant activities that have an object to supply information to the employer concerning the activities of employees or a labor organization in connection with a labor dispute. The format requires filers to check boxes indicating if the consultant supplied information obtained from the source categories: (1) Research or investigation concerning employees or labor organizations; (2) supervisors or employer representatives; (3) employees, employee representatives, or union meetings; (4) surveillance of employees or union representatives (video, audio, internet, or in-person). Filers can also check the “Other” box and provide information concerning any other information-supplying activity engaged in by the consultant.
The first category concerns any information about employees or the union involved obtained through research or investigation. In this rule, the Department clarifies that this category would not include the mere provision of public documents, such as publicly-available collective bargaining agreements or LM reports. This is consistent with existing Department policy. See
The second category concerns information that the consultant helped to acquire, indirectly, through the employer's supervisors and other representatives. For example, the category includes situations where the consultant has coached the supervisors in methods of acquiring information via informal conversations with employees, or undertaken efforts to convince employees to provide the information to the supervisors. Such reporting is consistent with past Department policy, which requires the reporting of agreements in which the consultant handles “all phases of labor-management relations,” if such agreements include activities whereby the consultant furnishes the employer, “
The final two categories generally encompass the types of surveillance mentioned by the commenters, as well as other activities that the Department has long considered reportable, such as any attempt to get information directly from the employees or their representatives or through a survey.
Of particular concern to one commenter was its utilization of closed circuit television surveillance cameras for customer safety purposes and to detect and stop theft and other types of crimes in grocery stores, warehouses and outside premises. The commenter noted that the surveillance tapes invariably include video footage of employees at work including some who are union members. The commenter suggested that employers who utilize this or similar technology, such as computers, point-of-sale equipment, and the internet, to monitor for this or similar purposes, such as productivity and job performance, should not have to report those types of activities.
In response to these comments, the Department notes first, that neither these commenters nor others have made a persuasive showing for any industry-specific exceptions to the reporting requirements. Further, the installation or use of surveillance technology would not, by itself, be viewed as an information-supplying activity pursuant to the revised Form LM-20 or Part C or D of the revised Form LM-10. To be reportable, the installation or use must have an
For purposes of clarity, the Department modified the checklist item to state that the surveillance of employees or union representatives can either be “electronically or in person,” rather than “video, audio, internet, or in person,” as provided in the NPRM.
Several commenters stated that filers should not have to provide detailed information about employees that consultants have targeted for persuasion, as proposed in Item 12.a on the Form LM-20, and in Item 14.e. on the Form LM-10. Filers are instructed to identify, by department, job classification(s), work location, and/or shift(s) of the employee(s) who are to be persuaded or concerning whose activities information is to be supplied to the employer. Filers should not identify targeted employees by name.
One commenter asserted that the LMRDA does not authorize the Department to require disclosure of this type of information, and added that the statute only requires filers to identify the persuader agreement and the financial arrangement and payments that were made. The commenter stated that requiring disclosure of information about employees, job titles, and shifts creates privacy and confidentiality concerns. Another commenter asserted that disclosing details about subject employees would reveal privileged information. Another commenter noted that the current Form LM-10 does not require this information, and that the current Form LM-20 only asks the filer to “identify subject groups of employees.” Asserting that the Department did not explain why this additional information on subject employees is being requested and that the employers and consultants who file these forms might not know the identity of the targeted employees, the commenter suggested that the Forms LM-20 and LM-10 should be left unchanged. The commenter also inquired into whether another report would be required if a different group of subject employees is identified after the initial report is filed.
In response to these comments, the Department notes that the current Form LM-20 (Item 12.a) already requires filers to identify subject employees. The new form promulgated by this rule simply asks for more detail concerning the department, job classification(s), work location, and/or shift(s) of the employees targeted. See Section IV.D. Section 203(b) requires a “detailed statement of the terms and conditions of such agreement or arrangement.” The Secretary has the authority to determine how to capture such a detailed statement on Forms LM-20 and LM-10. Under section 208 of the LMRDA, 29 U.S.C. 438, the Secretary of Labor is authorized to issue, amend, and rescind rules and regulations to implement the LMRDA's reporting provisions.
The information required by the proposal includes details concerning the job classifications of employees targeted for persuasion, so that employees can identify persuader activities that affect them in the workplace. Therefore, the commenter's concern about intruding upon worker's privacy is misplaced. Further, as explained in the burden analysis in Section VI of this rule, filers typically will know the category or type of targeted employees, whether or not this includes all employees in a potential bargaining unit. Additionally, as explained in Section IV.D of this rule, the Department has revised the instructions to simplify the reporting of this information for union avoidance seminars.
Finally, in response to the comment concerning amended reports, an amended report is only required if the information in the submitted report is incorrect, although new reports are required for any agreement or arrangement that has been modified.
The Department did not propose any substantive changes to the Form LM-10 reporting requirements pursuant to sections 203(a)(1)-(3); and this rule, like the NPRM, only affects the layout of the form and instructions that concern those reporting provisions. The Department, however, received comments expressing concern that under the proposal employers would have to report certain payments made to their own employees related to persuader activities. In response, the Department explicitly states that employers are not required to file a report covering expenditures made to any regular officer, supervisor, or employee of the employer as compensation for service as a regular officer, supervisor, or employee of such employer. See section 203(e), 29 U.S.C. 433(e). See also IM section 254.300 (Industrial Relations Counselor), which states in part, “an employer will not be required to report in those parts payments made to an industrial relations counselor in his capacity as full-time director of industrial relations.” Rather, this rule implements changes to the employer reporting requirements pursuant to sections 203(a)(4) and (5), where employers must report on Part C of the revised Form LM-10 concerning agreements or arrangements with consultants and other third-party independent contractors or organizations.
The Department also received comments concerning reporting of expenditures pursuant to section 203(a)(3) on Part D of the revised Form
A law firm suggested that Part D (Item 17.d) of the proposed Form LM-10 should require a statement of how the expenditure had the object “to interfere with, restrain or coerce employees in the right to organize and bargain collectively through representatives of their own choosing.” The commenter stated that requiring the purpose of the expenditure to be reported would create more meaningful disclosure. The commenter also suggested replacing “and” with “and/or,” to read as follows: “. . . in the right to organize
Upon consideration of this suggestion, the Department has decided to not modify the proposed Part D of the Form LM-10 instructions. In the Department's view, the language in Part D, Item 17.d of the form and instructions requires filers to fully explain the circumstances of the expenditure, which includes how the expenditure had as an object “to interfere with, restrain or coerce employees in the right to organize and bargain collectively through representatives of their own choosing.” More specifically, the form states, “Explain fully the circumstances of the expenditure(s), including the terms of any oral agreement or understanding pursuant to which they were made.” The instructions for Item 17.d, further provides that, in part, “Your explanation must clearly indicate why you must report the expenditure.” Additionally, the phrase “organize and bargain collectively” will be retained without modification, as it derives from the statute. See LMRDA section 203(a)(3), 29 U.S.C. 433(a)(3).
The Department received numerous comments contending that the proposed interpretation of the advice exemption would violate employers' free speech rights guaranteed under the First Amendment of the U.S. Constitution or, by extension, section 8(c) of the National Labor Relations Act (NLRA). Many of these comments stated that the proposed reporting requirements would have a “chilling effect” on employers' ability to exercise their free speech rights.
The Department received numerous comments asserting that the Department's proposed rule was constitutionally infirm. Many of these commenters attempted to distinguish the instant rule, with its focus on the required disclosure of indirect persuader activity, from the longstanding interpretation requiring only the reporting of direct persuader activities, an interpretation that has survived constitutional challenges. We discuss below the comments addressing this issue and the judicial precedent that upheld the constitutionality of the Department's interpretation. In short, it is the Department's position that the principles established or applied in those cases provide a firm constitutional basis for this rule, even though they dealt with direct persuader activity. Commenters opposing the rule also took issue with the Department's reliance, as support for the rule, on analogous disclosure regimes under other statutes that have withstood attack on First Amendment grounds. These commenters have failed to persuade the Department that its reliance on these disclosure statutes and precedent was mistaken. Similarly, the Department has not been persuaded by the argument, seemingly without regard to whether the LMRDA requires the disclosure mandated by the rule, that the Government's interest in requiring disclosure is insufficient to survive constitutional scrutiny.
In the NPRM and earlier in the preamble to this rule, the Department explained the legal and policy bases for the rule, and the Department's intent to remedy its longstanding failure to effectuate the purpose of section 203 of the LMRDA—whereby it allowed consultants and employers to withhold information about consultant persuader activities from employees. Such information if known to employees may have affected their assessment of the employer's campaign message against representation and their choice whether to support or oppose representation. Based on the comments received on the NPRM, consistent with the Department's own experience, this information is a necessary component to national labor policy that aims to achieve stability and harmony among employees, employers, and unions. See Sections V.C.1.a, b, c. We have pointed out that employees often are unaware that their employer has hired a consultant to manage its campaign, including scripting the employer's message in speeches, letters, and other documents, and that the consultant is directing the employer's supervisors to provide a uniform position in opposition to representation—which may be contrary to the actual views of individual supervisors—denying the employees information that would reasonably affect their assessment of the employer's message. In this regard, we pointed out the situations in which this information would be particularly important to employees—where a central theme of a company's anti-union message is that the company's supervisors, managers, and employees have functioned as a harmonious family, a relationship that is put in jeopardy by bringing in a union, an outside third-party, or where an employer, while claiming the need for fiscal responsibility, is spending what to some employees may seem like an exorbitant sum to hire a consultant to sway the employees against representation. As we discuss below, the need to provide employees with this essential information, a need met by this rule, demonstrates the compelling governmental interest served by this rule.
Notwithstanding the large number of commenters that hold a contrary view, the Department remains convinced that its interpretation of the Act's reporting requirements, both as proposed and modified in this rule, fully satisfies constitutional requirements.
It is important to emphasize at the outset of the constitutional discussion the purposes served by the disclosure required by the rule, combined with the
In the NLRA, Congress chose to regulate directly the conduct of employers and unions by establishing duties upon both and sanctions (for engaging in unfair labor practices). In contrast, under the LMRDA generally, and section 203 specifically, Congress simply chose to require disclosure. This rule implements this congressional disclosure regime mandate. Under the final rule, the Department does not regulate in
With that factual understanding in place, the constitutional validity of the proposed rule is independently supported by two related lines of First Amendment precedent: Cases sustaining the validity of the direct persuader rule and cases sustaining the validity of disclosure requirements under other statutes against First Amendment attack. We address both here.
Section 203's reporting requirement has uniformly withstood First Amendment challenges in court.
In
Similarly, the Fourth Circuit in
In
These cases support the validity of this rule concerning indirect disclosure requirements. While as many commenters have emphasized, these cases involved direct persuader activities by consultants, this difference does not render that precedent inapplicable to the indirect persuader disclosure requirement. As discussed above, like the disclosure requirement for direct persuader activities, the requirement at issue here provides information to employees about the source of statements relevant to a decision about how to vote in a union election. This rule addresses the need to understand the true source of messages that might otherwise appear to have been crafted by an employer's representative (like a supervisor), which, for the reasons stated above, will materially affect the statement's credibility and the context in which it is placed. The Department's final rule provides clear instruction to employers and consultants about the kinds of activities that must be reported and, most importantly, better aligns the reporting obligation with the essential governmental interest to establish an effective and fair national system of labor-management relations. This final proposed rule does not present any circumstance that would alter the constitutional analysis in those precedential cases, which rejected the argument that such reporting was constitutionally infirm.
The constitutional validity of this rule is independently supported by the U.S. Supreme Court's case law sustaining analogous disclosure requirements from other statutory contexts against First Amendment attack. The Department remains of this view after carefully reviewing the comments that have argued otherwise.
In the NPRM, the Department explained that the LMRDA's provisions requiring the disclosure of consultant participation in representation elections have close analogs in Federal election campaign law. 76 FR 36188. The Department cited to
The NPRM also referenced the recent Supreme Court opinion in
As discussed earlier in the preamble, at Section V.C.1.e., the Department acknowledges that the campaign financing and lobbying disclosure regimes differ in some respects from the LMRDA's reporting system. Under the Supreme Court's decisions, it is the source of the speech (the lobbyists or donors) that is important for the public to know in evaluating candidates for public office.
Understood in this regard, the fit between the Court's campaign finance disclosure cases and the speech analysis governing the required disclosures here is sound. Just as the Court in
The Department has fully considered that, in the context of union representation campaigns, one might argue that the consultant's arrangement with the employer is of less interest to
Commenters have raised a variety of related points, none of which the Department finds persuasive. A public policy organization's comments criticized the analogy to campaign disclosure laws; it explained that the Federal Election Campaign Act (FECA) grew out of concerns over voter inequality and the undue influence of special interests. A trade association similarly criticized the Department's position, as, in its view, there is no potential “influence-peddling” concerning employer agreements with consultants as there could be with election contributions. In contrast, the interests of the employer and the consultants are “coterminous and obvious,” and do not highlight to the employee an outside party that may have divergent interests from the employer. The commenter argued further that FECA involves donations to candidates and not attorney-client relationships. Similarly, a law firm argued that campaign disclosure rules and the LMRDA's reporting requirements would be analogous if there was a requirement for political candidates to disclose the public relations or law firms that they hire. The commenter stated that there is no “public interest” in such disclosure because these persons “are not running for office.”
The Department disagrees with these contentions. First, the benefits to workers, as voters in a representation election, from disclosure about persuader communications are analogous to the benefits from campaign disclosure laws to voters in a political election. And the governmental interest in disclosure in the campaign finance context was recently upheld by the Supreme Court in
Other federal statutes center their regulatory focus on reporting and disclosure. The reporting and disclosure requirements in the LMRDA closely resemble those in other statutes, which similarly seek to create a more informed electorate. As discussed in greater detail in Section V.G.1.a and c, courts that have addressed challenges by attorney-consultants that refused altogether to report direct persuader activities or to provide only limited disclosure of other activities after engaging in direct persuasion have pointed out the congruent purposes served by the LMRDA and federal statutes regulating campaign financing and lobbying activities. While direct and indirect persuader activity differ, in that the former involves face-to-face contact between the consultant and the worker while the latter does not, disclosure in both instances serves the same core compelling governmental purpose: Disclosing to workers the source of the persuader campaign and communications, which serves to “[empower] voters so that they use their vote effectively,” thus increasing voter competence. See Garrett, Elizabeth,
In
With respect to the first factor examined in
Many of the commenters contended that the rule would infringe on First Amendment rights by severely limiting the ability of employers to retain qualified labor attorneys and
The Department is not persuaded by these arguments. The Supreme Court rejected a similar contention under the federal lobbying act, holding that it would not strike down a statute based on speculative arguments, particularly those relating to assertions that amount to “self-censorship.” The Court stated:
Hypothetical borderline situations are conjured up in which such persons choose to remain silent because of fear of possible prosecution for failure to comply with the Act. Our narrow construction of the Act, precluding as it does reasonable fears, is calculated to avoid such restraint. But, even assuming some such deterrent effect, the restraint is at most an indirect one resulting from self-censorship, comparable in many ways to the restraint resulting from criminal libel laws. The hazard of such restraint is too remote to require striking down a statute which on its face is otherwise plainly within the area of congressional power and is designed to safeguard a vital national interest.
Earlier in the preamble, at Section V.C.2.d, we discussed our strong skepticism about the claims that this rule would discourage employers from continuing to rely on labor relations consultants in contesting union representation efforts or that it would drive some consultants out of the industry because they would have to report indirect persuader activities. In our view, given the importance that most employers attach to defeating union representation, the use of labor relations consultants will remain prevalent. Thus, we do not foresee a decline in industry business. While, as noted, an incidental effect of disclosure may be to increase competition within the consultant industry—as the particular persuader activities of consultants, along with the cost of their services, become better known, this informational gain can hardly be characterized as chilling. Further, while we recognize that the predictive value of information about experience under the Department's Form LM-2, required by the Department's LMRDA regulations—where unions are required to report particular information on their payments of $5,000 or more per year to attorneys, consultants, and others—has some limitations, the Department has seen no drop off in the reported amounts expended by unions on such matters between 2005 (the first year in which unions had to report such payments) and 2014 (the most recent complete year for which such reports are available). Nor has the Department received complaints that such disclosure has hampered unions in obtaining the services of attorneys or others. See 68 FR 58374, 58391 (Oct. 8, 2003) (noting that a union must report the recipient's name and address, the nature of its business, the purpose or reason for making the disbursement, the amount of the disbursement, and its date).
The principles provided in
The Department is not persuaded that the revised interpretation will substantially chill employers from retaining counsel. As stated earlier, reporting is only triggered when a law firm chooses to perform a persuader activity. Thus, a law firm exclusively providing advice, representation or other legal services is under no obligation to file a report, eliminating any concerns that the law firm or the employer may have with regard to disclosing their relationship. The Department rejects the contention that the revised interpretation, or the statute itself, limits the ability of an employer to retain counsel. Moreover, the rule provides guidance that further clarifies the kinds of direct and indirect activities that trigger reporting, minimizing the possibility that reporting will be triggered by an inadvertent action by the lawyer or vague boundaries between reportable and non-reportable activities. See Section IV.B and Section V.E.1. Law firms will know the test for determining when reporting is triggered and when to apply it, and that legal services themselves do not trigger reporting. Thus, as stated, there is no limitation on the ability of an attorney to provide persuader services in addition to legal services, by virtue of the statute or this
The commenters have not provided any substantive indication that all, some, or even any law firms would cease representing clients as a result of the broadened reporting requirements under the final rule, or even that they would cease to provide persuader services in addition to legal services. Even assuming that some labor law firms might decline to offer persuader services, in addition to advising or representing certain employers, due to required disclosure, the commenters do not adequately explain why employers would be unable to retain competing firms that offer persuader services.
Indeed, one law firm pointed out in its comments that an employer must weigh a number of different factors in deciding whether or not to communicate with its employees regarding unionization. Which factors are assessed and how much weight to be given to each are entirely speculative because these considerations will surely vary depending on the circumstances. As the Supreme Court concluded, the possibility of significant self-restraint, as the commenters maintained is the case here, is simply too remote for the Department to justify rejecting the proposed rule, especially given the important purposes served by disclosure. See
On the present rulemaking record, we see no reasonable probability that the fears raised by commenters will be realized. If questions arise about perceived infringement of an employer's rights, the Department will answer these queries on a case-by-case basis through interpretive letters or other compliance assistance activities.
In addition, the potential effects on expressive activity discussed in the comments do not constitute the sort of threat of physical harm and loss of employment that would give rise to a finding of a substantial chill on free speech. See
The types of infringement speculated upon by the commenters, such as the rule's effect on the ability of employers to retain counsel and the potential for employers to “muzzle” or “gag” themselves, do not constitute the sort of infringement that would result in physical threats, harassment, or reprisals that are necessary for a finding of an impermissible chilling effect. For example, a local chamber of commerce submitted comments contending that employers, fearing the risk of committing unfair labor practices, would alternatively simply remain neutral during a union organizing campaign. A few commenters stated that union organizers would use the financial information required to be disclosed under the revised LM-10, LM-20, and LM-21 forms as more ammunition in their organizing campaigns. Even assuming this holds true, however, such tactics would not rise to the level of unconstitutional infringement.
Similarly, as mentioned above, some commenters suggested that the rule effectively deprives employees of balanced information, denying them the full exercise of their speech rights under the NLRA. The Department disagrees with this position, considering that a primary purpose of this rule is to provide employees with more information regarding the role of consultants in anti-union campaigns, without chilling the speech of employers. Moreover, as set out in
The second factor examined in
With respect to the third factor—whether there is a substantial relationship between the governmental interests and the information to be disclosed—the
A worker who is weighing the pros and cons of unionization, for example, will be interested in knowing the depth of his or her employer's attitude toward union representation. One employer may hire a consultant for $85,000 per year. Another may choose to pay as little as $25 an hour. It will, of course, already be clear to the employee that both employers oppose unionization. But the amount of money an employer actually invests in the endeavor is nevertheless informative. The axiom that actions speak louder than words applies here. One worker may reasonably conclude that an employer willing to commit substantial sums to avoid a union, will enter into a bargaining relationship with greater reluctance and prove to be a more intransigent negotiator. That worker may deem unionization too difficult a path for him or her to support. Conversely, a different worker, one who believes that collective bargaining is a zero sum game, may infer that the employer correctly understands that it might have to make major concessions at the bargaining table. This worker may conclude that union representation has potential for substantial increases in compensation and benefits. Whichever conclusion is reached, both workers will consider the information valuable in making their determination.
The increased transparency, by requiring that both direct and indirect activities be reported, will also serve a prophylactic effect, discouraging and preventing corruption and other improprieties in the midst of organizing campaigns or collective bargaining controversy. Moreover, given that the proposed rule, adopted with some modification in the final rule, better effectuates the statute's mandate that both direct and indirect persuader activity be reported, there is no merit to the suggestion that the link between the purposes served by disclosure and the particular information to be disclosed is less strong than the link approved in
The fourth factor examined in
The analysis in
The Department's final rule is the least restrictive means by which this important governmental interest can be achieved. Indeed, commenters have failed to articulate an alternative approach that would effectuate the congressional determination that an effective and fair labor-management relations system requires the reporting of both direct and indirect persuader activities. Cf.
Many of the commenters contended that the Department's proposed interpretation of the advice exemption violates employers' free speech rights under section 8(c) of the NLRA. This provision guarantees that the “expressing of any views, argument, or opinion, or the dissemination thereof, whether in written, printed, graphic, or visual form, shall not constitute or be evidence of an unfair labor practice under any of the provisions of [the NLRA], if such expression contains no threat of reprisal or force or promise of benefit.” 29 U.S.C. 158(c).
In support of their argument, the commenters cited primarily to three Supreme Court cases:
The Department notes first that section 203(f) states that “[n]othing contained in this section shall be construed as an amendment to, or modification of the rights protected by, section 8(c) of the National Labor Relations Act, as amended.” 29 U.S.C. 433(f). One law firm commented that section 203(f) of the LMRDA obligates the Department to uphold employers' section 8(c) rights. Notwithstanding our obligations under section 203(f), the Department believes that the commenters' reliance on section 8(c) in this context is misplaced. Since 1963, the Department, through its regulations, has unequivocally stated that while nothing contained in section 203 of the LMRDA shall be construed to amend or modify the rights protected by section 8(c) of the NLRA, activities protected by section 8(c) are not exempted from the
Sections 405.7 and 406.6 make clear that persuader activities, even if they constitute protected speech under section 8(c) of the NLRA, are nevertheless subject to the reporting and disclosure requirements of sections 203(a)(4) and 203(b) of the LMRDA. Moreover, the Department in this rule does not encourage workers to take any position concerning the exercise of their rights to organize and bargain collectively, nor does it take any position concerning whether or how an employer should exercise its rights under section 8(c). Rather, as stated, the Department contends that this rule promotes peaceful and stable labor relations, in part through disclosure to workers of information that assists them in making decisions regarding their rights, while simultaneously protecting the section 8(c) rights of employers. The Department thus concludes that this final rule, which merely interprets section 203 of the LMRDA and imposes broader reporting and disclosure requirements, does not violate employers' rights of expression under section 8(c) of the NLRA.
The Department received a few comments contending that the final rule would render section 203 impermissibly vague, especially in light of the possibility for criminal penalties. For example, one trade association claimed that the rule would sacrifice the clarity of the previous interpretation of the advice exemption in favor of an unworkable redefinition. Another commenter argued that the proposal is unconstitutionally vague because the disclosure requirements are not carefully tailored under any reasonable definition of “persuasion activity.” The commenters relied on several federal cases in support of their argument that the final rule is too vague. However, almost all of these commenters cited to the Supreme Court opinion in
It is a basic principle of due process that an enactment is void for vagueness if its prohibitions are not clearly defined. Vague laws offend several important values. First, because we assume that man is free to steer between lawful and unlawful conduct, we insist that laws give the person of ordinary intelligence a reasonable opportunity to know what is prohibited, so that he may act accordingly. Vague laws may trap the innocent by not providing fair warning. Second, if arbitrary and discriminatory enforcement is to be prevented, laws must provide explicit standards for those who apply them. A vague law impermissibly delegates basic policy matters to policemen, judges, and juries for resolution on an ad hoc and subjective basis, with the attendant dangers of arbitrary and discriminatory application. Third, but related, where a vague statute `abut(s) upon sensitive areas of basic First Amendment freedoms,' it `operates to inhibit the exercise of (those) freedoms.' Uncertain meanings inevitably lead citizens to “ `steer far wider of the unlawful zone' . . . than if the boundaries of the forbidden areas were clearly marked.' ”
As discussed below, the final rule provides clear guidance to filers about their reporting obligations, easily meeting the
In the NPRM, the Department stated that section 204 of the LMRDA exempts attorneys from reporting any information protected by the attorney-client privilege. 76 FR 36192. By this provision, Congress intended to afford to attorneys the same protection as that provided in the common-law attorney-client privilege, which protects from disclosure communications made in confidence between a client seeking legal counsel and an attorney. The Department explained that as a general rule information such as the fact of legal consultation, clients' identities, attorney's fees, and the scope and nature of the employment are not deemed privileged. The Department further explained that the section 204 privilege is operative only after the attorney has engaged in persuader activity. Therefore, attorneys who engage in persuader activity must file the Form LM-20, which requires information about the fact of the persuader agreement with an employer-client (including the parties' fee arrangements), the client's identity, and the scope and nature of the
Several commenters rejected the analysis in the NPRM, maintaining that the proposed rule was inconsistent with section 204 by requiring the disclosure of confidential client information protected by the attorney-client privilege. The American Bar Association (ABA) stated its view that “[b]y requiring lawyers to file detailed reports with the Department, stating the identity of their employer clients, the nature of the representation and the types of legal tasks performed, and the receipt and disbursement of legal fees whenever the lawyers provide advice or legal services relating to the clients' ” persuader activities, the proposed rule would “seriously undermine the confidential client-lawyer relationship.” Characterizing these reporting requirements as “unfair reporting burdens,” the ABA stated that the rule could discourage employers “from seeking the expert legal representation that they need, thereby chilling their ability to obtain counsel.”
On the other hand, a number of commenters, including two labor organizations, supported the Department's revised interpretation of the advice exemption. The commenters believed that the rule, as proposed, would not violate the attorney-client privilege. In part, they relied upon the court's observations in
Before responding to the comments, the Department notes the limited information required to be reported under this rule:
• A copy of the persuader agreement between the employer and consultant (including attorneys);
• the identity of the persons and employers that are parties to the agreement;
• a description of the terms and conditions of the agreement;
• the nature of the persuader and information-supplying activities, direct or indirect, undertaken or to be undertaken pursuant to the agreement—information provided by simply selecting from a checklist of activities;
• a description of any reportable persuader and information-supplying activities: the period during which the activities were performed, and the extent to which the activities have been performed as of the date of the report's submission; and
• the name(s) of the person(s) who performed the persuader or information-supplying activities; and the dates, amounts, and purposes of payments made under the agreement.
After a review of the comments submitted and based on the following reasons, the Department affirms its position in the NPRM that the revised interpretation of section 203(c) does not infringe upon the common law attorney-client privilege, which is still preserved by section 204, nor an attorney's ethical duty of confidentiality. Although the ABA and the other commenters expressed strong opposition to any reporting as a matter of principle, notably lacking from the submissions is any discussion of the types of activities that labor relations consultants, including attorneys, routinely engage in while providing their services to employer-clients seeking to avoid representation. Similarly lacking is any persuasive argument that the “soup to nuts” persuader services offered by attorneys should be shielded from employees and the public while the very same activities would be reported by their non-attorney colleagues in the union avoidance industry. See discussion at Section III.B of this preamble. As noted earlier, law firms have engaged in the same kinds of activities as other consultant firms, providing services similar to practices advocated by Nathan Shefferman, the face of the “middlemen,” mentioned in the McClellan hearings and the LMRDA's legislative history. Logan,
As noted above, several commenters claimed that the revised interpretation infringes upon the common law attorney-client privilege and attorneys' ethical duty of confidentiality. Although several commenters acknowledged that these principles are separate, others did not differentiate between the two. As explained by the ABA in its Model Rules of Professional Conduct:
The evidentiary attorney-client privilege is closely related to the ethical duty of confidentiality. They are so closely related that the terms “privileged” and “confidential” are often used interchangeably. But the two are entirely separate concepts, applicable under different sets of circumstances. The ethical duty, on the one hand, is extremely broad: it protects from disclosure all “information relating to the representation of a client,” and applies at all times. The attorney-client privilege, on the other hand, is more limited: it protects
Indeed, the tension between disclosure of persuader agreements and the general attorney non-disclosure principle is largely illusory because this principle recognizes many exceptions that directly apply to the reporting required by this rule. Further, attorneys who restrict their activities to legal services are not required to file any report; only those attorneys who engage in persuader services are required to file a report. The information that would be disclosed in filing the LM-20 report, principally the identity of the employer-client, the amount to be paid for the persuader activity, and a general description of the services, are not ordinarily protected by the attorney-client privilege. While this information could not be released as a matter of course under codes requiring the preservation of client confidences, such information is routinely disclosed where sought by subpoena or required by law. The LMRDA and the Department's rule requiring disclosure stands in the same stead. Moreover, the Department's rule recognizes that there may be rare occasions when some information should not be disclosed,
The Department agrees with those commenters who stated that the attorney-client privilege does not protect from disclosure “the fact of legal consultation or employment, clients' identities, attorneys' fees, and the scope and nature of employment.”
The court noted that the ABA had sought a broader disclosure exemption from Congress than that provided by section 204. This broader exemption would have barred the disclosure:
The court further explained that “the attorney-client privilege does not envelope everything arising from the existence of an attorney-client relationship,” emphasizing that “the attorney-client privilege is an exception carved from the rule requiring full disclosure, and, as an exception, should not be extended to accomplish more than its purpose.” Id. at 1219. (internal quotations omitted). The court made the additional points:
• “The attorney-client privilege only precludes disclosure of
• “[I]n general, the fact of legal consultation or employment, clients' identities, attorney's fees, and the scope and nature of employment are not deemed privileged.”
• “[T]he amount of money paid or owed by a client to his attorney is not privileged except in exceptional circumstances [not present in the LMRDA context].”
We conclude that none of the information that LMRDA section 203(b) requires to be reported runs counter to the common-law attorney-client privilege. Any other interpretation of the privilege created by section 204 would render section 203(b) nugatory as to persuader lawyers.
• “[A]ny such reports to be meaningful must include as a bare minimum the name of the client, the terms of the arrangements, and the fees.”
• “[The consultant-attorneys] must report [the] names and the fees received for any persuader arrangements.”
• “They must also describe the general nature of the activities they undertook pursuant to such arrangements.”
• “The terms of the agreement or arrangement, without more, might well be considered a “privileged communication” from the client to the attorney. But where, as here, the agreement has been executed, partially or completely, the nature of the activities actually performed by the attorney can hardly be characterized as a “communication” from his client.”
The Court of Appeals found it significant that Congress ultimately rejected the broader House version,
The commenters who were critical of the proposed rule did not present any argument or authority that would cause the Department to question the
A legal trade association asserted that in virtually every other context, attorneys are not required to disclose to the public the identity of their clients and how much they are paid for what kinds of work performed. The association, though, disregards the fact that attorneys who engage in direct persuader activities pursuant to an agreement with an employer have, since the inception of the LMRDA, been compelled to report information concerning such agreements, as was the case in
Other commenters who supported the Department's proposal described two analogous arenas where attorneys or consultants would have to disclose client information similar to that required by the proposal. A labor organization stated that the Lobbying Disclosure Act requires attorneys with a legislative practice to disclose much more information than what is mandated under this rule. The organization noted that the required content of a lobbying registration under 2 U.S.C. 1603(b) and a quarterly lobbying report under 2 U.S.C. 1604(b) includes not only the activities undertaken on behalf of a client, but also information about non-client parties and the legal or equitable interests these parties may hold in the client. Another commenter referenced the reporting and disclosure requirements in IRS Form 8300, noting that courts have rejected challenges that the Form 8300 violates the attorney-client privilege.
A few commenters acknowledged the general rule that the underlying facts of an attorney-client communication, including the existence of the attorney-client relationship, the client's identity, fee arrangements, and the scope and nature of the agreement, are not protected by the federal common-law attorney-client privilege. Nonetheless, the commenters maintained that disclosure of this information might reveal the client's motive in seeking representation, the advice sought, or the specific nature of the services provided, all of which are privileged. For example, one law firm noted that, in practice, agreements between attorneys and clients often extend beyond persuader activities and may include privileged information. According to the commenter, disclosure of the reasons and purposes behind such legal engagements would make public business decisions, sensitive strategic planning information, and other private employer information. Similarly, another law firm provided hypothetical scenarios to illustrate how requiring an attorney to disclose the identity of clients would reveal not only the existence of the relationship, but also the client's motives or the advice sought, which the client may not want to disclose.
Some commenters also asserted that it would be improper for law firms to disclose documents that would reveal clients' motives regarding legal representation or the legal advice sought because these documents would be privileged information under section 204. The Department agrees that such information, as distinct from other information in a document, ordinarily would be privileged but notes that this information is an exception to the general rule favoring disclosure. See,
The final rule does not require the disclosure of any particular documents, apart from the persuader agreement. While receipt and disbursement information must be disclosed under the rule, the rule does not require that the billing, voucher, or other documents that includes this information be publicly disclosed. Further, the only other information that is to be reported identifies only the specific persuader activity or activities provided to the employer by the lawyer or other labor relations consultant, activities that must be reported under section 203 of the Act. The court in
At the same time, the Department acknowledges that there may be exceptional circumstances where the disclosure of some information would be privileged from disclosure. For this reason, in the NPRM, the Department stated that to the extent an attorney's report about his or her agreement or arrangement with an employer may disclose privileged communications, the privileged matters are protected from disclosure. 76 FR 36192. If the written agreement that is required to be included as part of the Form LM-20 filing contains sensitive, privileged client information, wholly unrelated to the persuader activities, direct or indirect, such information may be redacted. Thus, information that may reveal client motives regarding exclusively legal advice or representation sought would generally be redactable, but information concerning client motives related to the persuasion of employees is not privileged and would remain reportable. The Department, however, disagrees with those commenters who simply recommend that the Department withdraw its proposed interpretation because of the possibility that, in certain limited circumstances, the information required to be disclosed might reveal employers' motivations, business strategies, the advice sought, or the specific nature of the legal services provided.
There is no exemption for confidentiality clauses in the LMRDA. The only confidentiality recognized by the LMRDA is that of attorney-client privilege, contained in Section 204 of the LMRDA, which states that “nothing contained in this Act shall be construed to require an attorney who is a member in good standing of the bar of any State, to include in any report required to be filed pursuant to the provisions of this Act any information which was lawfully communicated to such attorney by any of his clients in the course of a legitimate attorney-client relationship.” 29 U.S.C. 434. If an employer believes that completing Form LM-10 will result in the disclosure of sensitive, confidential or proprietary information that could cause substantial harm to the employer's business interests, the issue should be discussed with OLMS prior to the filing of the report.
Furthermore, the Department brings attention to three principles found in
g. Client identity, the fact of consultation, fee payment, and similar matters. Courts have sometimes asserted that the attorney-client privilege categorically does not apply to such matters as the following: The identity of a client; the fact that the client consulted the lawyer and the general subject matter of the consultation; the identity of a nonclient who retained or paid the lawyer to represent the client; the details of any retainer agreement; the amount of the agreed-upon fee; and the client's whereabouts. Testimony about such matters normally does not reveal the content of communications from the client. However, admissibility of such testimony should be based on the extent to which it reveals the content of a privileged communication. The privilege applies if the testimony directly or by reasonable inference would reveal the content of a confidential communication. But the privilege does not protect clients or lawyers against revealing a lawyer's knowledge about a client solely on the ground that doing so would incriminate the client or otherwise prejudice the client's interests.
See also ABA Rule 1.6. (comment):
[B]illing information and fee agreements are generally not protected by the evidentiary attorney-client privilege unless disclosure would reveal the substance of confidential communications between a lawyer and a client. See,
The Department also received a number of comments contending that specific items in Form LM-20 compel disclosure of privileged client information. For instance, one company asserted that the information required to be disclosed in proposed Item 10 “Terms and conditions” of Form LM-20 is protected by the attorney-client privilege. The company argued that this requires disclosure of the reason for the agreement or arrangement between employer and client, which is protected communications. The Department disagrees. With respect to Item 10, the proposed instructions state as follows:
Provide a detailed explanation of the terms and conditions of the agreement or arrangement. . . . If any agreement or arrangement is in whole or in part contained in a written contract, memorandum, letter, or other written instrument, or has been wholly or partially reduced to writing, you must refer to that document and attach a copy of it to this report . . .
Other commenters claimed that the level of detail required to be reported on the revised Form LM-20 would call for the disclosure of privileged information. A law firm contended that requiring attorneys to indicate whether they have engaged in communications with the purpose of persuading employees conflicts with case law, which, in its view, uphold the proposition that the “motivation of the client in seeking representation” and descriptions of the “specific nature of the services provided” are protected by the attorney-client privilege. Furthermore, the commenter objected to the requirement in Form LM-20 to identify any “subject employees” about whom the attorney “counseled” the employer, arguing that such information is privileged. Another law firm identified the following checklist categories in Item 11.a as being too specific, in violation of the attorney-client privilege:
• Drafting, revising, or providing written materials [or speech] for presentation, dissemination, or distribution to employees
• Training supervisors or employer representatives to conduct individual or group employee meetings
• Developing personnel policies or practices.
The Department disagrees that these checklist items or, generally, the level of detail required to be reported on Form LM-20 would result in the disclosure of privileged information. As explained above, the Department recognizes that, in certain limited circumstances, otherwise non-privileged information, such as the nature and scope of the attorney-client relationship, might be deemed privileged if it reveals the client's motivations or the specific nature of the services provided. The Department stresses, however, that in such cases the information that would be revealed relates to a client's motivations in seeking
Some observers may nevertheless argue that the items in Form LM-20 reveal, by implication, the client's motivations in seeking legal representation or the specific nature of the legal advice provided. The Department is not persuaded by such an argument. The same argument can be made for many other disclosure laws. For example, in the tax context, one can argue that the filing of an IRS Form 8300 reveals, by implication, a client's motivation to ensure that it complies with tax laws or that the client had sought legal counsel because it received a single payment of cash in excess of $10,000. Similarly, in the context of lobbying disclosure, one can argue that disclosure reveals the motivation of the company or individual for whom the lobbying was provided. As discussed in the legal authorities cited above, a lawyer must be able to demonstrate more than the mere possibility that client motivations or the specific nature of the legal services provided might be revealed through inferences. See also comment to Annotated Model Rules of Professional Conduct, Seventh Edition Annotated Model Rules of Professional Conduct (7th ed. 2011), Rule 1.6(b)(6), Confidentiality of Information, available in Westlaw at ABA-AMRPC S 1.6 (Disclosure required by IRS Form 8300 “has consistently been upheld against attacks based upon confidentiality and privilege”).
The Department received numerous comments that apparently misconstrue the type of information that must be reported under both the prior interpretation and the proposed rule. For example, several commenters objected to the presumed requirement that they provide copies of any documents prepared by or reviewed by them in providing services to their client, including, for example, memoranda or other documents outlining campaign strategy, a speech to be delivered by the employer, or literature prepared for distribution to employees. According to the commenters, these consultant-prepared materials are privileged from disclosure even if the client ultimately presents the final versions to its employees. One commenter suggested that the training and directing of supervisors, and associated materials, necessarily involves privileged communications. As stated above, the Department has not required a consultant-attorney to disclose any particular documents or to otherwise reveal the details of any
In a similar vein, a company submitted comments stating that the attorney-client privilege applies whenever legal advice is provided in confidence by an attorney to a client. The commenter emphasized that the privilege covers not only the legal advice in a privileged communication, but also any unprivileged statements that accompany it. Another commenter, a trade association, argued that the proposed rule's interpretation of “advice” conflicts with the common law definition of legal advice as applied to the attorney-client privilege. The association cited to a number of federal cases for the proposition that legal advice “intertwined” with persuader activity is still protected from disclosure under the attorney-client privilege. These commenters, too, have misconstrued what is required to be disclosed under the final rule. The revised Form LM-20 does not require the disclosure of any communication other than any written persuader agreement between the parties.
Other commenters maintained that, once the rule becomes effective, any ensuing investigations conducted by the Department would lead to violations of the attorney-client privilege. One commenter theorized that the Department would be required to thoroughly investigate not only the attorney-client relationship, but also the attorney's communications with the client. The client or the attorney, according to the commenter, would likely be compelled to disclose otherwise privileged communications to prove the nature and object of the communications or in possible defense of criminal charges. Another commenter claimed that, at least in California, even
In this rulemaking, the Department declines to comment on the applicability of the attorney-client privilege to hypothetical questions concerning investigations of potential reporting violations. Issues pertaining to the interplay between the attorney-client privilege and any ensuing investigations under section 203 are more appropriately resolved upon enforcement of the final rule once it becomes effective. See,
A few commenters acknowledged that the proposed rule, if implemented, would not infringe on the attorney-client privilege. Regardless of that fact, however, they and other commenters argued that the rule would result in the disclosure of confidential, even if not privileged, communications between attorney and client. While most of these commenters claimed that the disclosure of confidential information conflicts with attorneys' ethical obligations to maintain client confidences, a few argued that section 204 should be read to encompass even non-privileged, confidential information, such as a client's identity.
In support of this contention, a trade organization commented that the word “privilege” does not appear in section 204, which, to the organization, suggests strongly that the provision provides a broad, over-arching protection from disclosure of both privileged and confidential information. In a similar vein, two commenters, a higher education association and a public-interest organization, stressed that section 204 is broadly worded such that it exempts “any information” that was lawfully communicated in the course of a legitimate attorney-client relationship.
In response to these assertions, the Department notes that the Sixth Circuit, in
According to other commenters, however, the disclosure of confidential client information would be a violation of attorneys' ethical obligations under various state bar rules. One law firm averred that many state bar associations have deemed certain types of client information, such as the identity of the client, the fact of representation, and the fees paid as part of that representation, to be confidential information prohibited from disclosure. Many of the commenters referenced Rule 1.6 of the ABA's Model Rules of Professional Conduct. As one law firm pointed out, 49 states and the District of Columbia have adopted some variation of Rule 1.6. In relevant part, ABA Model Rule 1.6, Confidentiality of Information, states as follow:
(a) A lawyer shall not reveal information relating to the representation of a client unless the client gives informed consent, the disclosure is impliedly authorized in order to carry out the representation or the disclosure is permitted by paragraph (b).
(b) A lawyer may reveal information relating to the representation of a client to the extent the lawyer reasonably believes necessary:
(6) to comply with other law or a court order.
The Department notes first, as discussed below, that section 204 of the LMRDA, as a federal law, controls over any conflicting state ethics rules modeled after ABA Rule 1.6.
In addition, as a few commenters noted, Rule 1.6(b)(6) allows for the disclosure of client information to comply with “other law,” which would include the LMRDA. Comment 12 to ABA Rule 1.6 states as follow: “Other law may require that a lawyer disclose information about a client. Whether such a law supersedes Rule 1.6 is a question of law beyond the scope of these Rules. When disclosure of information relating to the representation appears to be required by other law, the lawyer must discuss the matter with the client to the extent required by Rule 1.4. If, however, the other law supersedes this Rule and requires disclosure, paragraph (b)(6) permits the lawyer to make such disclosures as are necessary to comply with the law.” Annotated Model Rules of Professional Conduct (7th ed. 2011), Rule 1.6 Confidentiality of Information, available in Westlaw at ABA-AMRPC S 1.6. In this respect, the model rule and the corresponding state rules do not conflict with sections 203 and 204. As discussed in the preceding paragraph, even in the case of a conflict with a state ethics requirement, the Department believes that section 203 and this rule supersede Rule 1.6 and any particular state equivalent. The Department notes further that the employer-client is also required by law to report identical information as the attorney-persuader. One commenter even acknowledged that the rules of conduct allow for disclosure required by other law or a court order. The commenter, however, contended that the “strong language” in section 204 indicates that the LMRDA was never intended to be interpreted in such a sweeping manner. The Department disagrees. As explained above, the court in
The ABA also acknowledged that a federal statute, such as the LMRDA, would constitute an exception to Rule 1.6, but it offered only a conclusory statement that “nothing in the LMRDA expressly or implicitly requires lawyers to reveal client confidences to the government.” Section 203(b), however, expressly requires that persuader consultants “file a report with the Secretary . . . containing the name under which such person is engaged in doing business and the address of its principal office, and a detailed statement of the terms and conditions of such agreement or arrangement.” 29 U.S.C. 433(b). Section 208 authorizes the Department to “issue, amend, and rescind rules and regulations prescribing the form and publication of reports required to be filed under this title.” 29 U.S.C. 438. Further, to ensure that sections 203 and 204 are given full effect (with section 203 determining when and who must report, and section 204 limiting what must be reported), attorneys cannot be entirely excluded, as this would conflict with the statutory language, legislative intent, and history of section 203's application. Indeed, if attorneys engaging in direct persuasion must disclose information concerning the entire agreement or arrangement with the employer it logically follows that indirect persuaders, including attorneys, should disclose the same information.
Several commenters, however, maintained that, should conflicts arise, attorneys may be faced with the untenable position of choosing between their ethical duties to their clients and their reporting obligations under the LMRDA. One of these commenters illustrated this conundrum by explaining that an attorney who discloses confidential information without client consent would risk professional discipline under state ethics rules. On the other hand, the commenter stated, the attorney risks imprisonment and a fine for willful failure to file if he or she decides not to file the appropriate LM form.
As detailed above, however, the Department does not believe that the disclosure required by this rule poses a general or significant impediment for attorneys seeking to maintain client confidences, because the LMRDA constitutes “other law,” which under the ethical rules authorizes attorneys to disclose otherwise confidential client information. Thus, an ethical conflict would likely occur in only rare circumstances, such as where the disclosure of information would implicate the client in crimes or other illegal activities. Even there, however, it is by no means clear that the information should be withheld. As discussed above, courts have narrowly construed exceptions to disclosure of information required by federal law even in circumstances where there exists a reasonable argument that disclosure may entail some risk of criminal prosecution. The Department is not insensitive to such possibilities, but it does not believe those types of rare situations should dictate the decision to issue this final rule.
Moreover, the Department recommends that labor relations attorneys and consultants who engage in direct or indirect persuader activity
In addition to the issues surrounding the attorney-client privilege and confidentiality, many of the commenters alleged that the proposed rule would chill employers' ability to obtain competent attorneys. The ABA, for instance, argued that by requiring lawyers to file detailed reports containing confidential client information, the proposed rule would chill and seriously undermine the confidential client-lawyer relationship. Characterizing these requirements as “unfair reporting burdens,” the ABA believed the rule could discourage employers “from seeking the expert legal representation that they need, thereby effectively denying them their fundamental right to counsel.” Several commenters suggested that if the proposed rule were implemented, many law firms would cease to provide advice to employers due to the new disclosure requirements. According to one of the commenters, this would make it much more difficult for employers to obtain counsel during organizing campaigns. Another commenter, a law firm, contended that employers' ignorance of the law would more likely result in violations of complex rules about permissible and impermissible conduct in the union organizing and collective bargaining contexts. Similarly, a law firm commented that the rule could well cause employers to act without the guidance of counsel, thereby adding to the likelihood of unfair labor practices, re-run elections, and further instability in labor relations. A comment from a small business public policy association posed a scenario where employers, due to the chill on the ability to obtain counsel, would be forced to either “go it alone” or find a lawyer willing to overlook the ethical obligations involved with filing as a persuader. Other commenters theorized that employers would simply remain silent during organizing campaigns, effectively “muzzling” or “gagging” themselves.
The Department finds that these arguments, in essence, present the same concerns raised by other commenters regarding the rule's potential chilling effect on employer free speech, which is addressed in Section V.G. As explained in that section, these concerns are unfounded because neither the proposed rule nor this rule requires the reporting of services provided by a consultant-attorney unless he or she engages in persuader activities. Even then, only limited information is required to be reported. Further, as explained in Section V.G, this rule establishes a clear test for attorneys and others to know what activities will trigger reporting and thereby avoid such activities if their goal is to avoid even the limited reporting required under this rule. Thus, under a proper understanding of the requirements and limits of this rule, the asserted chill on the ability of employers to retain counsel seems nothing more than unsubstantiated speculation. As such, this argument provides no basis for rejecting the rule.
In addition, as discussed above, the information required to be reported on the revised Form LM-20 is generally not protected by either the federal common law attorney-client privilege or prohibited from disclosure by state bar rules on client confidences. Because the final rule does not infringe on these protections, any corresponding chilling effect would come solely as a result of employers' or attorneys' choice to avoid reporting non-privileged, non-confidential information. In this respect, the Department is guided by the Ninth Circuit's observation in
We do not believe that clients, knowing that their attorneys may be compelled to testify about the amount, date, and form of fees paid, would be inhibited from disclosing fully information needed for an effective representation. Nor do we accept a generalization that clients feel less free to disclose once it becomes apparent that their attorney's testimony may cause adverse results. . . . Some prospective clients, arguably, may decide not to retain counsel for legal services if they could be implicated by expenditures for those services. This is not, however, a sufficient justification to invoke the [attorney-client] privilege.
In a similar vein, the Department does not believe the attorney-client privilege or state ethics rules should or can be used to shield employers and their attorneys from the LMRDA's reporting requirements once persuader activities are undertaken. The Department is not persuaded that employers, as a result of this rule, would be inhibited from seeking legal advice and sharing non-privileged, non-confidential information with their attorneys, nor will they be less able to retain attorneys, including persuader-attorneys, as a result of the rule.
The Department also received several comments, including those from the ABA, concerning the impact of this rule on consultants' reporting requirements on the Form LM-21, Receipts and Disbursements Report.
The Form LM-21 implements the reporting requirements prescribed by section 203(b). That section, in relevant part, requires every person who engaged in persuader activities to file annually a report with the Secretary containing a statement of “its receipts of any kind from employers
The ABA, in particular, argued that the scope of this requirement compels the disclosure of a “great deal” of confidential client information that has “no reasonable nexus” to the persuader activities at issue in the NPRM and this rule. The ABA urged the Department to narrow the scope of the information that must be disclosed in Form LM-21 so that disclosure is required only for those receipts and disbursements pertaining to clients for whom persuader activities were undertaken.
While some commenters did acknowledge the scope of the NPRM, the ABA and multiple other commenters failed to note that this rulemaking focuses exclusively on the Form LM-20, not the Form LM-21. In this rulemaking, the Department proposed no changes to nor invited public comment on any aspect of the LM-21 form. Therefore, issues arising from the reporting requirements of the LM-21 are not appropriate for consideration under this rule. The Department has expressed its intent to address issues surrounding the Form LM-21 in a separate rulemaking in the future.
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 designated a “significant regulatory action” although not economically significant, under section 3(f) of Executive Order 12866. Accordingly, the rule has been reviewed by the Office of Management and Budget (OMB).
In the Paperwork Reduction Act (PRA) analysis below, the Department estimates that the rule will result in a total annual recurring burden on employers, labor relations consultants, and other persons required to file Form LM-20 and Form LM-10 reports of approximately $1,263,499.50. Additionally, in the Regulatory Flexibility Analysis (RFA) below, the Department estimates that the total first-year burden on non-filing entities affected by this rule is approximately $7,270,822, with a recurring, annual burden of $3,634,578. See Section VI.H.4 below. Thus, the burden is less than $100 million annually and is therefore not economically significant within the meaning of Executive Order 12866.
The Department received comments that the proposed rule failed to assess all costs and benefits of available regulatory alternatives and that the rule would be significantly more burdensome than the current rule. An employer coalition argued that the proposed rule also violated the executive orders and should therefore be withdrawn, because it did not allow for adequate public participation, failed to promote predictability or reduce uncertainty, and was not written in plain language. Some commenters estimated that the total impact of the rule would easily exceed $100 million annually.
The Department disagrees with these comments. First, the Department has fully considered alternatives to the approach proposed and is adopting the proposed rule with some modification based on these alternatives. See discussion in Section V of the preamble to this rule. Second, the Department has provided estimated costs associated with the reporting requirements, adjusted in response to comments received on the proposed rule, in a manner that fully comports with requirements prescribed for regulations that are not economically significant. Third, the public was provided a full opportunity to express their views on the approach proposed, as evinced both by the public stakeholder meeting that preceded the proposal and the large number of comments submitted on the proposal. Fourth, the rule is written in a straightforward, easy to understand manner, with examples and checklists that simplify reporting. In response to comments received on the proposal, the Department has addressed various concerns about particular requirements and added additional clarity where appropriate. The Department has also responded to specific comments on its burden estimates below in the PRA and RFA sections, discussed the basis for such estimates, and refuted the assertions that the rule would result in an annual economic impact of greater than $100 million. As stated, the rule provides an objective, clear basis to determine reportability and certainty, and the Department will provide compliance assistance to filers and prospective filers to reduce any additional uncertainty or burden. The Department has also demonstrated in the preamble the sound basis for the rule in the language of the statute, legislative history, and public policy.
The following is a summary of the need for and objectives of the rule. A more complete discussion of various aspects of the rule is found elsewhere in the preamble to this rule and the NPRM.
The LMRDA was enacted to protect the rights and interests of employees, labor organizations and their members, and the public generally as they relate to the activities of labor organizations, employers, labor relations consultants, and labor organization officers, employees, and representatives. Provisions of the LMRDA include financial reporting and disclosure requirements for labor organizations, employers, labor relations consultants, and others as set forth in Title II of the Act. See 29 U.S.C. 431-36, 441.
The revised rule amends the form, instructions, and reporting requirements for the Form LM-10, Employer Report, and the Form LM-20, Agreements and Activities Report, both of which are filed pursuant to section 203 of the LMRDA, 29 U.S.C. 433. Section 203 establishes reporting and disclosure requirements for employers and persons, including labor relations consultants, who enter into any agreement or arrangement whereby the consultant (or other person) undertakes activities to persuade employees as to their rights to organize and bargain collectively or to obtain certain information concerning the activities of employees or a labor organization in connection with a labor dispute involving the employer. Each party must also disclose payments made pursuant to such agreement or arrangement. An employer, additionally, must disclose certain other
In this final rule, the Department has revised its interpretation of the “advice” exemption of section 203(c) of the LMRDA, which provides, in part, that employers and consultants are not required to file a report by reason of the consultant's giving or agreeing to give “advice” to the employer. Under previous policy, as articulated in the LMRDA Interpretative Manual and in a
The Department proposed to narrow the scope of the advice exemption to more closely reflect the employer and consultant reporting intended by Congress in enacting the LMRDA, which includes disclosure of agreements involving direct and indirect persuasion by employees. Strong evidence indicates that since the enactment of the LMRDA in 1959, the use of such consultants by employers to contest union organizing efforts has proliferated, with most employers hiring consultants to persuade employees through indirect methods. Nevertheless, since it began administering the statute in 1960 the Department has consistently received a small quantity of LM-20 reports relative to the greatly increased employer use of the labor relations consultant industry, which suggests substantial underreporting by employers and consultants. Moreover, evidence indicates that the Department's broad interpretation of the advice exemption has contributed to this underreporting.
As discussed in the preambles to both the proposed and final rule, the Department's prior interpretation failed to advance Congressional objectives concerning labor-management transparency to promote worker rights and harmonious labor relations. Considerable evidence suggests that regulatory action to revise the advice exemption interpretation is needed to provide labor-management transparency for the public, and to provide workers with information critical to their effective participation in the workplace.
Congress intended that employees would be timely informed of their employer's decision to engage the services of consultants in order to persuade them how to exercise their rights. Congress intended that this information, including “a detailed statement of the terms and conditions” of the agreement or arrangement would be publicly available no later than 30 days after the employer and consultant entered into such relationship. 29 U.S.C. 433(b)(2). With such information, employees are better able to assess the actions of the employer and the employer's message to them as they are considering whether or not to vote in favor of a union or exercise other aspects of their rights to engage in or refrain from engaging in collective bargaining.
Where persuader activities are not reported, employees may be less able to effectively exercise their rights under Section 7 of the NLRA and, in some instances, the lack of information will affect their individual and collective choices on whether or not to select a union as the exclusive bargaining representative or how to vote in contract ratification or strike authorization votes. The public disclosure benefit to the employees and to the public at large cannot reasonably be ascertained due to the uncertainty in knowing whether employees would have participated or not in a representation election or cast their ballots differently if they had timely known of the consultant's persuader activities. The real value of the LMRDA public disclosure of information is in its availability to workers and the public in accordance with Congressional intent. Such information gives employees the knowledge of the underlying source of the information directed at them, aids them in evaluating its merit and motivation, and assists them in developing independent and well-informed conclusions regarding union representation.
The Department also revises the Form LM-10, the Form LM-20, and the corresponding instructions. These changes include modifications of the layout of the forms and instructions to better outline the reporting requirements and improve the readability of the information. The revised forms also require greater detail about the activities conducted by consultants pursuant to agreements and arrangements with employers.
Finally, this rule requires that Form LM-10 and LM-20 filers must submit reports electronically, but also has provided a process for a continuing hardship exemption, whereby filers may apply to submit hardcopy forms on a temporary basis. Currently, labor organizations that file the Form LM-2 Labor Organization Annual Report have been required by regulation since 2004 to file electronically, and there has been good compliance with this submission requirement. Employers and consultants likely have the information technology resources and capacity to file electronically, as well. Moreover, electronic Web-based filing option is also planned for all LMRDA reports as part of an information technology enhancement, including for those forms that cannot now be electronically filed, such as the Form LM-10 and Form LM-20. This addition should greatly reduce the burden on filers to electronically sign and submit their forms. No commenters challenged this proposed addition of mandatory electronic filing, and several comments explicitly offered support.
Published at the end of this rule are the revised Forms LM-10 and LM-20 and instructions. The revised Forms LM-10 and LM-20 and instructions also will be made available via the Internet. The information collection requirements contained in this rule have been submitted to OMB for approval.
This rule will not include any Federal mandate that may result in increased expenditures by State, local, and tribal governments, in the aggregate, of $100 million or more annually, or in increased expenditures by the private sector of $100 million or more. As discussed throughout this part of the preamble, the compliance costs associated with this rule are far less than the above thresholds.
This rule is not a major rule as defined by section 804 of the Small Business Regulatory Enforcement Fairness Act of 1996. This rule will not result in an annual effect on the economy of $100,000,000 or more; a major increase in costs or prices; or significant adverse effects on competition, employment, investment, productivity, innovation, or on the ability of the United States-based companies to compete with foreign-based companies in domestic and export markets.
The Department received comments suggesting that it did not properly
The Department has reviewed this rule in accordance with Executive Order 13132 regarding federalism and has determined that the rule does not have federalism implications. Because the economic effects under the rule will not be substantial for the reasons noted above and because the rule has no direct effect on states or their relationship to the federal government, the rule does 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.”
One commenter questioned why the NPRM did not, pursuant to Section 5 of E.O. 13175, contain a tribal impact summary statement or indicate whether it had consulted with any tribes prior to issuing the NPRM. In response, the Department states that it provided the public, including Indian tribal governments, the opportunity to comment during the proposed rule's comment period. No Indian tribal government commented on the proposal. Further, the rule does not “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.” See E.O. 13175, Section 1.a. Indeed, the commenter identified no specific actual impact on any Indian tribe and, in the Department's view, it is not clear that the rule will have
In order to meet the requirements of the Regulatory Flexibility Act (RFA), 5 U.S.C. 601
Compliance with the requirements of this rule involves information recordkeeping and information reporting tasks. Therefore, the overall impact to covered employers, labor relations consultants, and other persons, and in particular, to small employers and other organizations that are the focus of the RFA, is largely equivalent to the financial impact to such entities assessed for the purposes of the PRA. As a result, the Department's assessment of the compliance costs to covered entities for the purposes of the PRA is used as a basis for the analysis of the impact of those compliance costs to small entities addressed by the RFA. Additionally, in response to comments received, the Department has also addressed under the RFA the impact on those entities that must review the reporting requirements to determine that filing is not required. The Department's analysis of PRA costs, and the quantitative methods employed to reach conclusions regarding costs, are presented first. The conclusions regarding compliance costs in the PRA analysis regarding Form LM-10 and Form LM-20 files are then employed, along with estimated burden costs on non-filers, to assess the impact on small entities for the purposes of the RFA, which follows immediately after it.
With the information newly provided as a result of this rule, employees will be better able to understand the role that labor relations consultants play in their employer's efforts to persuade them concerning how they should exercise their rights as employees to union representation and collective bargaining matters. Better informed employees will promote more stable and harmonious labor-management relations.
This rule also requires that employers and consultants file Form LM-20 and Form LM-10 reports electronically. Electronic reporting contains error-checking and trapping functionality, as well as online, context-sensitive help, which improves the completeness of the reporting. Electronic filing is more efficient for reporting entities, results in more immediate availability of the reports on the agency's public disclosure Web site, and improves the efficiency of OLMS in processing the reports and in reviewing them for reporting compliance.
This statement is prepared in accordance with the PRA, 44 U.S.C. 3501. As discussed in the preamble, this rule would implement an information collection that meets the requirements of the PRA in that: (1) The information collection has practical utility to employees, employers, labor relations consultants, and other members of the public, and the Department; (2) the rule does not require the collection of information that is duplicative of other reasonably accessible information; (3) the provisions reduce to the extent practicable and appropriate the burden on employers, labor relations consultants, and other persons who must provide the information, including small entities; (4) the form, instructions, and explanatory information in the preamble are written in plain language that will be understandable by reporting entities; (5) the disclosure requirements are implemented in ways consistent and compatible, to the maximum extent practicable, with the existing reporting and recordkeeping practices of employers, labor relations consultants, and other persons who must comply with them; (6) this preamble informs reporting entities of the reasons that the information will be collected, the way
This rule establishes revised Form LM-10 and LM-20 reporting forms, which constitute a “collection of information” within the meaning of the Paperwork Reduction Act of 1995 (PRA) [44 U.S.C. 3501-3520]. Under the PRA, an agency may not conduct or sponsor, and a person is not required to respond to, a collection of information unless it displays a currently valid control number assigned by the Office of Management and Budget (OMB). The Department submitted an information collection request to OMB in association with this rule on February 25, 2016, after considering all public comments on the information collections in the proposed rule. That review is pending. The Department will publish an additional notice in the
The Department is in the process of extending the OMB authorization, as part of its effort to require mandatory electronic filing for labor organizations that file the Form LM-3 and LM-4 Labor Organization Annual Report. See the related Notice published in the
In the analysis that follows, the Department estimates the recordkeeping and reporting costs of the rule on labor relations consultants and employers. To arrive at these estimates, the Department made the following assumptions:
• NLRB and NMB representation elections are a proxy for organizing campaigns. A mean consultant utilization rate of 78% by employers during organizing campaigns is used to arrive at the number of Form LM-20 reports and filers;
• An employer will hire only one consultant when faced with an organizing drive, as opposed to multiple consultants;
• The total number of Form LM-20 reports consists of reports for union avoidance seminars as well as targeted activities (non-seminar reports);
• The total of number of Form LM-20 filers are based on existing reporting data (only applied for non-seminar reports) and includes all consultants, including law firms;
• For the number of seminar reports, each “business association” entity (NAICS 813910, which includes trade associations and chambers of commerce) that operates year-round with 20 or more employees is estimated to sponsor a seminar annually and to contract with a consultant firm to conduct the seminar. The consultants hired to conduct these seminars will also independently hold an equal number of seminars. The consultants will file all seminar reports (half sponsored by business associations and half independently held by them).
• The total number of Form LM-10 reports is based off of the estimated number of non-seminar Form LM-20 reports, plus the existing reporting data on non-persuader Form LM-10 reports. The Department assumes that each Form LM-10 report submitted will involve either persuader or non-persuader activity, although in practice there may be some overlap. For the cost estimates, however, it is assumed that a filer will complete all parts of the Form LM-10, for both persuader and non-persuader transactions;
• Estimates for the recordkeeping and reporting hours derive largely from the Form LM-30 Labor Organization Officer and Employee Report final rule from October 2011 (see 76 FR 66441);
• Consultants and employers already keep business records necessary for reporting, such as agreements and seminar attendance sheets;
• Attorneys will file reports on behalf of consultants and employers. The estimated recordkeeping and reporting costs are based on BLS data of the average hourly wage of an attorney, including benefits;
• Non-filing entities are estimated to spend one hour total reading instructions (10 minutes) and determining that the rule does not apply to them or their clients (50 minutes). Non-filing entities are comprised of those labor and employment law firms, human resource consultant firms, and business associations that are not otherwise estimated to be filing. Not every employer, human resources firm, or law firm is impacted, only those that enter into labor relations agreements.
• No “initial familiarization” costs. Employers and consultants are unique filers each year, and costs associated with “familiarization” are therefore included within the estimated costs, as is the case with Form LM-30 filers;
• For the RFA analysis, all affected entities are assumed to be small business entities.
In the notice of proposed rulemaking (NPRM), the Department estimated an annual total of 2,601 Form LM-20 filers and 3,414 Form LM-10 filers resulting from the proposed rule. 76 FR 36198-200. To estimate the number of Form LM-20 filers, the Department first identified the average number of representation elections. Representation elections permit employees to vote whether they wish to be represented by a particular labor union. Representation elections may be contested by employers who spend resources and hire management consulting firms to defeat unions at the ballot box. Id. at 36185. The Department calculated the representation cases filed with National Mediation Board during fiscal years 2005-2009 (which equaled 38.8 annually) and added that figure to the average number of National Labor Relations Board representation cases filed during the same period (which equaled 3,429.2), for an annual total of 3,468 representation elections. Next, the Department reviewed the research literature and determined that the median utilization rate of consultants by employers was approximately 75%. As a result, the Department concluded that there would be 2,601 (3,468 × .75 = 2,601) elections in which employers would hire consultants to persuade employees with regard to their right to organize and bargain collectively, triggering thereby the requirements that employers file Form LM-10 and consultants file Form LM-20 reports.
To determine the increase in filing caused by the proposed rule, as compared to the existing rule, the number of estimated new Form LM-20 reports (2,601) was reduced by the average number of reports already being filed (191), resulting in an expected increase of 2,410 (2,601 − 191 = 2,410) Form LM-20 reports. Although the numbers could be increased by assuming that an employer might enter into multiple agreements during a single union organizing campaign or consultants may hire subcontractors, the Department made no such assumptions,
Having derived an estimate for Form LM-20 submissions, the Department then calculated the annual number of expected Form LM-10 filings. See 76 FR 36199. It estimated 3,414 Form LM-10 filers. This constituted an estimated increase of 2,484 over the existing average of 930 Form LM-10 reports. The analysis began with the 2,601 NLRB and NMB elections, discussed above, where 75% of involved employers were projected to hire consultants to persuade employees with regard to their right to organize and bargain collectively (3,468 × .75 = 2,601). The existing Form LM-10 reporting history was reviewed, revealing an annual average of 930 Form LM-10 reports filed, consisting of 117 reports of activities to persuade employees about their rights to organize and bargain collectively and about 813 reporting conduct unrelated to such activities. The 2,601 agreements to persuade were added to the average number (813) of Form LM-10 non-persuader reports. This resulted in a total of 3,414 annual Form LM-10 reports (2,601 persuader reports and 813 reports of financial activity unrelated to persuading) (2,601 + 813 = 3,414). Under the Form LM-10, and unlike the Form LM-20, multiple agreements and subcontracts are not relevant as they do not require additional reports.
In this rule, the Department estimates that it will receive approximately 4,194 Form LM-20 reports. Of this figure, 2,104 are associated with representation elections. The difference between the 2,601 reports arising from representation election projected in the NPRM and the 2,104 projected here is the use of current data (as explained below, the NRPM relied on NLRB and NMB data from FYs 2005-09, while the final rule uses data from FYs 2009-13 for NLRB data and data from FYs 2010-2014 for NMB data). Reports arising from union avoidance seminars account for an additional 2,090 Form LM-20 reports not projected in the NPRM. As further explained below, the Department assumes that 358 unique entities will file these reports. This is the number of estimated consultants, including law firms, which will be filing LM-20 reports.
This rule does not alter the method of calculating Form LM-10 reports. The Department estimates 2,777 Form LM-10 reports, which represents a decrease from the 3,414 estimate in the NPRM. The adjustment is the result of updated data made available by the NLRB and NMB, as well as accessible from the OLMS reporting records. The increase in Form LM-20's as a result of the union seminar rules will not increase the number of Form LM-10 reports because under the rule employers are not required to report their attendance at union avoidance seminars.
The Department received multiple comments in response to its PRA analysis and estimated burden numbers. These comments focused upon three areas: The number of filers and reports; the hours per filer; and the cost per filer.
Many of the comments focused on the number of potential reports. One business association criticized the Department's estimates, but noted that the NPRM's analysis “does a better job than most” in presenting its cost analysis. One employer association challenged the estimate of the number of submitted reports for the revised forms as too low, since the estimate focused only on organizing efforts thus ignoring the burdens associated with reporting activities related to “positive workplace polices” and matters such as voluntary recognition and corporate campaigns. Other commenters presented similar concerns, although none provided data or data sources to quantify such activities. Further, the Department's estimate, in the employer association's view, did not take into account the large number of seminars held for management or the broad scope of the term “protected concerted activities,” which would also trigger reporting if there was an object to persuade employees. Other commenters expressed similar concerns, with one consultant firm indicating that such seminars are offered by HR firms, chambers of commerce, trade associations, and law firms, with tens of thousands of attendees annually. This firm also estimated that employee opinion surveys would trigger hundreds of thousands of reports. One trade association asserted that the Department only provided an estimate for the number of employers required to file the forms (2,601) but not law firms or consultant firms.
The Department believes that the basic approach to estimate the number of reports utilized in the Department's initial analysis is sound, and we replicate it here. As the commenters recognized, and as the Department noted both in the proposed and final rule, the Department has used NLRB and NMB election activities as a proxy for estimating the number of reports that will be filed under the rule. The Department again has calculated a five-year average of representation petitions from NLRB and NMB data, and then employed the mean rate (78%) of employer utilization of consultants to manage an anti-union campaign when faced with an organizing effort.
In one respect, the comments have persuaded the Department to refine its analysis in estimating the total number of LM-20 reports that will be filed under the rule. As discussed below, in addition to the number of persuader agreements connected with representation petitions, the Department has provided an estimate of the number of reports that will be filed in connection with union avoidance seminars. This activity was not specifically considered in the initial burden analysis. Its inclusion substantially increases the overall estimate of Form LM-20 reports. To summarize, the Department has estimated that it will receive 4,194 Form LM-20 reports pursuant to this rule, with 2,104 associated with representation elections and 2,090 with union avoidance seminars.
Additionally, the Department concurs with the commenter that asserted the Department should provide an estimate for the number of Form LM-20
The Department estimates from its existing data of submitted Form LM-20 reports that consultants, including law firms, file an annual average of approximately 5.875 reports a year. We assume this ratio will continue under this final rule for non-seminar reports. Accordingly, as we have estimated 2,104 reports will arise from representation elections, and that 5.875 of each will be submitted by a single filer, there will be approximately 358 unique filing entities (2,104/5.875 = 358). Because we conclude that the pool of consultants who engage in persuader activities during representation elections are the same group who engage in persuader activities in the context of union avoidance seminars, we do not estimate any further increase in filers when estimating the number of union avoidance seminar reports. Instead, the Department assumes that these 358 filers will conduct each of the union avoidance seminars covered by this rule.
Regarding the estimate for union avoidance seminars, in the absence of any data reflecting a precise number of seminars or conferences that would trigger reporting, to estimate the number of reportable seminars the Department begins with the number of business associations that appear most likely to organize such seminars (1,045). How the Department arrived at this number is discussed below.
To determine the number of Form LM-20 reports submitted by reason of consultants conducting union avoidance seminars, the Department utilized the reporting data for “business associations” from the U.S. Census Bureau's North American Industry Classification System Codes (NAICS), NAICS 813910, which includes trade associations and chambers of commerce.
Additionally, the Department assumes, for purposes of estimating burden, that all of the 1,045 identified business associations will contract with a law or consultant firm to conduct that seminar, because these firms have expertise in the union avoidance area and will generally be willing to provide such service as a means to generate new clients. Further, the Department assumes that such seminars will be conducted by firms within the estimated group of 358 consultant firms, including law firms (that file the non-seminar Form LM-20 reports).
Furthermore, while the Department assumes that such firms will, as a matter of mutual benefit, generally utilize the existing seminar arrangements offered by the trade associations (given the potential savings of time and resources in recruitment, event planning and related expenses, which are typically absorbed by the trade association and given the potential exposure to members of that association which these firms might not otherwise have), the Department also considers it likely that many of the estimated 358 consultants, including law firms will also hold their own, independently facilitated union avoidance seminars. While the Department is not aware of any authoritative or comprehensive source that could provide accurate data concerning the number of such seminars that consultants would independently provide, and the comments are silent on this point, the Department assumes that such firms, in the aggregate, will offer at least as many annual seminars independently as would trade associations. Thus, for purposes of the instant analysis, the Department estimates that annually a total of 2,090 Form LM-20 reports will be filed in connection with union avoidance seminars. Half of these seminars (1,045) will be sponsored by a business association and half (1,045) will be unsponsored (1,045 + 1,045 = 2,090).
The Department assumes that, on average, each of the 358 estimated law/consultant firms will present and therefore report for each of these seminars. As a result, the Department estimates that such firms will present a total of approximately six seminars per year (2,090/358 is 5.838). This does not mean that each reporting consultant will file six Form LM-20 seminar reports per year; we expect there will be considerable variation in filing for union avoidance seminars around this average, as would be expected in a normal distribution. Some consultants may not have conducted a seminar, so they accordingly will not file a seminar-related Form LM-20 at all. Other consultants, for example, may only conduct one seminar annually while others may conduct one per month (or 12 annually). Thus, the Department believes that an average of approximately six is reasonable. These 2,090 seminar reports are in addition to the estimated 2,104 non-seminars reports, for a total of 4,194 Form LM-20 reports. Although, as discussed in note 102, there may be other entities required to submit reports, the
The Department has not otherwise revised its estimates concerning the use by employers of consultants to persuade in circumstances in which employees are not currently seeking a union. First, the Department clarified, in Section IV.B of the preamble, that the consultant's development of personnel policies does not trigger reporting merely because they may subtly influence employee decisions. Rather, reporting is triggered only if they are undertaken with an object to persuade employees. Personnel policies are unlikely therefore to trigger a report, at least in circumstances other than what the Department has based its estimates (representation elections and union avoidance seminars). Second, the Department has removed the term “protected concerted activities” from the reporting obligation, which is now limited to persuader activities affecting the representation and collective bargaining rights of employees. Third, the final rule removes employee attitude surveys and vulnerability assessments from the list of persuader activities. Furthermore, the Department has revised its estimate, in response to comments received, to account for union avoidance seminars. Indeed, the rulemaking record does not suggest any further basis to estimate additional persuader reports.
As the Department explained in the NPRM and in this preamble, the Department's past experience regarding the number of Form LM-10 (insofar as they may reflect persuader activities) and Form LM-20 filings provides limited utility in estimating the number of anticipated filings under the proposed or final rule. As discussed above, the Department's LMRDA reporting forms must be reviewed by the Department and approved by OMB at least every three years. Filing experience under the final rule will enable the Department to more accurately estimate the number of filers and burden associated with the rule and this experience will guide the Department in its future submissions to OMB justifying recertification of this information collection.
Several commenters criticized the Department's estimates concerning the hours required to complete the forms and the hourly wage rate used to calculate the total cost. No commenters provided any specific alternative methodologies, data sources, or estimates for reporting and recordkeeping burden, besides general statements criticizing the NPRM's estimates as too low and references to the purported “vagueness” of the proposed rule.
In terms of burden hours required to read the Forms LM-10 and LM-20 instructions, an employer association contended that the 20-minute Form LM-10 estimate and 10-minute Form LM-20 estimate for reading each set of instructions, respectively, was “arbitrary” as it is not based upon any empirical study, and does not include time needed to read the preamble to the rule. A business association argued that the estimates to read the instructions were too low, and that employers would need to familiarize themselves with the LMRDA, its regulations, Department-issued guidance, as well as the forms, and then collect the information necessary to complete the form. Similarly, a law firm stated that underestimated numbers derive from the Department's lack of recognition of the broad scope of its new interpretation of persuader activities, particularly concerning personnel policies, which would require employers to analyze each of their employees' actions for evidence of a “persuader act.” A trade association argued that the estimates for the Form LM-10 were inaccurate, as they failed to take into account the complexities of various organizations, with “unrealistic and seemingly arbitrary assumptions,” and would “clearly” require more than two hours to complete. The employer association also stated that the NPRM did not take into account communication needed between the employer and consultant; the consultant's need to “guess” at the employer's intent; the need to institute new contracts, business practices, and records systems; and to monitor activities to ensure compliance. A consultant firm stated that the total burden must take into account the “new, subjective definition of `persuasion,' ” to determine if reporting is even required. Doing so would result in the employer spending many hours per year monitoring activities (such as conference or trade association meetings, training sessions or employee committee meetings, communications with outside attorneys, and development of employee opinion surveys) for persuader content, which would lead to over $100 million in total reporting.
Concerning other reporting and recordkeeping burden estimates, an employer association argued that the Department incorrectly relied on estimates used in the recently published Form LM-30 final rule, as that report is filed by individuals, not organizations that are more complex. See 76 FR 66485-89.
In the Form LM-30 final rule, the Department determined that union leave reporting, as well as the reporting of certain bona fide loan payments to union officials, did not present actual or potential conflicts of interest, and therefore should be eliminated from reporting to prevent unnecessary burden on union officials and the receipt of superfluous reports that do not demonstrate conflicts of interest. See 76 FR 66451-54, 57. Similarly, the Department in this rule protects employers and consultants by focusing on employer retention of third parties to persuade employees, not in-house management officials. Further, for example, this rule exempts reporting for vulnerability assessments; personnel polices developed by the consultant without an object to persuade; and by exempting reporting for employer retention of attorneys for strictly legal services as well as other third parties for providing exclusively advice or certain representative services. The reporting of these services is not necessary for workers to evaluate the information presented to them by their employer, and reporting would burden employers and consultants and overwhelm the public with unnecessary information.
Further, a trade association disagreed with the estimated two minutes for “signature and verification” for the president and treasurer, which it considered too low due to the difficulty in ensuring each of these officers of a complex organization to sign any document. A law firm contended that the Department underestimated the time needed to identify the subject employees who are to be persuaded in Form LM-20 Item 12(a) and Form LM-10 Item 14(e), which, it argued, involved greater detail than the prior form, which only required the filer to provide the “identity of the subject employees.”
The Department largely disagrees with these comments. The Department's estimates are not arbitrary, but rather derive from the similar Form LM-30 report. The Department views the use of Form LM-30 data is an appropriate benchmark, because each must be filed only upon a triggering event, and not merely by virtue of an entity's existence, as with the annual labor organization reports. The Form LM-30 also has many similar data requests to the Forms LM-10 and LM-20. The fact that Form LM-30 filers are individuals rather than organizations generally has no bearing on the type of information requested or the manner in which it is reported. Indeed, employers and consultant firms are more likely to employ attorneys to complete the reports, and likely have greater background in completing such reporting forms or in retaining the types of records required to be maintained, than labor organization officers and employees. In contrast, organizations such as employers and consultants regularly employ and retain hourly billing, financial, and other records and likely have systems in place to retrieve them.
Furthermore, as explained in the preamble, the Department asserts that the definition of “persuasion” has not changed and is an objective test. The preamble also clarifies that the reporting requirements are triggered by the consultant's object in undertaking the activities, including the development of personnel policies, as evidenced by the agreement and communications and personnel policies prepared and disseminated to employees. Thus, employers and consultants already have access to identical information, and neither party would be required to create any additional documents as a result of this rule. The parties also do not need to monitor activities undertaken, because reporting is triggered upon entering into the agreement. Thus, the parties would generally need to analyze the agreement itself, with a review of communications or policies only if the agreement did not make clear the intended consultant activities. In such cases, the employer and consultant would both likely have access to the consultant-created communications or personnel policies disseminated to employees, or employer-created material reviewed by the consultant who directed or coordinated the activities of the employer's representatives, and would therefore be able to review them. Concerning union avoidance seminars, the Department has exempted employers from reporting these agreements, and the Department is not convinced that the organizers of such events would fail to keep records of attendees. The organizers would likely maintain such business records both to ensure proper payment for attendance and to recruit participants for future conferences and/or consulting opportunities. The organizers, too, would have possession of the materials used at the seminar, if for no other reason than to use the same or very similar materials in future seminars or to provide additional copies of materials to participants or even non-participants that might request them. Any presenter at the event could obtain this information from the organizer, and it likely does so for purposes of identifying prospective clients. Additionally, as stated, the final rule removes, generally, employee attitude surveys and vulnerability assessments from reporting, unless there is evidence that the surveys are “push-surveys” or they otherwise evidence an object to persuade for the consultant.
The Department concurs with the business association that the estimated 20 minutes to read and apply the Form LM-10 instructions and 10 minutes to read and apply the Form LM-20 instructions are too low. Since both parties will also need to apply the instructions to the agreement and related activities to determine reporting, and these estimates are significantly lower than the 30 minutes provided for the Form LM-30 instructions, the Department has increased both estimates to account for the total time needed to review and apply the instructions. Thus, the Department estimates that Form LM-10 filers will require 25 minutes to read and apply the instructions, and Form LM-20 filers 20 minutes to do so. This is a five and ten-minute increase over the revised rule for the two forms, respectively. While the Department estimates that Form LM-30 filers will require 30 minutes, see 76 FR 66487, the Forms LM-10 and LM-20 are completed by organizations, often with the assistance of attorneys, thus justifying the reduced time. The estimate for the Form LM-10 is greater than the Form LM-20, because the form and instructions have provisions that are not in the Form LM-20.
The Department does not agree that it must include the time needed to read other aspects of the LMRDA or its implementing regulations or any guidance issued by the Department concerning the Form LM-10 and LM-20 in the preamble to this rule or subsequent to its publication. Such further guidance will simply assist filers in applying the form and instructions, and thus the filer is not required to read such material. Further, no such time is given union officials in the case of the Form LM-30 or for that matter, for union officials who must complete the Form LM-2 or other annual financial reports. The time needed to gather records, upon reading the instructions, is a separately identified recordkeeping burden.
The Department also concurs that several other burden estimates should be increased. As a result of the determination to allow Form LM-20 filers to consolidate information concerning union avoidance seminar attendees on one form, the Department has increased the time required to complete Form LM-20 Item 6 from four minutes to ten minutes. This item requires the filer to identify the employer with which it entered into the agreement. The Department does not believe that, for example, Item 6 will require four minutes for each employer attendee, as the information for all attendees of the seminar will likely be located in one document and will be readily available. Additionally, the presenters of such seminars likely already receive this information from the seminar organizers, as explained. Furthermore, the Department will allow filers to import this data into the electronic form. However, the Department has increased the total estimate of time for these items because of the volume of employer attendees that certain seminar filers will need to record on the form.
The Department has also increased the estimated time required to identify the subject employees who are to be persuaded in Form LM-20 Item 12(a) and Form LM-10 Item 14(e), from one minute to five minutes. The Department agrees that the information required, although readily available, will require more than one minute to compile and record on the form. The information will either be readily available in the agreement itself or in the communications or policies prepared for employees. In certain cases, the consultant may have targeted its persuasion to all the employer's employees, or large groups of the employees, in which case the information will also be easily obtained.
Further, the Department has increased the estimated time for completing Form LM-20 Items 13 and 14, and Form LM-10 Items 18 and 19, the “Signature and Verification” items. The Department concurs that the president and treasurer of Forms LM-10 and LM-20 filers are not similar enough to Form LM-30 filers, in this respect, to justify the identical burden estimate for this aspect of the form. Rather, the president and secretary-treasurer of large labor organizations are more identical in this respect. In the 2003 Form LM-2 final rule, the Department estimated that it would take union officers two hours each to obtain an electronic signature and one hour to read and sign the report, upon its full implementation. See 68 FR 58438. However, the two-hour estimate to acquire the electronic signature no longer applies, as the Department has eliminated the costly and burdensome digital signature and has adopted a free and easy-to-obtain PIN and password approach, the same system that will be used by Form LM-10 and Form LM-20 filers. Further, the Forms LM-10 and LM-20 estimates do not exactly mirror the more detailed and time-consuming Form LM-2 report. Thus, the Department estimates that the signature and verification process will require a total of 20 minutes, 18 more than proposed. This estimate is identical to that of the recently rescinded Form T-1 Trust Annual Report. See 73 FR 57441.
In response to the Department's cost estimates, the employer association rejected the Department's use of the average hourly compensation for lawyers of $87.59, pursuant to data from the Bureau of Labor Statistics (BLS), and instead supported the use of average hourly compensation for chief executive officers (CEOs) of $108.34. A trade association also criticized the per-hour compensation figure, as it may be “realistic” for some “in-house lawyers” but not for lawyers in law firms. The Department rejects the employer association's suggestion, and retains the use of the total compensation figure for attorneys, as this conforms to the Department's historical practice, and the rulemaking record does not support the inference that the Form LM-10 or Form LM-20 is completed by CEOs rather than lawyers.
Additionally, a business association contended that affected employers would seek advice regarding LMRDA reporting compliance from outside counsel, and the Department did not take this into account. The Department emphasizes that the burden estimates to complete and submit the Form LM-10 are burdens impacting the employer, but this does not prevent the employer from seeking assistance from another party to complete the form. Indeed, in such a case the estimates are of time undertaken by the third party, although charged to the employer. In many cases, the consultant that entered into the agreement with the employer may assist the employer in completing the employer's report as well as its own. This third-party assistance is appropriate, as long as the employer's president and treasurer verifies and signs the report.
Finally, the Department in the preamble responded to comments that suggested that the revised forms established a “subjective” test, replacing a “bright-line” test, without adequate justification in the statute, legislative history, or public policy. The Department also responded to assertions that the proposed rule would chill employer speech, restrict access to attorneys and thereby increase labor law violations, and discourage positive personnel policies. In response, as explained elsewhere in the preamble, the Department clarified the objective nature of the test to determine reportability of employer-consultant agreements, the strong support for such test in the text of the statute and its legislative history, and the benefits concerning such transparency to employee rights to organize and bargain collectively, as well as to stable and peaceful labor-management relations. In particular, the Department explained that reporting is not triggered merely because the consultant developed a personnel policy that improves employee wages, benefits, or working conditions. Rather, the consultant must have an object to persuade employees.
Except as noted above or within, the analysis below is identical to that of the NPRM. Any differences are explained in this section.
The Revised Form LM-20 and Instructions (see Appendix A) are described in Section IV.D, and this discussion is incorporated here by reference.
The Revised Form LM-10 and Instructions (see Appendix B) are described in Section IV.D, above, and this discussion is incorporated here by reference.
The Department first estimated the number of Form LM-10 and Form LM-20 filers that will submit the revised form, as well as the increase in submissions that result from the rule. Then, the estimated number of minutes that each filer will need to meet the
The Department estimates 4,194 Form LM-20 reports and 2,777 Form LM-10 reports under this rule (the first number is increased from the 2,601 estimate in the NPRM; the second figure represents a decrease from the 3,414 estimate in the NPRM). The Form LM-20 total represents an increase of 3,807 Form LM-20 reports over the total of 191 reports estimated in the Department's most recent Information Collection Request (ICR) submission to the Office of Management and Budget (OMB). The Form LM-10 total represents a 1,820 increase over the average of 957 Form LM-10 reports received annually between FY 2010 and 2014.
The Department estimates 4,187 revised Form LM-20 reports. To estimate the total number of revised Form LM-20 reports, the Department first estimated the number of individual persuader agreements between one employer and one consultant firm. Second, in response to comments received concerning seminar reporting, the Department estimated the number of Form LM-20 reports received for union avoidance seminars from consultant firms (including law firms).
First, the Department employed the mean rate (78%) of employer utilization of consultants to manage an anti-union campaign when faced with an organizing effort. See Section III.B.3. The Department views this rate as providing the best method at estimating non-seminar persuader reporting, as it is aware of no data set that will reflect all instances in which a labor relations consultant will engage in reportable persuader activity. Further, there is no ready proxy for estimating the use of consultants in contexts other than in election cases (with the exception of union avoidance seminars, as explained below), such as employer efforts to persuade employees during collective bargaining, a strike, or other labor dispute. The Department believes, however, that the number of representation and decertification elections supervised by the National Labor Relations Board (NLRB) and the National Mediation Board (NMB), the agencies that enforce private sector labor-management relations statutes, provides a reasonable benchmark for estimating the number of reports that will be filed under the rule.
The Department applied the 78% employer utilization rate of consultants to data from the NLRB and NMB. As shown above in Section III.B.3, and as updated from the NPRM to account for the most recent fiscal years available, the NLRB received an annual average of 2,658 representation cases during the fiscal years 2009-2013.
Second, in response to comments received concerning persuader seminars and other persuader activities conducted outside the context of NLRB and NMB election process, and as explained above, the Department also assumes that reports will be filed in the context of union avoidance seminars (calculated independently from the NLRB and NMB election-based estimates). The Department estimated the number of Form LM-20 reports filed by consultants for such seminars by distinguishing between those seminars organized by a trade or businesses association but presented by a consultant who subcontracts with the association, and those seminars organized and presented by a consultant itself (or a trade or business association itself). The Department utilized data concerning the 15,808 “business associations” from the NAICS.
The Department therefore estimates that the revised Form LM-20 will generate 4,194 (2,090 + 2,104)
Additionally, the Department notes that the estimated 358 filers will file approximately 12 reports each (4,194/358=11.71).
The Department estimates 2,777 revised Form LM-10 filers, for a total increase of 1,820 over the average of 957 Form LM-10 reports estimated in the Department's most recent ICR renewal. The Form LM-10 analysis follows only the first portion of the above analysis, as employers are not required to file Form LM-10 reports for participation at union avoidance seminars, and an employer files one Form LM-10 report per fiscal year, regardless of the number of persuader agreements entered. This contrasts with consultants, who file one Form LM-20 per agreement.
Additionally, the Form LM-10 has other aspects that are not affected by this rule. Specifically, an employer must report certain payments to unions and union officials pursuant to section 203(a)(1), as well as persuader and information gathering related payments pursuant to section 203(a)(2) and 202(a)(3). For these portions of the Form LM-10, the Department utilized data obtained from a review of the OLMS e.LORS system, which revealed an average of non-persuader Form LM-10 reports registered annually from FY 2010-2014.
The Department assumes for this calculation that each Form LM-10 report submitted will involve just one of the above statutory provisions, although in practice there may be some overlap. Thus, the Department combines the estimated 2,104 non-seminar persuader agreements between employers and law firms or other consultant firms, calculated for the Form LM-20, with 672.6 (the annual average number of Form LM-10 reports registered from FY 10-14, indicating that the forms were submitted pursuant to sections 203(a)(1)-(3), the non-consultant agreement or arrangement provisions). This yields a total estimate of approximately 2,777 revised Form LM-10 reports (2,104 + 672.6 = 2,776.6), which represents an increase of 1,820 reports over the average of 957 Form LM-10 reports registered annually from FY 10-14.
The Department has estimated the number of minutes that each Form LM-20 and Form LM-10 filer will need for completing and filing the revised forms (reporting burden), as well as the minutes needed to track and maintain records necessary to complete the forms (recordkeeping burden). The estimates for the Form LM-20 are included in Tables 1 and 2, and the estimates for the Form LM-10 are included in Tables 3 and 4. The tables describe the information sought by the revised forms and instructions, where on each form the particular information is to be reported, if applicable, and the amount of time estimated for completion of each item of information. The estimates for the reporting burden associated with completing certain items of the forms and reading the instructions, as well as the related recordkeeping requirements, are based on similar estimates utilized in the recent Form LM-30 Labor Organization Officer and Employee Report rulemaking, pursuant to section 202 of the LMRDA. While the information required to be reported in that form differs from the Forms LM-10 and LM-20, and union officers differ from attorneys who complete the employer and consultant forms, the Forms LM-10 and LM-20 contain primarily informational items such as contact names, many of which are very similar to that requested on the Form LM-30. Thus, the similarities in the forms and length of the instructions provide a reasonable basis for these estimates.
Further, the estimates include the time associated with gathering documentation and any work needed to complete the forms. For example, the estimates include reading the instructions, gathering relevant documentation and information, and checking the appropriate persuader or information-supplying activities boxes. The Department also notes that there are no calculations required for the Form LM-20, as it does not require the reporting of financial transactions (although Item 10, Terms and Conditions, requires reporting of aspects related to rate of consultant pay). The aspect of the Form LM-10 affected by this rulemaking, concerning the details of persuader agreements, requires the reporting disbursements made to the consultant, without any calculations.
Additionally, the estimates below are for all filers, including first-time filers and subsequent filers. While the Department considered separately estimating burdens for first-time and subsequent filers, the nature of Form LM-20 and Form LM-10 reporting militates against such a decision. Employers, labor relations consultants, and others may not be required to file reports for multiple fiscal years. In those cases in which the Department has reduced burden estimates for subsequent-year filings, it generally did so with regard to annual reports, specifically labor organization annual reports, Forms LM-2, LM-3, and LM-4. In contrast, the Form LM-20 and Form LM-10, like the Form LM-30, is only required for employers, labor relations consultants, and other filers in years that they engage in reportable transactions. As such, the burden estimates assume that the filer has never before filed a Form LM-20 or Form LM-10. See Form LM-30 Final Rule at 76 FR 66487.
The recordkeeping estimate of 15 minutes per filer represents a 13-minute increase from the 2-minute estimate for the prior Form LM-20, as prepared for the Department's most recent information collection request for OMB # 1245-0003. See also the prior Form LM-20 and instructions. This estimate reflects the Department's reevaluation of the effort needed to document the nature of the agreement or arrangement with an employer, as well as the types of activities engaged in pursuant to such agreement or arrangement. Additionally, the Department assumes that consultants retain most of the records needed to complete the form in the normal course of their business. Finally, the 15 minutes accounts for the 5-year retention period required by statute. See section 206, 29 U.S.C. 436.
The reporting burden of 83 minutes per filer represents a 63-minute increase from the 20-minute estimate for the prior Form LM-20, as prepared for the Department's most recent information collection request for OMB # 1215-0188. See also the prior Form LM-20
The Department views the simple data entries required by Items 1.a through 1.c, 4, 5, 7, and 11b-c as only requiring 30 seconds each. These items only require simple data entry regarding dates or file numbers, checking boxes, or, in the case of 11.c, a simple answer regarding the extent or performance for the activities undertaken pursuant to the agreement or arrangement. Additionally, Item 9 includes two boxes to check identifying generally the nature of the activities performed, so the Department estimates that this item will require one minute to complete. The Department estimates that a filer will be able to enter its own contact information in only two minutes, including its Employer Identification Number (EIN), if applicable, in Item 2, as well as two minutes for any additional contact information in Item 3. Further, the filer will require two minutes to record in Item 8(a) or Item 8(b) the names of the employer's representatives or officials of the prime consultant with whom the filer entered into the agreement or arrangement, as well as two minutes to identify in Item 11.d the individuals who carried out the activities for the employer. The filer will need ten minutes; however, to enter the information for the employer in Item 6, including the EIN, for non-seminar reports, as this information may not be as readily available as the filer's own. (This is a six-minute increase over the NPRM.)
The Department estimates that it will take filers five minutes to describe in Item 10 in narrative form the nature of the agreement or arrangement, as well as attach the written agreement (if applicable), and five minutes to complete the checklist in Item 11.a, which illustrates the nature of the activities undertaken pursuant to the agreement or arrangement. It will also take five minutes for Item 12.a (which represents a four-minute increase over the NPRM) and one minute for Item 12.b, in order to identify the subject group of employee(s) and organization(s).
Finally, the Department estimates that a Form LM-20 filer will utilize five minutes to check responses and review the completed report, and will require ten minutes per official to sign and verify the report in Items 13 and 14 (for 20 minutes total for these two items, which is an 18-minute increase over the NPRM). The Department introduced in calendar year 2010 a cost-free and simple electronic filing and signing protocol, the electronic form system or EFS, which will reduce burden on filers.
As a result, the Department estimates that a filer of the revised Form LM-20 will incur 98 minutes in reporting and recordkeeping burden to file a complete form (this is a 38-minute increase over the 60 minutes estimated in the NPRM). This 98-minute total compares with the 22 minutes per Form LM-20 filer in the currently approved information collection
As stated, the Department estimates that the burden of maintaining and gathering records is 15 minutes and that it will receive 4,194 revised Form LM-20 reports. Thus, the estimated recordkeeping burden for all
The total recordkeeping burden of approximately 1,049 hours represents an approximately 952-hour increase over the 96.8 hours Form LM-20 recordkeeping estimate presented in the Department's most recent ICR submission to OMB, and the total reporting burden of approximately 5,802 hours represents an approximately 5,268-hour increase over the 534 hours Form LM-20 reporting burden estimate presented in the ICR submission. The total burden of approximately 6,851 hours is an approximately 6,220-hour increase over the estimated 631 hours Form LM-20 burden total in the most recent ICR
The recordkeeping estimate of 25 minutes per filer represents a 20-minute increase from the 5-minute estimate for the prior Form LM-10, as prepared for the Department's most recent information collection request for OMB # 1245-0003. See also the prior Form LM-10 and instructions. This estimate reflects the Department's reevaluation of the effort needed to document the nature of the agreement or arrangement with an employer, as well as the types of activities engaged in pursuant to such agreement or arrangement. The Department assumes that employers retain most of the records needed to complete the form in the ordinary course of their business. Furthermore, the 15 minutes accounts for the 5-year retention period required by statute. See section 206, 29 U.S.C. 436. Finally, the Department notes that the estimate for the Form LM-10 recordkeeping burden is ten minutes longer than that for the Form LM-20, which reflects the greater amount of information reported on the Form LM-10.
In proposing these estimates, the Department is aware that not all employers required to file the Form LM-10 will need to complete each Part of the form. However, for purposes of assessing an average burden per filer, the Department assumes that the Form LM-10 filer engages in reportable transactions, agreements, or arrangements in all four of the revised parts.
The reporting burden of 147 minutes per filer represents an 112-minute increase from the 35-minute estimate for the prior Form LM-10, as prepared for the Department's most recent information collection request for OMB # 1245-0003. (This estimate is 27 minutes greater than estimated in the NPRM.) See also the prior Form LM-10 and instructions. This estimate reflects the Department's reevaluation of the effort needed to record the nature of the agreement or arrangement with a consultant and the types of activities engaged in pursuant to such agreement or arrangement, as well as record and enter each reportable payment or expenditure. It also includes the time required to read the Form LM-10 instructions to discover whether or not a report is owed and determine the correct manner to report the necessary information. The Department estimates that the average filer will need 25 minutes to read the instructions (a five-minute increase over the NPRM), which includes the time needed to apply the Department's revised interpretation of the “advice” exemption.
The Department estimates, as with the Form LM-20, that it will take 30 seconds to complete each item that calls for entering dates, checking appropriate boxes, as well as entering the amount of a payment or expenditure and its type (see Items 1.a, 1.b, 1.c, 2, 6, 7, 9.a, 9.b, 9.c, 11.a, 11.b, 11.c, 13.a, 14.b, 15.a, 15.b, 15.c, 17.a, 17.b, and 17.c). Additionally, Parts C and D call for checking multiple boxes, which the Department also estimates will take 30 seconds each, or one minute for Part C and Part D, respectively.
The Department also estimated that it would take one minute to identify the labor organization target of persuader activities, as well as indicating the extent to which the activities have been performed (see Items 14.c and 14.f, respectively), while it will take 5 minutes to identify the employees being persuaded in Item 14.e (which is a four-minute increase over the NPRM).
Further, the Department estimates, as with the Form LM-20, that it will take two minutes for the employer to complete items calling for its own identifying information (see Items 3-5 and 14.d), including its EIN, if applicable and four minutes for items calling for another's identifying information, including EIN, if applicable (see Items 8, 10, 12, 14.d, and 16). The Department also estimates that it will take five minutes to detail the circumstances of each payment or expenditure, terms and conditions of any agreement or arrangement, and any activities pursuant to such agreement or arrangement (see Items 9.d, 11.d, 13.b, 14.a, 15.d, and 17.d).
Finally, the Department estimates that a Form LM-10 filer will utilize five minutes to check responses and review the completed report, and will require ten minutes per official to sign and verify the report in Items 18 and 19 (for 20 minutes total for these two items, which is an 18-minute increase over the NPRM). The Department introduced in calendar year 2010 a cost-free and simple electronic filing and signing protocol, which will reduce burden on filers.
As a result, the Department estimates that a filer of the revised Form LM-10 will incur 147 minutes in reporting and recordkeeping burden to file a complete form. This compares with the 35 minutes per filer in the currently approved information collection request. See Table 3 below.
As stated, the Department estimates that it will receive 2,777 revised Form LM-10 reports. Thus, the estimated recordkeeping burden for all Form LM-10 filers is 69,426 minutes (25 × 2,777.04 = 69,426 minutes) or approximately 1,157.1 hours (69,426/60 = 1,157.1). The total estimated reporting burden for all Form LM-10 filers is 338,798.88 minutes (122 × 2,777.04 = 338,798.88 minutes) or approximately 5,647 hours (338,798.88/60 = 5,646.648. hours).
The total estimated burden for all Form LM-10 filers is, therefore, approximately 408,225 minutes (69,426 + 338,798.88 = 408,224.88) or approximately 6,804 hours (1,157.1 + 5,646.648 = 6,803.748). See Table 4 below.
The total cost imposed by the rule on Form LM-20 and Form LM-10 filers is $1,263,499.50. See Table 5 below. This is a $993,746.50 increase over the $269,753 estimated for the two forms in the most recent ICR submission. (This is also an increase of $437,613.39 over the estimated total cost of $825,886.11 in the NPRM. See 76 FR 36203).
To determine the cost per filer to submit the Form LM-20, the Department assumed that each filer would utilize the services of an attorney to complete the form. This is consistent with past calculations of costs per filer for the Form LM-20, and the assumption also corresponds to the analysis above in which the Department notes that the consultant industry consists in large part of practicing attorneys. The Department also considers non-attorney consultant firms as likely utilizing the services of attorneys to complete the form.
To determine the hourly compensation for attorneys for the purposes of this analysis, the Department first identified the average hourly salary for lawyers, $64.17, as derived from the Occupational Employment and Wages Survey for May 2014 (released on 3/25/15), Table 1 on page 12, from the Bureau of Labor Statistics (BLS) at
Applying this hourly total compensation to the estimated 98-minute reporting and recordkeeping burden yields an estimated cost of approximately $151.14 ($92.5324 x (98/60)) per Form LM-20
As with the Form LM-20 calculation above, the Department assumed that each filer would utilize the services of an attorney to complete the form. This is consistent with past calculations of costs per filer for the Form LM-10. The Department also considers that consultant firms are likely utilizing the
Applying this hourly total compensation to the estimated 147-minute reporting and recordkeeping burden yields an estimated cost of approximately $226.70 ($92.53 × (147/60) = $226.6985) per report/filer. This is $4.59 greater than the estimated $222.11 Form LM-10 burden presented in the most recent ICR submission. The total cost for the estimated 2,777 Form LM-10 reports/filers is therefore approximately $629,567.34 (2,777.04 × $226.70(rounded) ≉ $629,567), which is $417,003.34 greater than the $212,564 estimated for the most recent ICR submission.
In its recent submission for revision of OMB #1245-0003, which contains all LMRDA forms, the Department estimates that its costs associated with the LMRDA forms are $1,825,935 for the OLMS national office and $3,279,173 for the OLMS field offices, for a total Federal cost of $5,105,108. Federal estimated costs include costs for contractors and operational expenses such as equipment, overhead, and printing as well as salaries and benefits for the OLMS staff in the National Office and field offices who are involved with reporting and disclosure activities. These estimates include time devoted to: (a) Receipt and processing of reports; (b) disclosing reports to the public; (c) obtaining delinquent reports; (d) reviewing reports; (e) obtaining amended reports if reports are
The total burden for the Labor Organization and Auxiliary Reports information collection, including those not changed by this rulemaking action, is summarized as follows:
The Regulatory Flexibility Act of 1980 (RFA), 5 U.S.C. 601
The Department has modified its RFA analysis for this final rule in response to comments. In the analysis that follows, the Department considers the economic impact of the rule not only on small entity consultants and employers required to file reports, as discussed in the NPRM, but also on those small consultants and employers that may need to review the reporting requirements even if they ultimately are not required to file reports. The analysis shows that the estimated cost of the rule per affected small entity is not significant when compared to gross revenue. The Department therefore certifies that this rule does not have a significant economic impact on a substantial number of small entities. A full RFA analysis is thus not required.
The discussion concerning Executive Orders 13563 and 12866 is hereby incorporated by reference.
The legal authority for this rule is provided in sections 203 and 208 of the LMRDA. 29 U.S.C. 433, 438. Section 208 provides that the Secretary of Labor shall have authority to issue, amend, and rescind rules and regulations prescribing the form and publication of reports required to be filed under Title II of the Act, and such other reasonable rules and regulations as she may find necessary to prevent the circumvention or evasion of the reporting requirements. 29 U.S.C. 438.
As explained below, the Department estimates that there are approximately 358 small consultants affected by the Form LM-20 portion of the rule as filing entities and 2,777 employers affected by the Form LM-10 portion as filing entities, for a total of 3,135 small entities affected by the rule as filing entities. Additionally, in response to comments received, the Department, as also explained below, has estimated the number of entities that will need to review the rule in order to determine
As explained in the PRA analysis above, the Department estimates that there are 358 unique consultant firms that will file the expected 2,104 non-seminar Form LM-20 reports. Next, the Department analyzed data from the U.S. Census Bureau's North American Industry Classification System Codes (NAICS) for “Human Resources Consulting Services,” which includes “Labor Relations Consulting Services.”
A review of the above data reveals that there are 6,461 firms within the “Human Resources Consulting Services” NAICS category, with nearly all of them (6,337, approximately 98% of the total) with less than $15 million in average annual receipts. See Statistics of U.S. Businesses: 2012: NAICS 541612. As a result, based on the best available data, the Department assumes for the purposes of the RFA certification that all 358 Form LM-20 filing entities are small entities affected by the Form LM-20 portion of the rule.
To determine the number of filing employers that can be classified as small entities, pursuant to the Form LM-10 portion of the rule, the Department notes that the SBA considers 99.7 percent of all employer firms to qualify as small entities.
Therefore, the total number of small entities required to file reports under this rule is estimated to be 3,135 entities (358 consultants and 2,777 employers).
Additionally, the Department has estimated the number of entities that, although not required to file reports by this rule, are affected by the rule because they must review the reporting requirements to determine that reporting is not required. The NPRM did not include such estimate. To estimate the number of affected non-filing consultant firms, the Department reviewed all law firms within the “Offices of Lawyers” category of NAICS Code 541110, human resources consultant firms within NAICS code 541612, and all business associations within NAICS Code 813910. First, concerning law firms, while there are 165,435 entities within NAICS Code 541110,
The Department found no empirical data upon which to estimate the universe of small employers that, although not required to file, may otherwise be affected by the rule. Not every private sector employer, large or small, will be impacted and required to review the new reporting requirements. However, many small businesses and small business representatives commented that
The Department agrees that these non-filing small businesses will potentially be affected by this rule because of their need to review the revised Form LM-10 instructions before determining that they are not required to file. However, the Department has found no reliable data or information that identifies the number of employers, large or small, that hire labor relations consultants. The NLRB compiles statistics on the number of representation petitions and elections, which the Department used to estimate the number of filing entities, but this data does not capture the total number of employers that have hired consultants, especially outside of the election context. In the absence of empirical data on this subset of employers, the Department assumes that the universe of non-filing employers utilize consultants at the same rate as the universe of filing employers. In other words, the Department assumes for this purpose that the rate of employer-consultant agreements resulting in reportable persuader activities is the same as the rate of employer-consultant agreements that do not lead to persuader activities. As explained previously, the Department estimates that there will be 2,777 filing employers and 358 filing consultants. Thus, the ratio of filing employers to filing consultants is about 7.76 (2,777 ÷ 358).
Using these assumptions, the Department estimates the universe of affected non-filing employers by applying the 7.76 rate to the number of non-filing consultants reasonably expected to be hired for organizing or collective bargaining purposes. Like with employers (discussed above), there is a lack of empirical data on the aggregate number of consultants that are hired but do not engage in persuader activities. Therefore, to make a conservative estimate, the Department assumes that every labor relations consultant (except for trade or business associations) will have employer clients that hire the consultant for a purpose requiring the employer-client to review the rule. As discussed above, the Department estimates that there are 17,387 labor and employment law firms and 6,461 human resources consultant firms that might be affected by the rule.
Nonetheless, The Department estimates that the total number of non-filing small entities that will be affected by the rule is comprised of 39,298 consultants and 185,060 employers. The total number of affected small entities is outlined in Table 6.
The rule is not expected to have a significant economic impact on a substantial number of small entities. The LMRDA is primarily a reporting and disclosure statute. The LMRDA establishes various reporting requirements for employers, labor relations consultants, and others, pursuant to Title II of the Act. Accordingly, the primary economic impact of the rule will be the cost to reporting entities of compiling, recording, and reporting required information or determining that such reporting is not required.
The Regulatory Flexibility Act does not define either “significant economic impact” or “substantial” as it relates to the number of regulated entities. 5 U.S.C. 601. In the absence of specific definitions, “what is `significant' or `substantial' will vary depending on the problem that needs to be addressed, the rule's requirements, and the preliminary assessment of the rule's impact.” See SBA's Office of Advocacy, A Guide for Government Agencies: How to Comply with the Regulatory Flexibility Act at 17.
This rule has an impact on a certain number of small entities that belong to two discrete categories of small entities: the consultant industry and all other small employers. For the consultant category, the Department estimates that the average annual revenue of a small entity consultant in the consultant industry is $734,058. To arrive at this figure, the Department took the total estimated receipts of small entities (those entities with less than $15 million in receipts) belonging to NAICS codes 541110 (attorneys), 541612 (human resources consultants), and 813810 (business associations) and divided the total receipts by the total number of firms within those codes. The Department found that there are an estimated 185,612 small consultant firms generating $136,250,030,000 in total receipts, resulting in an average of $734,058 in gross revenue per consultant firm. The Department assumed for this calculation that labor and employment law firms generate, on average, the same receipts as other law firms.
For all other small employers, the Department estimates that the average annual revenue for a small entity is $965,774. This figure is derived from taking the total estimated annual receipts of all entities in the United States with less than $15 million in receipts, excluding the receipts from the consultant industry, and then dividing the total receipts by the total number of firms with less than $15 million in receipts, excluding consultant firms. The Department found that there are an estimated 5,403,528 small firms, excluding consultants, generating $5,218,588,269,000 in total receipts, resulting in an average of $965,774 in gross revenue per firm.
As explained above, the Department estimates that there are 358 labor relations consultants and other small entities required to file the revised Form LM-20. Further, the Department estimates that there are 2,777 employer small entities required to file the revised Form LM-10, for a total of 3,135 small entities affected by the rule as filers. In the PRA analysis, above, the Department estimates that a Form LM-20 filer will spend $151.14 completing the form. The Department also noted that each of the 358 consultants will, on average, file about 11.71 Form LM-20 reports, resulting in 4,194 reports every year. The total cost for the estimated 4,194 Form LM-20 reports is therefore approximately $633,932.16 annually.
The Department estimates in the PRA analysis that it will cost an employer approximately $226.70 to complete the Form LM-10. The total cost for the estimated 2,777 Form LM-10 reports is therefore approximately $629,567.34 annually.
The combined cost for both Form LM-20 and Form LM-10 filers is $1,263,499.50 ($633,932.16 + $629,567.34).
As discussed above, the Department estimates that there are 39,298 non-filing consultants and 185,060 non-filing employers that will be affected by the rule, for a total of 224,358 non-filing entities.
The Department estimates that each of the 39,298 non-filing consultants will spend one hour reviewing the Form LM-20 instructions to determine that they do not have any reporting obligations. For the purposes of this analysis, the Department uses the average hourly compensation for attorneys of $92.53 because, as stated previously, the consultant industry consists in large part of practicing attorneys. Accordingly, the total cost of the rule on non-filing consultants is approximately $3,636,244 (39,298 consultants × 1 hour × $92.53/hr). This amount is a one-time cost to non-filing consultants.
The Department estimates that each of the 185,060 non-filing employers affected by the rule will spend 30 minutes reviewing the Form LM-10 instructions and applying them to the agreement with the consultant in order to determine that no report is owed. This cost is calculated as 30 minutes at the hourly wage of a Human Resources Specialist. The median hourly wage of a Human Resources Specialist is $27.23 plus 44.2 percent in fringe benefits. See note 126. This results in a total hourly rate of $39.27 (($27.23 × 0.442) + $27.23).
The combined cost for both non-filing consultants and non-filing employers is $7,270,822 ($3,636,244 + $3,634,578).
The Department estimates that this rule will have a one-time cost on all small entity consultants of approximately $4,270,176. This amount represents the cost on filing consultants of $633,932 plus the cost on non-filing consultants of $3,636,244. Therefore, the total one-time cost per small entity consultant is $107.68 ($4,270,176 ÷ (358 filing consultants + 39,298 non-filing consultants)). This cost per consultant is not significant in comparison to the average annual gross revenue of a small entity consultant, which the Department calculated above to be $734,058. The $107.68 one-time cost per consultant represents only a 0.015% share of a consultant's average revenue ($107.68 ÷ $734,058).
Additionally, the rule will impose a recurring annual cost of $1,771 per filing consultant ($633,932 ÷ 358 filing consultants). This annual cost per consultant is not significant because it represents only a 0.24% share of a consultant's average annual gross revenue ($1,771 ÷ $734,058).
For employers, the Department estimates that the rule will have an annual cost on all small entity employers, excluding consultants, of $4,264,145. This amount represents the cost on filing employers of $629,567 plus the cost on non-filing employers of $3,634,578. Therefore, the annual cost per small entity employer, excluding consultants, is $22.70 ($4,264,145 ÷ (2,777 filing employers + 185,060 non-filing employers)). This cost per employer is not significant in comparison to the average annual gross revenue of a small entity employer, which the Department calculated above to be $965,774. The $22.70 annual cost per employer represents only a 0.002% share of a small employer's average gross revenue ($22.70 ÷ $965,774).
The above estimates show that the cost of the rule on small entities is not a significant cost. These costs are summarized in Table 7 and Table 8. Therefore, under 5 U.S.C. 605, the Department certifies to the Chief Counsel for Advocacy that the rule will not have a significant economic impact on a substantial number of small entities.
The Department is not aware of any other Federal requirements requiring reporting of the activities, agreements, and arrangements covered by this rule.
Under the rule, the Form LM-20 reporting and recordkeeping requirements apply equally to all persons required to file a Form LM-20, and the Form LM-10 reporting and recordkeeping requirements apply equally to all employers covered under the LMRDA. However, to reduce burden, the Department has exempted employers from filing Form LM-10 reports concerning agreements with consultants to participate in union avoidance seminars. For example, pursuant to the NPRM, if a reportable seminar was attended by 50 different employers, each of the 50 would have to file a separate Form LM-10 report. Under this rule, none are required to file in this instance. Further, only the entity that presented the seminar is required to file a Form LM-20 report, not the organizer of the event.
The revised format of the Form LM-10, which organizes the material in a more user-friendly manner, will simplify filing by small entity employers. Furthermore, the addition of instructions regarding the “advice” exemption into the Form LM-20 and Form LM-10 instructions will improve the ease of filing.
OLMS will provide compliance assistance for any questions or difficulties that may arise from using the OLMS Electronic Forms System (EFS). A toll-free help desk is staffed during normal business hours and can be reached by telephone at (866) 401-1109. Additionally, the public can contact the OLMS Division of Interpretations and Standards directly at (202) 693-0123.
The Department proposed that Form LM-10 and LM-20 filers submit reports electronically. Currently, labor organizations that file the Form LM-2 Labor Organization Annual Report are required by regulation to file electronically, and there has been good compliance with these requirements. The Department reasonably expects that
The use of electronic forms helps reduce burden by making it possible to download information from previously filed reports directly into the form; enables most schedule information to be imported into the form; makes it easier to enter information; and automatically performs calculations and checks for typographical and mathematical errors and other discrepancies, which assists reporting compliance and reduces the likelihood that the filer will have to file an amended report. The error summaries provided by the electronic system, combined with the speed and ease of electronic filing, also make it easier for both the reporting organization and OLMS to identify errors in both current and previously filed reports and to file amended reports to correct them.
Moreover, a simplified electronic filing option is also planned for all LMRDA reports as part of an information technology enhancement, including for those forms that cannot currently be filed electronically, such as the Form LM-10 and Form LM-20. This addition should greatly reduce the burden on filers to electronically sign and submit their forms. Further, for those filers unable to submit electronically, without undue burden or expense, they will be permitted to apply for a continuing hardship exemption that permits filers to submit hardcopy forms.
Appropriate information technology is used to reduce burden and improve efficiency and responsiveness. The Form LM-20 and Form LM-10 reports now in use can be accessed and completed at the OLMS Web site. OLMS has implemented a system enabling such filers to submit forms electronically with electronic signatures.
The OLMS Online Disclosure Web site at
Information about this system can be obtained on the OLMS Web site at
The Department received several comments that addressed aspects of the RFA certification in the NPRM. These commenters argued that the Department should have included an analysis of the impact of the proposed rule on small entities, analyzed effective alternatives that minimized burden, and made them available for public input. An employer association contended that the certification was incorrect, as it only analyzed the burden on small entities required to file reports under the proposed rule, as described in the PRA analysis, and not those entities that must review the form and instructions to determine filing is not required. The employer association asserted that each employer in the United States with greater than five employees would be impacted by the proposed rule, along with every law firm and human relations consultant firm. The association also provided estimates for “initial familiarization cost” and “annual compliance review cost.” The association assumed that all of the nearly 6 million employers in the United States would need to review the Form LM-10 instructions, although its analysis limited this number to the 2.5 million employers with five or more employees. With these 2.5 million employees, multiplying by the $175.18 average cost for employer as noted in the NPRM, the commenter estimated a total cost on employers by the proposed rule of $444 million. Further, the commenter stated that initial familiarization for consultants would cost between four and 16 hours, corresponding to between $74.6 and $298.3 million, and two to four hours for employers, corresponding to between $549.6 million to $1.11 billion. The “annual review” costs were estimated, for consultants, at $385.5 million per year and for employers $408 million. The total costs in the first year were between $910.1 million and $2.2 billion and in subsequent years between $285.9 million and $793.1 million.
The association further argued that the Department did not factor into its estimates the increased burden created, in its view, by the “new, subjective” test; the need to communicate between employers and consultants concerning potential reporting; the need for parties to protect themselves against possible investigations and enforcement actions; and the potential negative impact on industry. Other commenters stated that the Department should also have considered the burden resulting from the “continuous review” that would be necessary, in its opinion, to ensure compliance, particularly because of the “new” and “subjective” nature of the test, and the reporting triggered by the development of personnel policies, conducting of seminars, and administrating employee attitude surveys. One employer coalition stressed the potential negative impact of the proposed rule on labor relations, as employers would be unable to obtain advice from lawyers and other third parties and would therefore be more likely to violate labor laws. The commenter urged the Department to take these factors into account as well, not just the PRA burden separately calculated for Form LM-10 and LM-20 filers.
As an initial matter, as stated at length in the preamble, the Department disagrees with the suggestion that the rule provides a subjective test that adds complexity and concomitant costs on filers or will have a negative and costly impact on labor relations. The Department also disagrees with the contention by the employer association that every employer and law firm in the United States must review the instructions, and therefore rejects the commenter's burden estimates as highly inflated. Rather, only those employers that retain third parties to provide labor relations services, and only those law firms involved in labor and employment law, must review the reporting requirements. Further, such a review is not of every activity engaged in by the employer's representatives, but only of each agreement entered into and the activities engaged upon by consultants pursuant to such an agreement. While the Department cannot reasonably provide an estimate for the number of employers retaining third parties for such services, the PRA analysis demonstrates that an insubstantial number of small business employers will be Form LM-10 respondents (2,777 Form LM-10 filers out of 2,182,169 employer firms in the United States with five or more employees).
Furthermore, the Department rejects the suggestion that it must provide an estimate for “initial familiarization” for each filing entity. Form LM-10 and LM-20 filers, similar to union officials who file the Form LM-30 conflict-of-interest report, are “special reports” not required to be filed each year, in contrast to labor organizations who must file the Forms LM-2, LM-3, or LM-4 Labor Organization Annual Report, disclosing financial information. Thus, the Department assumes that employers and consultants are unique filers each year, and costs associated with “familiarization” are therefore included within the estimated costs. This is particularly appropriate for employers, who are unlikely to enter into reportable persuader agreements with different firms in different years. This is also consistent with the Department's position regarding union officials, as stated in the recently published Form LM-30 final rule, which is also a special report that is only required upon the receipt of certain payments. See 76 FR 66487. Indeed, this is a conservative assumption, because, for law and consultant firms that do file multiple Form LM-20 reports over many years, the compliance costs estimated in this rule will decrease with familiarity. Moreover, Form LM-10 and LM-20 filers are not required to change any practices or create any new documents or procedures in order to comply with this rule.
Finally, in the preamble the Department responded to comments that suggested that the revised forms established a subjective test that could establish burdens negatively impacting employer free speech and the attorney-client relationship, thus preventing employers from getting needed advice. In response, the Department explained the objective nature of the test to determine reportability of employer-consultant agreements, and the minimal impact, if any, on the rights of employers and consultants. Thus, the Department is not persuaded that employers could not obtain advice, and, as a result, there would be increase in violations of the law.
The Department, however, agrees with the suggestion that it should consider the impact of the rule on certain entities that may be affected by the rule, even though they may not be required to file Form LM-10 or LM-20 reports, such as employers, law firms, consultant firms, and business associations. Some of these entities will need to read and apply the Form LM-10 and LM-20 instructions to ensure LMRDA compliance.
Further, in terms of hourly wage data that is multiplied by total hours used to determine total costs, the Department rejects the employer association's suggestion to use the chief executive officer category, and instead has employed the attorney category that it used in the NPRM and in the PRA analysis for this rule. The Department has utilized this category in the past for Form LM-10 and LM-20 burden analyses, and it is reasonable to assume that employer firms will utilize the services of the law or consultant firm, connected with the agreement in question, to determine the large majority of the reportability decisions.
Labor management relations, Reporting and recordkeeping requirements.
Labor management relations, Reporting and recordkeeping requirements.
Accordingly, for the reasons provided above, the Department amends parts 405 and 406 of title 29, chapter IV of the Code of Federal Regulations as set forth below:
Secs. 203, 207, 208, 73 Stat. 526, 529 (29 U.S.C. 433, 437, 438); Secretary's Order No. 03-2012, 77 FR 69376, November 16, 2012.
Secs. 203, 207, 208, 73 Stat. 526, 529 (29 U.S.C. 433, 437, 438); Secretary's Order No. 03-2012, 77 FR 69376, November 16, 2012.
(a) * * * The report shall be filed within 30 days after entering into an agreement or arrangement of the type described in this section, except that an agreement or arrangement to present a union avoidance seminar shall be filed within 30 days after the date of the seminar. If there is any change in the information reported (other than that required by Item 11.c, of the Form), it must be filed in a report clearly marked “Amended Report” within 30 days of the change.
The following appendices will not appear in the Code of Federal Regulations.
| 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 |