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Office of Energy Efficiency and Renewable Energy, Department of Energy.
Final rule.
In this final rule, DOE is establishing energy conservation standards for direct expansion-dedicated outdoor air systems (“DX-DOASes”) that are of equivalent stringency as the minimum levels specified in the most recent publication of the American Society of Heating, Refrigerating and Air-Conditioning Engineers (“ASHRAE”) Standard 90.1 “Energy Standard for Buildings Except Low-Rise Residential Buildings” (“ASHRAE 90.1-2019”) when tested pursuant to the DOE test procedure for DX-DOASes—which incorporates by reference the most recent applicable industry standard for this equipment. DOE has determined that it lacks clear and convincing evidence to adopt standards more stringent than the levels specified in ASHRAE 90.1-2019.
The effective date of this rule is January 3, 2023. Compliance with the standards established for DX-DOASes in this final rule is required on and after May 1, 2024.
The docket for this rulemaking, which includes
The docket web page can be found at
For further information on how to review the docket, contact the Appliance and Equipment Standards Program staff at (202) 287-1445 or by email:
Ms. Catherine Rivest, 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) 586-7335. Email:
Mr. Matthew Ring, U.S. Department of Energy, Office of the General Counsel, GC-33, 1000 Independence Avenue SW, Washington, DC 20585-0121. Telephone: (202) 586-2555. Email:
The Energy Policy and Conservation Act, Public Law 94-163, as amended (“EPCA”),
Pursuant to EPCA, DOE is to consider amending the energy efficiency standards for certain types of commercial and industrial equipment, including the equipment at issue in this document, whenever ASHRAE amends the standard levels or design requirements prescribed in ASHRAE/IES Standard 90.1, and at a minimum, every six 6 years. (42 U.S.C. 6313(a)(6)(A)-(C)) More specifically, for each type of equipment, which includes small, large, and very large commercial package air conditioning and heating equipment (of which DX-DOASes are a category), EPCA directs that if ASHRAE 90.1 is amended, DOE must adopt amended energy conservation standards at the updated efficiency level in ASHRAE 90.1, unless clear and
If DOE adopts as a uniform national standard the efficiency levels specified in the amended ASHRAE 90.1, DOE must establish such standard not later than 18 months after publication of the amended industry standard. (42 U.S.C. 6313(a)(6)(A)(ii)(I)) If DOE determines that a more-stringent standard is appropriate under the statutory criteria, DOE must establish such more-stringent standard not later than 30 months after publication of the revised ASHRAE 90.1. (42 U.S.C. 6313(a)(6)(B))
ASHRAE officially released the 2016 edition of ASHRAE 90.1 (“ASHRAE 90.1-2016”) on October 26, 2016, which for the first time created separate equipment classes for DX-DOASes with corresponding standards, thereby triggering DOE's above referenced obligations pursuant to EPCA to either: (1) establish uniform national standards for DX-DOASes at the minimum levels specified in the amended ASHRAE 90.1; or (2) adopt more stringent standards based on clear and convincing evidence that adoption of such standards would produce significant additional energy savings and be technologically feasible and economically justified. ASHRAE 90.1-2016 set minimum efficiency levels using the integrated seasonal moisture removal efficiency (“ISMRE”) metric for all DOAS classes and the integrated seasonal coefficient of performance (“ISCOP”) metric for air-source heat pump and water-source heat pump DX-DOAS classes. ASHRAE 90.1-2016 specifies that both metrics are measured in accordance with Air-conditioning, Heating, and Refrigeration Institute (“AHRI”) Standard 920-2015, “Performance Rating of DX-Dedicated Outdoor Air System Units” (“ANSI/AHRI 920-2015”).
In October 2019, ASHRAE officially released the 2019 edition of ASHRAE Standard 90.1 (“ASHRAE 90.1-2019”). ASHRAE 90.1 did not update the energy efficiency levels for DX-DOASes established in ASHRAE 90.1-2016. On February 4, 2020 AHRI officially released the 2020 edition of AHRI 920 (“AHRI 920-2020”), which addresses a number of issues with the prior test procedure and provides an updated ISMRE metric (
In accordance with the EPCA provisions previously discussed, DOE is establishing energy conservation standards for DX-DOASes in this final rule. The adopted standards, which are expressed in terms of ISMRE2 for all DX-DOAS classes in dehumidification mode, and ISCOP2 for heat pump DX-DOAS classes in heating mode, are shown in Table I.1. DOE has determined (as discussed in more detail in section III.E) that the adopted ISMRE2 and ISCOP2 standards are of equivalent stringency as the standards in ASHRAE 90.1-2016 (and ASHRAE 90.1-2019), which are expressed in terms of ISMRE and ISCOP. The standards adopted in this final rule apply to all DX-DOASes listed in Table I.1 manufactured in, or imported into, the United States starting on the date 18 months following the publication of this final rule.
DOE has determined that, based on the information presented and its own analyses, there is not clear and convincing evidence that a more stringent efficiency level for this equipment would result in a significant additional amount of energy savings and is technologically feasible and economically justified. DOE normally performs multiple in-depth analyses to determine whether there is clear and convincing evidence to support more stringent energy conservation standards (
The following section briefly discusses the statutory authority underlying this final rule, as well as some of the relevant historical background related to the establishment of standards for DX-DOASes.
EPCA authorizes DOE to regulate the energy efficiency of a number of consumer products and certain industrial equipment. Title III, Part C of EPCA, added by Public Law 95-619,
The energy conservation program under EPCA consists essentially of four parts: (1) testing, (2) labeling, (3) the establishment of Federal energy conservation standards, and (4) certification and enforcement procedures. Relevant provisions of EPCA specifically include definitions (42 U.S.C. 6311), test procedures (42 U.S.C. 6314), labeling provisions (42 U.S.C. 6315), energy conservation standards (42 U.S.C. 6313), and the authority to require information and reports from manufacturers (42 U.S.C. 6316).
Federal energy efficiency requirements for covered equipment established under EPCA generally supersede State laws and regulations concerning energy conservation testing, labeling, and standards. (42 U.S.C. 6316(a) and (b); 42 U.S.C. 6297) DOE may, however, grant waivers of Federal preemption for particular State laws or regulations, in accordance with the procedures and other provisions set forth under EPCA. (
Subject to certain criteria and conditions, DOE is required to develop test procedures to measure the energy efficiency, energy use, or estimated annual operating cost of each covered product. (42 U.S.C. 6314) Manufacturers of covered equipment must use the Federal test procedures as the basis for: (1) certifying to DOE that their equipment complies with the applicable energy conservation standards adopted pursuant to EPCA (42 U.S.C. 6316(b); 42 U.S.C. 6296), and (2) making representations about the efficiency of that equipment (42 U.S.C. 6314(d)). Similarly, DOE uses these test procedures to determine whether the equipment complies with relevant standards promulgated under EPCA.
ASHRAE 90.1 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”). For each type of listed equipment, EPCA directs that if ASHRAE amends 90.1, DOE must adopt amended standards at the new ASHRAE efficiency level, unless DOE determines, supported by clear and convincing evidence, that adoption of a more stringent level would produce significant additional conservation of energy and would be technologically feasible and economically justified. (42 U.S.C. 6313(a)(6)(A)(ii)) Under EPCA, DOE must also review energy efficiency standards for covered equipment, including DX-DOASes, every six years and either: (1) issue a notice of determination that the standards do not need to be amended as adoption of a more stringent level is not supported by clear and convincing evidence; or (2) issue a notice of proposed rulemaking including new proposed standards based on certain criteria and procedures in subparagraph (B) of 42 U.S.C. 6316(a)(6). (42 U.S.C. 6313(a)(6)(C))
In deciding whether a more-stringent standard is economically justified, under either the provisions of 42 U.S.C. 6313(a)(6)(A) or 42 U.S.C. 6313(a)(6)(C), DOE must determine whether the benefits of the standard exceed its burdens. DOE must make this determination after receiving comments on the proposed standard, and by considering, to the maximum extent practicable, the following seven factors:
(1) The economic impact of the standard on manufacturers and consumers of the products subject to the standard;
(2) The savings in operating costs throughout the estimated average life of the covered products in the type (or class) compared to any increase in the price, initial charges, or maintenance expenses for the covered products that are likely to result from the standard;
(3) The total projected amount of energy (or as applicable, water) savings likely to result directly from the standard;
(4) Any lessening of the utility or the performance of the covered products likely to result from the standard;
(5) The impact of any lessening of competition, as determined in writing by the Attorney General, that is likely to result from the standard;
(6) The need for national energy and water conservation; and
(7) Other factors the Secretary of Energy (“Secretary”) considers relevant.
Further, EPCA establishes a rebuttable presumption that an energy conservation standard is economically justified if the Secretary finds that the additional cost to the consumer of purchasing a product that complies with the standard 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. (42 U.S.C. 6316(a); 42 U.S.C. 6295(o)(2)(B)(iii)) However, while this rebuttable presumption analysis applies to most commercial and industrial equipment (42 U.S.C. 6316(a)), it is not a required analysis for ASHRAE equipment (42 U.S.C. 6316(b)(1)). Nonetheless, DOE considered the criteria for this rebuttable presumption as part of its economic justification analysis.
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)) Also, the Secretary may not prescribe an amended or new standard if interested persons have established by a preponderance of the evidence that the standard is likely to result in the unavailability in the United States in any covered product type (or class) of performance characteristics (including reliability), features, sizes, capacities, and volumes that are substantially the same as those generally available in the United States. (42 U.S.C. 6313(a)(6)(B)(iii)(II)(aa))
EPCA defines “commercial package air conditioning and heating equipment” as air-cooled, water-cooled, evaporatively-cooled, or water source (not including ground water source) electrically operated, unitary central air conditioners and central air conditioning heat pumps for commercial application. (42 U.S.C. 6311(8)(A); 10 CFR 431.92) Industry standards generally describe unitary central air conditioning equipment as one or more factory-made assemblies that normally include an evaporator or cooling coil and a compressor and condenser combination. Units equipped to also perform a heating function are included as well. Unitary DOASes provide conditioning of outdoor ventilation air using a refrigeration cycle (which normally consists of a compressor, condenser, expansion valve, and evaporator), and therefore,
From a functional perspective, unitary DOASes operate similarly to other categories of commercial package air conditioning and heat pump equipment, in that they provide conditioning using a refrigeration cycle. Unitary DOASes provide ventilation and conditioning of 100-percent outdoor air to the conditioned space, whereas for typical commercial package air conditioners that are central air conditioners, outdoor air makes up only a small portion of the total airflow (usually less than 50 percent). Unitary DOASes are typically installed in addition to a local, primary cooling or heating system (
An industry consensus test standard has been established for a subset of unitary DOASes, direct expansion-dedicated outdoor air systems (DX-DOASes). On July 27, 2022, DOE published a test procedure final rule (“July 2022 TP final rule”), adopting definitions, a new Federal test procedure, energy efficiency metrics, and representation requirements for DX-DOASes. 87 FR 45164.
As first established in ASHRAE 90.1-2016, ASHRAE 90.1-2019 specifies 14 separate equipment classes for DX-DOASes and sets minimum efficiency levels using the ISMRE metric for all DX-DOAS classes and also the ISCOP metric for air-source heat pump and water-source heat pump DX-DOAS classes. ASHRAE 90.1-2019 specifies that both metrics are to be measured in accordance with ANSI/AHRI 920-2015. ANSI/AHRI 920-2015 specifies the method for testing DX-DOASes, in part, through a reference to ANSI/ASHRAE 198-2013, “Method of Test for Rating DX-Dedicated Outdoor Air Systems for Moisture Removal Capacity and Moisture Removal Efficiency” (“ANSI/ASHRAE 198-2013”). The energy efficiency standards specified in ASHRAE 90.1, based on ANSI/AHRI 920-2015 and ANSI/ASHRAE 198-2013, are shown in Table II.1.
As discussed in the July 2022 TP final rule, AHRI revised AHRI 920 and published AHRI 920-2020, which contains several revisions, including revised test conditions and weighting factors for ISMRE and ISCOP. 87 FR 45164. These metrics were redesignated as ISMRE2 and ISCOP2, respectively. The test standard revisions also more accurately reflect the actual energy use for DX-DOASes, improve the repeatability and reproducibility of the test methods, and also reduce testing burden compared to ISMRE and ISCOP. For example, the revised weighting factors reflect the number of hours per year for each test condition, and the revised test conditions are based on weather data from Typical Meteorological Year 2 (TMY2). 86 FR 36018, 36029. A detailed discussion of the summary of the AHRI 920 updates is provide in the DX-DOAS test procedure notice of proposed rulemaking (“NOPR”) published on July 7, 2021. 86 FR 36018.
The July 2022 TP final rule adopted a new appendix B to subpart F of part 431 (“appendix B”), titled “Uniform test method for measuring the energy consumption of direct expansion-dedicated outdoor air systems,” that includes the new test procedure requirements for DX-DOASes. 87 FR 46164. The test procedure in appendix B incorporates by reference AHRI 920-2020, the most recent version of AHRI 920, the test procedure recognized by ASHRAE Standard 90.1 for DX-DOASes, and the relevant industry standards referenced therein.
The amendments adopted in AHRI 920-2020 result in different efficiency metric values, ISMRE2 and ISCOP2, than the ISMRE and ISCOP values measured using ANSI/AHRI 920-2015, which as noted previously, is the test standard upon which the DX-DOAS efficiency levels in 90.1-2016 and 90.1-2019 are based. Accordingly, because the ISMRE2 and ISCOP2 metrics adopted in the July 2022 TP final rule are different from the metrics used in ASHRAE 90.1-2019 (ISMRE and ISCOP), DOE has developed a crosswalk analysis which translates the existing ASHRAE 90.1-2019 ISMRE and ISCOP standards to the ISMRE2 and ISCOP2 metrics adopted in the July 2022 TP final rule. This crosswalk analysis is further discussed in section III.E of this document.
On February 1, 2022, DOE published a NOPR (“February 2022 NOPR”) which proposed to adopt energy conservation standards for DX-DOASes based on ISMRE2 and ICOP2 metrics. 87 FR 5560. DOE, based on a crosswalk analysis, tentatively determined that the proposed ISMRE2 and ISCOP2 standards were of equivalent stringency to the ISMRE and ISCOP standards in ASHRAE 90.1-2019. 87 FR 5561-5562.
DOE received six comments relevant to DX-DOASes in response to the February 2022 NOPR from the interested parties listed in Table II.2.
A parenthetical reference at the end of a comment quotation or paraphrase provides the location of the item in the public record.
DOE developed this final rule after considering oral and written comments, data, and information from interested parties that represent a variety of interests. The following discussion addresses issues raised by these commenters.
As discussed previously, and in the February 2022 NOPR, unitary DOASes meet the EPCA definition for “commercial package air conditioning and heating equipment,” and, thus, are to be considered as a category of that covered equipment (42 U.S.C. 6311(8)(A)). In the July 2022 TP final rule, DOE established a definition for unitary DOAS and DX-DOAS as follows:
(1) “Unitary dedicated outdoor air system, or unitary DOAS, means a category of small, large, or very large commercial package air-conditioning and heating equipment that is capable of providing ventilation and conditioning of 100-percent outdoor air and is marketed in materials (including but not limited to, specification sheets, insert sheets, and online materials) as having such capability”
(2) “Direct expansion-dedicated outdoor air system, or DX-DOAS, means a unitary dedicated outdoor air system that is capable of dehumidifying air to a 55 °F dew point—when operating under Standard Rating Condition A as specified in Table 4 or Table 5 of AHRI 920-2020 (incorporated by reference, see § 431.95) with a barometric pressure of 29.92 in Hg—for any part of the range of airflow rates advertised in manufacturer materials, and has a moisture removal capacity of less than 324 lb/h.”
DOE did not request comment on the DX-DOAS or unitary DOAS definition in the February 2022 NOPR, however DOE received a comment from Carrier, who asserted that unitary DOASes that are not DX-DOASes do not have specified energy conservation standards. (Carrier, No. 11, pp. 1-2) Carrier noted that these units are typically based on commercial unitary air conditioner and commercial unitary heat pump (“CUAC/HP”) designs, that they meet the current CUAC/HP energy conservations standards, and that like CUAC/HPs, they are used to meet both sensible and latent cooling needs. Carrier also stated that both unitary DOASes that are not DX-DOASes and CUAC/HPs are used in similar applications. Therefore, Carrier recommended unitary DOASes that are not DX-DOASes be required to test to the CUAC/HP test procedure and meet the CUAC/HP standards.
DOE notes that the definition of a unitary DOAS, as established in the July 2022 TP final rule, states that unitary DOAS is capable of providing ventilation and conditioning of 100-percent outdoor air
As noted, DOE finalized the definition of “unitary dedicated outdoor air system” and “direct expansion- dedicated outdoor air system” in the July 2022 TP final rule. Those definitions are applicable to the energy conservation standards established in this final rule.
When evaluating and establishing energy conservation standards, DOE divides covered equipment into product classes by the type of energy used or by capacity or other performance-related features that justify differing standards.
EPCA generally requires DOE to establish energy conservation standards for commercial package air-conditioning and heating equipment at the minimum efficiencies set forth in ASHRAE 90.1. (See 42 U.S.C. 6313(a)(6)(A)) As discussed in the February 2022 NOPR, ASHRAE 90.1-2016 created 14 separate equipment classes for DX-DOASes differentiated by, among other characteristics, condensing type (air-cooled, air-source heat pump, water-cooled, and water-source heat pump).
In the February 2022 NOPR, DOE noted that these subcategories are meant to represent different application conditions for the same equipment. 87 FR 5560, 5566. Additionally, DOE noted that ground-water-source equipment are excluded from the commercial package air conditioning and heating equipment definition in EPCA (see 42 U.S.C. 6311(8)(A)), and that the ground-source closed loop and chilled water conditions are optional application ratings. Therefore, DOE proposed to establish eight DX-DOAS equipment classes, as shown below in Table III.1. 87 FR 5560, 5566-5567.
In the February 2022 NOPR, DOE requested comment on these proposed equipment classes. 87 FR 5560, 5568.
AHRI, MIAQ, Carrier, and the CA IOUs all supported the eight equipment classes. (AHRI, No. 15, p. 4; MIAQ, No. 12, p. 3; Carrier, No. 11, p. 1; CA IOUs, No. 14, p. 1). The Joint Advocates and NEEA however recommended DOE merge equipment classes for DX-DOASes with VERS, and DX-DOASes without VERS, because VERS should be treated as a design option used to improve efficiency. (Joint Advocates, No. 13, p. 2; NEEA, No. 16, p. 2)
Specifically, NEEA stated that DOE's proposed minimum efficiency standards are unfair to DX-DOAS units with VERS, which would be required to meet increasing standards over time by improving their energy recovery efficiency when units without VERS are allowed to persist with effectively zero energy recovery efficiency. NEEA also stated that DOE has established precedence for considering equipment components as technology options rather than performance related features in their rulemakings for other products such as consumer and commercial water heaters, and residential furnaces. (NEEA, No. 16, p. 2) NEEA noted that combining equipment classes for units with or without VERS provides an opportunity to expand the DX-DOAS standard in the future to effectively require VERS for all DX-DOAS systems, and that this approach would allow there to be an opportunity for a significant amount of energy savings in the future. NEEA also noted that it published an energy efficiency analysis final report for commercial DX-DOAS systems which discovered a whole-building energy cost increase of up to 40% for DX-DOAS systems without VERS, depending on building type, and that this is further evidence that DX-DOASes with and without VERS should be treated as one equipment class. (NEEA, No. 16, p. 3)
The Joint Advocates stated that they understand that DOASes without energy recovery does not offer distinct customer utility and that both types of equipment provide ventilation and dehumidification of 100% outdoor air, with the VERS functioning to precondition the outdoor air. The Joint Advocates stated that, due to this preconditioning, a DX-DOAS with VERS can consume significantly less energy than a model without energy recovery, and noted DOE's estimate in the 2019 NODA/RFI DOE that an air-cooled baseline unit (
As previously mentioned, DOE cannot determine, supported by clear and convincing evidence, that a more stringent standard is warranted. As such, DOE must adopt the efficiency levels specified for DOASes in ASHRAE 90.1, which includes distinct efficiency levels for DOASes with VERS, and for DOASes without VERS. (42 U.S.C. 6313(a)(6)(A)ii)(I)) Therefore, DOE declines to consider combining DOASes with VERS and without VERS into the same equipment classes in this final rule.
EPCA sets forth generally applicable criteria and procedures for DOE's adoption and amendment of test procedures. (42 U.S.C. 6314(a)) Manufacturers of covered equipment must use these test procedures to certify to DOE that their product complies with energy conservation standards and to quantify the efficiency of their product.
As discussed, DOE adopted a test procedure for DX-DOASes in the July 2022 TP final rule. The standards adopted in this final rule shall be determined using DOE's test procedure for DX-DOASes, as specified in appendix B.
DOE received a comment from AHRI and MIAQ in response to the February 2022 NOPR stating that while they agree with DOE's proposed energy conservation standards, they believe that DOE should not adopt AHRI 920-2020 as the DOE test procedure and should not adopt energy conservation standards for DX-DOAS based on AHRI 920-2020 before AHRI 920-2020 is formally adopted in ASHRAE 90.1. (AHRI, No. 15, pp. 1-3; MIAQ, No. 12, pp. 1-3) AHRI and MIAQ also noted that the ASHRAE 90.1 SSPC committee has voted to release addendum cv to ASHRAE 90.1 which will adopt AHRI
As discussed in the July 2022 TP final rule, DOE disagreed with AHRI that it is premature to adopt AHRI 920-2020, and that DOE lacks the authority to do so. As discussed in the July 2022 TP final rule, the industry test procedure for DX-DOASes referenced in ASHRAE Standard 90.1-2019, AHRI 920-2015, was superseded in the intervening years since DOE was first triggered to review the DX-DOAS provisions of ASHRAE Standard 90.1-2016. As supported by many of the comments that DOE received in the test procedure rulemaking, including from AHRI itself, DOE determined, by clear and convincing evidence, that AHRI 920-2015 is not reasonably designed to produce test results which reflect energy efficiency of DX-DOASes during a representative average use cycle and that some components of AHRI 920-2015 are unnecessarily burdensome. Accordingly, DOE incorporated by reference AHRI 920-2020 in the July 2022 TP final rule, and the test procedure established in that rule must be used to demonstrate compliance with the energy conservation standards established in this final rule. Further discussion of DOE's justification to adopt AHRI 920-2020 may be found in the July 2022 TP final rule. 87 FR 45174.
In the February 2022 NOPR, DOE did not specifically request comment on how non-standard indoor fans should be treated when determining DX-DOAS basic models. However, in response to the February 2022 NOPR, Carrier stated that it supported DOE's determination of a DX-DOAS basic model, while AHRI and MIAQ stated that while they generally support DOE's determination of a DX-DOAS basic model, they believe that because AHRI 920-2020 does not include non-standard indoor fan motors as an optional feature for testing and because many model lines offer multiple higher static indoor fan motor options for higher static installations, separate basic models are required to accommodate each of the different indoor fan motor options. (AHRI, No. 15, pp. 5-6; MIAQ, No. 12, p. 5; Carrier, No. 11, p. 3) AHRI and MIAQ also stated that this would greatly increase the number of DX-DOAS basic models, and that this would be at great cost to small and large manufacturers. AHRI and MIAQ therefore recommended that DOE treat non-standard indoor fan motors consistent with section D4 of AHRI Standard 340/360-2022 “Performance Rating of Commercial and Industrial Unitary Air-conditioning and Heat Pump Equipment” (“AHRI 340/360-2022”),
DOE acknowledges that AHRI 920-2020 does not include an approach similar to AHRI 340/360-2022 regarding the treatment of non-standard indoor fans, as described by AHRI. However, DOE notes that the supply air external static pressure (ESP) requirements in AHRI 920-2020 are significantly higher than those found in AHRI 340/360-2022 and ANSI/AHRI 920-2015.
While the comment claims that the approach finalized in the test procedure would “greatly increase the number of DX-DOAX basic models,” no specific details were provided explaining this significant increase. For example, the comment did not claim that such units with non-standard high-static motors would not be able to meet the proposed efficiency standards. DOE notes that the test procedure indicates that representations be based on the least-efficient of the individual models within the basic model (with certain allowances for certain components) but that no limit is imposed regarding the allowable efficiency difference among those individual models. 87 FR 45183. Thus, it is not clear why the number of basic models should greatly increase.
DOE does not have sufficient data or information to consider the impacts of amending the DOE test procedure to adopt a non-standard indoor fan approach similar to the one implemented in AHRI 340/360-2022. DOE notes that manufacturer literature for DX-DOASes does not have nearly as much detail on the ESP operation ranges of the motors offered within a model line, unlike the literature for CUACs which typically includes such information. Hence, DOE does not have data regarding the distribution of DX-DOASes with non-standard indoor fans compared to DX-DOASes with standard indoor fans, which could be used to indicate how representative a DX-DOAS with a non-standard indoor fan is with respect to the overall market. Accordingly, DOE is not at this time considering revision of the test procedure requirements regarding non-standard fans.
In the February 2022 NOPR, DOE proposed to require that the represented value of MRC be either the mean of the MRCs measured for the units in the selected sample rounded to the nearest lb/hr multiple according to Table 3 of AHRI 920-2020 or the MRC output simulated by an AEDM rounded to the nearest lb/hr multiple according to Table 3 of AHRI 920-2020, and requested feedback on this proposal. 87 FR 5560, 5580.
AHRI and MIAQ supported DOE's proposed representation requirements regarding MRC. (AHRI, No. 15, p. 5; MIAQ, No. 12, p. 4) Carrier agreed that the MRC should be based on tested values or an AEDM output, however Carrier recommended that the represented value of MRC should be between 95 and 100 percent of the mean of the measured capacities in the selected sample. (Carrier, No. 11, p. 3) Carrier stated that this process is not a burden for manufacturers and includes the impact of variation between the samples.
DOE notes that Carrier's recommendation is consistent with the requirements for making btu/h representations for CUAC/HPs. 10 CFR 429.43(a)(1)(iv) DOE notes that this approach would allow manufacturers the option to make conservative (
NEEA supported DOE's proposal to incorporate MRC as the primary capacity representation, however, NEEA recommended DOE represent capacity information for DX-DOAS in both MRC and Btu/h because (1) manufacturers will already know the capacity of units expressed in Btu/h, thus the addition of this capacity information will not add extra burden to manufactures; (2) all other heating, ventilation, and air conditioning (HVAC) regulated DOE products have capacity represented in Btu/h; (3) there is no statutory limitation for describing capacity in multiple ways; and (4) capacity represented by Btu/h can be used to represent total capacity, including both sensible and latent cooling capacity, and capacity represented by MRC only represents the latent capacity of the unit. (NEEA, No. 16, pp. 3-4) Additionally, NEEA noted that the calculation from 760,000 Btu/h to 324 MRC has been performed by DOE, and asserted that it should be possible for other capacities if necessary in the future and recommended that if such a calculation is not specified in AHRI 920-2020, that DOE should include provisions that provide instructions for how the calculation should be performed. (NEEA, No. 16, p. 4)
DOE understands that representing capacity in Btu/h in addition to MRC may provide customers capacity representations in a term they are more familiar with (
When establishing energy conservation standards at the same level as in ASHRAE Standard 90.1, DOE must establish such standards no later than 18 months following the ASHRAE Standard 90.1 update (in this case, ASHRAE 90.1-2016), and manufacturers must comply with such standards 2 to 3 years after the ASHRAE Standard 90.1 update, depending on the size of the equipment.
MIAQ stated that the HVAC industry has petitioned the Environmental Protection Agency to implement a January 1, 2025 compliance date requiring less than 750 GWP refrigerants for many HVAC appliances, which includes DOAS systems, as a result of the American Innovation and Manufacturing Act. MIAQ requests DOE implement an energy conservation standard compliance date for DOAS no sooner than January 1, 2025, given the complexity and expense of this low GWP refrigerant transition, and because this would help to ensure a smoother transition. (MIAQ, No. 12, p. 6)
DOE notes that its approach to energy conservation standards rulemakings, and the compliance dates adopted in such rulemakings, are dictated by the requirements in EPCA. As discussed, the publication of ASHRAE 90.1-2016 triggered DOE's obligation to establish uniform national standards for DX-DOASes no later than 18 months after its publication. (42 U.S.C. 6313(a)(6)(A)(ii)(I)) DOE's action to establish the ASHRAE 90.1-2016 DX-DOAS standards in this final rule is already 4 years late. Manufacturers have had these years of additional time in excess of the lead time specified by the statute to prepare for meeting these standards. Therefore, DOE is not deviating from the approach discussed in the February 2022 NOPR, and is adopting a compliance date for DX-DOASes 18 months after the publication of this final rule. As such, DOE is maintaining the same lead time between final rule and compliance date as would have occurred if DOE had met the requirements specified in EPCA regarding finalizing the amended standards and establishing a compliance date (using a compliance date 3 years after the update to ASHRAE 90.1 with amended standards established 18 months after the update to ASRHAE 90.1).
In the February 2022 NOPR, DOE proposed that the enforcement provisions generally applicable to commercial package air-conditioning and heating equipment would be applicable to DX-DOASes. 87 FR 5560, 5581. DOE also proposed to establish provisions in 10 CFR 429.134 that specify how DOE would determine the ISMRE2 and ISCOP2 for DX-DOASes with VERS.
In the February 2022 NOPR, DOE did not propose certification or reporting requirements for DX-DOASes and noted it would consider proposals to establish certification requirements and reporting for DX-DOASes under a separate rulemaking regarding appliance and equipment certification. 87 FR 5560, 5584. AHRI and MIAQ expressed concern that DOE is not currently proposing to establish certification requirements for DX-DOASes and urged DOE to swiftly establish said certification requirements and certification template. (AHRI, No. 15, p. 5; MIAQ, No. 12, pp. 4-5) The Joint Advocates also encouraged DOE to finalize all pertinent certification provisions for DX-DOASes as soon as possible, to allow time for stakeholders to review and submit feedback. (Joint Advocates, No. 13, p. 2)
DOE appreciates stakeholder feedback regarding this topic and will take it into consideration upon developing a separate rulemaking regarding equipment certification.
Although DOE has determined it does not have sufficient information to conduct a proper market and technology assessment, in the February 2022 NOPR DOE sought information that may inform a market and technology assessment for the DX-DOAS industry, including data on technology options which may increase the ISMRE2 and/or ISCOP2 efficiencies of DX-DOASes. 87 FR 5560, 5571.
AHRI and MIAQ stated that in general, small equipment (below 10 tons) utilize two stage or digital compressors, without inverter control, with small heat exchangers; whereas equipment above 10 tons typically utilizes four-stage or digital compressors, without inverter control, with larger heat exchangers. (AHRI, No. 15, p. 4; MIAQ, No. 12, p. 4) AHRI and MIAQ also noted that DOE contractors have also had extensive conversations with manufacturers to assess the market and technology.
NEEA noted that while features that increase ISMRE2 ratings will save energy, there may be other energy saving features that aren't accounted for in the ISMRE2 metric. (NEEA, No. 16, pp. 5-6) Therefore, NEEA recommended DOE consider and request information from stakeholders on all technology options that reduce energy consumption, not just ones that affect ISMRE2, and that if such technology options are not accounted for in the ISMRE2 rating, DOE reconsider if the current TP sufficiently represents DX-DOAS equipment. NEEA also listed several energy saving technology options they recommend DOE consider in a future standards and test procedure rulemaking.
The comment provided by AHRI is informative, and DOE appreciates such feedback. DOE notes that AHRI's comment is generally consistent with the information DOE has collected regarding typical DX-DOAS designs, including in discussions with manufacturers. In response to NEEA, DOE has already finalized the DX-DOAS test procedure. 87 FR 45164. DOE will consider whether the test procedure should be modified to better address the potential benefits of additional technologies mentioned in NEEA's comment when considering future revisions to the DX-DOAS test procedure and standards. Therefore, DOE has determined that the feedback provided by NEEA and AHRI does not warrant making any adjustments to the proposals in the February 2022 NOPR.
NEEA also noted that the February 2022 NOPR requested information only on the market of DX-DOASes and did not broadly request information on the market of unitary DOASes. (NEEA, No. 16, pp. 4-5) NEEA expressed concerns that DOE's definition and scope for DX-DOAS and unitary DOAS equipment does not align with how the market differentiates them, and that market size and overlap between DX-DOAS and unitary DOAS is an unknown, which inhibits NEEA from providing meaningful comment on DOE's scope, test procedure, and proposed standard efficiency levels for these products. NEEA therefore recommends DOE collect and publish data on unitary DOAS through this product rulemaking in addition to the information requested for DX-DOAS to better understand the market size and overlap between the two.
As discussed in section III.C, DOE established definitions for unitary DOASes and DX-DOASes in the July 2022 TP final rule and discussed any potential overlap between unitary DOASes and CUAC/HPs in that final rule. As discussed in section II.B, DX-DOASes (
As discussed in the February 2022 NOPR, the efficiency levels established for DX-DOASes in the ASHRAE 90.1 standard are based on the ISMRE and ISCOP metrics used in AHRI 920-2015. However, as noted previously, DOE has incorporated by reference into its test procedure the most recent version of AHRI 920, AHRI 920-2020. AHRI 920-2020 uses the ISMRE2 and ISCOP2 metrics. DOE was unable to conduct the analysis necessary to evaluate the potential energy savings or evaluate whether more stringent standards would be technologically feasible or economically justifiable, with sufficient certainty due to the lack of available market and performance data with the IMSRE2 and ISCOP2 metrics. Therefore, in the February 2022 NOPR, DOE proposed establishing ISMRE2 and ISCOP2 minimum efficiency levels of equivalent stringency to the ISMRE and ISCOP minimum efficiency levels currently published in ASHRAE 90.1 via a “crosswalk” analysis using the procedures of 42 U.S.C. 6293(e).
To evaluate the ISMRE2 levels for the crosswalk analysis, DOE conducted investigative testing on four DX-DOASes and collaborated with Pacific Gas and Electric on testing of a fifth DX-DOAS to measure the average impact of the test procedure updates on the dehumidification efficiency metric. To evaluate the ISCOP2 levels, DOE considered the updates in AHRI 920-2020 in a calculation to determine the proper ISCOP2 levels. Details of the crosswalk analysis used to determine ISMRE2 and ISCOP2 levels can be found in the Crosswalk Analysis Support Document (“CASD”).
In the February 2022 NOPR, DOE requested comment on its proposal to adopt the ISMRE2 and ISCOP2 levels determined in DOE's crosswalk analysis. 87 FR 5560, 5579. AHRI and MIAQ stated that many stakeholders, including DOE consultants, came together to develop an appropriate crosswalk between ISMRE and ISMRE2. (AHRI, No. 15, pp. 1-2, 4; MIAQ, No. 12, p. 4) AHRI and MIAQ noted that approximately 23 meetings were held since June 2020 to discuss the crosswalk, that multiple data points that had both ISMRE & ISMRE2 ratings were collected by AHRI, DOE, and the CA IOUs, and that all AHRI data collected was provided to DOE consultants. AHRI and MIAQ noted that the crosswalk was delayed by the low calculated correlation between ISMRE and ISMRE2 and consequently required more complex modeling to map the relationship between the two metrics. AHRI and MIAQ stated that while work was ongoing to map the relationship between ISCOP to ISCOP2 through the AHRI group, DOE continued a separate analysis (
Carrier and the Joint Advocates however disagreed with the proposed ISMRE2 and ISCOP2 levels in the February 2022 NOPR. (Carrier, No. 11, p. 2; Joint Advocates, No. 13, pp. 1-2) Specifically, they disagreed with the proposed levels because of the high variation in the test results, because models not close to the baseline ISMRE levels in ASHRAE 90.1-2016 were considered in the crosswalk analysis, and because while the overall crosswalk showed a decrease in efficiency levels when moving from ANSI/AHRI 920-2015 to AHRI 920-2020, there was an increase in efficiency levels for the units tested which had efficiency levels near the ASHRAE 90.1-2016 baseline. (Carrier, No. 11, pp. 2-3) Therefore, Carrier and the Joint Advocates expressed concern that the efficiency levels being proposed in the February 2022 NOPR are too low because DOE averaged the crosswalk results across all DX-DOASes analyzed (including units near, and further from the ISMRE levels in ASHRAE 90.1), which could potentially lead to market demand for equipment with lower efficiency than baseline DX-DOAS currently on the market. Carrier and the Joint Advocates stated that the models with efficiency levels closest to the ASHRAE 90.1-2016 baseline levels should be the only models considered in the crosswalk and recommended DOE collect more data from units close to the baseline levels.
DOE acknowledges that a crosswalk consistent with the process prescribed at 42 U.S.C. 6293(e) would typically involve testing minimally compliant units, or in this case, testing units that had efficiencies at the minimum level specified in ASHRAE 90.1-2016 and ASHRAE 90.1-2019. However, as noted in the February 2022 NOPR, ISMRE ratings for DX-DOASes are generally not available to determine which models may perform at the minimum ISMRE levels in ASHRAE 90.1-2019 because the market for DX-DOASes is still developing, and efficiency in terms of ISMRE and ISCOP is generally not provided by manufacturers. DOE stated in the February 2022 NOPR that it would consider additional crosswalk data from DX-DOAS models which are minimally compliant with the ASHRAE Standard 90.1-2019 ISMRE levels should such data become publicly available. 87 FR 5560, 5577. While Carrier and the Joint Advocates expressed concern that the standards proposed in the February 2022 NOPR may be too low, DOE has not received any additional data on this subject, and DOE is not aware of any public data that has been made available. Therefore, DOE evaluated five DX-DOASes with a range of moisture removal capacities and ISMRE ratings, as detailed in the CASD, to develop the standard levels proposed in the February 2022 NOPR.
Separately, the CA IOUs urged DOE to employ more recent weather data than what was used to create Typical Meteorological Year 2 (TMY2) files to establish ISMRE2 and ISCOP2 weighting factors, and assert that more recent weather data would be more appropriate for DOEs analysis.
In response to the CA IOUs comment about more recent weather data, DOE notes that the purpose of the TMY data is to create hourly weather data over an average year, based on time series of weather data over 25 to 30 years. While there is a more current version than TMY2, version TMY3, the impact of a change in TMY data on the outcome of the weighting factors would be minor. In Chapter 7 of the technical support document for the 2016 Final Rule for
DOE did not receive any additional data or information to inform DOE's crosswalk from ISMRE to ISMRE2, or ISCOP to ISCOP2, and absent such data, DOE has determined that DOE's crosswalk is appropriate. A such, in this final rule, DOE is establishing ISMRE2 and ISCOP2 efficiency levels as proposed in the February 2022 NOPR in Table 14 of 10 CFR 431.97.
As discussed in section II.A of this document, EPCA requires DOE to amend the existing Federal energy conservation standard for covered equipment each time ASHRAE amends
As discussed in the February 2022 NOPR, DOE normally performs multiple in-depth analyses to determine whether there is clear and convincing evidence to support more stringent energy conservation standards
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 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 equipment or in working prototypes to be technologically feasible. See generally 10 CFR 431.4; sections 6(b)(3)(i) and 7(b)(1) of appendix A to 10 CFR part 430 subpart C (“Process Rule”). 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; (3) adverse impacts on health or safety and (4) unique-pathway proprietary technologies.
DOE received a number of comments in response to the 2019 NODA/RFI regarding technology options for DOE to include in its analysis. DOE incorporated this feedback into aspects of the crosswalk performed by DOE when developing the ISMRE2 and ISCOP2 levels proposed in the February 2022 NOPR. A summary of those comments and the technology options DOE considered as part of its analysis for the February 2022 NOPR may be found in the February 2022 NOPR. 87 FR 5570-5571. DOE also received several comments from AHRI and MIAQ related to the technology options used in DX-DOASes in response to the February 2022 NOPR, which are discussed in section III.D.5. DOE has determined that information provided by AHRI and MIAQ does not indicate any updates to DOE's analysis are needed. DOE did not receive additional information from stakeholders on these issues after publication of the February 2022 NOPR, and DOE has not found any additional relevant information. Accordingly, DOE maintained the same inputs for its technology and market assessment analyses as it did in the February 2022 NOPR. Additionally, as discussed in the February 2022 NOPR, DOE is not aware of an existing database or compilation containing a comprehensive list of DX-DOAS models and performance metrics, and DOE was not able to find ISMRE and ISCOP, or ISMRE2 and ISCOP2 ratings in much of the manufacturer equipment specifications. 87 FR 5560, 5570. Currently, DOE is still not aware of any such database.
When DOE proposes to adopt an amended standard for a type or class of covered product, it typically determines the maximum improvement in energy efficiency or maximum reduction in energy use that is technologically feasible for such product. (42 U.S.C. 6295(p)(1)) Accordingly, in the engineering analysis, DOE would typically determine the maximum technologically feasible (“max-tech”) improvements in energy efficiency for DX-DOASes, using the design parameters for the most efficient equipment available on the market or in working prototypes.
As discussed in the February 2022 NOPR, DOE was unable to identify the most efficient equipment available on the market in terms of ISMRE2 and ISCOPE2 because of the lack of data available to DOE. 87 FR 5560, 5571. Therefore, DOE was unable to estimate the field-installed energy use and cost of the most efficient equipment (in terms of ISMRE2 and ISCOP2) available on the market (factoring in parameters such as price markups, installation application, life-cycle cost and payback period, and overall shipments), and was unable to evaluate the technological feasibility of
DOE did not receive any additional information in response to the February 2022 that would assist DOE in assessing ISMRE2 and ISCOP2 levels more stringent than the levels in AHSRAE 90.1-2019. Therefore, in this final rule, DOE has determined that it is unable to assess more stringent levels than those presented in ASHRAE 90.1-2019.
In setting a more stringent standard for ASHRAE equipment, DOE must have “clear and convincing evidence” that doing so “would result in significant additional conservation of energy” in addition to being technologically feasible and economically justified. 42 U.S.C. 6313(a)(6)(A)(ii)(II). This language indicates that Congress intended for DOE to determine that, in addition to the savings from the ASHRAE standards, DOE's standards would yield additional energy savings that are significant. As under the statutory provision applicable to covered products and non-ASHRAE equipment, this provision requires DOE to determine that its standards will produce a “significant conservation of energy,” (42 U.S.C. 6295(o)(3)(B)), but here also requires that DOE make that determination supported by “clear and convincing evidence”.
In the February 2022 NOPR, DOE initially determined that there is insufficient data on the developing DX-DOAS market to conduct an analysis of potential energy savings resulting from more stringent standards because AHRI 920-2020 is a relatively recent industry test standard, and thus, no database with ISMRE2 and ISCOP2 ratings has been established to show the general distribution of DX-DOAS efficiencies currently on the market. 87 FR 5560, 5571. Since then, DOE has not received or obtained sufficient data and information needed to conduct an analysis of potential energy savings resulting from more stringent standards. While DOE has received data from stakeholders comparing energy savings of DX-DOASes with VERS and DX-DOASes without VERS (as discussed in section III.B), DOE has not received data detailing energy savings of DX-DOASes with varying efficiencies. DOE is also currently still not aware of any database with ISMRE2 and ISCOP2 ratings which could contribute to an analysis of DX-DOAS efficiency distributions or energy savings analysis. As such, DOE has not conducted an analysis of potential energy savings resulting from more stringent standards, and DOE is adopting ISMRE2 and ISCOP2 DX-DOASes standards that are equivalent to the ISMRE and ISCOP standards presented in ASHRAE 90.1-2019, in part because it is unable to establish clear and convincing evidence to support more stringent standards.
As noted previously, EPCA provides seven factors to be evaluated in determining whether a potential energy conservation standard is economically justified. (
For individual consumers, measures of economic impact include the changes in LCC and payback period (“PBP”) associated with new or amended standards. These measures are discussed further in the following section. For consumers in the aggregate, DOE also calculates the national net present value of the consumer costs and benefits expected to result from particular standards. DOE also evaluates the impacts of potential standards on identifiable subgroups of consumers that may be affected disproportionately by a standard.
As noted, DOE is unaware of any database or compilation containing a comprehensive list of DX-DOAS models and performance metrics. This presents significant challenges to performing an accurate assessment of the DX-DOAS industry structure.
In determining the impacts of a potential standard on manufacturers, DOE typically conducts a manufacturer impact analysis (MIA). DOE did not perform an MIA for this rulemaking because there is not enough information available on the DX-DOAS market to determine which entities are already compliant with the finalized energy conservation standards (
DOE notes that a full consideration of more stringent levels, if undertaken, would assess manufacturer impacts including cumulative burden. However, because DOE is adopting energy conservation standards for DX-DOASes of equivalent stringency as those in present in ASHRAE 90.1-2019, and in the absence of more stringent standards, DOE has determined that the proposals set forth in this final rule would not add additional burden to manufacturers.
For individual consumers, DOE measures the economic impact by calculating the changes in LCC and PBP associated with new or amended standards. For consumers in the aggregate, DOE would also calculate the national net present value of the consumer costs and benefits expected to result from particular standards, while taking into account the impacts of potential standards on identifiable subgroups of consumers that may be affected disproportionately by a standard.
DOE did not perform an LCC or an assessment of NPV for this rulemaking because there was not enough information available to develop the inputs required to measure the individual or aggregate consumer savings from higher standards. The LCC would require an engineering analysis, an energy use analysis, operating cost inputs, and a distribution of efficiencies that are available on the market. These inputs allow DOE to develop equipment prices, representative efficiency levels, annual operating costs, and a no-standards case distribution of equipment efficiencies to determine which consumers will be impacted by a higher standard. The NIA takes the weighted average national results from the LCC and combines them with shipments forecasts by equipment class and efficiency level in order to measure the national impact, in terms of consumer NPV and full-fuel-cycle energy savings. As stated previously, DOE was unable to develop cost-efficiency curves for DX-DOASes or to conduct an energy use analysis with enough degree of certainty that would allow it to consider a standard level more stringent than ASHRAE 90.1 (see section III.F.2 of this document). Without these inputs, DOE is unable to produce the LCC and NIA for this final rule. Accordingly, DOE did not perform LCC and NIA analyses.
EPCA requires DOE to consider the savings in operating costs throughout the estimated average life of the covered product in the type (or class) compared
The LCC is the sum of the purchase price of a product (including its installation) and the operating cost (including energy, maintenance, and repair expenditures) discounted over the lifetime of the product. The LCC analysis requires a variety of inputs, such as product prices, product energy consumption, energy prices, maintenance and repair costs, product lifetime, and discount rates appropriate for consumers. To account for uncertainty and variability in specific inputs, such as product lifetime and discount rate, DOE uses a distribution of values, with probabilities attached to each value.
The PBP is the estimated amount of time (in years) it takes consumers to recover the increased purchase cost (including installation) of a more-efficient product through lower operating costs. DOE calculates the PBP by dividing the change in purchase cost due to a more-stringent standard by the change in annual operating cost for the year that standards are assumed to take effect.
For a LCC and PBP analysis, DOE assumes that consumers will purchase the covered equipment in the first year of compliance with new or amended standards. The LCC savings for the considered efficiency levels are calculated relative to the case that reflects projected market trends in the absence of new or amended standards.
DOE did not perform an LCC and PBP analysis for this final rule. As discussed in the preceding paragraphs there is not enough information available to develop the inputs to the LCC and PBP models.
Although significant conservation of energy is a separate statutory requirement for adopting an energy conservation standard, EPCA requires DOE, in determining the economic justification of a standard, to consider the total projected energy savings that are expected to result directly from the standard. (
In establishing equipment classes, and in evaluating design options and the impact of potential standard levels, DOE evaluates potential standards that would not lessen the utility or performance of the considered equipment. (
EPCA directs DOE to consider the impact of any lessening of competition, as determined in writing by the Attorney General, that is likely to result from a standard. (
DOE also considers the need for national energy and water conservation in determining whether a new or amended standard is economically justified. (
DOE maintains that environmental and public health benefits associated with the more efficient use of energy are important to take into account when considering the need for national energy conservation. The adopted standards are likely to result in environmental benefits in the form of reduced emissions of air pollutants and greenhouse gases (“GHGs”) associated with energy production and use.
The utility impact analysis, emissions analysis, and emissions monetization all rely on the national energy savings estimates from the NIA. As discussed previously, DOE did not conduct an NIA and as a result could not conduct these downstream analyses.
In determining whether an energy conservation standard is economically justified, DOE may consider any other factors that the Secretary deems to be relevant. (
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 amended 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 42 U.S.C. 6313(a)(6)(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).
As discussed, DOE did not perform an LCC and PBP analysis for this final rule because there is not enough information available to develop the inputs to the LCC and PBP models. Therefore, DOE does not have sufficient information to perform this analysis.
EPCA requires DOE to establish an amended uniform national standard for small, large, and very large commercial package air conditioning and heating equipment, which includes DX-
DOE is establishing standards using the ISMRE2 and ISCOP2 metrics, which are the metrics used in the most recent version of the industry test procedure for DX-DOAS recognized by ASHRAE 90.1-2019 (
Executive Order (“E.O.”)12866, “Regulatory Planning and Review,” as supplemented and reaffirmed by E.O. 13563, “Improving Regulation and Regulatory Review, 76 FR 3821 (Jan. 21, 2011), requires agencies, to the extent permitted by law, 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 E.O. 13563 requires agencies to use the best available techniques to quantify anticipated present and future benefits and costs as accurately as possible. In its guidance, the Office of Information and Regulatory Affairs (“OIRA”) in the Office of Management and Budget (“OMB”) 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, this proposed/final regulatory action is consistent with these principles.
Section 6(a) of E.O. 12866 also requires agencies to submit “significant regulatory actions” to OIRA for review.
OIRA has determined that this final regulatory action does not constitute a “significant regulatory action” under section 3(f) of E.O. 12866. Accordingly, this action was not submitted to OIRA for review under E.O. 12866.
The Regulatory Flexibility Act (5 U.S.C. 601
On October 26, 2016, ASHRAE officially released the 2016 edition of ASHRAE 90.1 (“ASHRAE 90.1-2016”), which for the first time created separate equipment classes for DX-DOASes with corresponding standards, thereby triggering DOE's obligations pursuant to EPCA to either: (1) establish uniform national standards for DX-DOASes at the minimum levels specified in the amended ASHRAE 90.1; or (2) adopt more stringent standards based on clear and convincing evidence that adoption of such standards would produce significant additional energy savings and be technologically feasible and economically justified.
As result of the ASHRAE trigger, DOE published a NOPR (“February 2022 NOPR”) on February 1, 2022 in which DOE proposed to adopt energy conservation standards for DX-DOASes. 87 FR 5560. In this final rule, DOE is establishing energy conservation standards for DX-DOASes at the stringency levels specified in ASHRAE 90.1-2019, relying on updated metrics: ISMRE2 (for all DX-DOASes) and ISCOP2 (for heat pump DX-DOASes).
For manufacturers of small, large, and very large air-conditioning and heating equipment (including DX-DOASes), the Small Business Administration (“SBA”) has set a size threshold which defines those entities classified as “small businesses.” DOE used the SBA's small business size standards to determine whether any small entities would be subject to the requirements of this rule.
In reviewing the DX-DOAS market, DOE used company websites, marketing research tools, product catalogues, and other public information to identify
As noted in the February 2022 NOPR, DOE identified 12 manufacturers of DX-DOASes, of which one met the definition of a domestic small businesses. DOE understands the annual revenue of the small manufacturer to be approximately $66 million. 87 FR 5560, 5584.
In this final rule, DOE adopts energy conservation standards for DX-DOAS based on the ISMRE2 and ISCOP2 metrics. In the July 2022 TP final rule, DOE adopted the test procedure for DX-DOASes, as specified in appendix B. In that test procedure final rule, DOE determined that manufacturers would be unlikely to incur a significant increase in burden, given that DOE referenced the prevailing industry test procedure (
Therefore, DOE has determined that manufacturers would only incur costs as result of this final rule if a manufacturer was not already testing to current industry practice. However, in the July 2022 TP final rule, DOE determined that it would be unlikely for manufacturers to incur testing costs given that DOE is referencing the prevailing industry test procedure. DOE determined that its adoption as part of the Federal test procedure would be expected to result in little additional cost, even with the minor modifications proposed. DOE also determined that the test procedure would not require manufacturers to redesign any of the covered equipment, would not require changes to how the equipment is manufactured, and would not impact the utility of the equipment. 87 FR 45189.
DOE identified only one domestic small manufacturer affected by this rulemaking, and received no comments stating otherwise. Furthermore, DOE is not establishing standards at levels more stringent than those specified in ASHRAE 90.1-2019. Therefore, on the basis of the
Under the procedures established by the Paperwork Reduction Act of 1995 (PRA), a person is not required to respond to a collection of information by a Federal agency unless that collection of information displays a currently valid OMB Control Number.
OMB Control Number 1910-1400, Compliance Statement Energy/Water Conservation Standards for Appliances, is currently valid and assigned to the certification reporting requirements applicable to covered equipment, including DX-DOASes. DOE's certification and compliance activities ensure accurate and comprehensive information about the energy and water use characteristics of covered products and covered equipment sold in the United States. Manufacturers of all covered products and covered equipment must submit a certification report before a basic model is distributed in commerce, annually thereafter, and if the basic model is redesigned in such a manner to increase the consumption or decrease the efficiency of the basic model such that the certified rating is no longer supported by the test data. Additionally, manufacturers must report when production of a basic model has ceased and is no longer offered for sale as part of the next annual certification report following such cessation. DOE requires the manufacturer of any covered product or covered equipment to establish, maintain, and retain the records of certification reports, of the underlying test data for all certification testing, and of any other testing conducted to satisfy the requirements of part 429, part 430, and/or part 431. Certification reports provide DOE and consumers with comprehensive, up-to date efficiency information and support effective enforcement.
Certification data will be required for DX-DOASes; however, DOE is not adopting certification or reporting requirements for DX-DOASes in this final rule. Instead, DOE may consider proposals to establish certification requirements and reporting for DX-DOASes under a separate rulemaking regarding appliance and equipment certification. DOE will address changes to OMB Control Number 1910-1400 at that time, as necessary.
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 of 1969 (“NEPA”), DOE has analyzed this action rule in accordance with NEPA and DOE's NEPA implementing regulations (10 CFR part 1021). DOE has determined that this rule qualifies for categorical exclusion under 10 CFR part 1021, subpart D, appendix B5.1 because it is a rulemaking that establishes energy conservation standards for consumer products or industrial equipment, none of the exceptions identified in B5.1(b) apply, no extraordinary circumstances exist that require further environmental analysis, and it meets the requirements for application of a categorical exclusion.
E.O. 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
With respect to the review of existing regulations and the promulgation of new regulations, section 3(a) of E.O. 12988, “Civil Justice Reform,” imposes on Federal agencies the general duty to adhere to the following requirements: (1) eliminate drafting errors and ambiguity, (2) write regulations to minimize litigation, (3) provide a clear legal standard for affected conduct rather than a general standard, and (4) promote simplification and burden reduction. 61 FR 4729 (Feb. 7, 1996). Regarding the review required by section 3(a), section 3(b) of E.O. 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 E.O. 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 final rule meets the relevant standards of E.O. 12988.
Title II of the Unfunded Mandates Reform Act of 1995 (“UMRA”) requires each Federal agency to assess the effects of Federal regulatory actions on State, local, and Tribal governments and the private sector. Public Law 104-4, sec. 201 (codified at 2 U.S.C. 1531). For a regulatory action likely to result in a rule that may cause the expenditure by State, local, and Tribal governments, in the aggregate, or by the private sector of $100 million or more in any one year (adjusted annually for inflation), section 202 of UMRA requires a Federal agency to publish a written statement that estimates the resulting costs, benefits, and other effects on the national economy. (2 U.S.C. 1532(a), (b)) The UMRA also requires a Federal agency to develop an effective process to permit timely input by elected officers of State, local, and Tribal governments on a “significant intergovernmental mandate,” and requires an agency plan for giving notice and opportunity for timely input to potentially affected small governments before establishing any requirements that might significantly or uniquely affect them. On March 18, 1997, DOE published a statement of policy on its process for intergovernmental consultation under UMRA. 62 FR 12820. DOE's policy statement is also available at
This rule does not contain a Federal intergovernmental mandate, nor is it expected to require expenditures of $100 million or more in any one year by the private sector. In this document, DOE is establishing energy conservation standards at an equivalent stringency level as the existing industry standards in ASHRAE 90.1-2019. The determination of the adopted energy conservation standards is based on a crosswalk of the ASHRAE 90.1-2019 minimum efficiency levels to updated efficiency metrics, and thus DOE does not expect that units which are minimally compliant with ASHRAE 90.1-2019 would require redesign. As a result, the analytical requirements of UMRA do not apply.
Section 654 of the Treasury and General Government Appropriations Act, 1999 (Pub. L. 105-277) requires Federal agencies to issue a Family Policymaking Assessment for any rule that may affect family well-being. This rule would not have any impact on the autonomy or integrity of the family as an institution. Accordingly, DOE has concluded that it is not necessary to prepare a Family Policymaking Assessment.
Pursuant to E.O. 12630, “Governmental Actions and Interference with Constitutionally Protected Property Rights,” 53 FR 8859 (March 18, 1988), DOE has determined that this rule would not result in any takings that might require compensation under the Fifth Amendment to the U.S. Constitution.
Section 515 of the Treasury and General Government Appropriations Act, 2001 (44 U.S.C. 3516, note) provides for Federal agencies to review most disseminations of information to the public under information quality guidelines established by each agency pursuant to general guidelines issued by OMB. OMB's guidelines were published at 67 FR 8452 (Feb. 22, 2002), and DOE's guidelines were published at 67 FR 62446 (Oct. 7, 2002). Pursuant to OMB Memorandum M-19-15, Improving Implementation of the Information Quality Act (April 24, 2019), DOE published updated guidelines which are available at
E.O. 13211, “Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use,” 66 FR 28355 (May 22, 2001), requires Federal agencies to prepare and submit to OIRA at OMB, a Statement of Energy Effects for any significant energy action. A “significant energy action” is defined as any action by an agency that promulgates or is expected to lead to promulgation of a final rule, and that (1) is a significant regulatory action under Executive Order 12866, or any successor order; and (2) is likely to have a significant adverse effect on the supply, distribution, or use of energy, or (3) is designated by the Administrator of OIRA as a significant energy action. For any significant energy action, the agency must give a detailed statement of any adverse effects on energy supply, distribution, or use should the proposal be implemented, and of reasonable alternatives to the action and their expected benefits on energy supply, distribution, and use.
DOE has concluded that this regulatory action, which sets forth energy conservation standards for DX-DOASes, is not a significant energy action because the standards are not likely to have a significant adverse effect on the supply, distribution, or use of energy, nor has it been designated as such by the Administrator at OIRA. Accordingly, DOE has not prepared a Statement of Energy Effects on this final 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 2664, 2667.
In response to OMB's Bulletin, DOE conducted formal peer reviews of the energy conservation standards development process and the analyses that are typically used and prepared a report describing that peer review.
As required by 5 U.S.C. 801, DOE will report to Congress on the promulgation of this rule prior to its effective date. The report will state that it has been determined that the rule is not a “major rule” as defined by 5 U.S.C. 804(2).
The Secretary of Energy has approved publication of this final rule.
Administrative practice and procedure, Confidential business information, Energy conservation, Household appliances, Reporting and recordkeeping requirements.
Administrative practice and procedure, Confidential business information, Energy conservation test procedures, and Reporting and recordkeeping requirements.
This document of the Department of Energy was signed on October 19, 2022, by Francisco Alejandro Moreno, Acting Assistant Secretary for Energy Efficiency and Renewable Energy, pursuant to delegated authority from the Secretary of Energy. That document with the original signature and date is maintained by DOE. For administrative purposes only, and in compliance with requirements of the Office of the Federal Register, the undersigned DOE Federal Register Liaison Officer has been authorized to sign and submit the document in electronic format for publication, as an official document of the Department of Energy. This administrative process in no way alters the legal effect of this document upon publication in the
For the reasons stated in the preamble, DOE is amending parts 429 and 431 of chapter II of title 10, Code of Federal Regulations as set forth below:
42 U.S.C. 6291-6317; 28 U.S.C. 2461 note.
The addition reads as follows:
(a) * * *
(3) * * *
(i) * * *
(A) * * *
(B) When certifying, the following provisions apply.
(
(
(s) * * *
(2) If the manufacturer certified testing in accordance with Option 1 using default VERS exhaust air transfer ratio (EATR) values or Option 2 using default VERS effectiveness and EATR values, DOE may determine the integrated seasonal moisture removal efficiency 2 (ISMRE2) and/or the integrated seasonal coefficient of performance 2 (ISCOP2) using the default values or by conducting testing to determine VERS performance
(3) If the manufacturer certified testing in accordance with Option 1 using VERS exhaust air transfer ratio (EATR) values or Option 2 using VERS effectiveness and EATR values determined using an analysis tool certified in accordance with the DOE test procedure in appendix B to subpart F of part 431 of this chapter, DOE may conduct its own testing to determine VERS performance in accordance with the DOE test procedure in appendix B to subpart F of part 431 of this chapter.
(i) DOE would use the values of VERS performance certified to DOE (
(ii) If any of the conditions in paragraph (s)(2)(i) of this section do not hold true, then the mean of the measured values will be used as the basis for determining the ISMRE2 and/or ISCOP2 of the basic model.
42 U.S.C. 6291-6317; 28 U.S.C. 2461 note.
(g) Each direct expansion-dedicated outdoor air system manufactured on or after the compliance date listed in table 14 to this section must meet the applicable minimum energy efficiency standard level(s) set forth in this section.
Bureau of Consumer Financial Protection.
Final rule; official interpretation; correcting amendments.
The Consumer Financial Protection Bureau (CFPB) published “Debt Collection Practices (Regulation F)” on January 19, 2021, to revise Regulation F, which implements the Fair Debt Collection Practices Act. Omissions in that document resulted in certain paragraphs in the Official Interpretations (Commentary) not being incorporated into the Code of Federal Regulations (CFR). This document corrects the Official Interpretations to Regulation F by adding the missing paragraphs to the CFR.
The corrections are effective on November 1, 2022.
Courtney Jean or Kristin McPartland, Senior Counsels, Office of Regulations, at 202-435-7700. If you require this document in an alternative electronic format, please contact
The CFPB is issuing this document to correct two comments in the CFPB's Commentary to Regulation F, which implements the Fair Debt Collection Practices Act (FDCPA).
The CFPB finds that public comment on this correction is unnecessary because the CFPB is correcting inadvertent, technical errors, about which there is no basis for substantive disagreement. Because no notice of proposed rulemaking is required, the Regulatory Flexibility Act does not require an initial or final regulatory flexibility analysis. The CFPB has determined that these corrections do not impose any new or revise any existing recordkeeping, reporting, or disclosure requirements on covered entities or members of the public that would be collections of information requiring Office of Management and Budget approval under the Paperwork Reduction Act.
Administrative practice and procedure, Consumer protection, Credit, Debt collection, Intergovernmental relations.
For the reasons set forth in the preamble, the CFPB amends Regulation F, 12 CFR part 1006, as set forth below:
12 U.S.C. 5512, 5514(B), 5532; 15 U.S.C. 1692
The revisions read as follows:
1.
2.
3.
i. Assume that, on May 1, a debt collector mails the consumer a validation notice as described in § 1006.34(a)(1)(i)(A). On May 10, the debt collector receives a notice of undeliverability and, without taking any additional action described in § 1006.30(a)(1), subsequently furnishes information about the debt to a consumer reporting agency. The debt collector has violated § 1006.30(a)(1).
ii. Assume that, on May 1, a debt collector mails the consumer a validation notice as described in § 1006.34(a)(1)(i)(A). On May 10, the debt collector receives a notice of undeliverability. On May 11, the debt collector mails the consumer another validation notice as described in § 1006.34(a)(1)(i)(A). From May 11 to May 24, the debt collector permits receipt of, monitors for, and does not receive, a notice of undeliverability and thereafter furnishes information about the debt to a consumer reporting agency. The debt collector has not violated § 1006.30(a)(1).
iii. Assume that, on May 1, a debt collector mails the consumer a validation notice as described in § 1006.34(a)(1)(i)(A). From May 1 to May 14, the debt collector permits receipt of, monitors for, and does not receive, a notice of undeliverability and thereafter furnishes information about the debt to a consumer reporting agency. After furnishing the information, the debt collector receives a notice of undeliverability. The debt collector has not violated § 1006.30(a)(1) and, without taking any further action, may furnish additional information about the debt to a consumer reporting agency.
1.
i. Mails the written dispute or request to the debt collector;
ii. Returns to the debt collector the consumer-response form that § 1006.34(c)(4) requires to appear on the validation notice and indicates on the form the dispute or request;
iii. Provides the dispute or request to the debt collector using a medium of electronic communication through which the debt collector accepts electronic communications from consumers, such as an email address or a website portal; or
iv. Delivers the written dispute or request in person or by courier to the debt collector.
2.
3.
Federal Aviation Administration (FAA), DOT.
Final rule.
The FAA is superseding Airworthiness Directive (AD) 2021-23-17 for all Hoffmann GmbH & Co. KG (Hoffmann) model HO-V 72 propellers. AD 2021-23-17 required amending the existing aircraft flight manual (AFM) by inserting abnormal propeller vibration instructions, visual inspection and non-destructive test (NDT) inspection of the propeller hub and, depending on the results of the inspections, replacement of the propeller hub with a part eligible for installation. Since the FAA issued AD 2021-23-17, further investigation by the manufacturer revealed that cracks found on propeller hubs likely resulted from propeller blade retention nuts that were not tightened using published service information during blade installation. This AD is prompted by reports of cracks at different positions on two affected propeller hubs. This AD retains the required actions of AD 2021-23-17. This AD also requires a maintenance records review and, depending on the results of the maintenance records review, tightening of each propeller blade retention nut to specific torque values. Depending on the results of the maintenance records review, this AD requires physically inspecting the propeller blade for shake. If any axial play is detected during the performance of the inspection, this AD requires the removal of the propeller from service and the performance of an NDT inspection of the propeller hub, and depending on the NDT inspection results, replacement of the propeller hub with a part eligible for installation. The FAA is issuing this AD to address the unsafe condition on these products.
This AD is effective December 6, 2022.
The Director of the Federal Register approved the incorporation by reference of certain publications listed in this AD as of December 6, 2022.
The Director of the Federal Register approved the incorporation by reference of a certain other publication listed in this AD as of January 10, 2022 (86 FR 68905, December 6, 2021).
• For Hoffmann service information identified in this final rule, contact Hoffmann GmbH & Co. KG, Küpferlingstrasse 9, 83022, Rosenheim, Germany; phone: +49 0 8031 1878 0; email:
• You may view this service information at the FAA, Airworthiness Products Section, Operational Safety Branch, 1200 District Avenue, Burlington, MA 01803. For information on the availability of this material at the FAA, call (817) 222-5110. It is also available at
Michael Schwetz, Aviation Safety Engineer, Boston ACO Branch, FAA, 1200 District Avenue, Burlington, MA 01803; phone: (781) 238-7761; email:
The FAA issued a notice of proposed rulemaking (NPRM) to amend 14 CFR part 39 to supersede AD 2021-23-17, Amendment 39-21815 (86 FR 68905, December 6, 2021) (AD 2021-23-17). AD 2021-23-17 applied to all Hoffmann GmbH & Co. KG model HO-V 72 propellers. AD 2021-23-17 required amending the existing AFM by inserting abnormal propeller vibration instructions, visual inspection and NDT inspection of the propeller hub and, depending on the results of the inspections, replacement of the propeller hub with a part eligible for installation. The FAA issued AD 2021-23-17 to prevent failure of the propeller hub.
The NPRM published in the
Cracks have been reported at different positions on two affected parts, both installed on Slingsby T67 “Firefly” aeroplanes. One crack was found during scheduled inspection, the other crack during an unscheduled inspection after abnormal vibrations occurred. Subsequent investigation determined that improper tightening of blade nuts has caused or contributed to those events.
This condition, if not detected and corrected, could lead to in-flight propeller detachment, possibly resulting in damage to the aeroplane and/or injury to persons on the ground.
To address this potential unsafe condition, Hoffmann Propeller issued the SB, providing applicable instructions, and EASA issued Emergency AD 2020-0226-E (later revised [to EASA AD 2020-0226R1]) to require inspections of affected parts and, depending on findings, replacement. That AD also required, for certain aeroplanes, amendment of the applicable Aircraft Flight Manual (AFM).
Since that [EASA] AD was issued, further investigation revealed that not all propeller blade nuts were tightened in accordance with the Hoffman Propeller blade nut tightening procedure B2.23 which requires a certain over-torquing and loosening of the blade nut to limit a preload reduction due to material settlement. Prompted by this development, Hoffmann Propeller issued SB057 (incorporating blade nut tightening procedure B2.23) providing torquing instructions, and SB58 providing instructions for setting correct counterweight angles. Additionally, Hoffmann Propeller issued the torque tightening SB (referencing SB57 and SB58) providing inspections and corrective action instructions.
For the reasons described above, this [EASA] AD retains the requirements of EASA AD 2020-0226R1, which is superseded, and requires additional blade checks, inspections, and re-tightening of the propeller blade nuts
You may examine the MCAI in the AD docket at
In the NPRM, the FAA proposed to retain all of the requirements of AD 2021-23-17. In the NPRM, the FAA also proposed to require a maintenance records review and, depending on the results of the maintenance records review, tightening of each propeller blade retention nut to specified torque values. Depending on the results of the maintenance records review, the NPRM also proposed to require physically inspecting the propeller blade for shake. If any axial play is detected during inspection, the NPRM proposed to require the removal of the propeller from service and the performance of an NDT inspection of the propeller hub, and depending on the NDT inspection results, replacement of the propeller hub with a part eligible for installation.
The FAA received no comments on the NPRM or on the determination of the costs.
These products have been approved by the aviation authority of another country and are approved for operation in the United States. Pursuant to the FAA's bilateral agreement with this State of Design Authority, it has notified the FAA of the unsafe condition described in the MCAI referenced above. The FAA reviewed the relevant data and determined that air safety requires adopting this AD as proposed. Accordingly, the FAA is issuing this AD to address the unsafe condition on these products. Except for minor editorial changes, and the removal of the reference to Hoffmann Propeller Service Bulletin SB059 B, dated February 23, 2022, from paragraph (j)(2), this AD is adopted as proposed in the NPRM. None of the changes will increase the economic burden on any operator.
The FAA reviewed the following service information:
• Hoffmann Propeller Service Bulletin SB057 C, dated February 22, 2022. This service bulletin (SB) specifies procedures for tightening the propeller blade retention nut.
• Hoffmann Propeller Service Bulletin SB059 B, dated February 23, 2022. This SB specifies procedures for tightening the propeller blade retention nut with the correct torque and inspecting the propeller blade for shake.
• Hoffmann Propeller GmbH & Co. KG Service Bulletin SB E53 Rev. D, dated February 18, 2021, which was previously approved by the Director of the Federal Register for incorporation by reference on January 10, 2022 (86 FR 68905, December 6, 2021). This SB describes procedures for visual and NDT inspections of the propeller hub for cracks.
This service information is reasonably available because the interested parties have access to it through their normal course of business or by the means identified in
The FAA also reviewed the following service information:
• Hoffmann Propeller Service Bulletin SB058 A, dated February 2, 2022. This SB specifies the updated definition of the counterweight angle.
The FAA estimates that this AD affects 35 propellers installed on airplanes of U.S. registry.
The FAA estimates the following costs to comply with this AD:
The FAA estimates the following costs to do any necessary actions that are required based on the results of the inspections. The agency has no way of determining the number of aircraft that might need these replacements:
Title 49 of the United States Code specifies the FAA's authority to issue rules on aviation safety. Subtitle I, section 106, describes the authority of the FAA Administrator. Subtitle VII: Aviation Programs, describes in more detail the scope of the Agency's authority.
The FAA is issuing this rulemaking under the authority described in Subtitle VII, Part A, Subpart III, Section 44701: General requirements. Under that section, Congress charges the FAA with promoting safe flight of civil aircraft in air commerce by prescribing regulations for practices, methods, and procedures the Administrator finds necessary for safety in air commerce. This regulation is within the scope of that authority because it addresses an unsafe condition that is likely to exist or develop on products identified in this rulemaking action.
The FAA has determined that this AD will not have federalism implications under Executive Order 13132. This AD will not have a substantial direct effect on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government.
For the reasons discussed above, I certify that this AD:
(1) Is not a “significant regulatory action” under Executive Order 12866,
(2) Will not affect intrastate aviation in Alaska, and
(3) Will not have a significant economic impact, positive or negative, on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.
Air transportation, Aircraft, Aviation safety, Incorporation by reference, Safety.
Accordingly, under the authority delegated to me by the Administrator, the FAA amends 14 CFR part 39 as follows:
49 U.S.C. 106(g), 40113, 44701.
This airworthiness directive (AD) is effective December 6, 2022.
This AD replaces AD 2021-23-17, Amendment 39-21815 (86 FR 68905, December 6, 2021) (AD 2021-23-17).
This AD applies to Hoffmann GmbH & Co. KG (Hoffmann) model HO-V 72 propellers.
Joint Aircraft System Component (JASC) Code 6114, Propeller Hub Section.
This AD was prompted by reports of cracks at different positions on two affected propeller hubs. The FAA is issuing this AD to prevent failure of the propeller hub. The unsafe condition, if not addressed, could result in release of the propeller, damage to the airplane, and injury to persons on the ground.
Comply with this AD within the compliance times specified, unless already done.
(1) Before the next flight after December 22, 2020 (the effective date of AD 2020-25-05, Amendment 39-21347 (85 FR 78702, December 7, 2020)), amend the emergency or abnormal procedures section of the existing aircraft flight manual by inserting this text: “Abnormal propeller vibrations: As applicable, reduce engine RPM.”
(2) Before the next flight after January 10, 2022 (the effective date of AD 2021-23-17), and thereafter, before the next flight after any flight where abnormal propeller vibrations have been experienced, visually inspect propeller hub HO-V 72 ( ) ( )-( )-( ) for cracks using paragraph 2.1 of Hoffmann Propeller GmbH & Co. KG Service Bulletin SB E53, Rev. D, dated February 18, 2021 (Hoffmann Propeller SB E53 Rev. D).
(3) Within 20 flight hours (FHs) after January 10, 2022 (the effective date of AD 2021-23-17), perform a non-destructive test (NDT) inspection of propeller hub HO-V 72 ( ) ( )-( )-( ) using paragraph 2.3 of Hoffmann Propeller SB E53 Rev. D.
(4) During each overhaul of propeller hub HO-V 72 ( ) ( )-( )-( ) after January 10, 2022 (the effective date of AD 2021-23-17), perform an NDT inspection using paragraph 2.3 of Hoffmann Propeller SB E53 Rev. D.
(5) Within 30 days after the effective date of this AD, review the maintenance records to confirm the propeller blade retention nuts were tightened at the last in-shop maintenance visit to the torque values in paragraph 5 of Hoffmann Propeller Service Bulletin SB057 C, dated February 22, 2022 (Hoffmann Propeller SB057 C).
(6) If, during the records review required by paragraph (g)(5) of this AD, it is determined that the propeller blade retention nuts were not tightened to the torque values in paragraph 5 of Hoffmann Propeller SB057 C, or it cannot be confirmed if the propeller blade retention nuts were tightened to the torque values in paragraph 5 of Hoffmann Propeller SB057 C, perform the following actions:
(i) Within 90 FHs after the effective date of this AD, tighten each propeller blade retention nut to the torque values in paragraph 5 of Hoffmann Propeller SB057 C, using paragraphs 6 and 7 of Hoffmann Propeller Service Bulletin SB059 B, dated February 23, 2022.
(ii) Before the next flight after the effective date of this AD and, thereafter, before each flight until the propeller blade retention nut is tightened to the torque values in paragraph 5 of Hoffmann Propeller SB057 C, as required by paragraph (g)(6)(i) of this AD, confirm that there is no axial play in the blade retention system by inspecting the propeller blade for shake. If any axial play is detected, remove the propeller from service and perform an NDT inspection of the propeller hub using paragraph 2.3 of Hoffmann Propeller SB E53 Rev. D.
(7) If, during any inspection required by paragraph (g)(2), (3), (4) or (6)(ii) of this AD, any crack is detected, replace propeller hub HO-V 72 ( ) ( )-( )-( ) with a part eligible for installation.
For the purpose of this AD, a “part eligible for installation” is a propeller hub HO-V 72 ( ) ( )-( )-( ) with zero hours time since new, or a propeller hub HO-V 72 ( ) ( )-( )-( ) that
(1) Sending the propeller to Hoffmann for investigation, as contained in paragraph 2.1 of Hoffmann Propeller SB E53 Rev. D, is not required by this AD.
(2) Reporting propeller hubs with cracks to Hoffmann, as contained in paragraph 2.3 of Hoffmann Propeller SB E53 Rev. D, is not required by this AD.
(1) You may take credit for the initial visual inspection and NDT inspection of the propeller hub required by paragraphs (g)(2), (3), and (4) of this AD if you performed any of these actions before January 10, 2022 (the effective date of AD 2021 23-17) using Hoffmann Propeller GmbH & Co. KG SB E53, Rev. A, dated October 9, 2020; Rev. B, dated October 14, 2020; or Rev. C, dated December 9, 2020.
(2) You may take credit for the records review to confirm the propeller blade retention nuts were tightened to the torque values as required by paragraph (g)(5) of this AD, and the tightening of each propeller blade retention nut as required by paragraph (g)(6)(i) of this AD if you performed any of these actions before the effective date of this AD during the last in-shop maintenance visit using Hoffmann Propeller Service Bulletin SB057 B, dated February 8, 2022; or Hoffmann Propeller Service Bulletin SB059 A, dated February 11, 2022.
A special flight permit may be issued in accordance with 14 CFR 21.197 and 21.199 to operate the airplane to a service facility to perform the NDT inspection. Special flight permits are prohibited to perform the visual inspection of the propeller hub.
(1) The Manager, Boston ACO Branch, FAA, has the authority to approve AMOCs for this AD, if requested using the procedures found in 14 CFR 39.19. In accordance with 14 CFR 39.19, send your request to your principal inspector or local Flight Standards District Office, as appropriate. If sending information directly to the manager of the certification office, send it to the attention of the person identified in paragraph (m)(1) of this AD.
(2) Before using any approved AMOC, notify your appropriate principal inspector, or lacking a principal inspector, the manager of the local flight standards district office/certificate holding district office.
(1) For more information about this AD, contact Michael Schwetz, Aviation Safety Engineer, Boston ACO Branch, FAA, 1200 District Avenue, Burlington, MA 01803; phone: (781) 238-7761; email:
(2) Refer to European Union Aviation Safety Agency (EASA) AD 2022-0061, dated April 4, 2022, for related information. This EASA AD may be found in the AD docket at regulatFAA-2022-0980.
(1) The Director of the Federal Register approved the incorporation by reference (IBR) of the service information listed in this paragraph under 5 U.S.C. 552(a) and 1 CFR part 51.
(2) You must use this service information as applicable to do the actions required by this AD, unless the AD specifies otherwise.
(3) The following service information was approved for IBR on December 6, 2022.
(i) Hoffmann Propeller Service Bulletin SB057 C, dated February 22, 2022.
(ii) Hoffmann Propeller Service Bulletin SB059 B, dated February 23, 2022.
(4) The following service information was approved for IBR on January 10, 2022 (86 FR 68905, December 6, 2021).
(i) Hoffmann Propeller GmbH & Co. KG Service Bulletin SB E53 Rev. D, dated February 18, 2021.
(ii) Reserved.
(5) For Hoffmann service information identified in this AD, contact Hoffmann GmbH & Co. KG, Küpferlingstrasse 9, 83022, Rosenheim, Germany; phone: +49 0 8031 1878 0; email:
(6) You may view this service information at FAA, Airworthiness Products Section, Operational Safety Branch, 1200 District Avenue, Burlington, MA 01803. For information on the availability of this material at the FAA, call (817) 222-5110.
(7) You may view this service information that is incorporated by reference at the National Archives and Records Administration (NARA). For information on the availability of this material at NARA, email:
Federal Aviation Administration (FAA), DOT.
Final rule.
This action amends the Class E airspace at Bloomfield, IA. This action is the result of an airspace review conducted as part of the decommissioning of the Bloomfield non-directional beacon (NDB).
Effective 0901 UTC, February 23, 2023. The Director of the Federal Register approves this incorporation by reference action under 1 CFR part 51, subject to the annual revision of FAA Order JO 7400.11 and publication of conforming amendments.
FAA Order JO 7400.11G, Airspace Designations and Reporting Points, and subsequent amendments can be viewed online at
Jeffrey Claypool, Federal Aviation Administration, Operations Support Group, Central Service Center, 10101 Hillwood Parkway, Fort Worth, TX 76177; telephone (817) 222-5711.
The FAA's authority to issue rules regarding aviation safety is found in Title 49 of the United States Code. Subtitle I, Section 106 describes the authority of the FAA Administrator. Subtitle VII, Aviation Programs, describes in more detail the scope of the agency's authority. This rulemaking is promulgated under the authority described in Subtitle VII, Part A, Subpart I, Section 40103. Under that section, the FAA is charged with prescribing regulations to assign the use of airspace necessary to ensure the safety of aircraft and the efficient use of airspace. This regulation is within the scope of that authority as it amends the Class E airspace extending upward from 700 feet above the surface at Bloomfield Municipal Airport, Bloomfield, IA, to support instrument flight rule operations at this airport.
The FAA published a notice of proposed rulemaking in the
Class E airspace designations are published in paragraph 6005 of FAA Order JO 7400.11G, dated August 19, 2022, and effective September 15, 2022, which is incorporated by reference in 14 CFR 71.1. The Class E airspace
This document amends FAA Order JO 7400.11G, Airspace Designations and Reporting Points, dated August 19, 2022, and effective September 15, 2022. FAA Order JO 7400.11G is publicly available as listed in the
This amendment to 14 CFR part 71 amends the Class E airspace extending upward from 700 feet at Bloomfield Municipal Airport, Bloomfield, IA, by removing the Bloomfield NDB and the associated extension from the airspace legal description.
This action is necessary due to an airspace review conducted as part of the decommissioning of the Bloomfield NDB.
FAA Order JO 7400.11, Airspace Designations and Reporting Points, is published yearly and effective on September 15.
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, is non-controversial and unlikely to result in adverse or negative comments. 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. Since this is a routine matter that only affects air traffic procedures and air navigation, it is certified that this rule, when promulgated, does not have a significant economic impact on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.
The FAA has determined that this action qualifies for categorical exclusion under the National Environmental Policy Act in accordance with FAA Order 1050.1F, “Environmental Impacts: Policies and Procedures,” paragraph 5-6.5.a. This airspace action is not expected to cause any potentially significant environmental impacts, and no extraordinary circumstances exist that warrant preparation of an environmental assessment.
Airspace, Incorporation by reference, Navigation (air).
In consideration of the foregoing, the Federal Aviation Administration amends 14 CFR part 71 as follows:
49 U.S.C. 106(f), 106(g); 40103, 40113, 40120; E.O. 10854, 24 FR 9565, 3 CFR, 1959-1963 Comp., p. 389.
That airspace extending upward from 700 feet above the surface within a 6.3-mile radius of Bloomfield Municipal Airport.
Federal Aviation Administration (FAA), DOT.
Final rule.
This action amends the Class E airspace at Duluth, MN. This action supports new public instrument procedures. The geographic coordinates of the airport are also being updated to coincide with the FAA's aeronautical database.
Effective 0901 UTC, February 23, 2023. The Director of the Federal Register approves this incorporation by reference action under 1 CFR part 51, subject to the annual revision of FAA Order JO 7400.11 and publication of conforming amendments.
FAA Order JO 7400.11G, Airspace Designations and Reporting Points, and subsequent amendments can be viewed online at
Jeffrey Claypool, Federal Aviation Administration, Operations Support Group, Central Service Center, 10101 Hillwood Parkway, Fort Worth, TX 76177; telephone (817) 222-5711.
The FAA's authority to issue rules regarding aviation safety is found in Title 49 of the United States Code. Subtitle I, Section 106 describes the authority of the FAA Administrator. Subtitle VII, Aviation Programs, describes in more detail the scope of the agency's authority. This rulemaking is promulgated under the authority described in Subtitle VII, Part A, Subpart I, Section 40103. Under that section, the FAA is charged with prescribing regulations to assign the use of airspace necessary to ensure the safety of aircraft and the efficient use of airspace. This regulation is within the scope of that authority as it amends the Class E airspace extending upward from 700 feet above the surface at Sky Harbor Airport, Duluth, MN, to support instrument flight rule operations at this airport.
The FAA published a notice of proposed rulemaking in the
Class E airspace designations are published in paragraph 6005 of FAA Order JO 7400.11G, dated August 19, 2022, and effective September 15, 2022, which is incorporated by reference in 14 CFR 71.1. The Class E airspace designations listed in this document will be published subsequently in FAA Order JO 7400.11.
This document amends FAA Order JO 7400.11G, Airspace Designations and Reporting Points, dated August 19, 2022, and effective September 15, 2022. FAA Order JO 7400.11G is publicly available as listed in the
This amendment to 14 CFR part 71 amends the Class E airspace extending upward from 700 feet above the surface at Sky Harbor Airport, Duluth, MN, by updating the header of the airspace legal description from “Duluth Sky Harbor Airport, MN” to “Duluth, MN” to comply with changes to FAA Order JO 7400.2N, Procedures for Handling Airspace Matters; updates the geographic coordinates of the airport to coincide with the FAA's aeronautical database; and removes the exclusionary language from the airspace legal description as it is no longer required.
This action is due to an airspace review to support new public instrument procedures.
FAA Order JO 7400.11, Airspace Designations and Reporting Points, is published yearly and effective on September 15.
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, is non-controversial and unlikely to result in adverse or negative comments. 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. Since this is a routine matter that only affects air traffic procedures and air navigation, it is certified that this rule, when promulgated, does not have a significant economic impact on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.
The FAA has determined that this action qualifies for categorical exclusion under the National Environmental Policy Act in accordance with FAA Order 1050.1F, “Environmental Impacts: Policies and Procedures,” paragraph 5-6.5.a. This airspace action is not expected to cause any potentially significant environmental impacts, and no extraordinary circumstances exist that warrant preparation of an environmental assessment.
Airspace, Incorporation by reference, Navigation (air).
In consideration of the foregoing, the Federal Aviation Administration amends 14 CFR part 71 as follows:
49 U.S.C. 106(f), 106(g); 40103, 40113, 40120; E.O. 10854, 24 FR 9565, 3 CFR, 1959-1963 Comp., p. 389.
That airspace extending upward from 700 feet above the surface within a 6.3-mile radius of the Sky Harbor Airport.
Federal Aviation Administration (FAA), DOT.
Final rule.
This action amends Alaskan VHF Omnidirectional Range (VOR) Federal airway V-436 and Jet route J-125, and establishes United States Area Navigation (RNAV) route T-399 in the vicinity of Clear, AK. These Air Traffic Service (ATS) route actions are necessary due to the amendment of restricted area R-2206 and the establishment of new restricted areas in the vicinity of Clear, AK.
Effective date 0901 UTC, December 29, 2022. The Director of the Federal Register approves this incorporation by reference action under 1 CFR part 51, subject to the annual revision of FAA Order JO 7400.11 and publication of conforming amendments.
FAA Order JO 7400.11G, Airspace Designations and Reporting Points, and subsequent amendments can be viewed online at
Colby Abbott, Rules and Regulations Group, Office of Policy, Federal Aviation Administration, 800 Independence Avenue SW, Washington, DC 20591; telephone: (202) 267-8783.
The FAA's authority to issue rules regarding aviation safety is found in Title 49 of the United States Code. Subtitle I, Section 106 describes the authority of the FAA Administrator. Subtitle VII, Aviation Programs, describes in more detail the scope of the agency's authority. This rulemaking is promulgated under the authority described in Subtitle VII, Part A, Subpart I, Section 40103. Under that section, the FAA is charged with
The FAA published a notice of proposed rulemaking for Docket No. FAA 2021-0245 in the
Alaskan VOR Federal airways are published in paragraph 6010(b), Jet Routes are published in paragraph 2004, and United States Area Navigation Routes (T-routes) are published in paragraph 6011 of FAA Order JO 7400.11G, dated August 19, 2022, and effective September 15, 2022, which is incorporated by reference in 14 CFR 71.1. The ATS routes listed in this document will be published subsequently in FAA Order JO 7400.11.
This document amends FAA Order JO 7400.11G, Airspace Designations and Reporting Points, dated August 19, 2022, and effective September 15, 2022. FAA Order JO 7400.11G is publicly available as listed in the
This action amends 14 CFR part 71 by amending Alaskan VOR Federal airway V-436 and Jet route J-125, and establishing RNAV route T-399. The expansion of restricted airspace in the vicinity of Clear, AK, makes this action necessary. The ATS route actions are described below.
All navigational aid radials listed in the Alaskan VOR Federal airway description below are unchanged and stated in True degrees.
FAA Order JO 7400.11, Airspace Designations and Reporting Points, is published yearly and effective on September 15.
The FAA has determined that this regulation only involves an established body of technical regulations for which frequent and routine amendments are necessary to keep them operationally current. It, therefore: (1) is not a “significant regulatory action” under Executive Order 12866; (2) is not a “significant rule” under Department of Transportation (DOT) Regulatory Policies and Procedures (44 FR 11034; February 26, 1979); and (3) does not warrant preparation of a regulatory evaluation as the anticipated impact is so minimal. Since this is a routine matter that only affects air traffic procedures and air navigation, it is certified that this rule, when promulgated, does not have a significant economic impact on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.
The FAA has determined that this airspace action of amending Alaskan VOR Federal airway V-436 and Jet Route J-125, and establishing RNAV route T-399 in the vicinity of Clear, AK, qualifies for categorical exclusion under the National Environmental Policy Act (42 U.S.C. 4321
Airspace, Incorporation by reference, Navigation (air).
In consideration of the foregoing, the Federal Aviation Administration amends 14 CFR part 71 as follows:
49 U.S.C. 106(f), 106(g), 40103, 40113, 40120; E.O. 10854, 24 FR 9565, 3 CFR, 1959-1963 Comp., p.389.
From Anchorage, AK; INT Anchorage 335° and Talkeetna, AK, 195° radials; Talkeetna; Talkeetna 011° and Fairbanks, AK, 210° radials; to Fairbanks.
From Kodiak, AK; to Anchorage, AK.
Federal Aviation Administration (FAA), DOT.
Final rule.
This action amends the Class E airspace at Indianapolis, IN; Kokomo, IN; Marion, IN; and Sheridan, IN. This action due to airspace reviews conducted as part of the decommissioning of the Kokomo very high frequency (VHF) omnidirectional range (VOR) as part of the VOR Minimal Operational Network (MON) Program. The names and geographic coordinates of various airports are also being updated to coincide with the FAA's aeronautical database.
Effective 0901 UTC, February 23, 2023. The Director of the Federal Register approves this incorporation by reference action under 1 CFR part 51, subject to the annual revision of FAA Order JO 7400.11 and publication of conforming amendments.
FAA Order JO 7400.11G, Airspace Designations and Reporting Points, and subsequent amendments can be viewed online at
Jeffrey Claypool, Federal Aviation Administration, Operations Support Group, Central Service Center, 10101 Hillwood Parkway, Fort Worth, TX 76177; telephone (817) 222-5711.
The FAA's authority to issue rules regarding aviation safety is found in Title 49 of the United States Code. Subtitle I, Section 106 describes the authority of the FAA Administrator. Subtitle VII, Aviation Programs, describes in more detail the scope of the agency's authority. This rulemaking is promulgated under the authority described in Subtitle VII, Part A, Subpart I, Section 40103. Under that section, the FAA is charged with prescribing regulations to assign the use of airspace necessary to ensure the safety of aircraft and the efficient use of airspace. This regulation is within the scope of that authority as it amends the Class E airspace extending upward from 700 feet above the surface at Indianapolis Executive Airport, Indianapolis, IN; Kokomo Municipal Airport, Kokomo, IN; Logansport/Cass County Airport, Logansport, IN, and Peru Municipal Airport, Peru, IN, both contained within the Kokomo, IN, airspace legal description; McKinney Field, Marion, IN; and Sheridan Airport, Sheridan, IN, to support instrument flight rule operations at these airports.
The FAA published a notice of proposed rulemaking in the
Class E airspace designations are published in paragraph 6005 of FAA Order JO 7400.11G, dated August 19, 2022, and effective September 15, 2022, which is incorporated by reference in 14 CFR 71.1. The Class E airspace designations listed in this document will be published subsequently in FAA Order JO 7400.11.
This document amends FAA Order JO 7400.11G, Airspace Designations and Reporting Points, dated August 19, 2022, and effective September 15, 2022. FAA Order JO 7400.11G is publicly available as listed in the
This amendment to 14 CFR part 71:
Amends the Class E airspace extending upward from 700 feet above the surface at Indianapolis Executive Airport, Indianapolis, IN, by updating the header of the airspace legal description from “Indianapolis Executive Airport, IN” to “Indianapolis, IN” to comply with changes to FAA Order JO 7400.2N, Procedures for Handling Airspace Matters; removes the cities from the associated airport and heliports to comply with changes to FAA Order JO 7400.2N; updates the names of Clarion North Medical Center Heliport (previously Clarian North Medical Center Heliport), Carmel, IN, and Methodist Hospital of Indiana Inc. Heliport (previously Methodist Hospital of Indiana), Indianapolis, IN, to coincide with the FAA's aeronautical database; removes the point in space geographic coordinates listed in the airspace legal description as they are listed in the header of the airspace legal description and are redundant; and removes the exclusionary language from the airspace legal description as it is not required;
Amends the Class E airspace extending upward from 700 feet above the surface to within a 6.7-mile (decreased from a 7-mile) radius of Kokomo Municipal Airport, Kokomo, IN; amends the extension northeast of Kokomo Municipal Airport to within 3 (decreased from 4) miles each side of the 045° bearing from the Kokomo Municipal: RWY 23-LOC (previously airport) extending from the 6.7-mile (previously 7-mile) radius of the airport to 11.8 (increased from 10.7) miles northeast of the airport; amends the
Amends the Class E airspace extending upward from 700 feet above the surface to within a 6.5-mile (decreased from a 7-mile) radius of McKinney Field, Marion, IN; adds an extension within 6.9 miles southwest and 4 miles northeast of the Marion VOR/DME 323° radial extending from the 6.5-mile radius of the airport to 7 miles northwest of the Marion VOR/DME; and updates the name (previously Marion Municipal Airport) and geographic coordinates of the airport to coincide with the FAA's aeronautical database;
And amends the Class E airspace extending upward from 700 feet above the surface to within a 6.4-mile (decreased from a 6.7-mile) radius of Sheridan Airport, Sheridan, IN; removes the exclusionary language as it is not required; and updates the geographic coordinates of the airport to coincide with the FAA's aeronautical database.
This action is due to airspace reviews conducted as part of the decommissioning of the Kokomo VOR, which provided navigation information for the instrument procedures at these airports, as part of the VOR MON Program.
FAA Order JO 7400.11, Airspace Designations and Reporting Points, is published yearly and effective on September 15.
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, is non-controversial and unlikely to result in adverse or negative comments. 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. Since this is a routine matter that only affects air traffic procedures and air navigation, it is certified that this rule, when promulgated, does not have a significant economic impact on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.
The FAA has determined that this action qualifies for categorical exclusion under the National Environmental Policy Act in accordance with FAA Order 1050.1F, “Environmental Impacts: Policies and Procedures,” paragraph 5-6.5.a. This airspace action is not expected to cause any potentially significant environmental impacts, and no extraordinary circumstances exist that warrant preparation of an environmental assessment.
Airspace, Incorporation by reference, Navigation (air).
In consideration of the foregoing, the Federal Aviation Administration amends 14 CFR part 71 as follows:
49 U.S.C. 106(f), 106(g); 40103, 40113, 40120; E.O. 10854, 24 FR 9565, 3 CFR, 1959-1963 Comp., p. 389.
That airspace extending upward from 700 feet above the surface within a 6.5-mile radius of Indianapolis Executive Airport; and within a 6-mile radius of the Clarion North Medical Center Heliport point in space coordinates; and within a 6-mile radius of the Methodist Hospital of Indiana Inc. Heliport point in space coordinates.
That airspace extending upward from 700 feet above the surface within a 6.7-mile radius of Kokomo Municipal Airport; and within 3 miles each side of the 045° bearing from the Kokomo Municipal: RWY 23-LOC extending from the 6.7-mile radius of the Kokomo Municipal Airport to 11.8 miles northeast of the airport; and within 2 miles each side of the 225° bearing from the Kokomo Municipal Airport extending from the 6.7-mile radius of the airport to 10.7 miles southwest of the airport; and within a 7-mile radius of Grissom Air Reserve Base; and within 3.8 miles each side of the Grissom Air Reserve Base ILS Localizer Northeast course extending from the 7-mile radius of Grissom Air Reserve Base to 14.5 miles northeast of Grissom Air Reserve Base; and within 2 miles each side of the Grissom Air Reserve Base ILS Localizer Southwest course extending from the 7-mile radius of Grissom Air Reserve Base to 14.5 miles southwest of Grissom Air Reserve Base; and within a 6.5-mile radius of Logansport/Cass County Airport; and within a 6.4-mile radius of Peru Municipal Airport; and within a 6-mile radius of the Regional Health System Heliport point in space coordinates.
That airspace extending upward from 700 feet above the surface within a 6.5-mile radius of McKinney Field; and within 6.9 miles southwest and 4 miles northeast of the Marion VOR/DME 323° radial extending from the 6.5-mile radius of the airport to 7 miles northwest of the Marion VOR/DME.
That airspace extending upward from 700 feet above the surface within a 6.4-mile radius of the Sheridan Airport.
Federal Aviation Administration (FAA), DOT.
Final rule.
This action establishes RNAV T-route, T-378, in the vicinity of Fort Yukon, AK in support of a large and comprehensive T-route modernization project for the state of Alaska.
Effective date 0901 UTC, December 29, 2022. The Director of the Federal Register approves this incorporation by reference action under 1 CFR part 51, subject to the annual revision of FAA Order JO 7400.11 and publication of conforming amendments.
FAA Order JO 7400.11G, Airspace Designations and Reporting Points, and subsequent amendments can be viewed online at
Paul Gallant, Rules and Regulations Group, Office of Policy, Federal Aviation Administration, 800 Independence Avenue SW, Washington, DC 20591; telephone: (202) 267-8783.
The FAA's authority to issue rules regarding aviation safety is found in Title 49 of the United States Code. Subtitle I, Section 106 describes the authority of the FAA Administrator. Subtitle VII, Aviation Programs, describes in more detail the scope of the agency's authority. This rulemaking is promulgated under the authority described in Subtitle VII, Part A, Subpart I, Section 40103. Under that section, the FAA is charged with prescribing regulations to assign the use of the airspace necessary to ensure the safety of aircraft and the efficient use of airspace. This regulation is within the scope of that authority as it expands the availability of RNAV in Alaska and improve the efficient flow of air traffic within the National Airspace System by lessening the dependency on ground based navigation.
The FAA published a notice of proposed rulemaking for Docket No. FAA-2022-0232 in the
United States Area Navigation Routes are published in paragraph 6011 of FAA Order JO 7400.11G dated August 19, 2022 and effective September 15, 2022, which is incorporated by reference in 14 CFR 71.1. The RNAV route listed in this document will be published subsequently in FAA Order JO 7400.11.
The NPRM misidentified the BRION, AK, point as a waypoint (WP) instead of a Fix. This rule corrects the error.
In the first sentence, under “The Proposal” section, RNAV route T-377 was incorrectly cited instead of T-378. The correct route number is used in this rule.
This document amends FAA Order JO 7400.11G, Airspace Designations and Reporting Points, dated August 19, 2022, and effective September 15, 2022. FAA Order JO 7400.11G is publicly available as listed in the
This action amends 14 CFR part 71 by establishing RNAV T-route, T-378, in the vicinity of Fort Yukon, AK in support of a large and comprehensive T-route modernization project in the state of Alaska.
The new route is described below.
FAA Order JO 7400.11, Airspace Designations and Reporting Points, is published yearly and effective on September 15.
The FAA has determined that this regulation only involves an established body of technical regulations for which frequent and routine amendments are necessary to keep them operationally current. It, therefore: (1) is not a “significant regulatory action” under Executive Order 12866; (2) is not a “significant rule” under Department of Transportation (DOT) Regulatory Policies and Procedures (44 FR 11034; February 26, 1979); and (3) does not warrant preparation of a regulatory evaluation as the anticipated impact is so minimal. Since this is a routine matter that only affects air traffic procedures and air navigation, it is certified that this rule, when promulgated, does not have a significant economic impact on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.
The FAA has determined that this airspace action of establishing RNAV route T-378 in the vicinity of Fort Yukon, AK qualifies for categorical exclusion under the National Environmental Policy Act (42 U.S.C. 4321
Airspace, Incorporation by reference, Navigation (air).
In consideration of the foregoing, the Federal Aviation Administration amends 14 CFR part 71 as follows:
49 U.S.C. 106(f), 106(g); 40103, 40113, 40120; E.O. 10854, 24 FR 9565, 3 CFR, 1959-1963 Comp., p. 389.
Federal Aviation Administration (FAA), DOT.
Final rule; correction.
This action corrects a final rule published by the FAA in the
Effective date 0901 UTC, December 29, 2022. The Director of the Federal Register approves this incorporation by reference action under 1 CFR part 51, subject to the annual revision of FAA Order 7400.11 and publication of conforming amendments.
FAA Order 7400.11G, Airspace Designations and Reporting Points, and subsequent amendments can be viewed online at
Colby Abbott, Rules and Regulations Group, Office of Policy, Federal Aviation Administration, 800 Independence Avenue SW, Washington, DC 20591; telephone: (202) 267-8783.
The FAA published a final rule in the
United States Area Navigation Routes are published in paragraph 6011 of FAA Order JO 7400.11G, dated August 19, 2022, and effective September 15, 2022, which is incorporated by reference in 14 CFR 71.1. The RNAV T-route listed in this document will be published subsequently in FAA Order JO 7400.11.
Accordingly, pursuant to the authority delegated to me, reference to the KATAT, AK, WP that is reflected in Docket No. FAA-2021-1152, as published in the
Food and Drug Administration, HHS.
Notification of availability.
The Food and Drug Administration (FDA, Agency, or we) is announcing the availability of a final guidance entitled “Regulation of Human Cells, Tissues, and Cellular and Tissue-Based Products (HCT/Ps): Small Entity Compliance Guide.” The small entity compliance guide (SECG) is intended to help small entity establishments that manufacture HCT/Ps better understand the comprehensive regulatory framework for HCT/Ps set forth in the regulations and comply with certain HCT/P-related final rules. The SECG announced in this notice supersedes the SECG of the same title dated August 2007.
The announcement of the guidance is published in the
You may submit either electronic or written comments on Agency guidances at any time 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 Dockets Management Staff, 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
You may submit comments on any guidance at any time (see 21 CFR 10.115(g)(5)).
Submit written requests for single copies of the SECG to the Office of Communication, Outreach and Development, Center for Biologics Evaluation and Research (CBER), Food and Drug Administration, 10903 New Hampshire Ave., Bldg. 71, Rm. 3128, Silver Spring, MD 20993-0002. Send one self-addressed adhesive label to assist that office in processing your requests. The guidance may also be obtained by mail by calling CBER at 1-800-835-4709 or 240-402-8010. See the
Myrna Hanna, Center for Biologics Evaluation and Research, Food and Drug Administration, 10903 New Hampshire Ave., Bldg. 71, Rm. 7301, Silver Spring, MD 20993-0002, 240-402-7911.
FDA is announcing the availability of a document entitled “Regulation of Human Cells, Tissues, and Cellular and Tissue-Based Products (HCT/Ps): Small Entity Compliance Guide.” The SECG is intended to help small entity establishments that manufacture HCT/Ps better understand the comprehensive regulatory framework for HCT/Ps, set forth in part 1271 (21 CFR part 1271). The SECG announced in this notice supersedes the SECG of the same title dated August 2007.
The SECG reflects the amendments of part 1271 based on the following: (1) the final rule published in the
In compliance with section 212 of the Small Business Regulatory Enforcement Fairness Act (Pub. L. 104-121, as amended by Pub. L. 110-28), we are making available the SECG to explain the actions that a small entity must take to comply with the final rules.
We are issuing the SECG as level 2 guidance consistent with our good guidance practices regulation (21 CFR 10.115(c)(2)). The SECG represents the current thinking of FDA on this topic. It does not establish any rights for any person and is not binding on FDA or the public. You can use an alternative approach if it satisfies the requirements of the applicable statutes and regulations.
While this guidance contains no collection of information, it does refer to previously approved FDA collections of information. Therefore, clearance by the Office of Management and Budget (OMB) under the Paperwork Reduction Act of 1995 (PRA) (44 U.S.C. 3501-3521) is not required for this guidance. The previously approved collections of information are subject to review by OMB under the PRA. The collections of information in 21 CFR part 207 have been approved under OMB control number 0910-0045; the collections of information in 21 CFR part 607 have been approved under OMB control number 0910-0052; the collections of information in 21 CFR part 807 have been approved under OMB control number 0910-0625; the collections of information in 21 CFR part 812 have been approved under OMB control number 0910-0078; and the collections of information in part 1271 have been approved under OMB control number 0910-0543.
Persons with access to the internet may obtain the SECG at
Agricultural Marketing Service, USDA.
Proposed rule.
This proposal invites comments on changes to the representation of the National Mango Board (Board) under the Mango Promotion, Research and Information Order (Order). This action would allocate the seven foreign producer Board seats to the top five mango exporting countries, based on mango volume exported to the United States, with an additional seat allocated to the top exporting country, and one at-large seat. In addition, the proposal would require no more than one Board member be employed by or be affiliated with the same company. The Board administers the Order with oversight by Agricultural Marketing Service (AMS). This rule was recommended by the Board and is issued with the concurrence of AMS.
Comments must be received by January 3, 2023.
Interested persons are invited to submit written comments concerning this proposed rule. All comments must be submitted through the Federal e-rulemaking portal at
George Webster, Marketing Specialist, Mid Atlantic Branch, Market Development Division, Specialty Crops Program, AMS, USDA, 1400 Independence Avenue SW, Room 1406-S, Stop 0244, Washington, DC 20250-0244; Telephone: (202) 365-4172; or Email:
This proposal is issued under the Order (7 CFR part 1206). The Order is authorized under the Commodity Promotion, Research, and Information Act of 1996 (1996 Act) (7 U.S.C. 7411-7425).
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, reducing costs, harmonizing rules and promoting flexibility. This action falls within a category of regulatory actions that the Office of Management and Budget (OMB) exempted from Executive Order 12866 review.
This action has been reviewed in accordance with the requirements of Executive Order 13175, Consultation and Coordination with Indian Tribal Governments. Agricultural Marketing Service (AMS) has assessed the impact of this proposed rule on Indian tribes and determined that this rule would not have tribal implications that require consultation under Executive Order 13175. AMS hosts a quarterly teleconference with tribal leaders where matters of mutual interest regarding the marketing of agricultural products are discussed. Information about the proposed changes to the regulations will be shared during an upcoming quarterly call, and tribal leaders will be informed about the proposed revisions to the regulation and the opportunity to submit comments. AMS will work with the USDA Office of Tribal Relations to ensure meaningful consultation is provided as needed with regards to this change to the Order.
This proposal has been reviewed under Executive Order 12988, Civil Justice Reform. It is not intended to have retroactive effect. Section 524 of the 1996 Act (7 U.S.C. 7423) provides that it shall not affect or preempt any other Federal or State law authorizing promotion or research relating to an agricultural commodity.
Under section 519 of the 1996 Act (7 U.S.C. 7418), a person subject to an order may file a written petition with United States Department of Agriculture (USDA) stating that an order, any provision of an order, or any obligation imposed in connection with an order, is not established in accordance with the law, and request a modification of an order or an exemption from an order. Any petition filed challenging an order, any provision of an order, or any obligation imposed in connection with an order, shall be filed within two years after the effective date of an order, provision, or obligation subject to challenge in the petition. The petitioner will have the opportunity for a hearing on the petition. Thereafter, USDA will issue a ruling on the petition. The 1996 Act provides that the district court of the United States for any district in which the petitioner resides or conducts business shall have the jurisdiction to review a final ruling on the petition, if the petitioner files a complaint for that purpose not later than 20 days after the date of the entry of USDA's final ruling.
This proposed rule invites comments on adjustments to the Board's representation under the Order. The Board administers the Order with oversight by AMS. The Order took effect in November 2004 (69 FR 59120), and assessment collection began in January 2005 for fresh mangos. The program is funded by assessments on first handlers and importers of fresh mangos, and it focuses on maintaining and expanding existing markets and uses for fresh mangos through its research, promotion, and information efforts. This proposed action would allocate the seven foreign producer Board seats as follows: one to each of the top five exporting countries, based on mango volume exported to the United States; one additional seat allocated to the top exporting country; and one at-large seat allocated to a foreign producer from any country
Additionally, the proposal would require that no more than one member per company be represented on the Board at the same time. This change would give more companies an opportunity to serve on the Board. The proposed changes were recommended by the Board at its meeting on November 18, 2021. The Board was not unanimously in favor of this recommendation. The resulting vote from the motion was as follows; ten members voted in favor, three members were not in favor, two members abstained from voting, one member was absent, and two Board seats were vacant. At the Board's meeting on March 15, 2022, AMS presented two options regarding the transition period of the foreign producer Board seats: (1) Gradually make these changes as Board terms cycled out; or (2) Enact these changes immediately and potentially risk having to ask one or more Board members to step down from their position in order to meet the new representation requirements. However, if after the 2023 Board is selected, the foreign producer seats align with the representation requirements, no action would be needed. After much discussion, the Board recommended that these changes be enacted immediately. The resulting vote from the motion was 11 members in favor, four members not in favor, two members absent, and one Board seat was vacant.
Section 1206.30(a) of the Order currently specifies that the Board be composed of 18 members—eight importers, one first handler, two domestic producers, and seven foreign producers—appointed by the Secretary of Agriculture (Secretary). The importer seats are allocated based on the volume of mangos imported into U.S. Customs and Border Protection (Customs) Districts identified by name and code number defined in the Harmonized Tariff Schedule of the United States. There are four districts, with two seats allocated for District I; three seats allocated for District II; two seats allocated for District III; and one seat allocated for District IV.
The seven foreign producer seats are currently chosen by the Secretary from nominations provided by organizations of foreign mango producers and foreign mango producers who self-nominate. Both the mango industry and the Board have stated that the top countries exporting mango to the U.S. need representation on the Board to help oversee assessment allocation and be more involved in improving fruit quality, volume, demand, and consumption of mangos in the U.S.
Sections 1206.36(m) and 1206.77 of the Order allow for the Board to recommend changes to the Order as the Board considers appropriate. On November 18, 2021, and again on March 15, 2022, the Board reviewed data from the USDA, Foreign Agricultural Service (FAS), Global Agricultural Trade System (GATS).
As shown in Table 1, over the past three years (2019-2021) 96.1 percent of the total fresh-whole mango imported into the United States was supplied by five countries: Mexico with 62.9%, Peru with 12.5%, Ecuador with 9.5%, Brazil with 8.7%, and Guatemala with 2.5%.
Furthermore, each of these countries is the main supplier of mango to U.S markets during specific times of the year. Therefore, the performance and success of each of the top five countries exporting mangos to the U.S. during their season affects the U.S. mango market, not just during their season but for subsequent mango suppliers as well.
The Board believes that it is important that each of the top five countries exporting mangos to the U.S. be represented on the Board. Further, because Mexico currently provides the majority of mangos exported to the United States, it is valuable to have multiple representatives providing insight on the situation of the mango industry in that country. Therefore, this proposal would allocate five of the seven foreign producer Board seats to each of the top five countries based on the three-year average mango volume exported to the United States, with an additional seat allocated to the top exporting country (currently Mexico). One at-large seat would continue to be allocated to a foreign producer from any country exporting mangos to the United States.
This proposed change would allow the Board's membership to better reflect the distribution of foreign mangos exported to the United States, while providing an opportunity for a more diverse pool of candidates. AMS oversees the mango program and
The Board is currently conducting nominations for three foreign producer seats whose three-year term of office begins January 1, 2023. All three foreign producer members whose seats are expiring on December 31, 2022, are in their second consecutive term and are therefore not eligible for re-appointment. Starting on January 1, 2023, the Board will have foreign producer members from the following countries: Mexico (two), Peru (one), Guatemala (one), with three open seats.
Depending upon what countries the Secretary chooses for the three open seats for the 2023 Board, in order to align with the proposed foreign producer representation, one of these open seats would need to be from Ecuador and one seat would need to be from Brazil, with one at-large member from any country that exports mango to the U.S. Since the Secretary's selections are not known, and this realignment is not currently in place, the members chosen for the three open seats whose terms begin January 1, 2023, would have to be reviewed by the Board and USDA. Should this proposal be adopted, six of the seven Board foreign producer seats would need to represent all five top exporting countries, based on the 2019-2021 three-year average volume imported into the U.S. as determined from the USDA, FAS data. Currently, that would mean that the seven foreign producer seats would be distributed as follows: Mexico two seats, Peru one seat, Ecuador one seat, Brazil one seat, Guatemala one seat, and one at-large seat.
After AMS review of the current Board representation, if the foreign producer seats are aligned with the representation requirements, no action would be taken. If the representation requirements are not met, one or more Board members may need to step down from their role if established as proposed. The Board discussed two options: (1) to allow Board members to cycle off the Board as their terms expire; or (2) to enact the proposed representation provisions immediately and potentially risk asking members to step down. The Board voted during their March 15, 2022, meeting to move forward with option 2, to immediately enact the changes. AMS oversees the mango program and participates in all Board meetings, and the Secretary is responsible for the selection of all Board members. As such, all effort would be undertaken to avoid disruption of the Board as currently established should the changes that are herein proposed be adopted.
Once the Board is appointed and realigned to represent the top five countries exporting mangos to the United States, every three years thereafter, the Board will review the USDA, FAS, data and if warranted, recommend to the USDA changes to the top five exporting countries to the United States. These recommendations would need to be made before the nomination process begins the following year.
Section 1206.31 establishes the procedures for nominations to obtain Board nominees for appointment. The Board discussed at its November 18, 2021, meeting, and several other occasions, allowing individuals from the same or related companies to serve on the Board at the same time. Occurrences of this nature have increased over time, especially from companies who participate in the nomination process. The concerns are mainly from U.S. importers who believe that the same few companies continue to have additional representatives appointed to the Board while they are already represented on the Board.
This situation has occurred multiple times since the Board's inception. However, with an industry focus on increasing the diversity of the Board, the Board recommended limiting the number of Board members that may represent any one affiliated business interest, however organized. Therefore, this proposal would amend § 1206.31 of the Order to add paragraph (i), which provides that no more than one Board member shall be employed by or be affiliated with a single or multiple corporations, companies, or partnerships or any other legal entities with common ownership, foreign or domestic.
This change is intended to help increase the number of organizations represented on the Board, and expand the diversity of experience, expertise, and location of members on the Board. This proposed action is consistent with AMS's priorities and oversight of the Order.
Section 1206.33 establishes procedures for vacancies on the Board. It describes what to do if the Board member is no longer a member of the category for which they are appointed, if a member is not able to fulfill their position, and how to fill an unexpired term. With the Board's proposal to have no more than one member on the Board per company, this section will be updated. Section 1206.33(d) would be added to address the situation where, if a Board member becomes employed or affiliated with another Board member's company during their term, such position would automatically become vacant.
In accordance with the Regulatory Flexibility Act (RFA) (5 U.S.C. 601-612), AMS has considered the economic impact of this action on small entities that would be affected by this rule. The purpose of the RFA is to fit regulatory action to scale on businesses subject to such action so that small businesses will not be disproportionately burdened. The Small Business Administration defines small agricultural service firms as those having annual receipts of no more than $30 million (13 CFR part 121). First handlers and importers would be considered agricultural service firms.
According to the most recent U.S. Agricultural Census, which was published in 2017, a limited number of mangos are produced in the U.S. and territories of California, Florida, Hawaii, Texas, and Puerto Rico. The majority of U.S. demand for mangos is met by imports. In 2017, the U.S. had a total of 3,328 acres of mangos, up 322 acres (11 percent) from 2012. The Agricultural Census does not breakdown the allocation of acreage by state. According to USDA Foreign Agricultural Service data obtained from the Global Agricultural Trade System (GATS), five countries account for 96.1 percent of fresh mango imports. These countries and their respective share of the imports (from January 2019 to December 2021) include Mexico (62.9%); Peru (12.5%); Ecuador (9.5%); Brazil (8.7%); and Guatemala (2.5%).
The following are not subject to the assessment: mango producers, first handlers and importers who market or import less than 500,000 pounds of mangos, and mangos exported out of the United States.
According to Customs data, in 2021 there were 295 importers and 2 first handlers. Of these entities, 95 were subject to assessments under the Order and had 2021 import quantities of 500,000 pounds or more. There were 3 entities with import valuations exceeding $30 million dollars. Therefore, the majority of assessed importers and first handlers (92 out of 95) may be considered small businesses.
The proposed rule seeks to increase the pool of nominees from countries that export mangos to the United States. The Board wants to receive
This rule does not impose additional recordkeeping requirements on first handlers, importers, or producers of mangos. There are no Federal rules that duplicate, overlap, or conflict with this rule. In accordance with the Office of Management and Budget (OMB) regulation (5 CFR part 1320) that implements the Paperwork Reduction Act of 1995 (44 U.S.C. Chapter 35), the information collection and recordkeeping requirements that are imposed by the Order have been previously approved under OMB control number 0581-0093. This rule does not result in a change to the information collection and recordkeeping requirements previously approved.
Regarding alternatives, the Board discussed in detail the option to keep the foreign producer Board member seat allocation as-is. The Board reviewed information provided from the staff that showed, since the Board's formation, all foreign producer appointments have been from the same five countries (Mexico, Guatemala, Peru, Ecuador, and Brazil), and that in 2022 the Board will have seven foreign producers representing only three countries. The Board believes that foreign producer representation should be from each of the top five countries exporting mangos to the United States, and to have an at-large seat available to a foreign producer from any country exporting mangos to the United States. As such, this change is being proposed to help realign the Board's membership to better reflect the distribution of foreign grown mangos exported to the U.S. AMS oversees the mango program and participates in Board meetings. This proposed action is consistent with AMS's priorities and oversight of the Order.
The Board also considered allowing more than one member per company to sit on the Board at the same time. Throughout the history of the National Mango Board, there have been multiple instances where Board members from the same company served on the Board at the same time. However, the Board members agreed that the industry has grown and evolved and, therefore, it is important to increase the industry's participation on the Board and increase the diversity of individuals serving on the Board. This proposed action would revise the Order to provide that no more than one member shall be employed by or be affiliated with the same company. This change was proposed to help increase the opportunity for more company representatives to serve on the Board and to expand the diversity of experience, expertise, and location of members. AMS encourages efforts to increase the diversity of representation on the Board.
Regarding outreach efforts, the Board discussed this action during Board meetings in 2020, and in meetings during March and November of 2021, and the Board meeting in March 2022. This proposed action was also presented during the Foreign Mango Organization meeting in February 2022. Attendees from this meeting included representatives from the following countries: Mexico, Ecuador, Peru, Guatemala, Brazil, Colombia, and the Dominican Republic. All of the Board's meetings are open to the public and interested persons are invited to participate and express their views.
We have performed this initial RFA analysis regarding the impact of the proposed action on small entities and we invite comments concerning the potential effects of this action. AMS is committed to complying with the E-Government Act, to promote the use of the internet and other information technologies to provide increased opportunities or citizen access to Government information and services, and for other purposes.
AMS has determined that this proposed rule is consistent with and would effectuate the purpose of the 1996 Act.
A 60-day comment period is provided to allow interested persons to respond to this proposal. All written comments received in response to this proposed rule by the date specified will be considered prior to finalizing this action.
Administrative practice and procedure, Advertising, Agricultural research, Consumer information, Mango, Marketing agreements, Reporting and recording requirements.
For the reasons set forth in the preamble, the Agricultural Marketing Service proposes to amend 7 CFR part 1206 as follows:
7 U.S.C. 7411-7425 and 7 U.S.C. 7401.
(c)
(1) Five of the seven seats shall be allocated to foreign producers from the top five exporting countries to the United States;
(2) One additional seat shall be allocated to the top exporting country that exports the most mangos to the United States; and,
(3) The one remaining seat shall be considered at-large, which means it may be allocated to a foreign producer from any country that exports mangos to the United States.
(d)
(1) At least once every five years, the producer and importer seats shall be reviewed. The Board will review the geographical distribution of production of mangos in the United States, the geographical distribution of the importation of mangos into the United States, the quantity of mangos produced in the United States, and the quantity of mangos imported into the United States. The review will be based on Board assessment records and statistics from the Department. If warranted, the Board will recommend to the Department that membership on the Board be altered to reflect any changes in geographical distribution of domestic mango production and importation, and the quantity of domestic production and imports. To ensure equitable representation, additional first handlers may be added to the Board to reflect increases in domestic production.
(2) Every three-years the foreign producer seats shall be reviewed. A three-year average volume of mangos exported from a foreign country to the United States will determine the top five mango exporting countries. The three-year average will be based on import volume data from the USDA, Foreign Agricultural Service, Global Agricultural Trade System for the three complete preceding years. If warranted,
(g) Nominees to fill the foreign producer member positions on the Board shall be solicited from organizations of foreign mango producers and from foreign mango producers. Organizations of foreign mango producers shall submit two nominees for each position, and foreign mango producers may submit their name or the names of other foreign mango producers directly to the Board. The nominees shall be representative of the major countries exporting mangos to the United States as specified in § 1206.30.
(i) No more than one member shall be employed by or be affiliated with a single or multiple corporations, companies, or partnerships or any other legal entities with common ownership, foreign or domestic.
(d) In the event that a Board member becomes employed or affiliated with another Board member's corporation, company, partnership or other legal entity during the Board member's term, such position shall automatically become vacant.
Office of Energy Efficiency and Renewable Energy, Department of Energy.
Notification of availability of preliminary technical support document and request for comment.
The U.S. Department of Energy (“DOE”) announces the availability of the preliminary analysis it has conducted for purposes of evaluating the needed for amended energy conservation standards for consumer furnace fans, which is set forth in the Department's preliminary technical support document (“TSD”) for this rulemaking. DOE will hold a public meeting via webinar to discuss and receive comment on the preliminary analysis. The meeting will cover the analytical framework, models, and tools used to evaluate potential standards; the results of preliminary analyses performed by DOE; the potential energy conservation standard levels derived from these analyses (if DOE determines that proposed amendments are necessary); and other relevant issues. In addition, DOE encourages written comments on these subjects.
Interested persons are encouraged to submit comments using the Federal eRulemaking Portal at
(1)
(2)
(3)
No telefacsimiles (“faxes”) will be accepted. For detailed instructions on submitting comments and additional information on this process, see section IV of this document.
To inform interested parties and to facilitate this rulemaking process, DOE has prepared an agenda, a preliminary TSD, and briefing materials, which are available on the DOE website at:
The docket web page can be found at
Ms. Catherine Rivest, U.S. Department of Energy, Office of Energy Efficiency and Renewable Energy, Building Technologies, EE-5B, 1000 Independence Avenue SW, Washington, DC 20585-0121. Telephone: (202) 586-7335. Email:
Mr. Matthew Schneider, U.S. Department of Energy, Office of the General Counsel, GC-33, 1000 Independence Avenue SW, Washington, DC 20585-0121. Telephone: (240) 597-6265. Email:
For further information on how to submit a comment, review other public comments and the docket, or participate in the public meeting, contact the Appliance and Equipment Standards Program staff at (202) 287-1445 or by email:
The Energy Policy and Conservation Act, as amended (“EPCA”),
EPCA further provides that, not later than 6 years after the issuance of any final rule establishing or amending a standard, DOE must publish either a notification of determination that standards for the product do not need to be amended, or a notice of proposed rulemaking (“NOPR”) including new proposed energy conservation standards (proceeding to a final rule, as appropriate). (42 U.S.C. 6295(m)(1)) Not later than three years after issuance of a final determination not to amend standards, DOE must publish either a notice of determination that standards for the product do not need to be amended, or a NOPR including new proposed energy conservation standards (proceeding to a final rule, as appropriate). (42 U.S.C. 6295(m)(3)(B))
Under EPCA, any new or amended energy conservation standard must be designed to achieve the maximum improvement in energy efficiency that DOE determines is technologically feasible and economically justified. (42 U.S.C. 6295(o)(2)(A)) Furthermore, the new or amended standard must result in a significant conservation of energy. (42 U.S.C. 6295(o)(3)(B))
DOE is publishing this notice of availability of the preliminary analysis to facilitate the collection data and information to inform its decision consistent with its obligations under EPCA.
DOE must follow specific statutory criteria for prescribing new or amended standards for covered products, including consumer furnace fans. As noted, EPCA requires that any new or amended energy conservation standard prescribed by the Secretary of Energy (“Secretary”) be designed to achieve the maximum improvement in energy efficiency (or water efficiency for certain products specified by EPCA) that is technologically feasible and economically justified. (42 U.S.C. 6295(o)(2)(A)) Furthermore, DOE may not adopt any standard that would not result in the significant conservation of energy. (42 U.S.C. 6295(o)(3))
The significance of energy savings offered by a new or amended energy conservation standard cannot be determined without knowledge of the specific circumstances surrounding a given rulemaking.
Accordingly, DOE evaluates the significance of energy savings on a case-by-case basis, taking into account the significance of cumulative FFC national energy savings, the cumulative FFC emissions reductions, and the need to confront the global climate crisis, among other factors DOE has initially determined the energy savings for the candidate standard levels evaluated in this preliminary analysis rulemaking are “significant” within the meaning of 42 U.S.C. 6295(o)(3)(B). To determine whether a standard is economically justified, EPCA requires that DOE determine whether the benefits of the standard exceed its burdens by considering, to the greatest extent practicable, the following seven factors:
(1) The economic impact of the standard on the manufacturers and consumers of the products subject to the standard;
(2) The savings in operating costs throughout the estimated average life of the covered products in the type (or class) compared to any increase in the price, initial charges, or maintenance expenses for the covered products that are likely to result from the standard;
(3) The total projected amount of energy (or as applicable, water) savings likely to result directly from the standard;
(4) Any lessening of the utility or the performance of the products likely to result from the standard;
(5) The impact of any lessening of competition, as determined in writing by the Attorney General, that is likely to result from the standard;
(6) The need for national energy and water conservation; and
(7) Other factors the Secretary of Energy (Secretary) considers relevant.
DOE fulfills these and other applicable requirements by conducting a series of analyses throughout the rulemaking process. Table I.1 shows the individual analyses that are performed to satisfy each of the requirements within EPCA.
Further, EPCA
EPCA also contains what is known as an “anti-backsliding” provision, which prevents the Secretary from prescribing any amended standard that either increases the maximum allowable energy use or decreases the minimum required energy efficiency of a covered product. (42 U.S.C. 6295(o)(1)) Also, the Secretary may not prescribe an amended or new standard if interested persons have established by a preponderance of the evidence that the standard is likely to result in the unavailability in the United States in any covered product type (or class) of performance characteristics (including reliability), features, sizes, capacities, and volumes that are substantially the same as those generally available in the United States. (42 U.S.C. 6295(o)(4))
Additionally, EPCA specifies requirements when promulgating an energy conservation standard for a covered product that has two or more subcategories. DOE must specify a different standard level for a type or class of product that has the same function or intended use, if DOE determines that products within such group: (A) consume a different kind of energy from that consumed by other covered products within such type (or class); or (B) have a capacity or other performance-related feature which other products within such type (or class) do not have and such feature justifies a higher or lower standard. (42 U.S.C. 6295(q)(1)) In determining whether a performance-related feature justifies a different standard for a group of products, DOE must consider such factors as the utility to the consumer of the feature and other factors DOE deems appropriate.
Finally, pursuant to the amendments contained in the Energy Independence and Security Act of 2007 (“EISA 2007”), Public Law 110-140, any final rule for new or amended energy conservation standards promulgated after July 1, 2010, is required to address standby mode and off mode energy use. (42 U.S.C. 6295(gg)(3)) Specifically, when DOE adopts a standard for a covered product after that date, it must, if justified by the criteria for adoption of standards under EPCA (42 U.S.C. 6295(o)), incorporate standby mode and off mode energy use into a single standard, or, if that is not feasible, adopt a separate standard for such energy use for that product. (42 U.S.C. 6295(gg)(3)(A)-(B)) However, because the electrical energy consumption of consumer furnace fans in standby mode and off mode is already accounted for in the DOE rulemakings for residential furnaces, and residential central air conditioners and heat pumps, DOE did not include standby mode and off mode energy use in the test procedure for consumer furnace fans. 79 FR 500, 501.
Before proposing a standard, DOE typically seeks public input on the analytical framework, models, and tools that DOE intends to use to evaluate standards for the product at issue and the results of preliminary analyses DOE performed for the product.
DOE is examining whether to amend the current standards pursuant to its obligations under EPCA. This notification announces the availability
In accordance with section 3(a) of 10 CFR part 430, subpart C, appendix A (“appendix A”), “Procedures, Interpretations, and Policies for Consideration of New or Revised Energy Conservation Standards and Test Procedures for Consumer Products and Certain Commercial/Industrial Equipment,” DOE notes that it is deviating from the provision in appendix A regarding the pre-NOPR stages for an energy conservation standards rulemaking.
DOE is opting to deviate from this step by publishing a preliminary analysis without a framework document. A framework document is intended to introduce and summarize the various analyses DOE conducts during the rulemaking process and requests initial feedback from interested parties. As discussed in section II.B, on November 23, 2021, DOE published an early assessment request for information (“RFI”) to determine whether any new or amended standards may be warranted for consumer furnaces fans. 86 FR 66465 (“November 2021 Early Assessment Review RFI”). DOE requested comment in the November 2021 Early Assessment Review RFI on a variety of issues to aid in the development of its technical and economic analyses and included a 30-day comment period. In the November 2021 Early Assessment Review RFI, DOE sought data and information as to whether any new or amended rule would be cost-effective, economically justified, technologically feasible, or would result in a significant savings of energy.
Additionally, section 6(d)(2) of appendix A provides that the length of the public comment period for pre-NOPR rulemaking documents will vary depending upon the circumstances of the particular rulemaking, but will not be less than 75 calendar days. For this preliminary analysis, DOE has opted to provide a 60-day comment period. As stated, the November 2021 Early Assessment Review RFI included a 30-day comment period. Additionally, for this preliminary analysis, DOE has relied on many of the same analytical assumptions and approaches as used in the previous consumer furnace fans rulemaking. Therefore, for this preliminary analysis, DOE has determined that a 60-day comment period in conjunction with the prior 30-day comment period provides sufficient time for interested parties to review the preliminary analysis and provide input.
In a final rule published on July 3, 2014 (“July 2014 Final Rule”), DOE prescribed the current energy conservation standards for consumer furnace fans manufactured on and after July 3, 2019. 79 FR 38130. These standards are set forth in DOE's regulations at 10 CFR 430.32(y) and are repeated in Table II.1.
On November 23, 2021, DOE published the November 2021 Early Assessment Review RFI to initiate a review to determine whether any new or amended standards would satisfy the relevant requirements of EPCA for a new or amended energy conservation standard for consumer furnace fans. 86 FR 66465. Specifically, through the published notice and request for information, DOE sought data and information that could enable the agency to determine whether DOE should propose a “no new standard” determination because a more stringent standard: (1) would not result in a significant savings of energy; (2) is not technologically feasible; (3) is not economically justified; or (4) any combination of foregoing.
Comments received to date as part of the current process have helped DOE identify and resolve issues related to the preliminary analyses. Chapter 2 of the preliminary TSD summarizes and addresses the comments received.
For the products covered in this preliminary analysis, DOE conducted in-depth technical analyses in the following areas: (1) engineering; (2) markups to determine product price; (3) energy use; (4) life-cycle cost (“LCC”) and payback period (“PBP”); and (5) national impacts. The preliminary TSD that presents the methodology and results of each of these analyses is available at
DOE also conducted, and has included in the preliminary TSD, several other analyses that support the major analyses or are preliminary analyses that will be expanded if DOE determines that a NOPR is warranted to propose new or amended energy conservation standards. These analyses include: (1) the market and technology assessment; (2) the screening analysis, which contributes to the engineering analysis; and (3) the shipments analysis, which contributes to the LCC and PBP analysis and the national impact analysis (“NIA”). In addition to these analyses, DOE has begun preliminary work on the manufacturer impact analysis and has identified the methods to be used for the consumer subgroup analysis, the emissions analysis, the employment impact analysis, the regulatory impact analysis, and the utility impact analysis. DOE will expand on these analyses in the NOPR should one be issued.
DOE develops information in the market and technology assessment that provides an overall picture of the market for the products concerned, including general characteristics of the products, the industry structure, manufacturers, market characteristics, and technologies used in the products. This activity includes both quantitative and qualitative assessments, based primarily on publicly available information. The subjects addressed in the market and technology assessment include: (1) a determination of the scope of the rulemaking and product classes, (2) manufacturers and industry structure, (3) existing efficiency programs, (4) shipments information, (5) market and industry trends, and (6) technologies or design options that could improve the energy efficiency of the product.
See chapter 3 of the preliminary TSD for further discussion of the market and technology assessment.
DOE uses the following five screening criteria to determine which technology options are suitable for further consideration in an energy conservation standards rulemaking:
(1)
(2)
(3)
(4)
(5)
10 CFR part 430, subpart C, appendix A, sections 6(b)(3) and 7(b).
If DOE determines that a technology, or a combination of technologies, fails to meet one or more of the listed five criteria, it will be excluded from further consideration in the engineering analysis.
See chapter 4 of the preliminary TSD for further discussion of the screening analysis.
The purpose of the engineering analysis is to establish the relationship between the efficiency and cost of consumer furnace fans. There are two elements to consider in the engineering analysis; the selection of efficiency levels to analyze (
In this preliminary analysis, DOE estimated the MPC associated with each efficiency level to characterize the cost-efficiency relationship of improving consumer furnace fan performance. The MPC estimates are not for the entire heating, ventilation, and air-conditioning (“HVAC”) product. Because consumer furnace fans are a component of the HVAC product in which they are integrated, the MPC estimates include costs only for the components of the HVAC product that impact fan efficiency rating (“FER”).
For each product class, DOE analyzed a representative consumer furnace fan, characterized by the associated furnace heating capacity and maximum airflow capacity. DOE estimated costs based on either high-volume or low-volume manufacturing, as appropriate, for each product class to account for the increased purchasing power (and thus lower costs) of high-volume manufacturers as compared to low-volume manufacturers.
DOE converts the MPC to the manufacturer selling price (“MSP”) by applying a manufacturer markup. The MSP is the price the manufacturer charges its first customer, when selling into the product distribution channels. The manufacturer markup accounts for manufacturer non-production costs and profit margin. DOE developed the manufacturer markup by examining publicly available financial information for manufacturers of the covered product.
See chapter 5 of the preliminary TSD for additional detail on the engineering analysis. See chapter 12 of the preliminary TSD for additional detail on the manufacturer markup.
The markups analysis develops appropriate markups (
DOE developed baseline and incremental markups for each actor in the distribution chain for consumer furnace fans. Baseline markups are applied to the price of products with baseline efficiency, while incremental markups are applied to the difference in price between baseline and higher-efficiency models (the incremental cost increase). The incremental markup is typically less than the baseline markup and is designed to maintain similar per-unit operating profit before and after new or amended standards.
Chapter 6 of the preliminary TSD provides details on DOE's development of markups for consumer furnace fans.
The purpose of the energy use analysis is to determine the annual energy consumption of consumer furnace fans at different efficiencies in representative U.S. single-family homes, multi-family residences, and commercial buildings, and to assess the energy savings potential of increased consumer furnace fans efficiency. The energy use analysis estimates the range of energy use of consumer furnace fans in the field (
Chapter 7 of the preliminary TSD addresses the energy use analysis.
The effect of new or amended energy conservation standards on individual consumers usually involves a reduction in operating cost and an increase in purchase cost. DOE used the following two metrics to measure consumer impacts:
• The LCC is the total consumer expense of an appliance or product over the life of that product, consisting of total installed cost (manufacturer selling price, distribution chain markups, sales tax, and installation costs) plus operating costs (expenses for energy use, maintenance, and repair). To compute the operating costs, DOE discounts future operating costs to the time of purchase and sums them over the lifetime of the product.
• The PBP is the estimated amount of time (in years) it takes consumers to recover the increased purchase cost (including installation) of a more-efficient product through lower operating costs. DOE calculates the PBP by dividing the change in purchase cost at higher efficiency levels by the change in annual operating cost for the year that amended or new standards are assumed to take effect.
Chapter 8 of the preliminary TSD addresses the LCC and PBP analyses.
The NIA estimates the national energy savings (“NES”) and the net present value (“NPV”) of total consumer costs and savings expected to result from new or amended standards at specific efficiency levels (referred to as candidate standard levels).
DOE evaluates the impacts of new or amended standards by comparing a case without such standards (“no-new-standards case”) with standards case projections. The no-new-standards case characterizes energy use and consumer costs for each product class in the absence of new or amended energy conservation standards. For this projection, DOE considers historical trends in efficiency and various forces that are likely to affect the mix of efficiencies over time. DOE compares the no-new-standards case with projections characterizing the market for each product class if DOE adopted new or amended standards at specific energy efficiency levels for that class. For each efficiency level, DOE considers how a given standard would likely affect the market shares of product with efficiencies greater than the standard.
For the NIA, DOE uses a spreadsheet model to calculate the energy savings and the national consumer costs and savings from each efficiency level. Interested parties can review DOE's analyses by changing various input quantities within the spreadsheet. The NIA spreadsheet model uses typical values (as opposed to probability distributions) as inputs. Critical inputs to this analysis include shipments projections, estimated product lifetimes, product installed costs and operating costs, product annual energy consumption, the base case efficiency projection, and discount rates
DOE estimates a combined total of 1.397 quadrillion Btu (“quads”) of potential full-fuel-cycle (FFC) energy savings at the max- tech efficiency levels for consumer furnace fans. Combined potential FFC energy savings at Efficiency Level 1 for all product classes are estimated to be 1.381 quads. (For several products classes, Efficiency Level 1 in this preliminary analysis is also the max-tech level.) Chapter 10 of the preliminary TSD addresses the NIA.
DOE invites public engagement in this process through participation in the webinar and submission of written comments, data, and information. After the webinar and the closing of the comment period, DOE will consider all timely-submitted comments and additional information obtained from interested parties, as well as information obtained through further analyses. Following such consideration, the Department will publish either a determination that the energy conservation standards for consumer furnace fans need not be amended or a NOPR proposing to amend those standards. The NOPR, should one be issued, would include proposed energy conservation standards for the products covered by this rulemaking, and members of the public would be given an opportunity to submit written and oral comments on the proposed standards.
The time and date of the webinar meeting are listed in the
Any person who has an interest in the topics addressed in this document, or who is representative of a group or class of persons that has an interest in these issues, may request an opportunity to make an oral presentation at the webinar. Such persons may submit to
DOE will designate a DOE official to preside at the webinar and may also use a professional facilitator to aid discussion. The meeting will not be a judicial or evidentiary-type public hearing, but DOE will conduct it in accordance with section 336 of EPCA (42 U.S.C. 6306). A court reporter will be present to record the proceedings and prepare a transcript. DOE reserves the right to schedule the order of presentations and to establish the procedures governing the conduct of the webinar. There shall not be discussion of proprietary information, costs or prices, market share, or other commercial matters regulated by U.S. anti-trust laws. After the webinar and until the end of the comment period, interested parties may submit further comments on the proceedings and any aspect of the rulemaking.
The webinar will be conducted in an informal, conference style. DOE will a general overview of the topics addressed in this rulemaking, allow time for prepared general statements by participants, and encourage all interested parties to share their views on issues affecting this rulemaking. Each participant will be allowed to make a general statement (within time limits determined by DOE), before the discussion of specific topics. DOE will allow, as time permits, other participants to comment briefly on any general statements.
At the end of all prepared statements on a topic, DOE will permit participants to clarify their statements briefly and comment on statements made by others. Participants should be prepared to answer questions by DOE and by other participants concerning these issues. DOE representatives may also ask questions of participants concerning other matters relevant to this rulemaking. The official conducting the webinar will accept additional comments or questions from those attending, as time permits. The presiding official will announce any further procedural rules or modification of the above procedures that may be needed for the proper conduct of the webinar.
A transcript of the webinar will be included in the docket, which can be viewed as described in the
DOE will accept comments, data, and information regarding this proposed rule before or after the webinar, but no later than the date provided in the
However, your contact information will be publicly viewable if you include it in the comment itself or in any documents attached to your comment. Any information that you do not want to be publicly viewable should not be included in your comment, nor in any document attached to your comment. Otherwise, persons viewing comments will see only first and last names, organization names, correspondence containing comments, and any documents submitted with the comments.
Do not submit to
DOE processes submissions made through
Include contact information each time you submit comments, data, documents, and other information to DOE. If you submit via postal mail or hand delivery/courier, please provide all items on a CD, if feasible, in which case it is not necessary to submit printed copies. No telefacsimiles (“faxes”) will be accepted.
Comments, data, and other information submitted to DOE electronically should be provided in PDF (preferred), Microsoft Word or Excel, WordPerfect, or text (ASCII) file format. Provide documents that are not secured, that are written in English, and that are free of any defects or viruses. Documents should not contain special characters or any form of encryption and, if possible, they should carry the electronic signature of the author.
It is DOE's policy that all comments may be included in the public docket, without change and as received, including any personal information provided in the comments (except information deemed to be exempt from public disclosure).
The Secretary of Energy has approved publication of this notification of the availability of the preliminary technical support document and request for comment.
This document of the Department of Energy was signed on October 25, 2022, by Francisco Alejandro Moreno, Acting Assistant Secretary for Energy Efficiency and Renewable Energy, pursuant to delegated authority from the Secretary of Energy. That document with the original signature and date is maintained by DOE. For administrative purposes only, and in compliance with requirements of the Office of the Federal Register, the undersigned DOE Federal Register Liaison Officer has been authorized to sign and submit the document in electronic format for publication, as an official document of the Department of Energy. This administrative process in no way alters the legal effect of this document upon publication in the
Federal Aviation Administration (FAA), DOT.
Notice of proposed rulemaking (NPRM).
The FAA proposes to supersede Airworthiness Directive (AD) 2018-03-13, which applies to certain General Electric Company (GE) CT7-5A2, CT7-5A3, CT7-7A, CT7-7A1, CT7-9B, CT7-9B1, CT7-9B2, CT7-9C, and CT7-9C3 model turboprop engines. AD 2018-03-13 requires initial and repetitive visual inspections and fluorescent penetrant inspections (FPIs) of the main propeller shaft. Since the FAA issued AD 2018-03-13, the manufacturer detected two additional cracks on a main propeller shaft during its ongoing investigation and subsequently published service information that introduced reduced inspection thresholds for initial and repetitive visual inspections, FPIs, and added initial and repetitive ultrasonic inspections (USIs) of the main propeller shaft. Additionally, the manufacturer revised the airworthiness limitations section (ALS) of the maintenance manual (MM) to incorporate initial and repetitive USIs to inspect for cracks on the main propeller shaft. This proposed AD would require initial and repetitive visual inspections, FPIs, and USIs of the main propeller shaft. Depending on the results of these inspections, this proposed AD would require replacement of the main propeller shaft. As an optional terminating action to these inspections, this proposed AD would require revising the ALS of the existing MM and the operator's existing approved maintenance program or inspection program, as applicable, to incorporate the tasks and reduced inspection thresholds for the main propeller shaft. The FAA is proposing this AD to address the unsafe condition on these products.
The FAA must receive comments on this proposed AD by December 16, 2022.
You may send comments, using the procedures found in 14 CFR 11.43 and 11.45, by any of the following methods:
•
•
•
•
• For GE service information identified in this NPRM, contact General Electric Company, 1 Neumann Way, Cincinnati, OH 45215; phone: (513) 552-3272; email:
• You may view this service information at the FAA, Airworthiness Products Section, Operational Safety Branch, 1200 District Avenue, Burlington, MA 01803. For information on the availability of this material at the FAA, call (817) 222-5110.
Sungmo Cho, Aviation Safety Engineer, ECO Branch, FAA, 1200 District Avenue, Burlington, MA 01803; phone: (781) 238-7241; email:
The FAA invites you to send any written relevant data, views, or arguments about this proposal. Send your comments to an address listed under
Except for Confidential Business Information (CBI) as described in the following paragraph, and other information as described in 14 CFR 11.35, the FAA will post all comments received, without change, to
CBI is commercial or financial information that is both customarily and actually treated as private by its owner. Under the Freedom of Information Act (FOIA) (5 U.S.C. 552), CBI is exempt from public disclosure. If your comments responsive to this NPRM contain commercial or financial information that is customarily treated as private, that you actually treat as private, and that is relevant or responsive to this NPRM, it is important that you clearly designate the submitted comments as CBI. Please mark each page of your submission containing CBI as “PROPIN.” The FAA will treat such marked submissions as confidential under the FOIA, and they will not be placed in the public docket of this NPRM. Submissions containing CBI should be sent to Sungmo Cho, Aviation Safety Engineer, ECO Branch, FAA, 1200 District Avenue, Burlington, MA 01803. Any commentary that the FAA receives which is not specifically designated as CBI will be placed in the public docket for this rulemaking.
The FAA issued AD 2018-03-13, Amendment 39-19186 (83 FR 6125, February 13, 2018) (AD 2018-03-13), for certain GE CT7-5A2, CT7-5A3, CT7-7A, CT7-7A1, CT7-9B, CT7-9B1, CT7-9B2, CT7-9C, and CT7-9C3 model turboprop engines with main propeller shaft, part number 77581-11, installed. AD 2018-03-13 was prompted by an in-flight failure of a main propeller shaft on a GE CT7-9B model turboprop engine, resulting in the loss of the propeller. The manufacturer determined the failure of the main propeller shaft was caused by cracks initiating from undiscovered corrosion in the dowel pin holes on the flange of the main propeller shaft. AD 2018-03-13 requires visually inspecting the main propeller shaft for wear, corrosion, and cracking and performing FPI for cracks. The agency issued AD 2018-03-13 to prevent failure of the main propeller shaft. The unsafe condition, if not addressed, could result in in-flight loss of the propeller, loss of engine thrust control, and damage to the airplane.
Since the FAA issued AD 2018-03-13, the manufacturer detected two additional cracks on a main propeller shaft during its ongoing investigation and subsequently published service information that introduced reduced inspection thresholds for initial and repetitive visual inspections, FPIs, and added initial and repetitive USIs of the main propeller shaft. Additionally, the manufacturer revised the ALS of the MM to incorporate initial and repetitive USIs to inspect for cracks on the main propeller shaft.
The FAA is issuing this NPRM after determining that the unsafe condition described previously is likely to exist or develop on other products of the same type design.
The FAA reviewed GE Service Bulletin (SB) CT7-TP 72-0541 R01, dated November 18, 2021 (GE SB CT7-TP 72-0541). This service information specifies procedures for performing initial and repetitive visual inspections, FPIs, and USIs of the main propeller shaft.
This service information is reasonably available because the interested parties have access to it through their normal course of business or by the means identified in
This proposed AD would retain none of the requirements of AD 2018-03-13. This proposed AD would require initial and repetitive visual inspections, FPIs, and USIs of the main propeller shaft. Depending on the results of these inspections, this proposed AD would require replacement of the main propeller shaft. As an optional terminating action to these inspections, this proposed AD would require revising the ALS of the existing MM and the operator's existing approved maintenance program or inspection program, as applicable, to incorporate incorporating the tasks and reduced inspection thresholds for the main propeller shaft. An owner/operator (pilot) holding at least at least a private pilot certificate may revise the ALS of the existing MM, and the owner/operator must enter compliance with the applicable paragraphs of the AD into the aircraft records in accordance with 14 CFR 43.9(a) and 14 CFR 91.417(a)(2)(v). The record must be maintained as required by 14 CFR 91.417, 14 CFR 121.380, or 14 CFR 135.439. This is an exception to the FAA's standard maintenance regulations.
GE SB CT7-TP 72-0541 uses the term “UTI,” while this proposed AD uses the term “USI.”
The FAA estimates that this AD, if adopted as proposed, would affect 176 engines installed on airplanes of U.S. registry.
The FAA estimates the following costs to comply with this proposed AD:
The FAA estimates the following costs to do any necessary replacement that would be required based on the results of the proposed inspections. The agency has no way of determining the number of aircraft that might need this replacement:
Title 49 of the United States Code specifies the FAA's authority to issue rules on aviation safety. Subtitle I, Section 106, describes the authority of the FAA Administrator. Subtitle VII, Aviation Programs, describes in more detail the scope of the Agency's authority.
The FAA is issuing this rulemaking under the authority described in Subtitle VII, Part A, Subpart III, Section 44701, General requirements. Under that section, Congress charges the FAA with promoting safe flight of civil aircraft in air commerce by prescribing regulations for practices, methods, and procedures the Administrator finds necessary for safety in air commerce. This regulation is within the scope of that authority because it addresses an unsafe condition that is likely to exist or develop on products identified in this rulemaking action.
The FAA determined that this proposed AD would not have federalism implications under Executive Order 13132. This proposed AD would not have a substantial direct effect on the States, on the relationship between the national Government and the States, or on the distribution of power and responsibilities among the various levels of government.
For the reasons discussed above, I certify that the proposed regulation:
(1) Is not a “significant regulatory action” under Executive Order 12866,
(2) Would not affect intrastate aviation in Alaska, and
(3) Would not have a significant economic impact, positive or negative, on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.
Air transportation, Aircraft, Aviation safety, Incorporation by reference, Safety.
Accordingly, under the authority delegated to me by the Administrator, the FAA proposes to amend 14 CFR part 39 as follows:
49 U.S.C. 106(g), 40113, 44701.
The FAA must receive comments on this airworthiness directive (AD) action by December 16, 2022.
This AD replaces AD 2018-03-13, Amendment 39-19186 (83 FR 6125, February 13, 2018).
This AD applies to General Electric Company (GE) CT7-5A2, CT7-5A3, CT7-7A, CT7-7A1, CT7-9B, CT7-9B1, CT7-9B2, CT7-9C, and CT7-9C3 model turboprop engines.
Joint Aircraft System Component (JASC) Code 7210, Turbine Engine Reduction Gear.
This AD was prompted by an in-flight failure of a main propeller shaft on a GE CT7-9B model turboprop engine, resulting in the loss of the propeller. The FAA is issuing this AD to prevent failure of the main propeller shaft. The unsafe condition, if not addressed, could result in in-flight loss of the propeller, loss of engine thrust control, and damage to the airplane.
Comply with this AD within the compliance times specified, unless already done.
(1) For affected CT7-5A2, CT7-5A3, CT7-7A, and CT7-7A1 model turboprop engines, using the compliance times specified in Figure 1 to paragraph (g)(1) of this AD, perform initial and repetitive visual inspections, fluorescent penetrant inspections (FPIs), and ultrasonic inspections (USIs) of the main propeller shaft.
(2) For affected CT7-9B, CT7-B1, CT7-9B2, CT7-9C, and CT7-9C3 model turboprop engines, using the compliance times specified in Figure 2 to paragraph (g)(2) of this AD, perform initial and repetitive visual inspections, FPIs, and USIs of the main propeller shaft.
(3) Perform the visual inspections, FPIs, and USIs required by paragraphs (g)(1) and (2) of this AD as follows:
(i) Prior to performance of the inspections, clean the main propeller shaft flange using the Accomplishment Instructions, paragraph 3.B., of GE Service Bulletin (SB) CT7-TP 72-0541 R01, dated November 18, 2021 (GE SB CT7-TP 72-0541).
(ii) Visually inspect the main propeller shaft for wear, corrosion, and cracking using the Accomplishment Instructions, paragraph 3.C.(1), of GE SB CT7-TP 72-0541.
(iii) Spot-FPI the area on the main propeller shaft flange face using the Accomplishment Instructions, paragraph 3.C.(2)(a), of GE SB CT7-TP 72-0541.
(iv) USI the two dowel pin holes of the main propeller shaft using the Accomplishment Instructions, paragraph 3.C.(3)(a), of GE SB CT7-TP 72-0541.
(4) If a crack or rejectable indication is found during the initial and repetitive visual inspections, FPIs, or USIs required by paragraphs (g)(1) through (3) of this AD, before further flight, remove the main propeller shaft from service and replace it with a part eligible for installation.
(5) For all affected engines, if the main propeller shaft CSN is unknown, use the propeller gearbox (PGB) CSN. If the PGB CSN is unknown, assume the inspection threshold is exceeded.
Accomplishing the actions in paragraphs (h)(1) through (4) of this AD, as applicable by engine model, constitutes terminating action for the inspections required by paragraphs (g)(1) through (3) of this AD.
(1) For affected CT7-5A2, CT7-5A3, CT7-7A, and CT7-7A1 model turboprop engines, revise the airworthiness limitations section (ALS) of the existing maintenance manual (MM) and the operator's existing approved maintenance program or inspection program, as applicable, by incorporating the information in Figure 3 to paragraph (h)(1) of this AD.
(2) For affected CT7-9B, CT7-9B1, CT7-9B2, CT7-9C, and CT7-9C3 model turboprop engines, revise the ALS of the existing MM and the operator's existing approved maintenance program or inspection program, as applicable, by incorporating the information in Figure 4 to paragraph (h)(2) of this AD.
(3) Thereafter, except as provided in paragraph (k) of this AD, no alternative inspection times or intervals may be approved for this main propeller shaft.
(4) The optional terminating actions in paragraphs (h)(1) and (2) of this AD may be performed by the owner/operator (pilot) holding at least a private pilot certificate and must be entered into the aircraft records showing compliance with this AD in accordance with 14 CFR 43.9(a) and 14 CFR 91.417(a)(2)(v). The record must be maintained as required by 14 CFR 91.417, 14 CFR 121.380, or 14 CFR 135.439.
For the purpose of this AD, a “part eligible for installation” is a main propeller shaft that has been inspected in accordance with paragraphs (g)(1) or (2) and (3) of this AD, and a crack or rejectable indication was not found.
You may take credit for the initial visual inspection, FPI, and USI required by paragraphs (g)(1) through (3) of this AD if you performed these initial inspections before the effective date of this AD in accordance with GE SB CT7-TP 72-0541 R00, dated September 9, 2021.
(1) The Manager, ECO Branch, FAA, has the authority to approve AMOCs for this AD, if requested using the procedures found in 14 CFR 39.19. In accordance with 14 CFR 39.19, send your request to your principal inspector or local Flight Standards District Office, as appropriate. If sending information directly to the manager of the certification office, send it to the attention of the person
(2) Before using any approved AMOC, notify your appropriate principal inspector, or lacking a principal inspector, the manager of the local flight standards district office/certificate holding district office.
For more information about this AD, contact Sungmo Cho, Aviation Safety Engineer, ECO Branch, FAA, 1200 District Avenue, Burlington, MA 01803; phone: (781) 238-7241; email:
(1) The Director of the Federal Register approved the incorporation by reference (IBR) of the service information listed in this paragraph under 5 U.S.C. 552(a) and 1 CFR part 51.
(2) You must use this service information as applicable to do the actions required by this AD, unless the AD specifies otherwise.
(i) GE Service Bulletin CT7-TP 72-0541 R01, dated November 18, 2021.
(ii) [Reserved]
(3) For GE service information identified in this AD, contact General Electric Company, 1 Neumann Way, Cincinnati, OH 45215; phone: (513) 552-3272; email:
(4) You may view this service information at FAA, Airworthiness Products Section, Operational Safety Branch, 1200 District Avenue, Burlington, MA 01803. For information on the availability of this material at the FAA, call (817) 222-5110.
(5) You may view this service information that is incorporated by reference at the National Archives and Records Administration (NARA). For information on the availability of this material at NARA, email:
Department of Veterans Affairs.
Proposed rule.
The Department of Veterans Affairs (VA) proposes to amend its rules on VA-backed interest rate reduction refinancing loans (IRRRLs). The Economic Growth, Regulatory Relief, and Consumer Protection Act and the Protecting Affordable Mortgages for Veterans Act of 2019 outlined the circumstances in which VA may guarantee or insure refinance loans, by setting forth net tangible benefit, recoupment, and seasoning standards. The proposed rule would update VA's existing IRRRL regulation to current statutory requirements.
Comments must be received on or before January 3, 2023.
Comments must be submitted through
Terry Rouch, Assistant Director, Loan Policy and Valuation, and Stephanie Li, Chief, Regulations, Loan Guaranty Service (26), Veterans Benefits Administration, Department of Veterans Affairs, 810 Vermont Avenue NW, Washington, DC 20420, (202) 632-8862 (This is not a toll-free telephone number.)
The proposed rulemaking described by this notice would update VA's existing IRRRL regulation at 38 CFR 36.4307 to reflect current statutory requirements set forth by section 309 of the Economic Growth, Regulatory Relief, and Consumer Protection Act, Public Law 115-174, 132 Stat. 1296, and section 2 of the Protecting Affordable Mortgages for Veterans Act of 2019, Public Law 116-33, 133 Stat. 1038 (collectively, the “Acts”). The subject provisions of the Acts are codified at 38 U.S.C. 3709. Section 3709 sets forth statutory criteria for determining whether VA can guarantee or insure a refinance loan. Additional statutory authorities underpinning VA's proposed rulemaking include 38 U.S.C. 3710, 3703, and 501. IRRRLs are specifically authorized under subsections (a)(8), (a)(11), and (e) of 38 U.S.C. 3710.
(Note: VA does not use the term IRRRL in the proposed rule text. For ease of reading, however, this preamble substitutes the term “IRRRL” for the proposed rule text's “refinancing loan”. The terms are interchangeable in this context.)
The purpose of an IRRRL is to improve a veteran's financial position by reducing the interest rate on the veteran's existing VA-backed loan. An IRRRL typically results in a reduction in the dollar amount the veteran owes toward monthly housing loan payments. See 38 CFR 36.4307(a)(3). An IRRRL may be used alternatively to reduce the veteran's required number of monthly loan payments, to convert an adjustable-rate mortgage (ARM) to a loan with a fixed interest rate, or to make energy efficient improvements to the home. Id. A veteran cannot use an IRRRL to obtain cash for the equity the veteran may have in the property securing the loan, because that would be a cash-out refinance. See 38 CFR 36.4306.
VA-backed refinancing loans were historically divided into two categories. See Revisions to VA-Guaranteed or Insured Cash-Out Home Refinance Loans, 83 FR 64459 (Dec. 17, 2018). The two categories were cash-outs offered under 38 U.S.C. 3710(a)(5) or 3710(a)(9) and IRRRLs. Id.
As VA noted in its cash-out refinance interim final rule (IFR) notice, Congress structured 38 U.S.C. 3709 such that VA-backed refinance loans have since been effectively grouped into three categories: (i) IRRRLs, (ii) cash-outs in which the amount of the principal for the refinancing loan is equal to or less than the payoff amount on the loan being refinanced (Type I Cash-Outs), and (iii) cash-outs in which the amount of the principal for the refinancing loan is larger than the payoff amount of the loan being refinanced (Type II Cash-Outs). 83 FR at 64459. Subsections (a) through (c) of section 3709 apply to IRRRLs. Id. at 64460. Each of these three subsections creates a pass/fail standard applicable to IRRRLs. If one or more of the requirements is not met, VA cannot guarantee the IRRRL. See id. at 64462.
VA is proposing to revise 38 CFR 36.4307 to reflect current statutory requirements, including net tangible benefit, recoupment, and seasoning standards, consistent with 38 U.S.C. 3709. Also, because section 3709 has caused confusion among program participants, VA is proposing clarifications to diminish the risk of lender noncompliance. In helping lenders understand compliance expectations, VA's regulation would safeguard veterans, ease lender concerns, reduce potential instability in the secondary loan market, and insulate taxpayers from unnecessary financial risk. Ultimately, VA's regulation would help ensure that IRRRLs continue to be used for their intended purpose, that is, improving veterans' financial positions.
Additionally, VA proposes certain technical changes (described below) for ease of reading and proposes using a redesigned VA Form 26-8923,
On May 9, 2014, VA published an IFR notice to describe which VA-guaranteed loans were to be considered as “qualified mortgages” (QM), thereby subject to either safe harbor protection or the presumption that the veteran is able to repay a loan, in accordance with the Ability to Repay provisions that existed at the time. See Loan Guaranty: Ability-to-Repay Standards and Qualified Mortgage Definition Under the Truth-in-Lending Act, 79 FR 26620 (May 9, 2014). The QM IFR did not change VA's regulations or policies with respect to how lenders are to originate mortgages, except to the extent lenders seek to make qualified mortgages. Id. at 26625. On October 9, 2018, VA published an agency determination regarding the status of the QM IFR, explaining that, due to enactment of section 309 of the Economic Growth, Regulatory Relief, and Consumer Protection Act (Pub. L. 115-174), VA would need to revise its QM criteria in a future rulemaking, wherein VA would take into account the spirit of the comments submitted in response to the QM IFR. See Loan Guaranty: Ability-to-Repay Standards and Qualified Mortgage Definition Under the Truth-in-Lending Act, 83 FR 50506 (Oct. 9, 2018). The agency determination also stated that until VA conducted a new rulemaking relating to QMs and IRRRLs, the QM IFR would remain in effect, except for any provision of the IFR that conflicted with or was superseded by Public Law 115-174. Id. As with the agency's previous determination, VA is not proposing in this notice to make express changes to the QM standards. Accordingly, all provisions of the QM IFR that do not conflict with or have not been superseded by later-in-time provisions of law continue to remain in effect.
In 38 U.S.C. 3709(a), Congress set forth a maximum recoupment period of 36 months for certain charges associated with an IRRRL. VA proposes to add a new paragraph (a)(8) in § 36.4307 which would clarify the statutory recoupment standard. Consistent with section 3709(a), proposed paragraph (a)(8)(i) would state that the lender of the IRRRL must provide the Secretary with a certification that all fees, closing costs, and expenses (other than taxes, amounts held in escrow, and fees paid under 38 U.S.C. chapter 37) that would be incurred by the veteran as a result of the refinance are scheduled to be recouped on or before the date that is 36 months after the note date of the IRRRL. VA proposes to collect lenders' certifications via the redesigned VA Form 26-8923,
To help veterans and lenders understand how the recoupment period is calculated, VA proposes to describe a formula in proposed paragraph (a)(8)(ii). The formula would require lenders first to total the dollar amounts of all fees, closing costs, and expenses, whether included in the loan or paid at or outside of closing. The lender would then subtract from that total the dollar amounts of lender credits, if any. The resulting figure would be used as the formula's numerator (the numerator). The denominator of the formula would be the dollar amount by which the veteran's monthly payment for principal and interest would be reduced as a result of the IRRRL (the denominator). In a final calculation, lenders would divide the numerator by the denominator to determine the number of months it would take for the veteran to recoup the subject IRRRL costs:
VA proposes to clarify in paragraph (a)(8)(iii) that the numerator to be used in the formula described above is the dollar amount equating to the sum of all fees, closing costs, and expenses that would be incurred by the veteran as a result of the refinance. VA also proposes that, except as provided in paragraph (a)(8)(iii), such sum includes any charge that is incurred by the veteran as a result of the refinance, including taxes that are not described in paragraph (a)(8)(iii)(C). VA proposes to specify in paragraph (a)(8)(iii) that lender credits may be subtracted from other amounts in the numerator.
Proposed paragraph (a)(8)(iii) would also contain a list of items that are excluded from the numerator: (A) the loan fee as prescribed by 38 U.S.C. 3729; (B) prepaid interest and amounts held in escrow (for example, amounts for hazard insurance); and (C) taxes and assessments on the property, even when paid outside of their normal schedule, that are not incurred solely due to the refinance transaction (for example, property taxes and special assessments).
There has been confusion among stakeholders as to the fees, closing costs, and expenses that must be recouped under section 3709(a). Subsection (a) establishes a standard but uses unclear terms and phrasing across its three paragraphs. The lack of clarity has led to uncertainty and various interpretations among program participants. To dispel the confusion, VA proposes regulatory clarification.
VA interprets subsections (a)(1) and (a)(2) to refer to the same group of charges. Specifically, subsection (a)(1)'s phrase, “fees, closing costs, and any expenses (other than taxes, amounts held in escrow, and fees paid under this chapter) that would be incurred by the borrower in the refinancing of the loan” is the antecedent to subsection (a)(2)'s phrase, “all of the fees and incurred costs” in 38 U.S.C. 3709(a)(2). This means that the fees, closing costs, and any expenses (except those expressly excluded) in paragraph (a)(1) comprise all charges—not a select collection of charges—resulting from the IRRRL and must, under paragraph (2), “be recouped on or before the date that is 36 months after” the IRRRL is made. 38 U.S.C. 3709(a).
VA bases this interpretation on rules of grammar and usage that suggest Congress's use of the definite article “the” in subsection (a)(2)'s clause, “all of the fees”, establishes a grammatical connection to, and dependence on, subsection (a)(1)'s reference to “fees”. The connection and dependence are furthered by subsection (a)(2)'s reference to “incurred costs”, which operates as a truncated reference back to subsection (a)(1)'s list of charges “incurred by the borrower.” In short, subsection (a)(2) should not be taken on its own. It is part of a whole and should be read in that context.
An alternative reading of section 3709(a)(1) and (a)(2) would be that these clauses should be interpreted differently because Congress phrased the clauses differently. Under such a reading, lenders would certify to VA as to one set of fees, closing costs, and expenses as described in subsection (a)(1). The only charges to be included in the recoupment period of 36 months, however, would be subsection (a)(2)'s “all of the fees and incurred costs”, where “incurred costs” is a distinctly new and undefined term. In other words, the different phrasing in subsection (a)(2) would create a second and distinct recoupment standard alongside the one prescribed in subsection (a)(1).
VA believes that requiring two separate recoupment standards as outcomes of a single statutory sentence would inject unnecessary complexity into the statutory scheme. It is VA's position that the text of section 3709(a)'s anti-predatory lending scheme instead creates a harmonious, albeit not always textually clear, recoupment standard for stakeholders. See Public Law 115-174 § 309, “Protecting Veterans from Predatory Lending” (May 24, 2018);
In viewing “incurred costs” as a reference to a previously used term rather than the introduction of a new one, VA's interpretation would eliminate the need for program participants to go beyond the statutory language and hypothesize and debate Congress's intent. At the same time, VA's rationale for interpreting the text would align with and further the Congressional aim of enacting section 3709 and the IRRRL benefit. For example, it would save veterans and lenders from bearing the burden of deciphering separate recoupment outcomes, one for certifying to VA under paragraph (1) and another for determining under paragraph (2) whether the loan could be guaranteed. Additionally, VA's approach would result in a more transparent and easier-to-administer oversight requirement. It would also reduce the risk of errors and loopholes to which an alternate reading is more vulnerable. Finally, it would avoid unnecessary complexity, reducing the likelihood of veterans suffering confusing and convoluted outcomes. Each of these factors would help prevent predatory lending and ensure that a veteran has the opportunity to understand whether an IRRRL is in the veteran's financial interest.
For similar reasons, VA interprets subsection (a) to refer to charges the veteran actually paid and that were incurred as a result of the refinance transaction. The veteran could pay such charges before closing, at closing, or by including such charges in the loan amount.
Generally, no charge can be made against, or paid by, a veteran unless compliant with 38 CFR 36.4313. To assist lenders in understanding what types of borrower-incurred charges would be added in the recoupment numerator, VA proposes in section 36.4307(a)(8)(iii) to expressly list those amounts that are not to be included. In other words, any charge not enumerated in VA's proposed list would need to be included in the numerator.
The first charge VA proposes to exclude is the loan fee (more commonly referred to as the “funding fee”) paid pursuant to 38 U.S.C. 3729. This exclusion is explicitly required under section 3709(a)(1). See 38 U.S.C. 3709(a)(1) parenthetical's exclusion of “taxes, amounts held in escrow, and fees paid under [38 U.S.C. chapter 37]”. Section 3709(a)(1) also provides that “amounts held in escrow” are to be excluded from the recoupment calculation, which is why VA proposes to exclude them from the recoupment numerator. Id.
Although section 3709(a)(1) does not expressly exclude prepaid interest, VA is proposing to exclude it from the recoupment calculation. VA believes this exclusion is necessary because the per diem interest, which is often referred to as “prepaid interest”, is not a fee, closing cost, or expense incurred in the refinance transaction. Rather, prepaid interest is incurred outside the refinance transaction, as the same per diem interest would accrue on the loan being refinanced regardless of the refinance. Put another way, a veteran's prepayment of interest at the time of loan closing is a matter of scheduling, not a new charge incurred in the refinancing. To view it otherwise would unduly restrict veterans from taking advantage of their home loan benefits, as lenders would refuse to accept a novel treatment of prepaid interest that requires lenders to absorb the costs. VA notes, too, that VA's proposal would ensure that a veteran who closes the IRRRL earlier in a month (and therefore must prepay more in interest) is not put at a disadvantage when compared to a veteran who closes toward the end of a month. Therefore, VA proposes to exclude prepaid interest from the numerator.
Finally, the above-referenced parenthetical in section 3709(a)(1) states that “taxes” are to be excluded from calculation of items to be recouped. VA interprets the term “taxes” to be limited to ad valorem property taxes and analogous assessments. VA bases this understanding on the real estate finance industry's common usage of the term “taxes”; for instance, when calculating PITI (Principal, Interest, Taxes, and Insurance). This understanding is also consistent with Congress's instruction that the amounts to be recouped are those “incurred by the borrower in the refinancing.” 38 U.S.C. 3709(a)(1). Much like prepaid interest, certain taxes and assessments might normally be paid by the veteran on a schedule (for example, monthly payments to an escrow account), but because of the refinance transaction, must be paid by the veteran ahead of their normal schedule. Payment of these amounts is a matter of timing, not a new charge attributable to the refinancing transaction itself. Conversely, other items charged during a refinance that may be referred to as “taxes”, such as
In sum, by listing the charges to be excluded from the recoupment numerator, VA is not proposing to provide an exhaustive list of all charges that must be recouped within the prescribed period, but instead proposes exclusions that are consistent with section 3709(a). Where appropriate, VA has provided examples to promote a better understanding of such charges. To the extent the scope of these exclusions may require additional clarity, VA invites comments for consideration.
For purposes of the recoupment numerator, VA proposes that lender credits may be subtracted from other amounts in the numerator. Lenders offer lender credits for several reasons, most commonly to provide the veteran with the option to reduce up-front costs in exchange for paying a higher interest rate on the loan. But section 3709 is silent on how to treat lender credits in relation to the recoupment standard.
Allowing lenders to subtract the amount of such credits from the recoupment numerator is consistent with VA's position that the numerator should measure the transaction costs incurred as a result of the refinance transaction. Prohibiting lender credits as offsets would not only skew the true transaction costs incurred by the veteran but also run counter to the industry norm. See, for example, 12 CFR 1026.38(h)(3), which recognizes lender credits as a type of offset to closing costs. It would also put veterans at a disadvantage when compared to other borrowers and would, in VA's view, unfairly decrease veterans' opportunities to refinance.
While lender credits usually coincide with the veteran paying a higher interest rate, Congress provided in subsection (a) two safeguards against lenders using their credits to circumvent the recoupment standard. First, Congress established the safeguard that the recoupment must be “calculated through lower regular monthly payments (other than taxes, amounts held in escrow, and fees paid under this chapter) as a result of the refinanced loan.” 38 U.S.C. 3709(a)(3). This means that, even though the lender credit would be subtracted under VA's proposed rule from the numerator's charges, the recoupment formula's denominator (described in more detail below) would look to the regular monthly payments to account for the potential loss of savings attributable to the slightly increased interest rate.
Second, Congress has established separate interest rate limitations that prevent predatory interest rate increases. For instance, 38 U.S.C. 3709(b) sets parameters around interest rates, values, and discount points. As mentioned above, VA proposes regulations to implement this statutory interest rate safeguard for IRRRLs, as explained later in this notice. Another interest rate limitation on IRRRLs is provided in 38 U.S.C. 3710(e)(1)(A). Permitting lender credits to be included in the recoupment calculation would not override such requirements. VA notes, too, that lender credits would not affect the loan seasoning provisions outlined in section 3709(c). In sum, VA's proposal to account for lender credits in the recoupment calculation would reflect the fees, closing costs, and expenses a veteran would incur as a result of the refinance—both at the time of refinance and over the repayment term—while preserving for the veteran the option to lower their up-front closing costs via lender credits.
With respect to the denominator of the recoupment calculation formula, VA proposes to state in paragraph (a)(8)(iv) that the denominator is the dollar amount by which the veteran's monthly payment for principal and interest is reduced as a result of the refinance. The proposed paragraph would prescribe that the reduction is calculated by subtracting the veteran's monthly payment for principal and interest under the IRRRL from the veteran's monthly payment for principal and interest under the loan being refinanced. VA would also clarify that when calculating monthly payments for principal and interest, the lender must use the full payment, without omitting any amounts to be repaid monthly by the veteran and attributable to, for example, financed fees, financed funding fees prescribed by 38 U.S.C. 3729, financed closing costs, and financed expenses.
In proposing this standard, VA is clarifying that the phrase “lower regular monthly payments (other than taxes, amounts held in escrow, and fees paid under this chapter)” in 38 U.S.C. 3709(a)(3) means the difference between the veteran's monthly payment for principal and interest under the IRRRL and the veteran's monthly payment for principal and interest under the loan being refinanced. This clarification focusing on principal and interest would produce a direct comparison of what the veteran is truly required to pay as between the two loans, regardless of externalities that may vary case-to-case, making the cost of the refinancing transaction more transparent to veterans. Therefore, VA interprets section 3709(a)(3) as requiring a comparison between that which the veteran pays for principal and interest under the loan being refinanced and that which the veteran would pay for principal and interest under the IRRRL.
By limiting the recoupment denominator to comparisons of the veteran's monthly payments for principal and interest, the proposal would satisfy section 3709's requirement to exclude taxes, amounts held in escrow, and fees paid under chapter 37. 38 U.S.C. 3709(a)(3). VA would clarify, however, that due to industry confusion regarding fees paid under chapter 37, the chapter 37 fees to be excluded from calculation under subsection (a)(3) are limited to fees that are charged monthly.
VA appreciates there could be other interpretations. For example, VA sees some merit in the suggestion that subsection (a)'s parentheticals are categorical exclusions, excluding VA's funding fee from every aspect of the recoupment calculation. The rationale would be that the parentheticals in both paragraphs (1) and (3) of section 3709(a) are phrased identically and provide that “fees paid under [chapter 37]” should not be included in the recoupment. The funding fee is required under 38 U.S.C. 3729, which makes it a fee paid under chapter 37 and therefore, necessarily excluded. Additionally, that interpretation would, in one way, seem consistent with VA's approach to providing a harmonious, singular recoupment standard. Since VA is proposing to interpret paragraph (1) to exclude wholly the funding fee, VA could also propose to interpret paragraph (3) the same way.
VA agrees to some extent but disagrees with the outcome. Although VA would agree that VA must exclude from both the numerator and the
In cases where veterans finance the funding fee by including it in one or both subject loans, veterans could not, as the statute could be read to require, simply rely on the difference between their pre-IRRRL monthly payments and IRRRL monthly payments to know whether the IRRRL would be in their financial interest. Instead, they would have to rely on the lender to correctly calculate an artificial month-to-month payment for both the loan being refinanced and the IRRRL to determine whether there are any savings. The denominator would be artificial because both payments—the payment used for principal and interest under the loan being refinanced and such payment used for the IRRRL—would not correspond to a real payment. Instead, lenders would need to reverse-engineer a monthly payment for each loan by subtracting out the funding fee and re-amortizing the artificial principal balance, to contrive a non-existent payment solely for the purposes of recoupment.
Such artificiality is unnecessary under the text of the statute. VA does not believe that subsection (a)(3) requires lenders to construct non-existent payments, especially as measurements of the veteran's month-to-month savings as part of an anti-predatory scheme. Moreover, VA does not believe that the text requires veterans to rely on artificial payment amounts, rather than the actual amount the veteran will need to pay each month for principal and interest, to determine how the IRRRL affects the veteran from a financial perspective.
VA instead interprets the text of each parenthetical—both subsection (a)(1) and (a)(3)—as explained above, on its face and as elements of a harmonious whole, one that treats subsections (a)(1) and (a)(3) consistently but addresses different elements. Both paragraphs (1) and (3) exclude fees paid under chapter 37. But paragraph (3) further delimits its application, making it applicable to “regular monthly payments”, meaning any fees paid under chapter 37 monthly.
When a veteran closes a refinance transaction and pays a funding fee under section 3729, the charge is made at the closing table as a one-time collection. Either the veteran pays the fee in cash and the lender remits it to the Secretary, or the lender advances the fee on behalf of the veteran, remits the fee to the Secretary, and adds the advance to the principal loan amount. Regardless of the choice, the fee is collected and remitted to the Secretary, not to the lender. Otherwise, there could not be a guaranteed loan. See 38 U.S.C. 3729 (“No such loan may be guaranteed, insured, made, or assumed until the fee payable under this section has been remitted to the Secretary.”).
But the funding fee required under section 3729 is not a fee on top of a regular monthly payment. VA's funding fee is not like private mortgage insurance, for instance, which in other programs is a separate and distinct charge that must be added to the monthly payment of principal and interest and paid monthly over the course of the loan repayment period. If Congress or VA were to introduce such a monthly fee under chapter 37, one that a veteran and lender would need to add to the veteran's regular monthly payments, VA would be required to exclude it from the recoupment calculation. Indeed, VA is proposing that such fees paid under chapter 37 must be excluded from the recoupment numerator and denominator.
Nevertheless, to say that subsection (a)(3)'s parenthetical exclusion would apply to every attenuated impact arising from fees paid under chapter 37 would go too far. When taken to its logical end, it could, in addition to necessitating the reverse engineering of artificial payments described above, largely undermine the recoupment standard. For instance, VA has in 38 CFR 36.4307 and 36.4313 outlined charges that may be made against and paid by a veteran in conjunction with an IRRRL. If a veteran were to finance all the veteran's closing costs of an IRRRL, VA would include those costs in the recoupment calculation. If, however, VA were to interpret subsection (a)(3)'s parenthetical exclusion to apply to every attenuated impact arising from charges paid under chapter 37, all VA-approved charges could be construed as having been “paid under” chapter 37 for the purposes of section 3709(a)(3) because chapter 37 is the primary source of statutory authority for the VA-guaranteed loan program. In other words, if the fee is paid under the express or tacit authority of the organic, enabling legislation, such fee would be paid under the auspices of chapter 37 and could fit within a narrow construction of subsection (a)(3). Any fee, closing cost, or expense that was financed would have to be backed out of the monthly payment and excluded from the recoupment calculation. This would require an artificial payment even further from the reality of the veteran's experience; and because all charges would be excluded, would undermine the purpose of section 3709(a).
VA's focus on the “calculation” of “lower regular monthly payments . . . as a result of the refinanced loan”, shows a natural progression in the context of subsection (a) as a whole, consistent with VA's proposed recoupment formula. First, subsection (a)(1), requires a complete tallying of transaction costs for a tailored anti-predatory scheme. Second, subsection (a)(2) establishes the target for the recoupment period (36 months). Third, subsection (a)(3) establishes that the critical link between the two is the easiest, most straightforward way one might be able to compare the veteran's before-and-after financial situation, that is, the actual difference between the veteran's “regular monthly payments . . . as a result of the refinanced loan”. See 38 U.S.C. 3709(a)(3). In sum, VA's proposed interpretation is to exclude the items named by the parenthetical, that is, “taxes, amounts held in escrow, and fees paid under this chapter”, provided the veteran is making payments for such items that are separate and apart from the veteran's payments toward principal and interest. Id.
VA also notes that an interpretation requiring veterans, lenders, servicers, and other stakeholders to understand and execute an artificial month-to-month savings would make it more difficult for VA to administer a compliance program. VA believes, based on its oversight expertise, that the straightforward and transparent recoupment standard outlined in this proposed rule notice would further VA's ability to protect veterans from predatory lending practices. Using the actual and true monthly principal and interest amounts for the denominator would be less confusing for veterans, lenders, and consumer advocates. The ability for stakeholders to rely on the monthly principal and interest amounts that are shown on standard loan documents would enable all parties, especially veterans, to understand the costs and calculate the recoupment period of the refinancing loan. Similarly, it is important for lenders to have confidence in their ability to calculate recoupment correctly, because passing recoupment is a prerequisite of VA's guaranty. See 38 U.S.C. 3709(a)
In proposed paragraph (a)(8)(v), VA would clarify that if the dollar amount of the veteran's monthly payment for principal and interest under the IRRRL is equal to or greater than the dollar amount of the veteran's monthly payment for principal and interest under the loan being refinanced, meaning there is no reduction in the monthly payment for principal and interest as a result of the IRRRL, the lender must not charge any fees, closing costs, or expenses, except for those enumerated by paragraphs (a)(8)(iii)(A), (a)(8)(iii)(B), and (a)(8)(iii)(C). Proposed paragraph (a)(8)(v) addresses those instances where the veteran chooses to realize the savings of an IRRRL by shortening the repayment term (for example, the veteran moves from 30-year repayment term to 15-year repayment term), which may cause an increase in the monthly principal and interest payment. For such IRRRLs, veterans can realize significant savings by reducing the amount of interest paid and the number of months during which veterans must make loan payments, even though there is an increase or perhaps no change in the dollar amount of the monthly principal and interest payment as between the two subject loans.
Lenders offer such “zero-cost” refinance loans for several reasons. For example, lenders might offer such loans in recognition of a veteran's loyalty to the lender or to attract veterans as new customers. VA has not made a practice of prohibiting “zero-cost” IRRRLs because, as discussed above, veterans can often realize significant savings in such transactions. Given the prospect of significant savings for veterans, VA proposes to continue allowing the practice of “zero-cost” IRRRLs under this rulemaking.
While veterans can realize significant savings under “zero-cost” IRRRLs, in the context of fee recoupment under 38 U.S.C. 3709(a), the plain text states that “all of the fees and incurred costs” must be recouped “through lower regular monthly payments.” In other words, the plain text commands that without a reduction in the dollar amount owed for monthly payments, that is, a recoupment denominator greater than zero, the recoupment standard cannot be met unless the recoupment numerator is zero.
An alternative, albeit untenable, reading of subsection (a)(3) could be that “lower regular monthly payments” might refer to the fact that, in repayment term reduction scenarios discussed above, veterans would have a smaller, that is, “lower,” number of monthly payments to make as a result of the refinancing loan (for example, from 300 payments to 180 payments). VA believes such an interpretation is not feasible because it does not fit within the mathematical recoupment formula set forth by subsection (a). Without computing a fraction under the statutory scheme, VA would be unable to determine whether “all of the fees and incurred costs” would be recouped within “36 months”, even in cases where the refinance loan reduced the number of monthly payments. 38 U.S.C. 3709(a). Additionally, such an interpretation would render subsection (a)(3)'s parenthetical, which excludes certain taxes, escrows, and fees from the recoupment denominator, superfluous and incompatible with the remaining statutory text because such exclusions are irrelevant to whether there has been a reduction in the number of monthly payments. See
VA proposes to add a new paragraph (a)(9) to clarify loan seasoning standards for IRRRLs. Loan seasoning refers to the age of the loan being refinanced. If the loan being refinanced is not properly seasoned on or before the note date of the refinancing loan, VA cannot guarantee the loan. See 38 U.S.C. 3709(c).
In proposed paragraph (a)(9)(i), VA would clarify that the refinancing loan must meet two primary statutory seasoning elements, as described below.
In proposed paragraph (a)(9)(i)(A), VA would describe the first statutory seasoning element that must be met, that is, that on or before the note date of the refinancing loan, the veteran must have made at least six consecutive monthly payments on the loan being refinanced. VA also proposes to clarify in this paragraph that a “monthly payment” for IRRRL seasoning purposes is the full monthly dollar amount owed under the note plus any additional monthly amounts agreed to between the veteran and the holder of the loan being refinanced, such as payments for taxes, hazard insurance, fees and charges related to late payments, and amounts owed as part of a repayment plan. Additionally, VA proposes to clarify that a “monthly payment” will count toward the requisite six consecutive monthly payments only if made in or before the same calendar month for which it is due. VA also proposes that a prepaid monthly payment will count toward the requisite six consecutive monthly payments, provided that the holder of the loan being refinanced applies such payment as satisfying the veteran's obligation of payment for a specific month, advances the due date of the veteran's next monthly payment, and does not apply the payment solely toward principal. VA would also explain that when multiple partial payments sum to the amount owed for one monthly payment, they will count as a single monthly payment toward the requisite six consecutive monthly payments, but only if all partial payments are made in or before the same calendar month for which full payment is due.
VA notes that 38 U.S.C. 3709(c) does not expressly state the requisite six consecutive monthly payments must immediately precede the refinancing loan. A missed payment after reaching the six-payment-threshold does not start a new seasoning period. To illustrate: a
IRRRLs provide many veterans a viable path to home retention when faced with financial difficulties. This was especially evident during the early stages of the COVID-19 pandemic, where many veterans took advantage of historically low interest rates and obtained IRRRLs to reduce their monthly housing loan payments. Many such veterans had never missed a payment before the pandemic. VA believes that a requirement that the six consecutive monthly payments must immediately precede the making of an IRRRL would not prevent predatory loan practices but would create unnecessary barriers to home retention.
VA believes that, rather than barring such veterans from receiving an IRRRL, the text of section 3709(c) allows for the requisite six consecutive monthly payments to be made at any point during the repayment term of the loan being refinanced. Regardless of whether a loan is in default, if the loan was seasoned before the default, the loan can satisfy the first element of the seasoning standard. If there is a break in monthly payments before six consecutive payments are made, the count would reset to zero. Additionally, if a veteran continues to make monthly payments during a forbearance, such payments would count toward the requisite six consecutive monthly payments. However, if a veteran did not make a payment during the forbearance, the count would reset to zero.
Regarding what constitutes a “monthly payment”, VA believes the proposed definition would account for the various ways in which a veteran may remit a monthly loan payment, while making it clear that a mere partial payment, alone, cannot count toward the requisite six consecutive monthly payments. Thus, VA's proposed definition would allow for cases where, for example, a veteran remits a partial payment to a lender (perhaps inadvertently) and then remits any outstanding amounts in or before the same calendar month for which the full payment is due. In the case of prepayment of certain amounts (for example, where a veteran arranges with the holder to make payments biweekly or on a quarterly or semi-annual basis), VA proposes such payments will count toward the requisite six consecutive monthly payments, provided that the payments actually correspond to and satisfy specific and particular monthly obligations, as described above.
Finally, considering the effects of the COVID-19 pandemic on veterans' ability to meet housing loan payments, VA seeks public feedback on the impact of VA's proposal to require that amounts owed as part of a repayment plan be included in the “monthly payment” definition for loan seasoning purposes. VA is interested in comments that could lead to alternative approaches.
In proposed paragraph (a)(9)(i)(B) VA would describe the second statutory seasoning element that must be met, which is that the note date of the IRRRL must be a date that is not less than 210 days after the first payment due date of the loan being refinanced, regardless of whether the loan being refinanced became delinquent. VA would also state that the first payment due date of the loan being refinanced is not included in the 210-day count. Additionally, the note date of the IRRRL would be included in the 210-day count. For example, if the first payment due date of the loan being refinanced is June 1, 2020, day 1 would be June 2, 2020, and day 210 would be December 28, 2020. The IRRRL note could be dated on or after December 28.
VA also proposes to include language in paragraph (a)(9)(i)(B) to clarify that the 210-day period includes days when the veteran's loan is delinquent. Where the consecutive payment requirement hinges on dates payments are made, the 210-day requirement hinges on the date the first payment is due. Therefore, any period in which the veteran is not making payments on the loan (a situation that could affect the consecutive monthly payment count) would not affect the 210-day count. In other words, VA would require lenders to calculate the 210-day period based upon the first payment due date of the loan being refinanced, regardless of delinquency, except in cases of loan modifications and assumptions as described below. This is because VA interprets the first element of the seasoning requirement to be specific to timeliness of payments and the 210-day requirement to be specific to the overall time that must elapse.
Section 3709(b) does not mention loan modifications or loan assumptions in the context of loan seasoning. There is no explicit direction on how to determine whether the borrower has paid six consecutive monthly payments or satisfied the 210-day requirement.
To provide clarity, VA is proposing in paragraph (a)(9)(ii) that if the loan being refinanced has been modified, any payment made before the modification date does not count toward the requisite six consecutive monthly payments under paragraph (a)(9)(i)(A). Additionally, the note date of the IRRRL must be a date that is not less than 210 days after the first payment due date of the modified loan. In other words, when the IRRRL is preceded by a loan modification, a process that generally results in an adjustment of the monthly payment and a re-pooling of the loan on the secondary market, the veteran must make six consecutive monthly payments under the loan modification. Additionally, the 210-day count would reset upon the date of loan modification. The first payment due date of the modified loan would not be included in the 210-day count. The note date of the refinancing loan would be included in the 210-day count.
Similarly, VA proposes to clarify in paragraph (a)(9)(iii) that if the loan being refinanced was assumed pursuant to 38 U.S.C. 3714, any payment made before the assumption date would not count toward the requisite six consecutive monthly payments under paragraph (a)(9)(i)(A). VA would also state that the note date of the IRRRL must be a date that is not less than 210 days after the first payment due date of the assumed loan. VA would clarify that the first payment due date of the assumed loan is not included in the 210-day count. The note date of the IRRRL would be included in the 210-day count.
In proposing this clarification for loan modifications and assumptions, VA interprets 38 U.S.C. 3709(c) as resetting the loan seasoning count following a fundamental change in the contractual terms of the loan. In other words, if the loan was modified or assumed, the borrower would need to make six consecutive monthly payments after the loan modification or assumption to meet loan seasoning. Additionally, the note date of the IRRRL would need to be not less than 210 days after the first payment due date of the modified or assumed loan.
VA believes both proposed clarifications are grounded in the
VA proposes to add new paragraphs (a)(10) and (11) to clarify statutory net tangible benefit (NTB) requirements under 38 U.S.C. 3709(b). In the home loan financing industry, NTB generally refers to the advantage a borrower gains by refinancing. Congress specified in section 3709(b)(1) that, as a prerequisite of VA's guaranty, lenders must provide a veteran with an NTB test. 38 U.S.C. 3709(b)(1). Congress required the test but did not define its parameters. Thus, VA is proposing to provide the parameters, as described later in this notice.
Also, Congress provided more specific NTB criteria requiring minimum interest rate reductions for certain types of IRRRLs. As noted in VA's cash-out IFR notice, VA considered whether the NTB test described in subsection (b)(1) was introductory to the criteria set forth in subsections (b)(2) through (b)(4). See Revisions to VA-Guaranteed or Insured Cash-Out Home Refinance Loans, 83 FR 64459, 64460 (Dec. 17, 2018). VA concluded, however, that paragraphs (2) through (4) did not, in fact, comprise the totality of the NTB test, but instead imposed separate requirements in addition to the paragraph (1) requirement. Id. As discussed in the IFR notice, Congress, in setting these additional thresholds, addressed the risky aspects of moving from one type of interest rate to another and imposed differing parameters depending on the veteran's interest rate decision (that is, a fixed-rate or an adjustable rate). Id. at 64461.
VA proposes to restate the specific interest rate requirements described in sections 3709(b)(2) through 3709(b)(4) in new paragraph (a)(10) of § 36.4307. VA also proposes to interpret section 3709(b)(2) through 3709(b)(4) according to the same rationale that VA described for cash-out refinances, that is, paragraph (4) discount point requirements apply only in the cases where paragraph (3) applies. See id. at 64460-64462 (explaining that subsection (b)'s structure, sequence, and coherent scheme supports such an interpretation).
In proposed paragraph (a)(10)(i), VA would state that for cases in which the loan being refinanced has a fixed interest rate and the IRRRL will also have a fixed interest rate, the interest rate on the IRRRL must not be less than 50 basis points less than the loan being refinanced. See 38 U.S.C. 3709(b)(2). In proposed paragraph (a)(10)(ii), VA would state that, in a case in which the loan being refinanced has a fixed interest rate and the IRRRL will have an adjustable rate (ARM), the interest rate on the IRRRL must not be less than 200 basis points less than the interest rate on the loan being refinanced. In addition, for fixed-to-ARM IRRRLs, discount points may be included in the IRRRL amount only if: (A) the lower interest rate is not produced solely from discount points; (B) the lower interest rate is produced solely from discount points, discount points equal to or less than one discount point are added to the loan amount, and the resulting loan balance (inclusive of all fees, closing costs, and expenses that have been financed) maintains a loan to value (LTV) ratio of 100 percent or less; or (C) the lower interest rate is produced solely from discount points, more than one discount point is added to the loan amount, and the resulting loan balance (inclusive of all fees, closing costs, and expenses that have been financed) maintains a loan to value ratio of 90 percent or less. VA also proposes to add a new paragraph (a)(10)(iii) to remind lenders that, under existing paragraph (a)(4)(i), no more than two discount points may be added to the loan amount.
In determining whether a loan must comply with one of the LTV ratios in proposed paragraph (a)(10)(ii), a lender must determine whether the lower interest of the IRRRL is produced solely from discount points. See 38 U.S.C. 3709(b)(4). The interest rate offered to a veteran is specific to each case and is based on several factors, including the type of loan and the overall mortgage market (for example, the interest rate environment). See
VA observes that information to support whether a lower interest rate is produced solely from discount points is not widely available. While one discount point typically lowers the rate by 25 basis points, lenders have their own pricing structure (often referred to as lender pricing or rate sheets). The rate a lender might offer without discount points is generally not publicly accessible, and the rate can change due to factors such as daily market conditions, borrower risk factors, and corporate strategy. If VA does not have access to, for example, the lender's rate sheet, it can be difficult for VA to determine whether a lender has complied with certain discount point requirements. To avoid this issue, VA proposes a new paragraph (a)(10)(iv) requiring, in cases where the lender determines that the lower interest rate is not produced solely from discount points, that lenders provide VA with evidence to support such determination. VA believes that this approach will help shield veterans from predatory lending practices, while saving lenders from the burden of providing evidence in cases
The text of section 3709(b) implies some degree of risk of predatory lending inherent to veterans refinancing from a fixed interest rate to an adjustable interest rate, specifically when veterans finance the interest rate buy down by including discount points in the IRRRL. VA notes that § 36.4307(a)(4)(i) currently prohibits veterans from financing more than two discount points, meaning that veterans would still likely need to pay cash for some amount of discount points in the event of a 200-basis point reduction where the interest rate is achieved solely through discount points. Regardless, since appraisals of the home are not generally required for IRRRLs, veterans who refinance from a fixed rate to an adjustable rate, obtain a 200-basis point reduction solely through the purchase of discount points, and finance up to two discount points through the loan could be at risk of extending their liability beyond the value of their home.
VA's proposal to require lenders to provide evidence that the subject lower interest rates are not produced solely from discount points will help shed light on whether there is a true NTB to the veteran over the life of IRRRL. In cases where a veteran finances discount points on a fixed-to-ARM IRRRL, the lender would be required to show either that some portion of the veteran's lower interest rate was due, for example, to the lender's pricing structure (meaning discount points were not solely responsible for the lower rate) or that the financing of discount points would not exceed section 3709's cap on LTV ratios (90 or 100 percent, depending on the number of discount points financed).
Under this proposed regulatory standard, VA notes that lenders would only be required to provide VA with evidence that the subject interest rate reduction was not solely due to discount points in cases where the veteran finances discount points. Section 3709(b) does not impose an inquiry into whether the reduced interest rate is solely due to such points when a veteran pays for all discount points using cash (likely at closing). Therefore, VA would not require evidence from the lender in such cases. In proposed paragraph (a)(10)(iv), VA would state that, in cases where the lower interest rate is not produced solely from discount points, as described by paragraph (a)(10)(ii)(A), lenders must provide to the Secretary evidence that the lower interest rate is not produced solely from discount points.
VA notes that section 3709(b) does not specify how lenders are to determine the requisite LTV ratios for NTB purposes. In 2019, VA clarified that a new appraisal would be necessary to determine such LTV ratios, but that the appraisals need not be ordered through VA's appraisal request system and need not be performed by a VA fee panel appraiser. See VA Circular 26-19-22,
In this notice, VA proposes a new paragraph (a)(10)(v) to require lenders to use a property valuation from an appraisal report, completed no earlier than 180 days before the note date, as the dollar amount for the value in the loan to value ratio described by paragraph (a)(10)(ii). VA would also require that the appraisal report must be completed by a licensed appraiser and the appraiser's license must be active at the time the appraisal report is completed. VA would also state that a veteran may only be charged for one such appraisal report and that a veteran may only be charged for such appraisal report as part of the flat charge not exceeding 1 percent of the amount of the loan, as described by § 36.4313(d)(2). Under this proposed standard, VA would continue to accept appraisal reports in the formats listed by VA Circular 26-19-22 and would provide notice to lenders of any updates to the list.
While VA proposes to require lenders to use a property valuation from an appraisal report as the dollar amount for the value in the LTV ratio, as mentioned above, lenders would not be required to use VA's appraisal request system to obtain the appraisal. Rather, VA proposes that lenders use their own appraisal management and assignment process to fulfill this requirement, unless directed by VA.
VA believes it would not be an effective use of government resources to require a VA fee panel appraisal in these LTV ratio determinations. VA fee panel appraisals are used to determine the reasonable value of a property, which helps protect VA from undue risk under the guaranty. Such appraisals also contribute toward determining VA's maximum guaranty amounts and can help VA understand whether certain minimum property and construction requirements are satisfied. See 38 U.S.C. 3710 and 3731; see also 38 CFR 36.4339 and 36.4351. Under 38 U.S.C. 3710(b)(8), an IRRRL's total loan amount is not subject to a maximum limit based upon the reasonable value of the property. See also 38 CFR 36.4339(a)(2). In other words, IRRRLs are not subject to the general requirement for VA-guaranteed loans that the loan not exceed 100 percent of the reasonable value of the property. Additionally, since IRRRLs can only refinance existing VA-guaranteed loans, VA presumes, absent evidence to the contrary, that the subject property still meets minimum property and construction requirements because such requirements applied at the time the loan being refinanced was closed. Without the need to evaluate the property for these specific concerns, VA believes it would not be prudent to apply a requirement of a VA fee panel appraiser in the NTB context, due to potential elevated costs and burdens.
While VA believes this proposed approach for determining valuation for this select set of fixed-to-ARM IRRRL scenarios is the most reasonable and appropriate method, VA is interested in feedback regarding the advantages, if any, of using an alternative appraisal method.
In VA's cash-out refinance IFR, VA explained that section 3709(b)'s NTB test is a test that must be passed. See Revisions to VA-Guaranteed or Insured Cash-Out Home Refinance Loans, 83 FR 64459, 64462 (Dec. 17, 2018). VA further elaborated that Congress, through section 3709(b), “imposed a requirement to establish the fitness of the loan, as opposed to a requirement only to disclose the characteristics of the loan for the veteran's understanding.” Id. Under the same rationale, VA proposes to define the parameters of the NTB test for IRRRLs, which like the NTB test for cash-outs, would include requirements as to the loan's fitness and disclosure
In proposed paragraph (a)(11)(i), VA proposes to state that the IRRRL must meet the requirements prescribed by paragraphs (a)(8), (a)(9), and (a)(10). As described in this notice, such paragraphs set forth requirements for fee recoupment, loan seasoning, and interest rates, respectively. VA believes that an IRRRL that meets such requirements, given the safeguards imposed, will improve the veteran's financial position, meaning the loan will be in the veteran's financial interest.
In paragraph (a)(11)(ii), VA proposes to require lenders to provide veterans with an initial loan comparison disclosure and a final loan comparison disclosure of the following: the loan payoff amount of the IRRRL, with a comparison to the loan payoff amount of the loan being refinanced; the type of interest rate, whether a fixed-rate, traditional adjustable-rate, or hybrid adjustable-rate, with a comparison to the type of the loan being refinanced; the interest rate of the IRRRL, with a comparison to the current interest rate of the loan being refinanced; the term of the IRRRL, with a comparison to the term remaining on the loan being refinanced; and the dollar amount of the veteran's monthly payment for principal and interest under the IRRRL, with a comparison to the current dollar amount of the veteran's monthly payment for principal and interest under the loan being refinanced. Consistent with feedback received on VA's cash-out refinance IFR notice, VA proposes to require that lenders provide the subject information in a format prescribed by the Secretary, that is, via a new proposed form,
Under new paragraph (a)(11)(iii), VA proposes to require that lenders provide the veteran with the IRRRL disclosures on at least two separate occasions. First, VA proposes to require that the lender provide the veteran with an initial loan comparison disclosure on the date the lender provides the Loan Estimate, required under 12 CFR 1026.19(e), to the veteran. Paragraph (a)(11)(iii) would also state that if the lender is required to provide to the veteran a revised Loan Estimate under 12 CFR 1026.19(e) that includes any of the revisions described by proposed paragraph (a)(11)(iv), the lender must provide to the veteran, on the same date the revised Loan Estimate must be provided, an updated loan comparison disclosure. Under proposed paragraph (a)(11)(iv), the enumerated revisions would be: a revision to any loan attribute that must be compared under proposed paragraph (a)(11)(ii); a revision that affects the recoupment under paragraph (a)(8); and any other revision that is a numeric, non-clerical change.
VA also proposes a new paragraph (a)(11)(v), which would require the lender to provide the veteran with a final loan comparison disclosure (in a format specified by the Secretary) on the date the lender provides to the veteran the Closing Disclosure required under 12 CFR 1026.19(f). Additionally, the veteran would need to certify, following receipt of the final loan comparison disclosure, that the veteran received the initial and final loan comparison disclosures required by proposed paragraph (a).
Finally, VA proposes to clarify in paragraph (a)(11)(vi), that regardless of whether the lender must provide the veteran with a Loan Estimate under 12 CFR 1026.19(e) or a Closing Disclosure under 12 CFR 1026.19(f), the lender must provide the veteran with the initial and final loan comparison disclosures. Proposed paragraph (a)(11)(vi) would also state that where the lender is not required to provide the veteran with a Loan Estimate or a Closing Disclosure because the IRRRL is an exempt transaction under 12 CFR 1026.3, the lender must provide the veteran with the initial and final comparison disclosures on the dates the lender would have been required to provide the veteran with the Loan Estimate under 12 CFR 1026.19(e) and the Closing Disclosure under 12 CFR 1026.19(f), respectively, as if the IRRRL was not an exempt transaction.
Requiring lenders to provide veterans with a comparison of the fundamental loan details described above, on two separate occasions, would help enable such veterans to better understand the IRRRL transaction and, consequently, make a sound financial decision. Further, providing the disclosures on the same dates that lenders, in most cases, would need to provide Loan Estimates and Closing Disclosures under Consumer Financial Protection Bureau (CFPB) rules, would reduce the likelihood of lender confusion regarding disclosure dates and save lenders from having to meet deadlines that are out of sync with such CFPB rules. As VA described in the cash-out IFR, these disclosures would help veterans “avoid costly mistakes that may strip their home equity or make it difficult to sell or refinance their home in the future.” See 83 FR at 64463.
As mentioned above, VA proposes appraisal provisions in furtherance of the LTV ratio determinations required by 38 U.S.C. 3709. VA believes it is necessary to clarify in this rulemaking how lenders can account for the costs of such IRRRL appraisal fees. Current VA policy states that lenders can include the cost of such appraisals as part of the flat charge authorized for VA-guaranteed loans. See 38 CFR 36.4313(d)(2) (“lender may charge . . . a flat charge not exceeding 1 percent of the amount of the loan . . . in lieu of all other charges relating to costs of origination not expressly specified”). Through this rulemaking, VA proposes to add a provision to 38 CFR 36.4313(d)(1)(i), and make necessary associated formatting revisions, to specify that any appraisal fee for a purpose specified in § 36.4307(a)(10) is not to be considered a fee that may be separately charged, but rather, should the lender choose to charge the fee to the veteran, is to be included in the one percent flat charge. For VA audit purposes, VA would expect that any appraisal report and invoice be included in the lender's loan file.
VA proposes the following non-substantive changes to § 36.4307. First, VA proposes to correct a reference error in paragraph (a)(4)(ii). Current paragraph (a)(4)(ii) incorrectly references § 36.4339(a)(4) as the source relating to financed energy efficient improvements. The correct reference is § 36.4339(b). Additionally, for ease of reading, VA proposes to insert paragraph headings in current
Lastly, VA proposes a technical correction to § 36.4313(e)(1)(i) to clarify that the 0.50 percent funding fee applies to all IRRRLs. Specifically, VA proposes to replace the “and” in paragraph (e)(1)(i) with an “or”.
Executive Orders 12866 and 13563 direct agencies to assess the costs and benefits of available regulatory alternatives and, when regulation is necessary, to select regulatory approaches that maximize net benefits (including potential economic, environmental, public health and safety effects, and other advantages; distributive impacts; and equity). Executive Order 13563 (Improving Regulation and Regulatory Review) emphasizes the importance of quantifying both costs and benefits, reducing costs, harmonizing rules, and promoting flexibility. The Office of Information and Regulatory Affairs has determined that this rule is a significant regulatory action under Executive Order 12866. The Regulatory Impact Analysis associated with this rulemaking can be found as a supporting document at
The Secretary hereby certifies that this proposed rule would not have a significant economic impact on a substantial number of small entities as they are defined in the Regulatory Flexibility Act (5 U.S.C. 601-612). To assess whether the proposed rule could be expected to have a “significant economic impact” on small entities, VA considers the annual costs and transfer payments of the rule for and from small entities compared to their annual revenue. As described in the impact analysis, this proposed rule and Public Law 115-174 (the 2018 Act) would affect lenders participating in VA's home loan program.
VA was able to estimate the size of 1,073 of 1,202 active lenders that originated IRRRLs within the past three fiscal years using a combination of sources. VA relied on the size standards from the Small Business Administration (SBA)
VA compares this average annual revenue of the small lenders to the average annual costs that fall on the small lenders, as well as the annual transfer payments from small lenders to determine the economic significance of the 2018 Act and the proposed rule described by this notice on small entities. The costs of the proposed rule that fall on all lenders, including small lenders, would come from rule familiarization and those accounted for through PRA analysis (that is, information technology system alignment). The transfer payments of the 2018 Act from lenders, including small, would come from the reduction in annual payments from the interest rate reduction requirements and the reduction in refinance fees from the recoupment requirement. These reductions would represent transfer payments from lenders to veterans.
VA divides the one-time cost of rule familiarization and system alignments evenly across the 1,202 lenders. The costs of the one-time rule familiarization and system alignments in the first year of the rule are estimated at $1,235 for each lender, including the small lenders. The reduction in annual payments and the reduction in closing costs range from $78,463 to $94,868 per small lender, depending on the year in the analysis period.
The estimated burden of the 2018 Act and rule as a proportion of small lender revenue ranges from 0.337 percent to 0.401 percent, as displayed in Table 2. The burden on small lenders stemming from the 2018 Act would be significantly greater than the burden associated with the rule.
VA considers a rule to have a “significant economic impact” when the impact associated with the rule for a small entity equals or exceeds 1 percent of annual revenue. Thus, while the rule is expected to affect a substantial number of small entities (55.73 percent of active small IRRRL lenders), the burden would not be economically significant. On this basis, the Secretary certifies that the adoption of this proposed rule will not have a significant economic impact on a substantial number of small entities as defined in the Regulatory Flexibility Act.
The Unfunded Mandates Reform Act of 1995 requires, at 2 U.S.C. 1532, that agencies prepare an assessment of anticipated costs and benefits before issuing any rule that may result in the expenditure by State, local, and tribal governments, in the aggregate, or by the private sector, of $100 million or more (adjusted annually for inflation) in any one year. This proposed rule would have no such effect on State, local, and tribal governments, or on the private sector.
This proposed rule includes provisions constituting a revised collection of information under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3521) that require approval by the Office of Management and Budget (OMB). Accordingly, under 44 U.S.C. 3507(d), VA has submitted a copy of this rulemaking action to OMB for review and approval.
OMB assigns control numbers to collections of information it approves. VA may not conduct or sponsor, and a person is not required to respond to, a collection of information unless it displays a currently valid OMB control number. If OMB does not approve the collection of information as requested, VA will immediately remove the provisions containing that collection of information or take such other action as is directed by OMB.
Comments on the revised collection of information contained in this rulemaking should be submitted through
OMB is required to make a decision concerning the collection of information contained in this rulemaking between 30 and 60 days after publication of this rulemaking in the
The Department considers comments by the public on a new collection of information in—
• Evaluating whether the new collections of information are necessary for the proper performance of the functions of the Department, including whether the information will have practical utility;
• Evaluating the accuracy of the Department's estimate of the burden of the new collection of information, including the validity of the methodology and assumptions used;
• Enhancing the quality, usefulness, and clarity of the information to be collected; and
• Minimizing the burden of the collection of information on those who are to respond, including through the use of appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology, for example, permitting electronic submission of responses.
The collection of information associated with this rulemaking contained in 38 CFR 36.4307 is described immediately following this paragraph, under its respective title.
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• VA also estimates a one-time system alignment cost associated with this information collection of $1,361,943. To derive this estimate, VA generated a high/low estimate of the one-time technology costs associated with this information collection. The low estimate assumes that 80 percent of affected lending entities (that is, 962 of the 1,202 active VA lenders that make IRRRLs) would not be required to complete any technology alignments as the software companies who supply their loan origination software (LOS) systems would update their products in time to enable these lenders to comply with the regulatory requirements. The costs therefore represent the costs to the remaining 20 percent of lenders (that is, 240 lenders) that would need to complete a technology alignment to enable them to generate the comparison disclosure in their LOS consistent with this information collection's standardized form. The high estimate assumes that no LOS company product updates would be in place on time and all 1,202 lenders would be required to assume the costs of completing a technology alignment to enable generating their disclosures.
VA calculated the one-time technology costs utilizing the amount of time estimated to develop a custom comparison disclosure form (either through existing LOS software or via a third-party contract). VA assumed 40 hours of planning, development, testing, and deployment to add the standardized disclosure to a lender's existing LOS. The wage burden was calculated as a composite wage, with weighting based on information provided by various industry professionals. Mean hourly wages from the 2020 BLS Occupational Employment and Wages data were used to estimate a composite wage as 5% Compliance Officer (occupation code 13-1041) at $36.35/hour, 5% Lawyer (occupation code 23-1011) at $71.59/hour, and 90% Computer Occupations (occupation code 15-1200) at $46.46/hour, for a composite wage of $47.21.
The Assistance Listing number and title for the program affected by this document is 64.114, Veterans Housing—Guaranteed and Insured Loans.
Condominiums, Housing, Individuals with disabilities, Loan programs—housing and community development, Loan programs—veterans, Manufactured homes, Mortgage insurance, Reporting and recordkeeping requirements, Veterans.
Denis McDonough, Secretary of Veterans Affairs, approved this document on September 14, 2022, and authorized the undersigned to sign and submit the document to the Office of the Federal Register for publication electronically as an official document of the Department of Veterans Affairs.
For the reasons stated in the preamble, the Department of Veterans Affairs proposes to amend 38 CFR part 36 as set forth below:
38 U.S.C. 501 and 3720.
The revisions and additions read as follows:
(a) * * *
(4)
(5)
(6)
(7)
(8)
(ii) The recoupment period is calculated by dividing the dollar amount equating to the sum of all fees, closing costs, and expenses, whether included in the loan or paid at or outside of closing, minus lender credits (the numerator), by the dollar amount by which the veteran's monthly payment for principal and interest is reduced as a result of the refinance (the denominator).
(iii)
(A) The loan fee as prescribed by 38 U.S.C. 3729;
(B) Prepaid interest and amounts held in escrow (for example, amounts for hazard insurance); and
(C) Taxes and assessments on the property, even when paid outside of their normal schedule, that are not incurred solely due to the refinance transaction (for example, property taxes and special assessments).
(iv)
(v) If the dollar amount of the veteran's monthly payment for principal and interest under the refinancing loan is equal to or greater than the dollar amount of the veteran's monthly payment for principal and interest under the loan being refinanced, meaning there is no reduction in the monthly payment for principal and interest as a result of the refinancing loan, the lender must not charge any fees, closing costs, or expenses, except for those enumerated by paragraphs (a)(8)(iii)(A), (B), and (C) of this section.
(9)
(A) On or before the note date of the refinancing loan, the veteran must have made at least six consecutive monthly payments on the loan being refinanced. For the purposes of this paragraph (a)(9), “monthly payment” means the full monthly dollar amount owed under the note plus any additional monthly amounts agreed to between the veteran and the holder of the loan being refinanced, such as payments for taxes, hazard insurance, fees and charges related to late payments, and amounts owed as part of a repayment plan. A monthly payment will count toward the requisite six consecutive monthly payments only if made in or before the same calendar month for which it is due. A prepaid monthly payment will count toward the requisite six consecutive monthly payments, provided that the holder of the loan being refinanced applies such payment as satisfying the veteran's obligation of payment for a specific month, advances the due date of the veteran's next monthly payment, and does not apply the payment solely toward principal. When multiple partial payments sum to the amount owed for one monthly payment, they will count as a single monthly payment toward the requisite six consecutive monthly payments, but only if all partial payments are made in or before the same calendar month for which full payment is due.
(B) The note date of the refinancing loan must be a date that is not less than 210 days after the first payment due date of the loan being refinanced, regardless of whether the loan being refinanced became delinquent. The first payment due date of the loan being refinanced is not included in the 210-day count. The note date of the refinancing loan is included in the 210-day count.
(ii)
(iii)
(10)
(ii) In a case in which the loan being refinanced has a fixed interest rate and the refinancing loan will have an adjustable rate, the interest rate on the refinancing loan must not be less than 200 basis points less than the interest rate on the loan being refinanced. In addition, discount points may be included in the loan amount only if—
(A) The lower interest rate is not produced solely from discount points;
(B) The lower interest rate is produced solely from discount points, discount points equal to or less than one discount point are added to the loan amount, and the resulting loan balance (inclusive of all fees, closing costs, and
(C) The lower interest rate is produced solely from discount points, more than one discount point is added to the loan amount, and the resulting loan balance (inclusive of all fees, closing costs, and expenses that have been financed) maintains a loan to value ratio of 90 percent or less.
(iii) Pursuant to paragraph (a)(4)(i) of this section, no more than two discount points may be added to the loan amount.
(iv) In cases where the lower interest rate is not produced solely from discount points, as described by paragraph (a)(10)(ii)(A) of this section, lenders must provide to the Secretary evidence that the lower interest rate is not produced solely from discount points.
(v) Lenders must use a property valuation from an appraisal report, completed no earlier than 180 days before the note date, as the dollar amount for the value in the loan to value ratio described by paragraph (a)(10)(ii) of this section. The appraisal report must be completed by a licensed appraiser and the appraiser's license must be active at the time the appraisal report is completed. A veteran may only be charged for one such appraisal report. A veteran may only be charged for such appraisal report as part of the flat charge not exceeding 1 percent of the amount of the loan, as described by § 36.4313(d)(2). While a lender may use a VA-designated fee appraiser to complete the appraisal report, lenders should not request an appraisal through VA systems unless directed by the Secretary.
(11)
(i) The refinancing loan must meet the requirements prescribed by paragraphs (a)(8), (9), and (10) of this section.
(ii) The lender must provide the veteran with an initial loan comparison disclosure and a final loan comparison disclosure of the following:
(A) The loan payoff amount of the refinancing loan, with a comparison to the loan payoff amount of the loan being refinanced;
(B) The type of the refinancing loan, whether a fixed-rate loan, traditional adjustable-rate loan, or hybrid adjustable-rate loan, with a comparison to the type of the loan being refinanced;
(C) The interest rate of the refinancing loan, with a comparison to the current interest rate of the loan being refinanced;
(D) The term of the refinancing loan, with a comparison to the term remaining on the loan being refinanced; and
(E) The dollar amount of the veteran's monthly payment for principal and interest under the refinancing loan, with a comparison to the current dollar amount of the veteran's monthly payment for principal and interest under the loan being refinanced.
(iii) The lender must provide the veteran with an initial loan comparison disclosure (in a format specified by the Secretary) on the date the lender provides the Loan Estimate, required under 12 CFR 1026.19(e), to the veteran. If the lender is required to provide to the veteran a revised Loan Estimate under 12 CFR 1026.19(e) that includes any of the revisions described by paragraph (a)(11)(iv) of this section, the lender must provide to the veteran, on the same date the revised Loan Estimate must be provided, an updated loan comparison disclosure.
(iv) The revisions described by this paragraph (a)(11)(iv) are:
(A) A revision to any loan attribute that must be compared pursuant to paragraph (a)(11)(ii) of this section;
(B) A revision that affects the recoupment under paragraph (a)(8) of this section; and
(C) Any other revision that is a numeric, non-clerical change.
(v) The lender must provide the veteran with a final loan comparison disclosure (in a format specified by the Secretary) on the date the lender provides to the veteran the Closing Disclosure required under 12 CFR 1026.19(f). The veteran must certify, following receipt of the final loan comparison disclosure, that the veteran received the initial and final loan comparison disclosures required by this paragraph.
(vi) Regardless of whether the lender must provide the veteran with a Loan Estimate under 12 CFR 1026.19(e) or a Closing Disclosure under 12 CFR 1026.19(f), the lender must provide the veteran with the initial and final loan comparison disclosures. Where the lender is not required to provide the veteran with a Loan Estimate or a Closing Disclosure because the refinancing loan is an exempt transaction under 12 CFR 1026.3, the lender must provide the veteran with the initial and final loan comparison disclosures on the dates the lender would have been required to provide the veteran with the Loan Estimate under 12 CFR 1026.19(e) and the Closing Disclosure under 12 CFR 1026.19(f), respectively, as if the refinancing loan was not an exempt transaction.
The revisions read as follows:
(d) * * *
(1) * * *
(i) Fees of Department of Veterans Affairs appraiser and of compliance inspectors designated by the Department of Veterans Affairs except the following: (A) Appraisal fees incurred for the predetermination of reasonable value requested by others than veteran or lender; and
(B) Appraisal fees incurred for the purpose specified by § 36.4307(a)(10)(v) of this subpart.
Environmental Protection Agency (EPA).
Proposed rule.
The Environmental Protection Agency (EPA) is proposing to approve a revision to the New York State Implementation Plan (SIP) for ozone concerning the control of volatile organic compounds. The proposed SIP revision consists of amendments to regulations in New York's Codes, Rules and Regulations (NYCRR) applicable to gasoline dispensing sites and transport vehicles. The intended effect of today's
Written comments must be received on or before December 2, 2022.
Submit your comments, identified by Docket ID Number EPA-R02-OAR-2022-0169 at
Ysabel Banon, Environmental Protection Agency, Air Programs Branch, Region 2, 290 Broadway, New York, New York 10007-1866, at (212) 637-3382, or by email at
On March 3, 2021, the New York State Department of Environmental Conservation (NYSDEC) submitted a revision to its SIP. The submitted SIP revision included changes resulting from New York's repeal and replacement of Title 6 of New York Codes, Rules and Regulations (NYCRR), part 230, “Gasoline Dispensing Sites and Transport Vehicles.” These revisions to 6 NYCRR part 230 eliminate Stage II vapor recovery systems requirements and require the decommissioning of existing Stage II vapor recovery systems; strengthen Stage I vapor recovery requirements; and require that transport vehicles meet current federal United States Department of Transportation (DOT) requirements. On September 17, 2021, NYSDEC submitted a supplemental analysis, “New York State Stage II Removal Analysis 2020,” to demonstrate its justification of Stage II removal; this analysis is included in the docket for this action. Attendant revisions to 6 NYCRR section 200, “General Provisions,” section 200.9, Table 1, “Referenced material”, related to 6 NYCRR part 230 have been addressed under a separate rulemaking at 87 FR 52337, effective September 26, 2022.
New York is classified as nonattainment for the 2008 and 2015 ozone national ambient air quality standards (NAAQS) for the New York portion of the New York-Northern New Jersey-Long Island, NY-NJ-CT area (also known as the New York Metropolitan Area, or NYMA).
Stage I vapor recovery systems are systems that capture hydrocarbon vapors, such as VOCs, displaced from storage tanks at gasoline dispensing facilities (GDFs) during gasoline tank truck deliveries. When gasoline is delivered into an aboveground or underground storage tank, vapors that were taking up space in the storage tank are displaced by the gasoline entering the storage tank. The Stage I vapor recovery systems route these displaced vapors into the transport vehicle's (delivery truck's) tank. Some vapors are vented to the atmosphere when the storage tank exceeds a specified pressure threshold, however, the Stage I vapor recovery systems greatly reduce the displaced vapors being released into the atmosphere. Stage I vapor recovery systems have been in place since the 1970s, and the EPA guidance regarding use of Stage 1 systems to control VOC emissions from this source category (gasoline service stations) has been in place since 1975.
In more recent years, the California Air Resources Board (CARB) has required Stage I vapor recovery systems capable of achieving vapor control efficiencies higher than those achieved by traditional Stage I systems. These newer systems are commonly referred to as Enhanced Vapor Recovery (EVR) systems. One of the essential components of these CARB Stage I EVR systems are improved pressure/vacuum vent valves (CARB EVR Pressure/Vacuum (P/V) vent valves). These valves are manufactured with better quality materials and construction than non-CARB EVR P/V vent valves and are thus expected to decrease emissions by reducing P/V vent valve failures that make Stage 1 vapor recovery systems less effective.
Stage II vapor recovery systems and onboard refueling vapor recovery (ORVR) systems are two types of emission control systems that capture fuel vapors from vehicle gas tanks during refueling. Stage II vapor recovery systems are installed at gasoline
Stage II vapor recovery systems and vehicle ORVR systems were initially both required by the 1990 Amendments to the CAA. Section 182(b)(3) of the CAA requires moderate and above ozone nonattainment areas to implement Stage II vapor recovery programs. CAA section 184(b)(2) also requires states in the OTR to implement Stage II or comparable measures. CAA section 202(a)(6) required EPA to promulgate regulations for ORVR for light-duty vehicles (passenger cars). EPA adopted these ORVR requirements on April 6,1994, at which point, in accordance with CAA section 202(a)(6), moderate ozone nonattainment areas were no longer subject to the CAA section 182(b)(3) Stage II vapor recovery program requirements. ORVR equipment has been phased in for new passenger vehicles beginning with model year 1998 and starting with model year 2001 for light-duty trucks and most heavy-duty gasoline powered vehicles.
Historically, Stage II vapor recovery systems have provided VOC reductions in ozone nonattainment areas and certain attainment areas of the OTR. However, Congress recognized that ORVR systems and Stage II vapor recovery systems would eventually become largely redundant technologies, and CAA section 206(a)(6) provided authority to EPA to allow states to remove Stage II vapor recovery programs from their SIPs after EPA finds that ORVR is in “widespread use.” Effective May 16, 2012, EPA determined in a rulemaking that ORVR systems are in widespread use nationwide for control of gasoline emissions during refueling of vehicles at GDFs.
The EPA's May 16, 2012, rulemaking also took two other relevant actions. First, the EPA also exercised its authority under CAA section 202(a)(6) to waive certain federal statutory requirements for Stage II vapor recovery systems at GDFs. As a result, new ozone nonattainment areas classified serious or above do not need to adopt Stage II vapor recovery programs. Second, the EPA stated that any state currently implementing Stage II vapor recovery programs may submit SIP revisions that would allow for the phase-out of Stage II vapor recovery systems.
The version of 6 NYCRR part 230 that is currently incorporated into the New York SIP was last revised in 1998.
On March 3, 2021, NYSDEC submitted to the EPA a SIP revision to incorporate into the New York SIP changes to the New York regulations resulting from its repeal and replacement of 6 NYCRR part 230, “Gasoline Dispensing Sites and Transport Vehicles.” On September 17, 2021, NYSDEC submitted supplemental material including an analysis justifying its Stage II removal based on data for the year 2020.
In its rulemaking to revise part 230, NYSDEC explains that the changes being addressed in today's proposed action will reduce VOC emissions from GDFs and transport vehicles across the State. A gasoline dispensing site is a federally regulated GDF if it has gasoline storage tank(s) greater than 250 gallons.
NYSDEC's SIP submittal includes New York regulations that adopt EPA's control measures for federal “enhanced” Stage I vapor recovery, submerged fill, dual-point vapor control systems, new performance test requirements and best management practices outlined in 40 CFR part 63, subpart CCCCCC (Subpart 6C). The updated part 230's incorporation of federal “enhanced” Stage I controls will provide better vapor capture efficiency during the loading of gasoline storage tanks than the existing SIP regulation currently requires. The SIP revision would also extend these same federal requirements to medium-sized GDFs with annual throughputs between 800,000 and 1,200,000 gallons to achieve further reductions in emissions from the New York portion of the NYMA.
New York's revised part 230 includes submerged filling requirements for all gasoline storage tanks at GDFs that have gasoline storage tanks with capacities greater than 60 gallons, to be consistent with the State Fire Code. New York explains that this will minimize the generation of gasoline vapors caused by splash loading. Submerged filling reduces vapor emissions by dispensing gasoline through a fill pipe that extends to within 6 inches of the bottom of the tank.
The updated part 230 submitted for SIP approval incorporates the federal requirements of Subpart 6C to equip new or reconstructed gasoline storage tanks with dual-point vapor control systems. Equipping storage tanks with both an entry port for a gasoline fill pipe and a separate exit port for a vapor connection is necessary to maintain a proper seal when the vapor recovery line is disconnected. As with the federal Stage I vapor recovery requirements, NYSDEC's submitted SIP revision would extend this requirement to medium-sized GDFs in the New York portion of the NYMA to achieve greater reductions in VOC emissions. The SIP revision would also require performance testing for vapor recovery systems in accordance with the federal performance test requirements once every three years, which NYSDEC explains will ensure more consistent vapor capture at GDFs and would extend the federal testing requirements to medium-sized GDFs in the New York portion of the NYMA. Other federal requirements included in the revised part 230 submitted as part of this SIP revision include best management practices to minimize the amount of VOC released from spills and uncovered gasoline storage containers. These measures will apply to all GDFs with annual throughputs of 120,000 gallons or greater.
NYSDEC's SIP revision does include some exemptions from Stage I requirements. Gasoline storage tanks
NYSDEC's submitted SIP revision would require test companies to certify that Stage I vapor recovery system tests will be performed in accordance with federal regulation testing procedures and protocols. The SIP revision would also incorporate a revised version of 6 NYCRR § 230.7 that removes the information regarding registration schedules from the prior version because the schedules for compliance have already been completed. The SIP revision would expand on the federal requirements by requiring medium-sized GDFs located in the New York portion of the NYMA with annual throughput between 800,000 and 1,200,000 gallons to come into compliance with the applicable requirements that would otherwise apply to large GDFs within six months of the effective date of February 12, 2021, to achieve greater VOC emission reductions in the ozone nonattainment area.
The proposed SIP revision would require leak testing and test markings that coincide with the Federal DOT testing and marking requirements at 49 CFR 180.415 & 180.407(h), making these testing and marking requirements consistent at the state and federal level.
The proposed SIP revision would also require decommissioning and removal of all Stage II vapor recovery systems, due to the equipment's incompatibility with ORVR systems. GDFs required to remove Stage II vapor recovery systems must do so by 12 months after the effective date of the State rule. Within 30 days of the decommissioning of the Stage II vapor recovery system, the GDF must provide documentation to the NYSDEC of the procedures it used to demonstrate that the Stage II system has been decommissioned in accordance with part 230 and has passed the CARB Vapor Recovery Test Procedure TP-201.3—Determination of 2-inch WC Static Pressure Performance of Vapor Recovery Systems of Dispensing Facilities.
NYSDEC's March 3, 2021, SIP revision and the updated analysis submitted on September 17, 2021, include a narrative demonstration supporting the discontinuation of the Stage II vapor recovery program. This demonstration, discussed in greater detail below, consists of an analysis showing that the Stage II vapor recovery controls now provide only
Additionally, NYSDEC is also requesting withdrawal of its prior January 31, 2011, submittal to the EPA requesting inclusion in the SIP of a collection of RACT variances given to GDFs for Stage II requirements under part 230, since these variances would no longer be needed once Stage II vapor recovery systems are not required. Given this withdrawal, the January 31, 2011, SIP submittal is no longer before the EPA.
The EPA reviewed NYSDEC's March 3, 2021, proposed SIP revision to update the 6 NYCRR part 230, “Gasoline Dispensing Sites and Transport Vehicles,” portion of the New York SIP to reflect NYSDEC's repeal and replacement of 6 NYCRR part 230 that was effective as of February 12, 2021, along with the analysis New York submitted on September 17, 2021, to demonstrate justification of Stage II removal for the year 2020, and the accompanying SIP narrative. EPA concludes that NYSDEC's proposed SIP revision is consistent with EPA's widespread use rule (77 FR 28772, May 16, 2012) and EPA's “Guidance on Removing Stage II Gasoline Vapor Control Programs from State Implementation Plans and Assessing Comparable Measures” (EPA-457/B-12-001; August 7, 2012) (referred to below as the “EPA Guidance Document”).
In reviewing the proposed SIP revision, the EPA must ensure that: 1) In accordance with CAA section 110(
CAA section 110(
Because New York is located in the northeast OTR, under CAA section 184(b)(2)'s “comparable measures” requirement, the State must show that its SIP revisions include control measures capable of achieving emission reductions comparable to those achievable through Stage II Systems under CAA section 182(b)(3). As stated in the EPA Guidance Document, “the comparable measures requirement is satisfied if phasing out a Stage II control program in a particular area is estimated to have no, or a
Similarly, CAA section 193, which applies to nonattainment areas for any air pollutant in states that adopted Stage II control programs into their SIP prior to November 15, 1990, prohibits modification of any control requirement unless the modification insures equivalent or greater emission reductions for that air pollutant. The State used the EPA Guidance Document's “Delta Equation” to show the removal of Stage II Systems will have no impact on area-wide emission reductions based on the difference between Stage II and ORVR efficiencies. The State demonstrated that for the year 2020, the ORVR program provides 41.9% greater emission reductions than the Stage II control program alone. In addition, NYSDEC's SIP revision submittal includes calculations illustrating that the overall emissions effect of removing the Stage II vapor recovery program would be zero tons in 2020. Thus, compliance with CAA section 193 is demonstrated because the SIP modification insures equivalent or greater emission reductions.
With respect to Stage I vapor recovery requirements, NYSDEC's proposed SIP revision adopts the control measures for federal “enhanced” Stage I vapor recovery, submerged fill, dual-point vapor control systems, new performance test requirements and best management practices outlined in Subpart 6C. The updated part 230 included in the proposed SIP revision incorporates federal “enhanced” Stage I controls, which will provide better vapor capture efficiency during the loading of gasoline storage tanks than the existing regulation currently requires. Thus, the proposed SIP revisions meet the requirements of CAA sections 110(
New York's January 31, 2011, submittal to EPA of RACT variances for SIP approval that listed gasoline dispensing facilities receiving variances from Stage II control requirements and provided associated economic feasibility analysis is being withdrawn because the portion of 6 NYCRR part 230 that regulated Stage II vapor recovery systems has been repealed. As stated above, given this withdrawal, the January 31, 2011, SIP submittal is no longer before EPA and will not be incorporated into the New York SIP.
The EPA proposes to approve NYSDEC's March 3, 2021, proposed revision to the New York SIP that would replace the version of Title 6 of the New York Codes, Rules and Regulations, Part 230, “Gasoline Dispensing Sites and Transport Vehicles,” currently included in the New York SIP with the version having a State effective date of February 12, 2021. The EPA is proposing to approve this SIP revision because it meets all applicable requirements of the Clean Air Act and EPA guidance, and it will not interfere with attainment or maintenance of the ozone NAAQS. Attendant revisions to 6 NYCRR part 200, “General Provisions,” section 200.9, Table 1, “Referenced material,” related to 6 NYCRR part 230 have been addressed under a separate rulemaking at 87 FR 52337, effective September 26, 2022.
The EPA is soliciting public comment on the issues discussed in this proposed rulemaking action. These comments will be considered before taking final action.
In this document, the EPA is proposing to include regulatory text that includes incorporation by reference. In accordance with requirements of 1 CFR 51.5, the EPA is proposing to incorporate by reference revisions to 6 NYCRR part 230, “Gasoline Dispensing Sites and Transport Vehicles,” as described in section III. of this preamble. The EPA has made, and will continue to make, these materials generally available through
Under the CAA, the Administrator is required to approve a SIP submission that complies with the provisions of the CAA and applicable federal regulations. 42 U.S.C. 7410(k); 40 CFR 52.02(a). Thus, in reviewing SIP submissions, the EPA's role is to approve state choices, provided that they meet the criteria of the CAA. Accordingly, this action merely approves state law as meeting federal requirements and does not impose additional requirements beyond those imposed by state law. For that reason, this proposed action:
• Is not a “significant regulatory action” subject to review by the Office of Management and Budget under Executive Orders 12866 (58 FR 51735, October 4, 1993) and 13563 (76 FR 3821, January 21, 2011);
• Does not impose an information collection burden under the provisions of the Paperwork Reduction Act (44 U.S.C. 3501
• Is certified as not having a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601
• Does not contain any unfunded mandate or significantly or uniquely affect small governments, as described in the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4);
• Does not have federalism implications as specified in Executive Order 13132 (64 FR 43255, August 10, 1999);
• Is not an economically significant regulatory action based on health or safety risks subject to Executive Order 13045 (62 FR 19885, April 23, 1997);
• Is not a significant regulatory action subject to Executive Order 13211 (66 FR 28355, May 22, 2001);
• Is not subject to requirements of section 12(d) of the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) because this action does not involve technical standards; and
• Does not provide EPA with the discretionary authority to address, as appropriate, disproportionate human health or environmental effects, using practicable and legally permissible methods, under Executive Order 12898 (59 FR 7629, February 16, 1994).
In addition, this proposed rule revising the New York SIP to incorporate changes to 6 NYCRR part 230 and Table 1 in 6 NYCRR 200.9 is not approved to apply on any Indian reservation land or in any other area where EPA or an Indian tribe has demonstrated that a tribe has jurisdiction. In those areas of Indian country, the rule does not have tribal implications and will not impose substantial direct costs on tribal governments or preempt tribal law as specified by Executive Order 13175 (65 FR 67249, November 9, 2000).
Environmental protection, Air pollution control, Incorporation by reference, Volatile organic compounds, Intergovernmental relations, Ozone, Reporting and recordkeeping requirements.
42 U.S.C. 7401
Environmental Protection Agency (EPA).
Proposed rule.
The Environmental Protection Agency (EPA) is proposing to determine that the Plumas County nonattainment area failed to attain the 2012 annual fine particulate matter (“PM
Any comments must arrive by December 1, 2022.
Submit your comments, identified by Docket ID No. EPA-R09-OAR-2022-0815 at
Michael Dorantes, Air Planning Office (AIR-2), EPA Region IX, (415) 972-3934,
Throughout this document, “we,” “us,” and “our” refer to the EPA.
Under section 109 of the Clean Air Act, the EPA has established NAAQS for certain pervasive air pollutants (referred to as “criteria pollutants”) and conducts periodic reviews of the NAAQS to determine whether they should be revised or whether new NAAQS should be established. The EPA established these standards after considering substantial evidence from numerous health studies demonstrating that serious adverse health effects are associated with exposures to these criteria pollutants.
Particulate matter includes particles with diameters that are generally 2.5 microns or smaller (PM
Epidemiological studies have shown statistically significant correlations between elevated PM
On July 18, 1997, the EPA first established annual and 24-hour NAAQS for PM
The CAA requires states to develop a SIP that provides generally for the attainment, maintenance, and enforcement of the NAAQS. In addition, the CAA requires states to make a specific type of SIP submittal, a nonattainment plan submittal, that imposes additional controls for purposes of attaining the PM
The general CAA part D nonattainment area planning requirements are found in subpart 1 and the nonattainment area planning requirements specific to particulate matter are found in subpart 4. The subpart 1 statutory requirements for attainment plans include the following: the section 172(c)(1) requirements for reasonably available control measures (RACM)/reasonably available control technology (RACT) and attainment demonstrations; the section 172(c)(2) requirement to demonstrate reasonable further progress (RFP); the section 172(c)(3) requirement for emissions inventories; the section 172(c)(5) requirements for a nonattainment new source review (NNSR) permitting program; and the section 172(c)(9) requirement for contingency measures.
The more specific subpart 4 statutory requirements for Moderate PM
Under subpart 4, states with Moderate PM
To implement the PM
Following promulgation of new or revised NAAQS, the EPA is required under CAA section 107(d) to designate regions throughout the nation as attaining or not attaining these NAAQS. Those regions found not to be attaining the NAAQS are also given a classification that describes the degree of nonattainment. Under subpart 4 of part D of title I of the CAA, the EPA designates areas found to be violating the PM
Effective January 15, 2015, the EPA designated a portion of Plumas County as a Moderate nonattainment area (“Portola nonattainment area”) for the 2012 PM
This Moderate nonattainment designation and classification required the state of California to submit an attainment plan for the Portola nonattainment area, in accordance with the requirements of CAA sections 172(c) and 189(a), (c), and (e), demonstrating attainment of the NAAQS as expeditiously as practical but no later than the end of the sixth calendar year following the designation, or December 31, 2021, which is the latest permissible attainment date under CAA section 188(c)(2).
Under state law, the local air district with the primary responsibility for developing a plan to attain the 2012 annual PM
On April 2, 2021, the EPA took final action to approve the PM
Sections 179(c)(1) and 188(b)(2) of the CAA require the EPA to determine whether a PM
The 2012 primary annual PM
CARB is the governmental agency with the primary authority and responsibility under the State's laws for collecting ambient air quality data for the Portola nonattainment area. The Portola monitoring site (AQS ID: 06-063-1010) is the only regulatory PM
In accordance with 40 CFR 58.15, CARB certifies annually that the previous year's ambient concentration and quality assurance data are completely submitted to AQS and that the ambient concentration data are accurate, taking into consideration the quality assurance findings.
The Design Value Report also includes a validity indicator that reflects whether the design value is valid (
Finally, the EPA conducts regular technical systems audits (TSAs) where we review and inspect state and local ambient air monitoring programs to assess compliance with applicable regulations concerning the collection, analysis, validation, and reporting of ambient air quality data. For the purposes of this proposal, we reviewed the findings from the EPA's 2018 TSA of CARB's ambient air monitoring program.
In summary, based on the relevant monitoring network plans, certifications, and 2018 TSA, we propose to find that the PM
Table 1 provides the 2021 PM
In accordance with section 188(b)(1) of the Act, the EPA is proposing to reclassify the Portola nonattainment area from Moderate to Serious for the 2012 annual PM
Under section 188(c)(2) of the Act, the attainment date for a Serious area “shall be as expeditiously as practicable but no later than the end of the tenth calendar year beginning after the area's designation as nonattainment . . .” The EPA designated Plumas County as nonattainment for the 2012 PM
Under section 188(e) of the Act, a state may apply to the EPA for a single extension of the Serious area attainment date of up to five additional years, which the EPA may grant if the state satisfies certain statutory conditions. Before the EPA may extend the attainment date for a Serious area under section 188(e), the state must: (1) Apply for an extension of the attainment date beyond the statutory attainment date; (2) demonstrate that attainment by the statutory attainment date is impracticable; (3) demonstrate that it has complied with all requirements and commitments pertaining to the area in the implementation plan; (4) demonstrate to the satisfaction of the Administrator that the plan for the area includes the most stringent measures that are included in the implementation plan of any state or are achieved in practice in any state, and can feasibly be implemented in the area; and (5) submit a demonstration of attainment by the most expeditious alternative date practicable.
Upon reclassification of the Portola nonattainment area to Serious for the 2012 PM
The Serious area SIP elements that California will be required to submit are as follows:
1. Provisions to assure that the best available control measures, including the best available control technology for stationary sources, for the control of direct PM
2. a demonstration (including air quality modeling) that the plan provides for attainment as expeditiously as practicable but not later than December 31, 2025, or where the state is seeking an extension of the attainment date under section 188(e), a demonstration that attainment by December 31, 2025 is impracticable and that the plan provides for attainment by the most expeditious alternative date practicable and not later than December 31, 2030 (CAA sections 189(b)(1)(A), 188(c)(2), and 188(e));
3. plan provisions that require RFP (CAA section 172(c)(2));
4. quantitative milestones that are to be achieved every three years until the area is redesignated to attainment and that demonstrate RFP toward attainment by the applicable date (CAA section 189(c));
5. provisions to assure that control requirements applicable to major stationary sources of PM
6. a comprehensive, accurate, current inventory of actual emissions from all sources of PM
7. contingency measures to be implemented if the area fails to meet RFP (including quantitative milestones and related reports) or to attain by the applicable attainment date (CAA section 172(c)(9)); and
8. a revision to the NNSR program to lower the applicable “major stationary source”
In accordance with section 188(b)(2) of the CAA, the EPA is proposing to determine that the Portola Moderate nonattainment area did not attain the 2012 annual PM
If we finalize our action as proposed, the Portola nonattainment area will be reclassified as a Serious PM
The EPA is soliciting public comments on the issues discussed in this document. We will accept comments from the public on this proposal until December 1, 2022 and will consider comments before taking final action.
Additional information about these statutes and Executive Orders can be
This action is not a significant regulatory action and therefore was not submitted to the Office of Management and Budget (OMB) for review.
This action does not impose an information collection burden under the provisions of the PRA because it does not contain any information collection activities.
I certify that this action will not have a significant economic impact on a substantial number of small entities under the RFA. This action will not impose any requirements on small entities. This proposed action, if finalized, would require the state to adopt and submit SIP revisions to satisfy CAA requirements and would not itself directly regulate any small entities.
This action does not contain any unfunded mandate of $100 million or more, as described in UMRA (2 U.S.C. 1531-1538) and does not significantly or uniquely affect small governments. This action itself imposes no enforceable duty on any state, local, or tribal governments, or the private sector. This action proposes to determine that the Portola nonattainment area failed to attain the NAAQS by the applicable attainment date. If finalized, this determination would trigger existing statutory timeframes for the state to submit a SIP revision. Such a determination in and of itself does not impose any federal intergovernmental mandate.
This action does not have federalism implications. It will not have substantial direct effects on the states, on the relationship between the national government and the states, or on the distribution of power and responsibilities among the various levels of government.
This action does not have tribal implications as specified in Executive Order 13175. As there are no federally recognized tribes within the Portola nonattainment area,
The EPA interprets Executive Order 13045 as applying only to those regulatory actions that concern environmental health or safety risks that the EPA has reason to believe may disproportionately affect children, per the definition of “covered regulatory action” in section 2-202 of the Executive Order. This proposed action is not subject to Executive Order 13045 because the effect of this proposed action, if finalized, would be to trigger additional planning requirements under the CAA. This proposed action does not establish an environmental standard intended to mitigate health or safety risks.
This proposed rule is not subject to Executive Order 13211, because it is not a significant regulatory action under Executive Order 12866.
This rulemaking does not involve technical standards.
Executive Order 12898 establishes federal executive policy on environmental justice. Its main provision directs federal agencies, to the greatest extent practicable and permitted by law, to make environmental justice part of their mission by identifying and addressing, as appropriate, disproportionately high and adverse human health or environmental effects of their programs, policies, and activities on minority populations and low-income populations in the United States. There is no information in the record indicating that this action would be inconsistent with the stated goals of Executive Order 12898 of achieving environmental justice for people of color, low-income populations, and indigenous peoples.
Environmental protection, Air pollution control, Incorporation by reference, Particulate matter, Reporting and recordkeeping requirements.
Environmental protection, Administrative practice and procedure, Air pollution control, Designations and classifications, Intergovernmental relations, Particulate matter, Reporting and recordkeeping requirements.
42 U.S.C. 7401
Centers for Medicare & Medicaid Services (CMS), Department of Health and Human Services (HHS).
Extension of timeline for publication of final rule.
The Social Security Act (the Act) requires us to publish a Medicare final rule no later than 3 years after the publication date of the proposed rule. This document announces an additional 3 month extension of the timeline for publication of a Medicare final rule in
As of October 28, 2022, the timeline for publication of a rule to finalize the November 1, 2018 proposed rule (83 FR 54982) is extended until February 1, 2023.
Joseph Strazzire, (410) 786-2775.
On November 1, 2018 (83 FR 54982), we published a proposed rule, “Medicare and Medicaid Programs; Policy and Technical Changes to the Medicare Advantage, Medicare Prescription Drug Benefit, Program of All-inclusive Care for the Elderly (PACE), Medicaid Fee-For-Service, and Medicaid Managed Care Programs for Years 2020 and 2021,” that would revise the Medicare Advantage (MA) Risk Adjustment Data Validation (RADV) regulations to improve program efficiency and payment accuracy. The proposed rule discussed the Secretary's authority to: (1) extrapolate in the recovery of RADV overpayments, starting with payment year 2011 contract-level audits; and (2) not apply a fee-for-service (FFS) adjuster to the RADV overpayment determinations.
Section 1871(a)(3)(A) of the Act requires the Secretary to establish and publish a regular timeline for the publication of final regulations based on the previous publication of a proposed regulation. In accordance with section 1871(a)(3)(B) of the Act, the timeline may vary among different regulations based on differences in the complexity of the regulation, the number and scope of comments received, and other relevant factors, but may not be longer than 3 years except under exceptional circumstances. In addition, in accordance with section 1871(a)(3)(B) of the Act, the Secretary may extend the initial targeted publication date of the final regulation if the Secretary, no later than the regulation's previously established proposed publication date, publishes a notice with the new target date for publication, and such notice includes a brief explanation of the justification for the variation.
On October 21, 2021 (86 FR 58245), we published a notice of a 1-year extension of the timeline for publication of a rule to finalize the November 1, 2018, proposed rule (83 FR 54982) until November 1, 2022. However, we are unable to meet this November 1, 2022, timeline for publication of the previously referenced RADV-audit related provisions because of ongoing exceptional circumstances. As described in the October 21, 2021 notice of extension of the timeline, we provided several extensions of the comment period and we received extensive public comments on the proposed rule and subsequent FFS Adjuster study and related data. We continue to have ongoing delays resulting from the agency's focus on the COVID-19 public health emergency, and we have determined that additional time continues to be needed to address the complex policy and operational issues that were raised.
This document extends the timeline for publication of the final rule for an additional 3 months, until February 1, 2023.
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Proposed rule; requests for comments.
NMFS issues a proposed rule to implement Amendment 52 to the Fishery Management Plan for the Commercial King and Tanner Crab Fisheries of the Bering Sea and Aleutian Islands (Crab FMP) and a regulatory amendment to revise regulations on Economic Data Reports (EDR) requirements for groundfish and crab fisheries off Alaska. If approved, this proposed rule would remove third party data verification audits and blind formatting requirements from the Bering Sea and Aleutian Islands (BSAI) crab fisheries EDR, the Bering Sea American Fisheries Act (AFA) pollock fishery, Chinook Salmon EDR, and the BSAI Amendment 80 fisheries EDR. This action would also eliminate the EDR requirements for the Gulf of Alaska (GOA) trawl fisheries. This proposed rule is intended to promote the goals and objectives of the Magnuson-Stevens Fishery Conservation and Management Act (Magnuson-Stevens Act), the Crab FMP, the Fishery Management Plans for Groundfish of the Gulf of Alaska Management Area (GOA FMP), the Groundfish of the BSAI Management Area (BSAI FMP), and other applicable laws.
Submit comments on or before December 1, 2022.
You may send comments, identified by Docket ID NOAA-NMFS-2022-0083 by any of the following methods:
•
•
Electronic copies of the Regulatory Impact Review (referred to as the “Analysis”) and the Categorical Exclusion prepared for this emergency rule may be obtained from
Written comments regarding the burden-hour estimates or other aspects
Jennifer Watson, 907-586-7228.
NMFS manages the groundfish fisheries in the exclusive economic zone (EEZ) off Alaska under the BSAI FMP and the GOA FMP. NMFS manages the king and Tanner crab fisheries in the United States EEZ of the BSAI under the Crab FMP. The North Pacific Fishery Management Council (Council) prepared, and NMFS approved, the BSAI FMP, the GOA FMP, and the Crab FMP under the authority of the Magnuson-Stevens Act, 16 U.S.C. 1801
A notice of availability for Amendment 52 to the Crab FMP was published in the
Four EDR data collection programs are in place for crab and groundfish fisheries off Alaska. These programs impose mandatory annual data reporting requirements for regulated entities participating in the BSAI Crab Rationalization (CR) fisheries, the AFA pollock fishery, the BSAI Amendment 80 fisheries, and the GOA trawl fisheries. The purpose of EDRs are to gather data and information to improve the analyses developed by the Council on the social and economic effects of the catch share or rationalization programs, to understand the economic performance of participants in these programs, and to help estimate impacts of future issues, problems, or proposed revisions to the programs covered by the EDRs.
The Crab EDR was implemented concurrently with the CR Program under Amendments 18 and 19 of the BSAI Crab FMP (70 FR 10174; March 2, 2005). The rule requiring the Crab EDR submission was codified in 50 CFR 680.6, which retroactively required participants to submit EDR forms for 1998, 2001, and 2004 calendar year operations by June 1, 2005, and to submit an annual Crab EDR form for calendar year 2005, and thereafter by May 1 of the following year. Amendment 42 (78 FR 36122; June 17, 2013) revised annual Crab EDR reporting requirements in order to eliminate redundant reporting requirements, standardize reporting across participants, and reduce costs associated with data collection. The amended rule extended the annual submission deadline to July 31.
The reporting requirements for the Crab EDR apply to owners and leaseholders of catcher vessels (CVs) and catcher/processors (CPs) with landings of BSAI CR crab, including Community Development Quota (CDQ) allocated crab, and owners and leaseholders of Registered Crab Receivers (RCRs) who purchase and/or process landed BSAI CR crab during a calendar year. For all groups, the annual submission requirement is imposed on CR crab program participants who harvest, purchase, or process CR crab.
The Crab EDR consists of reporting forms developed for three respective sectors: the Crab CV EDR, Crab processor EDR, and the Crab CP EDR. The CV and processor forms collect distinct sets of data elements, with the CP form combining of all data elements collected in the CV form and applicable elements from the processor form. A complete list of the data elements for each of the forms is in Section 3.2 of the Analysis (see
The Amendment 80 EDR was implemented on January 20, 2008 (72 FR 52668; September 14, 2007) as part of the Amendment 80 management program and codified in regulation at 50 CFR 679.94. Amendment 80 allocated several BSAI non-pollock trawl groundfish species among trawl fishery sectors, and facilitated the formation of harvesting cooperatives in the non-AFA trawl CP sector. The initial Amendment 80 EDR submissions were due June 1, 2009, reporting data for the 2008 calendar year. The Amendment 80 EDR reporting requirements applied to all Amendment 80 Quota Share (QS) permit holders. Permit holders who actively operated an Amendment 80 vessel were required to complete the entire EDR form, while QS permit holders who did not operate a vessel were required to complete portions of the form pertaining to QS permit sale or lease costs and revenues.
When the GOA Trawl EDR program was implemented for both CV and CP participants, it amended the Amendment 80 EDR at 50 CFR 679.94 to include the CPs participating in GOA trawl fisheries. It also changed the name of the form from the Amendment 80 EDR to the Annual Trawl CP EDR. Additional reporting elements specific to GOA Trawl CPs were added to the form. The rule also extended the requirement to complete all portions of the EDR form to owners and leaseholders of any vessel named on a License Limitation Program (LLP) groundfish license authorizing a CP using trawl gear to harvest and process LLP groundfish species in the GOA. The association between the GOA Trawl (CV and shoreside processor) EDR and Annual Trawl CP EDRs has resulted in confusion. For the sake of clarity, in this proposed rule, the EDR currently specified under 50 CFR 679.94 is referenced as the Amendment 80 EDR (rather than the Annual Trawl CP EDR), and the EDR under 50 CFR 679.110 (a)(1) and (2) is referenced as the GOA Trawl EDR; any relevant distinctions or overlaps are described as needed.
The Amendment 80 EDR form has been submitted annually by Amendment 80 QS holders since 2008. A complete list of the data elements for each of the forms is in Section 3.2 of the Analysis (see
The GOA Trawl EDR was implemented on January 1, 2015 (79 FR 71313; December 2, 2014) and codified in regulation at 50 CFR 679.110. The initial GOA Trawl EDR submissions were due June 1, 2016, for reporting 2015 calendar year data. The GOA Trawl EDR was implemented to collect relevant baseline information that could be used to assess the impacts of a future catch share program on affected harvesters, processors, and communities in the GOA. However, Council action on a catch share program that addressed issues with GOA bycatch management was suspended in December 2016, and no catch share program exists for GOA harvesters, processors, and communities.
The intended submitters for the GOA Trawl EDR includes owners and leaseholders of CVs and CPs active in the Central and Western GOA groundfish trawl fishery and operators of shoreside processing facilities that receive groundfish catch from the GOA. The EDR consists of two distinct EDR forms, the GOA Trawl CV EDR and GOA Shoreside Processor EDR. An additional EDR form overlaps with the
The GOA Trawl CV EDR form is required for all trawl CVs that harvested groundfish in the GOA during the previous year. The GOA Shoreside Processor EDR form is required for all shore-based processors that receive and process groundfish from GOA trawl fisheries. The Annual Trawl CP EDR form is required for all vessel owners and leaseholders that catch and process groundfish in the GOA trawl fisheries. A complete list of the data elements for each of the forms is in Section 3.2 of the Analysis (see
The Amendment 91 EDR and additional record keeping and reporting requirements associated with monitoring of Chinook salmon bycatch avoidance measures for the AFA pollock fishery were implemented concurrently on March 5, 2012 (77 FR 5389; February 3, 2012). The implementation of the Amendment 91 EDR occurred approximately 17 months after Amendment 91 (75 FR 53026) went into effect. The initial submission of EDR forms required under 50 CFR 679.65 were due on June 1, 2013 reporting data for the 2012 calendar year. The Amendment 91 EDR was implemented to provide additional data to assess the effectiveness of the Chinook salmon bycatch management measures in the Bering Sea (BS) pollock fishery.
The Amendment 91 EDR reporting requirement applies to owners and leaseholders of AFA CVs, CPs, and motherships active in the BS pollock fishery and to entities eligible to receive Chinook salmon Prohibited Species Catch (PSC) allocation, including AFA in-shore sector harvest cooperative representatives, sector-based Incentive Plan Agreement representatives, and CDQ group representatives. In addition, vessel captains who actively participate in the AFA pollock fishery are intended to complete one of the three Amendment 91 EDR forms, but this form is submitted by the owner or leaseholders of the vessel.
The Amendment 91 EDR program consists of three separate forms: the Compensated Transfer Report (CTR), the Vessel Fuel Survey, and the Vessel Master Survey. The CTR collects transaction data on all compensated transfers of Chinook PSC by participants in the AFA fishery. The CTR is to be completed by all entities participating as lessor or lessee in compensated transfers of Chinook PSC. However, no such transactions have ever been reported. The Vessel Fuel Survey form is required for all AFA vessels that harvested BSAI pollock during the previous year and collects information about the vessel's average fuel consumption, the total amount in gallons of fuel loaded onto the vessel, and total annual fuel cost. The Vessel Master Survey form is used to determine the fishing and bycatch conditions observed during the BSAI pollock fishery and factors that motivated Chinook salmon bycatch avoidance. A complete list of the data elements for each of the forms is in Section 3.2 of the Analysis (see
Public testimony from one stakeholder at the February 2018 Council meeting noted that the EDR programs had been in effect for some time and that industry was spending considerable time and money to complete the reports, in some cases reimbursing NMFS for the administrative costs of the EDR programs through catch share cost recovery programs. The testifier suggested that the Council review the EDR requirements to determine whether and how the data was being used, whether it was being collected efficiently, and whether the data collection programs were meeting the Council's needs.
In April 2018, the Council reviewed a discussion paper prepared by NMFS that provided information related to NMFS's request that the Council review all its regulations to identify any that were outdated, unnecessary, ineffective, or could be further streamlined. This discussion paper referenced the Council's February 2018 discussion regarding the EDR requirements being a possible area warranting future Council review. In addition, at the April 2018 meeting, the Council also heard public testimony raising the question of whether the EDR requirements for the GOA trawl CVs and shoreside processors had met the Council's purpose and need to collect baseline information to assess the impacts of a potential future catch share program in those fisheries.
Later in the April 2018 meeting, in response to this public comment and further discussion among Council members, the Council requested that NMFS prepare a discussion paper describing the EDR requirements for all programs, explaining how the data are used, and estimating the costs of complying with the EDR requirements. The Council's motion stated that the Council could then use the information in the discussion paper to determine if revisions to EDR requirements were needed and, if so, the priority and process for proposed revisions.
NMFS presented this discussion paper to the Council in April 2019. The EDR discussion paper included a set of shorter-term practical recommendations aimed at reducing costs and burdens, as well as improving data utility by streamlining data access. These recommendations included eliminating routine third-party data verification audits and limiting the audits to instances of gross noncompliance, reviewing duplication of reporting requirements in EDR programs, and improving data utility while maintaining confidential data protections by reconsidering the blind formatting and the rule-of-5 aggregation standard. Blind formatting and the rule-of-5 aggregation standard are explained in detail further down in this proposed rule. In addition to the shorter-term practical recommendations, the discussion paper also set forth longer term recommendations that included developing a systematic approach to identifying and prioritizing the Council's needs for economic and social science information. Therein, these recommendations specifically noted the need to identify relevant analytical and performance metrics, minimum requirements for accuracy and precision of information outputs, and a framework for balancing trade-offs between all relevant dimensions of information quality and system costs. A full description of the specific longer-term recommendations of the April 2019 NMFS discussion paper can be found in Section 1.3 the Analysis (see
Also at the April 2019 meeting, the Council recommended a comprehensive review of the current EDR programs. The comprehensive review was undertaken by the Council's Social Sciences Planning Team (SSPT). The SSPT provided a report to the Council about its progress on this issue at the February 2020 meeting. Following review of the SSPT report, the Council further instructed the SSPT to engage in a series of outreach meetings to seek input from EDR stakeholders in evaluating the EDR program overall, as well as each individual EDR program. Virtual outreach meetings were held in 2020, and the final SSPT outreach reports were presented to the Council in April 2021.
After receiving the SSPT reports, the Council took action in a motion on April 16, 2021. That motion did not change the purpose and need, but created a new alternative, with four non-mutually exclusive options to remove each EDR. The motion also
The Council took final action on February 8, 2022. The Council chose to eliminate the use of data verification audits, because automated procedures for validating EDR submission have reduced the need for audits. Eliminating data verification audits would remove a potential compliance burden for those required to submit EDRs. The Council also chose to revise the data aggregation and blind formatting requirements in the Crab EDR in order to improve the usability of collected data and to make the Crab EDR's confidentiality policy consistent with other Council and NMFS data reporting methods. The Council chose to remove the GOA Trawl EDR requirements altogether. The original purpose of this EDR was to collect baseline data to prepare for development of a GOA trawl catch share program and the Council has subsequently chosen not to continue with development of a catch share program for the GOA trawl fishery at this time. Accordingly, this EDR is no longer aligned with its intended purpose. Eliminating the GOA Trawl EDR would remove the reporting burden for industry and agency management costs. Finally, the Council reiterated its April 2021 request for several non-regulatory changes to the EDR reporting forms to decrease respondent burden. These changes were identified in stakeholder workshops and the March 2021 SSPT report, and include changes to the EDR forms to eliminate data fields that are not used in analyses and to pre-fill data fields that do not change frequently. To that end, NMFS economists are implementing these changes and will report progress to the Council in October 2022.
Data submitted in the current Crab EDRs provide valuable information for program evaluation and analysis of proposed conservation and management measures. However, the Crab EDR was implemented over ten years ago and revisions are needed to improve the usability, efficiency, and consistency of this data collection program and to minimize cost to industry and the Federal government. Several of the revisions to the Crab EDR included in this proposed rule, specifically on the use of third-party audits and blind formatting, could reduce industry and government costs while still maintaining the integrity and confidentiality of this data collection program.
In the original Crab EDR program, several requirements were implemented to provide a higher standard of confidentiality for proprietary business information reported in the Crab EDR. These requirements were stricter than those that apply to all other confidential fisheries information. In practice, these stricter confidentiality requirements have reduced the usability of the data for analysis and increased the cost of the Crab EDR program, without providing additional practical protections for sensitive information. Confidentiality requirements that apply to other routine data collections provide sufficient protections for the EDR data.
Different issues exist in the GOA Trawl EDR program, which was implemented in 2015 and designed to collect baseline information to assess the impacts of a future GOA trawl catch share program. Because no catch share program is in development by the Council and none is apt to be developed in the foreseeable future, the GOA Trawl EDR program is no longer needed.
EDR data verification is required under EDR regulations and requires NMFS or its designated agent, known as a data collection agent (DCA), to verify information with a person required to submit the applicable EDR or that person's designated representative. The regulations require the EDR submitter to respond to inquiries from the DCA within 20 days, require the submitter to provide supporting records to the DCA as requested, and authorize the DCA auditor to review the records for the purpose of substantiating values reported in the EDR. In developing the data verification and audit procedures, NMFS has relied on the Council's record of decision for the CR Program for guidance in implementing the Crab EDR, specifically, the CR Program Regulatory Impact Review/Initial Regulatory Flexibility Analysis (RIR/IRFA). This guidance states that the verification of data, auditing, and error-checking would be the primary responsibility of the DCA. Further, the guidance provides that the DCA will: (1) develop a system to identify outliers, incomplete data, or anomalies in the data submissions; and (2) retain accountants to review data submissions as part of the audit process and identify errors or flag possible fraudulent submissions.
NMFS began developing data verification protocols and procedures for the Crab EDR in 2005 and has continued to refine the process to identify and correct data reporting errors, while reducing the cost and burden of the audit process. Prior to incorporation of EDR data into the Alaska Fish Information Network (AKFIN) database in 2011, EDR data validation was largely reliant on the audit process. Automation now allows the DCA to identify most errors and obtain corrections from submitters shortly after EDRs are submitted
EDR data verification via automation currently employs a series of procedures, including (1) primary, automated data validation procedures, (2) secondary validation employing statistical procedures and visual inspection to identify data anomalies and statistical outliers, and (3) editing and imputation for data errors identified by data users that were not detected and corrected in primary and secondary validation.
Primary automated validation procedures are executed on each EDR record shortly after receiving a certified EDR submission, with follow-up contacts with submitters to obtain corrections as needed. Most of these errors are identified and corrected easily with a phone call and result in a re-certified EDR submission within two weeks of the submission.
To begin secondary validation via automation, AKFIN completes integration of current year EDR records with other datasets, calculation of pro-rata and statistical indices, and plotting for visual inspection. NMFS and the DCA review the results to identify visual outliers and anomalies. Flagged values are selected for correction through follow-up by the DCA or selection for a third-party verification audit.
By contrast, audit protocols require auditors to notify EDR submitters that have been selected for audit and to request supporting materials to enable auditors to substantiate reported values. Once auditors have received the requested records, the auditors confirm a correct value for the data element (either the original reported value or a corrected value). Auditors also evaluate the quality of supporting information provided by the submitter and characterize the quality and nature of reporting errors. Audit corrections are entered into the EDR database, and AKFIN's production version of the EDR database is finalized after all audit results are entered.
But two issues have emerged with the audit process from working with CPA firms. First, in all the EDR audit reviews conducted since 2006, there has not been a single finding of intentional
Removing the audit requirements would also avoid the DCA from needing to contract a third-party auditor to conduct the audit portion of the data verification. And doing so would not compromise data quality due to the automated EDR data verification procedures described above, which would remain in place and continue to be used under the proposed rule. Additionally, enforcement provisions exist for all recordkeeping and reporting requirements, including the EDR program. Enforcement actions would continue to be possible in cases of noncompliance with the EDR regulatory provisions.
The automated verification and audit processes accrue an annual combined cost for industry that is estimated to be approximately $26,400 for each Crab EDR; $1,480 for each Amendment 80 EDR; and $2,405 for each GOA Trawl EDR. While the removal of the audit processes would reduce these costs, some portion would remain as routine automated data verification procedures would continue as detailed above.
In addition to reducing the cost of industry compliance with audits, the NMFS contracting cost for CPA firms would be eliminated. The Crab EDR costs have ranged from approximately $22,000 to $65,000 annually and have generally been decreasing over the life of the Crab EDR Program. Audits were done in the Amendment 91 program in 2013 and 2014 with costs of between $15,000 and $18,000 annually for audits of the fuel and master surveys. Amendment 80 EDR and GOA Trawl EDR combined have had auditing costs of $30,000 to $35,000 annually. This action would eliminate the audit contracting costs incurred for the EDR program, as well as any associated cost recovery fees.
Blind formatting requires the collection of EDR forms to be performed by a third-party designated data collection auditor (DDCA) and the removal of unique identifiers (
The EDR data confidentiality protocols also impose limitations on the data's usability because the data is aggregated to such an extent that details needed to analyze the associated catch share program's social and economic impacts are not available. The DDCA and blind formatting are unique to the Crab EDR and the GOA Trawl EDR program, as they are not required for the Amendment 80 EDR program or Amendment 91 Chinook Salmon EDR program. The Council wished to apply a higher standard of confidential data protection to the cost data and other proprietary business information collected in EDRs. But these protective standards impede the Council and NMFS analysts' use of the data. Blind data is frequently either inconsistently applied across EDR programs or unusable because critical data elements, such as permit numbers, are not accessible. Analysts' use of blind EDR data also enhances the risk of inadvertently disclosing confidential data. This is because of the small number of entities that may be represented in the EDR records. If the EDR records are not accessible to analysts, it is hard for them to know if the data should be confidential. Analysts may avoid using EDR data even where it may have been the best information available, and choose alternative data sets with lower risk and complexity.
Removing the blind formatting requirements would make the data aggregations and confidentiality protections for the Crab EDR comparable to the requirements under other EDR programs. It would also increase the usability and access to the EDR data for Council and NMFS analysts. Without the concern of inadvertently disclosing confidential data, analysts may be more likely to use the EDR data.
In its original purpose and need statement for the GOA Trawl EDR in its February 2013 motion, the Council identified a need to establish a baseline information collection that could be used to assess the impacts of a catch share program, particularly on affected harvesters, processors, and communities in the GOA. However, Council action on a catch share program that addressed issues with GOA bycatch management was suspended in December 2016. Thus, the original need for the GOA Trawl EDR has been indefinitely suspended, calling into question the efficacy of continuing the program given that taxpayers and industry bear the cost of maintaining the program. Elimination of the GOA Trawl EDR would avoid the agency-borne programmatic costs since the GOA Trawl EDR is not part of a catch share fishery and, thus, administrative costs are not subject to cost recovery. Elimination of the GOA Trawl EDR program would also eliminate compliance costs for industry. Additional information about the administrative and the industry compliance costs associated with this EDR can be found in Section 4.5 of the Analysis (see
This proposed rule would remove or revise regulations at 50 CFR parts 679 and 680. This proposed rule would remove third-party data verification audits for the Crab EDR, the Amendment 91 EDR, and the Amendment 80 EDR and remove blind formatting requirements for the Crab EDR. This action would also eliminate the GOA Trawl EDR requirements.
This proposed rule would remove the data verification audit requirements at § 679.65(e), § 679.94(b), and § 680.6(f), respectively. Removal of the audit authorization would eliminate the need for the DCA to contract with a third-party auditor to conduct the audit portion of the data verification. EDR data verification currently employs a series of validation procedures, as described above. These data validation procedures would remain and continue
This proposed rule would also remove the definitions for “Designated data collection auditor” at § 679.2 and “Auditor” at § 680.2. Because the EDR audit requirements would be removed under this proposed rule, these definitions will no longer be required.
This proposed rule would remove the definitions for “Blind data” at § 679.2 and § 680.2. Both definitions describe the required formatting process to remove the personal identifiers to the data collected from the EDRs. The identifiers include Federal fisheries permit numbers and State of Alaska vessel registration numbers that are essential data elements to analysts when developing reports and documents based on EDR data. Removing the blind formatting requirements would make the data aggregations and confidentiality protections for the Crab EDR comparable to the requirements under the other EDR programs. It would also increase the usability and access to the EDR data for Council and NMFS analysts.
This proposed rule would remove and reserve Subpart J—Gulf of Alaska Trawl Economic Data. The original purpose of the GOA Trawl EDR was to establish a baseline information collection that could be used to assess the impacts of a catch share program. However, no catch share program has been developed to date or is currently contemplated. The original need for this data collection program has been indefinitely diminished since 2016 when the Council suspended work on a possible GOA catch share program, calling into question the efficacy of continuing the program. Eliminating the GOA Trawl EDR would avoid the agency-borne programmatic costs incurred by the Federal government due to the GOA Trawl EDR not being part of a catch share fishery and, thus, administrative costs not being subject to cost recovery. Elimination of the GOA Trawl EDR program would also eliminate compliance costs for industry.
This proposed rule would also revise section heading at § 679.94 and revise § 679.94(a)(1) to remove GOA Trawl CPs from the requirement to submit the Amendment 80 EDR form. When the GOA Trawl EDR program was implemented, it required owners and leaseholders of any vessel named on an LLP groundfish license authorizing a CP using trawl gear to harvest and process LLP groundfish species in the GOA to complete all portions of the Amendment 80 EDR form. This proposed rule would limit the Amendment 80 EDR requirement to Amendment 80 QS permit holders alone.
NMFS proposes to revise regulations at §§ 680.6(a)(2), (a)(3), (c), (d), (e)(1), and (e)(2) to update the instructions for submitting Crab EDR forms to be consistent with the submission instructions for the other more recent EDR programs.
Pursuant to sections 304(b) and 305(d) of the Magnuson-Stevens Act, the NMFS Assistant Administrator has determined that this proposed rule is consistent with the FMPs, other provisions of the Magnuson-Stevens Act, and other applicable law, subject to further consideration of comments received during the public comment period.
This proposed rule has been determined to be not significant for the purposes of Executive Order 12866.
The Chief Counsel for Regulation of the Department of Commerce certified to the Chief Counsel for Advocacy of the Small Business Administration that this proposed rule, if adopted, would not have a significant economic impact on a substantial number of small entities.
This proposed rule would remove third party data verification audits and blind formatting requirements for the BSAI crab fisheries EDR, AFA pollock fishery Chinook Salmon EDR, and the BSAI Amendment 80 fisheries EDR. This action would also eliminate altogether the EDR requirements for the GOA trawl fisheries. This proposed rule would improve the usability, efficiency, and consistency of the data collection programs and minimize cost to industry and the Federal government while still maintaining the integrity and confidentiality of the EDR data.
Many of the directly regulated entities potentially affected by this action are considered to be large entities based on cooperative affiliations. These include the AFA CPs, AFA CVs, Amendment 80 CPs, and the Crab CVs. However, there are three AFA motherships that are not likely to exceed the 750 person threshold individually or within the fishing cooperative that they belong to and are considered to be directly regulated small entities. There is also one Amendment 80-eligible CP that is subject to the Amendment 80 EDR that is a small entity with no known cooperative affiliations. Shoreside processors participating in the Crab EDR and GOA Trawl EDR are considered to be directly regulated small entities. The numbers of directly regulated small entities in the shoreside component of the GOA Trawl EDR varies considerably and has been as high as 17 in recent years. Nineteen shoreside crab processors are considered to be directly regulated small entities. The six CDQ organizations are directly regulated small entities within one or more of the EDRs. Finally, 26 of the 78 trawl CVs that submit the GOA trawl EDR are directly regulated small entities. Based on the scope of this action, impacts to small, directly regulated entities are expected to be beneficial because this action would reduce and remove the cost of the EDR requirement to the directly regulated entities.
This action does not place any new regulatory burden on fishery participants required to submit EDRs; it removes reporting burdens to improve the usability, efficiency, and consistency of the data collection programs and minimize cost to participants required to submit EDRs. This proposed action, therefore, is not expected to have a significant economic impact on a substantial number of the small entities directly regulated by this proposed action.
As a result, an initial regulatory flexibility analysis is not required, and none has been prepared.
A Regulatory Impact Review was prepared to assess all costs and benefits of available regulatory alternatives. A copy of this analysis is available from NMFS (see
This proposed rule contains collection of information requirements subject to review and approval by the Office of Management and Budget (OMB) under the Paperwork Reduction Act. NMFS has submitted these requirements to OMB for approval under OMB control numbers 0648-0518 (Alaska Region Bering Sea and Aleutian Islands Crab EDRs); 0648-0564 (Groundfish Trawl Catcher/Processor
NMFS proposes to revise and extend by three years OMB Control Number 0648-0518. This collection covers the economic data collection requirements for the CR Program and is necessary to monitor and evaluate the CR Program.
This collection would be revised to remove third-party data verification audits and blind formatting requirements for the BSAI crab fisheries EDR because this proposed rule removes these requirements. The three crab EDR forms would be revised to pre-fill data fields that do not change frequently to reduce the burden of the crab EDR forms. Pre-filling the data fields is estimated to reduce the respondent's data entry time by 15 minutes. However, since the burden hour estimates for the forms are rounded to the nearest hour, this modest reduction would not decrease the public reporting burden. Subject to public comment, no changes are made to the estimated reporting or cost burden for the EDRs because the estimates allow for differences in the time needed to complete and submit the forms.
Public reporting burden per individual response is estimated to average 20 hours each for the Annual Catcher Vessel Crab EDR and the Annual CP Crab EDR, 16 hours for the Annual Processor Crab EDR, and 1 hour for an EDR certification page.
The estimated number of respondents for this collection is 77; the estimated total annual burden hours are 1,449 hours; and the estimated total annual cost to the public for recordkeeping and reporting costs is $385.
NMFS proposes to revise and extend by three years OMB Control Number 0648-0564. This collection covers the economic data collection requirements for Amendment 80 and GOA trawl CPs. This collection is necessary to help evaluate the Amendment 80 Program, including program-eligible trawl CPs, and is used by NMFS and the Council to assess the impacts of major changes in the groundfish management regime, including programs for prohibited species catch species and target species.
This collection would be revised to remove third-party data verification audits for the Annual Trawl Catcher/Processor EDR and remove requirements for the GOA Trawl EDR Program because this proposed rule removes regulations for the audit authorization and eliminates the GOA Trawl EDR Program. Eliminating the program would simplify the Annual Trawl Catcher/Processor form. This form would be revised to remove data fields that are not being used in analyses and to pre-fill data fields that do not change frequently. These changes to the form are expected to reduce the time burden on respondents by approximately two hours.
Public reporting burden per individual response is estimated to average 20 hours for the Annual GOA Trawl Catcher/Processor EDR.
The estimated number of respondents for this collection is 22; the estimated total annual burden hours are 440 hours; and the estimated total annual cost to the public for recordkeeping and reporting costs is $110.
NMFS proposes that OMB Control Number 0648-0633 is revised to remove the verification audit for the Compensated Transfer Report because this rule removes the authorization for third party data verification audits. Subject to public comment, no changes are made to the estimated reporting or cost burden for the EDR forms as the estimates allow for differences in the time needed to complete and submit the forms.
Public reporting burden per individual response is estimated to average 40 hours for the Compensated Transfer Report, 4 hours for the Vessel Fuel Survey, and 4 hours for the Vessel Master Survey.
NMFS proposes to discontinue OMB Control Number 0648-0700, which covers the economic data collection requirements for the GOA Trawl EDR Program. The original purpose of the GOA Trawl EDR was to establish a baseline information collection that could be used to assess the impacts of a catch share program. However, no catch share program has been developed to date. The original need for this data collection program has been indefinitely suspended, calling into question the efficacy of continuing the program given that taxpayers and industry bear the cost of maintaining the program. Elimination of the GOA Trawl EDR would eliminate the agency borne programmatic costs incurred by the Federal government as the GOA Trawl EDR is not part of a catch share fishery and thus administrative costs are not subject to cost recovery. Elimination of the GOA Trawl EDR program would also eliminate compliance costs for industry.
Public comment is sought regarding whether this proposed collection-of-information is necessary for the proper performance of the functions of the agency, including whether the information shall have practical utility; the accuracy of the burden estimate; ways to enhance the quality, utility, and clarity of the information to be collected; and ways to minimize the burden of the collection-of-information, including through the use of automated collection techniques or other forms of information technology. Submit comments on these or any other aspects of the collection-of-information to NMFS Alaska Region at the
Notwithstanding any other provisions of law, no person is required to respond to, and no person shall be subject to 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. All currently approved NOAA collections of information may be viewed at
Alaska, Fisheries, Reporting and recordkeeping requirements.
Alaska, Reporting and recordkeeping requirements.
For the reasons set out in the preamble, NMFS proposes to amend 50 CFR parts 679 and 680 as follows:
16 U.S.C. 773
(a) * * *
(1)
(b) [Reserved]
16 U.S.C. 1862; Pub. L. 109-241; Pub. L. 109-479.
(a) * * *
(2) A completed EDR or EDR certification pages must be submitted to NMFS, in the manner specified on the NMFS-issued EDR form, for each calendar year on or before 1700 hours, A.l.t., July 31 of the following year.
(3) Annual EDR forms for catcher vessels, catcher/processors, shoreside crab processors, and stationary floating crab processors are available on the NMFS Alaska Region website at
(c)
(d)
(e) * * *
(1) Any owner or leaseholder of an SFCP or a shoreside crab processor that processed CR crab, including custom processing of CR crab performed for other crab buyers, in the previous calendar year must submit to NMFS, in the manner specified on the NMFS-issued EDR form, a completed processor EDR for annual data for the previous calendar year.
(2) Any holder of a registered crab receiver (RCR) permit that obtained custom processing for CR Program crab in the previous calendar year must submit to NMFS, in the manner specified on the NMFS-issued EDR form, a completed processor EDR for annual data for the previous calendar year.
The Department of Agriculture has submitted the following information collection requirement(s) to Office of Management and Budget (OMB) for review and clearance under the Paperwork Reduction Act of 1995, Public Law 104-13. Comments are requested regarding: 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; the accuracy of the agency's estimate of burden including the validity of the methodology and assumptions used; ways to enhance the quality, utility and clarity of the information to be collected; ways to minimize the burden of the collection of information on those who are to respond, including through the use of appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology.
Comments regarding this information collection received by December 1, 2022 will be considered. Written comments and recommendations for the proposed information collection should be submitted within 30 days of the publication of this notice on the following website
An agency may not conduct or sponsor a collection of information unless the collection of information displays a currently valid OMB control number and the agency informs potential persons who are to respond to the collection of information that such persons are not required to respond to the collection of information unless it displays a currently valid OMB control number.
RUS Form 481, “Financial Requirement Statement,” must be submitted by the borrower to request loan advances. A supplemental sheet to Form 481 (a continuation sheet) may be used by borrowers needing additional space. The Form 481 is used by RUS to record and control transactions in the construction fund. Upon receipt of the Form 481 and its accompanying documents complying with provisions of 7 CFR part 1744, subpart c, the Government, within a reasonable amount of time, will make and advance to the borrower a sufficient amount for the purposes specified in the statement of purposes. The borrower must immediately deposit all advanced money into a Special Construction account until disbursed.
This information collection package contains the paperwork and reporting burden for 7 CFR part 1786, subpart E, “Discounted Prepayments on RUS Notes in the Event of a Merger of Certain RUS Electric Borrowers,” subpart F, “Discounted Prepayments on RUS Electric Loans,” and subpart G, “Refinancing and Prepayment of RUS Guaranteed FFB Loans Pursuant to Section 306(C) of the RE Act.” 7 CFR 1786, subparts E and F are authorized by section 306(B) of the RE Act of 1936, as amended, and subpart G is authorized by section 306(C) of the RE Act of 1936, as amended.
The overall goal of subparts E and F is to allow Agency borrowers to prepay their RUS loan and the overall goal of subpart G is to refinance. Subpart E allows certain electric borrowers to prepay outstanding RUS Notes at the Discounted Present Value of the RUS Notes with private financing. Subpart F allows borrowers to prepay, with private financing or internally generated funds, outstanding RUS Notes evidencing electric loans at the Discounted Present Value of the RUS Note. Subpart G allows the borrower of an electric or telephone loan made by the FFB and guaranteed by RUS to prepay and refinance a loan or an advance on the loan, or any portion of the loan or advance, after meeting certain conditions using the procedures prescribed in the borrower's note.
In response to the RE Act, rural consumers formed non-profit electric distribution cooperatives. Groups of these distribution cooperatives then banded together to form generation and transmission cooperatives (G&T's) that generate or purchase power and transmit the power to the distribution systems. For a RUS loan to a distribution system, a lien on the borrower's assets generally represents an adequate means to protect the Federal Government's security interest. However, since most G&T revenues flow from its distribution members, RUS requires as a condition of a loan or loan guarantee to a G&T that its distribution members enter into a long-term requirements wholesale power contract to purchase power from the G&T at rates that cover all the G&T's expenses, including debt service and margins.
Administered by the RUS National Office and Rural Development (RD) State Offices, the ECWAG regulation is used to administer grants made to rural communities of 10,000 or less that are experiencing a significant decline in quantity or quality of water or are expecting such a decline to be imminent. The grants assist the communities in obtaining or maintaining adequate quantities of water, thereby, meeting the standards of the Safe Drinking Water Act (SDWA), (42 U.S.C. 300f,
Under the ECWAG program, there are two statutory levels of grant limitations—$1,000,000 and $150,000. Grants not to exceed upper threshold may be awarded for projects alleviating significant declines in potable water quantity or quality. The funds can be used for construction of new wells, reservoirs, treatment plants, and other sources of water. Grants awards up to $150,000 may be made for projects that will remedy acute shortages or significant declines in quality or quantity of potable water in an existing system. The funds can be used for distribution waterline extensions, repairs or partial replacement on distribution waterlines, and operation and maintenance items on a distribution system. Grants awarded under the ECWAG program may be made for up to 100 percent of eligible project costs. At least 50 percent of grant funds are targeted to rural areas with populations not exceeding 3,000. Additionally, at least 70 percent of funds are to be used for projects addressing declines in the quantity or quality of water. The rural area's median household income must not exceed 100 percent of a State's non-metropolitan median household income.
The Consolidated Appropriations Act, 2004 (title III, Pub. L. 108-199, Stat.3), 7 CFR 1739 subpart A, as amended, authorizes the Rural Development, Rural Utilities Service (RUS) to administer the Community Connect Grant Program for the provision of broadband transmission service in rural America. Grant authority is utilized to deploy broadband infrastructure to extremely rural, lower income communities on a “community-oriented connectivity” basis.
RUS policy is established by 7 CFR part 1728 which provides that materials and equipment purchased by RUS electric borrowers or accepted as contractor-furnished material must conform to Agency standards and specifications where they have been established and, if included in Agency IP 202-1, “List of Materials Acceptable for Use on Systems of Rural Development Electrification Borrowers” (List of Materials), must be selected from that list or must have received technical acceptance from Rural Development.
Failure to collect proper information could result in improper determinations of eligibility, improper use of funds, or hindrances in making grants authorized by the SEARCH program.
Department of Agriculture.
Notice; request for comment.
The Department of Agriculture, as part of its continuing effort to reduce paperwork and respondent burden, is announcing an opportunity for public comment on a new proposed collection of information by the Agency. Under the Paperwork Reduction Act of 1995 (PRA), Federal Agencies are required to publish notice in the
Submit comments identified by Information Collection 0503-0024, Improving Customer Experience (OMB Circular A-11, Section 280 Implementation), by any of the following methods:
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A-11 Section 280 Improving Customer Experience.
Requests for additional information should be directed to Ruth Brown, (202) 720-8958, or Levi Harrell, (202) 924-0168, Office of the Chief Information Officer, Information Resources Management Center, 1200 Independence Avenue SW Washington, DC 20250, or via email to:
Under the PRA, (44 U.S.C. 3501-3520) Federal Agencies must obtain approval from the Office of Management and Budget (OMB) for each collection of information they conduct or sponsor. “Collection of information” is defined in 44 U.S.C. 3502(3) and 5 CFR 1320.3(c) and includes Agency requests or requirements that members of the public submit reports, keep records, or provide information to a third party. Section 3506(c)(2)(A) of the PRA requires Federal Agencies to provide a 60-day notice in the
Whether seeking a loan, Social Security benefits, veterans' benefits, or other services provided by the Federal Government, individuals and businesses expect Government customer services to be efficient and intuitive, just like services from leading private-sector organizations. Yet the 2016 American Consumer Satisfaction Index and the 2017 Forrester Federal Customer Experience Index show that, on average, Government services lag nine percentage points behind the private sector.
A modern, streamlined and responsive customer experience means raising government-wide customer experience to the average of the private sector service industry; developing indicators for high-impact Federal programs to monitor progress towards excellent customer experience and mature digital services; and providing the structure (including increasing transparency) and resources to ensure customer experience is a focal point for agency leadership. To support this, OMB Circular A-11 Section 280 established government-wide standards for mature customer experience organizations in government and measurement. To enable Federal programs to deliver the experience taxpayers deserve, they must undertake three general categories of activities: conduct ongoing customer research, gather and share customer feedback, and test services and digital products.
These data collection efforts may be either qualitative or quantitative in nature or may consist of mixed methods. Additionally, data may be collected via a variety of means, including but not limited to electronic or social media, direct or indirect observation (
The results of the data collected will be used to improve the delivery of Federal services and programs. It will include the creation of personas, customer journey maps, and reports and summaries of customer feedback data and user insights. It will also provide government-wide data on customer experience that can be displayed on
USDA will collect this information by electronic means, when possible, as well as by mail, fax, telephone, technical discussions, and in-person interviews. USDA may also utilize observational techniques to collect this information.
The Department of Agriculture has submitted the following information collection requirement(s) to OMB for review and clearance under the Paperwork Reduction Act of 1995, Public Law 104-13. Comments are requested regarding: 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; the accuracy of the agency's estimate of burden including the validity of the methodology and assumptions used; ways to enhance the quality, utility and clarity of the information to be collected; and ways to minimize the burden of the collection of information on those who are to respond, including through the use of appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology.
Comments regarding this information collection received by December 1, 2022 will be considered. Written comments and recommendations for the proposed information collection should be submitted within 30 days of the publication of this notice on the following website
An agency may not conduct or sponsor a collection of information unless the collection of information displays a currently valid OMB control number and the agency informs potential persons who are to respond to the collection of information that such persons are not required to respond to the collection of information unless it displays a currently valid OMB control number.
Section 333 of the CONACT (7 U.S.C. 1983), as amended, requires the Agency to graduate their direct loan borrowers to other credit when they can. Graduation is required because the government loans are not to be extended beyond a borrower's need for subsidized rates or Government credit. Borrowers must refinance their direct Government loan when other credit becomes available at reasonable rates and terms. If other credit is not available, the Agencies will continue to periodically review the account for possible graduation intervals.
Food and Nutrition Service (FNS), USDA.
Notice.
In accordance with the Paperwork Reduction Act of 1995, this notice invites the general public and other public agencies to comment on this proposed information collection. This is a revision of a currently approved collection.
Written comments must be received on or before January 3, 2023.
Comments may be sent to: John McCleskey, QC Branch chief, Food and Nutrition Service, U.S. Department of Agriculture, 1320 Braddock Place, 5th Floor, Alexandria, VA 22314. Comments may also be submitted via fax to the attention of John McCleskey, QC Branch chief at 703-457-7747 or via email to
All responses to this notice will be summarized and included in the request
Requests for additional information or copies of this information collection should be directed to John McCleskey at 703-457-7747.
Comments are invited on: (a) Whether the proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information shall have practical utility; (b) the accuracy of the agency's estimate of the burden of the proposed collection of information, including the validity of the methodology and assumptions that were used; (c) ways to enhance the quality, utility, and clarity of the information to be collected; and (d) ways to minimize the burden of the collection of information on those who are to respond, including use of appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology.
See the table below for estimated total annual burden for each type of burden activities for State agency respondents.
U.S. Commission on Civil Rights.
Announcement of meeting.
Notice is hereby given, pursuant to the provisions of the rules and regulations of the U.S. Commission on Civil Rights (Commission) and the Federal Advisory Committee Act that the District of Columbia Advisory Committee (Committee) to the U.S. Commission on Civil Rights will hold project planning meetings via WebEx on the below dates and times. The purpose of these meetings is to plan and discuss the Committee's civil rights project.
Each planning meeting will last for approximately one hour.
Ivy Davis, DFO, at
Members of the public can listen to these discussions. Committee meetings are available to the public through the above call-in number. Any interested member of the public may call this number and listen to the meeting. An open comment period will be provided to allow members of the public to make a statement as time allows. Callers can expect to incur regular charges for calls they initiate over wireless lines, according to their wireless plan. The Commission will not refund any incurred charges. Callers will incur no charge for calls they initiate over land-line connections to the toll-free telephone number. Individuals who are deaf, deafblind and hard of hearing may follow the proceedings by first calling the Federal Relay Service at 800-877-8339 and providing the Service with the conference call number and conference ID number.
Members of the public are also entitled to submit written comments via email. The comments must be received in the regional office within 30 days following the meeting. Written comments may be emailed. The email subject line should state: Atten: DC and sent to this email address:
Records generated from this meeting may be inspected and reproduced at the Eastern Regional Programs, as they become available, both before and after the meeting. Records of the meeting will be available via
Commission on Civil Rights.
Announcement of meeting.
Notice is hereby given, pursuant to the provisions of the rules and regulations of the U.S. Commission on Civil Rights (Commission), and the Federal Advisory Committee Act (FACA), that a meeting of the Puerto Rico Advisory Committee to the Commission will convene by virtual web conference on Wednesday, November 16, 2022, at 1 p.m. (AT). The purpose is to discuss the committee's draft project proposal on the civil rights impacts of the Insular Cases and the doctrine of the unincorporated territory.
November 16, 2022, Wednesday, at 1 p.m. (AT); [12 p.m. ET].
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Victoria Moreno at
This meeting will be held in Spanish with English interpretation available. This meeting is available to the public through the link above. If joining via phone only, callers can expect to incur charges for calls they initiate over wireless lines, and the Commission will not refund any incurred charges. Also please keep in mind if joining via phone only, no interpretation to English will be available unless you join via the link above or via the Zoom app on your device.
Individuals who are deaf, deafblind, and hard of hearing may also follow the proceedings by first calling the Federal Relay Service at 1-800-877-8339 and providing the Service with the call-in number found through registering at the web link provided above for the meeting.
Members of the public are entitled to make comments during the open period
Persons who desire additional information may contact the Regional Programs Unit at (202) 809-9618. Records and documents discussed during the meeting will be available for public viewing as they become available at the
U.S. Commission on Civil Rights.
Announcement of public web briefing and meetings.
Notice is hereby given, pursuant to the provisions of the rules and regulations of the U.S. Commission on Civil Rights (Commission), and the Federal Advisory Committee Act (FACA), that the South Dakota State Advisory Committee to the Commission will convene a briefing on Monday, November 14, 2022, from 3:00 p.m.-5:00 p.m. (CT). The purpose of the briefing is to hear from impacted individuals on the topic of voting rights and voter access in South Dakota. The South Dakota Advisory Committee will also convene regular business meetings on the following Mondays from 3:30 p.m.-4:30 p.m. (CT): December 12, 2022, January 9, 2023, and February 13, 2023. The purpose of the business meetings is to discuss testimony heard related to the Committee's topic on voting rights and voter access.
Kayla Fajota at
The meetings are available to the public through the web links above. If joining only via phone, callers can expect to incur charges for calls they initiate over wireless lines, and the Commission will not refund any incurred charges. Individuals who are deaf, deafblind and hard of hearing may also follow the proceedings by first calling the Federal Relay Service at 1-800-877-8339 and providing the Service with conference details found through registering at the web link above. To request other accommodations, please email
Members of the public are entitled to make comments during the open period at the end of each meeting. Members of the public may also submit written comments; the comments must be received in the Regional Programs Unit within 30 days following each meeting. Written comments may be emailed to Kayla Fajota at
The Department of Commerce will submit the following information collection request to the Office of Management and Budget (OMB) for review and clearance in accordance with the Paperwork Reduction Act of 1995, on or after the date of publication of this notice. We invite the general public and other Federal agencies to comment on proposed, and continuing information collections, which helps us assess the impact of our information collection requirements and minimize the public's reporting burden. Public comments were previously requested via the
This information collection request may be viewed at
Written comments and recommendations for the proposed information collection should be submitted within 30 days of the publication of this notice on the following website
The Transportation and Related Equipment Technical Advisory Committee will meet on November 16, 2022, 9:30 a.m., in the Herbert C. Hoover Building, Room 48019, 14th Street between Constitution & Pennsylvania Avenues NW, Washington, DC. The Committee advises the Office of the Assistant Secretary for Export Administration with respect to technical questions that affect the level of export controls applicable to transportation and related equipment or technology.
To join the conference, submit inquiries to Ms. Yvette Springer at
A limited number of seats will be available during the public session of the meeting. Reservations are not accepted. To the extent time permits, members of the public may present oral statements to the Committee. The public may submit written statements at any time before or after the meeting. However, to facilitate distribution of public presentation materials to Committee members, the Committee suggests that presenters forward the public presentation materials prior to the meeting to Ms. Springer via email.
The Assistant Secretary for Administration, with the concurrence of the delegate of the General Counsel, formally determined on August 18, 2022, pursuant to Section 10(d) of the Federal Advisory Committee Act, as amended (5 U.S.C. app. 2 § (10)(d)), that the portion of the meeting dealing with pre-decisional changes to the Commerce Control List and U.S. export control policies shall be exempt from the provisions relating to public meetings found in 5 U.S.C. app. 2 §§ 10(a)(1) and 10(a)(3). The remaining portions of the meeting will be open to the public.
For more information, contact Ms. Springer via email.
The Emerging Technology Technical Advisory Committee (ETTAC) will meet on November 18, 2022, at 9:00 a.m., Room 48019, in the Herbert C. Hoover Building, 14th Street between Constitution and Pennsylvania Avenues NW, Washington, DC. The Committee advises the Office of the Assistant Secretary for Export Administration on the identification of emerging and foundational technologies with potential dual-use applications as early as possible in their developmental stages both within the United States and abroad.
1. Discussion of matters determined to be exempt from the provisions relating to public meetings found in 5 U.S.C. App. §§ 10(a)(1) and 10(a)(3).
2. Welcome and Introductions.
3. Introducing Special Competitive Studies Projects.
4. Global emerging technology challenges and opportunities. Questions and Answers.
5. Public comments.
6. Announcements.
The open session will be accessible via teleconference. To join the conference, submit inquiries to Ms. Yvette Springer at
A limited number of seats will be available for the public session. Reservations are not accepted. To the extent that time permits, members of the public may present oral statements to the Committee. The public may submit written statements at any time before or after the meeting. However, to facilitate the distribution of public presentation materials to the Committee members, the Committee suggests that presenters forward the public presentation materials prior to the meeting to Ms. Springer via email.
The Assistant Secretary for Administration, with the concurrence of the delegate of the General Counsel, formally determined on October 20, 2022, pursuant to Section 10(d) of the Federal Advisory Committee Act, as amended (5 U.S.C. App. § 10(d)), that the portion of the meeting dealing with pre-decisional changes to the Commerce Control List and the U.S. export control policies shall be exempt from the provisions relating to public meetings found in 5 U.S.C. App. §§ 10(a)(1) and 10(a)(3). The remaining portions of the meeting will be open to the public.
For more information, contact Ms. Springer via email.
Enforcement and Compliance, International Trade Administration, Department of Commerce.
The U.S. Department of Commerce (Commerce) preliminarily finds that the producers or exporters subject to this review made sales of subject merchandise at less than normal value during the period of review (POR), October 1, 2020, through September 30, 2021. Commerce also determines that one mandatory respondent, did not make sales of subject merchandise at less than normal value during the POR. We invite interested parties to comment on these preliminary results.
Applicable November 1, 2022.
Christopher Williams or Thomas Schauer, AD/CVD Operations, Office I, Enforcement and Compliance, International Trade Administration, U.S. Department of Commerce, 1401 Constitution Avenue NW, Washington, DC 20230; telephone: (202) 482-5166 or (202) 482-0410, respectively.
On October 3, 2016, Commerce published in the
The products covered by this
Commerce is conducting this review in accordance with section 751(a) of the Tariff Act of 1930, as amended (the Act). Export price and constructed export price are calculated in accordance with section 772 of the Act. Normal value is calculated in accordance with section 773 of the Act.
For a full description of the methodology underlying these preliminary results,
The statute and Commerce's regulations do not address the establishment of a rate to be applied to companies not selected for examination when Commerce limits its examination in an administrative review pursuant to section 777A(c)(2) of the Act. Generally, Commerce looks to section 735(c)(5) of the Act, which provides instructions for calculating the all-others rate in a market economy investigation, for guidance when calculating the rate for companies which were not selected for individual examination in an administrative review. Under section 735(c)(5)(A) of the Act, the all-others rate is normally an amount equal to the weighted average of the estimated weighted-average dumping margins established for exporters and producers individually investigated, excluding any zero or
In this review, we preliminarily calculated a weighted-average dumping margin for one of the mandatory respondents, Hyundai Steel Company (Hyundai Steel) that is not zero,
We preliminarily determine that the following weighted-average dumping margins exist for the period October 1, 2020, through September 30, 2021:
Review-Specific Average Rate Applicable to the Following Companies:
We intend to disclose the calculations performed to parties within five days after public announcement of the preliminary results.
Pursuant to 19 CFR 351.310(c), interested parties who wish to request a hearing must submit a written request to the Assistant Secretary for Enforcement and Compliance, filed electronically via ACCESS. Requests should contain: (1) the party's name, address, and telephone number; (2) the number of participants; and (3) a list of issues to be discussed. Issues raised in the hearing will be limited to those raised in the respective case briefs. An electronically filed hearing request must be received successfully in its entirety by Commerce's electronic records system, ACCESS, by 5:00 p.m. Eastern Time within 30 days after the date of publication of this notice.
Commerce intends to issue the final results of this administrative review, including the results of its analysis of the issues raised in any written briefs, not later than 120 days after the date of publication of this notice, unless extended, pursuant to section 751(a)(3)(A) of the Act and 19 CFR 351.213(h)(1).
Upon completion of the final results, Commerce shall determine, and U.S. Customs and Border Protection (CBP) shall assess, antidumping duties on all appropriate entries. If either of the respondents' weighted-average dumping margins is not zero or
For entries of subject merchandise during the POR produced by either of the respondents for which they did not know that the merchandise was destined to the United States, we will instruct CBP to liquidate unreviewed entries at the all-others rate if there is no rate for the intermediate company(ies) involved in the transaction.
Commerce intends to issue assessment instructions to CBP no earlier than 35 days after the date of publication of the final results of this review in the
The following cash deposit requirements will be effective upon publication in the
This notice also serves as a preliminary reminder to importers of their responsibility under 19 CFR 351.402(f)(2) to file a certificate regarding the reimbursement of antidumping duties prior to liquidation of the relevant entries during this POR. Failure to comply with this requirement
We are issuing and publishing these results in accordance with sections 751(a)(1) and 777(i)(1) of the Act, and 19 CFR 351.221(b)(4).
Enforcement and Compliance, International Trade Administration, Department of Commerce.
In accordance with the Tariff Act of 1930, as amended (the Act), the Department of Commerce (Commerce) is automatically initiating the five-year reviews (Sunset Reviews) of the antidumping and countervailing duty (AD/CVD) order(s) and suspended investigation(s) listed below. The International Trade Commission (the ITC) is publishing concurrently with this notice its notice of
Applicable November 1, 2022.
Commerce official identified in the
Commerce's procedures for the conduct of Sunset Reviews are set forth in its
In accordance with section 751(c) of the Act and 19 CFR 351.218(c), we are initiating the Sunset Reviews of the following antidumping and countervailing duty order(s) and suspended investigation(s):
As a courtesy, we are making information related to sunset proceedings, including copies of the pertinent statute and Commerce's regulations, Commerce's schedule for Sunset Reviews, a listing of past revocations and continuations, and current service lists, available to the public on Commerce's website at the following address:
In accordance with section 782(b) of the Act, any party submitting factual information in an AD/CVD proceeding must certify to the accuracy and completeness of that information. Parties must use the certification formats provided in 19 CFR 351.303(g). Commerce intends to reject factual submissions if the submitting party does not comply with applicable revised certification requirements.
Pursuant to 19 CFR 351.103(d), Commerce will maintain and make available a public service list for these proceedings. Parties wishing to participate in any of these five-year reviews must file letters of appearance as discussed at 19 CFR 351.103(d). To facilitate the timely preparation of the public service list, it is requested that those seeking recognition as interested parties to a proceeding submit an entry of appearance within 10 days of the publication of the Notice of Initiation. Because deadlines in Sunset Reviews can be very short, we urge interested parties who want access to proprietary information under administrative protective order (APO) to file an APO application immediately following publication in the
Domestic interested parties, as defined in section 771(9)(C), (D), (E), (F),
If we receive an order-specific notice of intent to participate from a domestic interested party, Commerce's regulations provide that
This notice of initiation is being published in accordance with section 751(c) of the Act and 19 CFR 351.218(c).
Enforcement and Compliance, International Trade Administration, Department of Commerce.
As a result of the determinations by the U.S. Department of Commerce (Commerce) and the U.S. International Trade Commission (ITC) that revocation of the antidumping duty (AD) order on phosphor copper from the Republic of Korea (Korea) would likely lead to continuation or recurrence of dumping and material injury to an industry in the United States, Commerce is publishing a notice of continuation of the AD order.
Applicable November 1, 2022.
Jolanta Lawska, AD/CVD Operations, Office III, Enforcement and Compliance, International Trade Administration, U.S. Department of Commerce, 1401 Constitution Avenue NW, Washington, DC 20230; telephone: (202) 482- 8362.
On April 24, 2017, Commerce published the AD order on phosphor copper from Korea.
On October 25, 2022, the ITC published its determination, pursuant to sections 751(c) and 752(a) of the Act, that revocation of the
The merchandise covered by the
Merchandise covered by the
As a result of the determinations by Commerce and the ITC that revocation of the
This notice serves as the only reminder to parties subject to an administrative protective order (APO) of their responsibility concerning the disposition of proprietary information disclosed under APO in accordance with 19 CFR 351.305(a)(3), which continues to govern business proprietary information in this segment of the proceeding. Timely notification of return/destruction of APO materials or conversion to judicial protective order is hereby requested. Failure to comply with the regulations and terms of the APO is a sanctionable violation.
This five-year sunset review and this notice are in accordance with section 751(c) of the Act and published in accordance with section 777(i)(1) of the Act and 19 CFR 351.218(f)(4).
Enforcement and Compliance, International Trade Administration, Department of Commerce.
Every five years, pursuant to the Tariff Act of 1930, as amended (the Act), the Department of Commerce (Commerce) and the International Trade Commission automatically initiate and conduct reviews to determine whether revocation of a countervailing or antidumping duty order or termination of an investigation suspended under section 704 or 734 of the Act would be likely to lead to continuation or recurrence of dumping or a countervailable subsidy (as the case may be) and of material injury.
Pursuant to section 751(c) of the Act, the following Sunset Reviews are scheduled for initiation in December 2022 and will appear in that month's
No Sunset Review of suspended investigations is scheduled for initiation in December 2022.
Commerce's procedures for the conduct of Sunset Review are set forth in 19 CFR 351.218. The
Pursuant to 19 CFR 351.103(c), Commerce will maintain and make available a service list for these proceedings. To facilitate the timely preparation of the service list(s), it is requested that those seeking recognition as interested parties to a proceeding contact Commerce in writing within 10 days of the publication of the Notice of Initiation.
Please note that if Commerce receives a Notice of Intent to Participate from a member of the domestic industry within 15 days of the date of initiation, the review will continue.
Thereafter, any interested party wishing to participate in the Sunset Review must provide substantive comments in response to the notice of initiation no later than 30 days after the date of initiation. Note that Commerce has modified certain of its requirements for serving documents containing business proprietary information, until further notice.
This notice is not required by statute but is published as a service to the international trading community.
Enforcement and Compliance, International Trade Administration, Department of Commerce.
On October 24, 2022, the U.S. Court of International Trade (CIT) issued its final judgment in
Applicable November 3, 2022.
Dmitry Vladimirov, AD/CVD Operations, Office I, Enforcement and Compliance, International Trade Administration, U.S. Department of Commerce, 1401 Constitution Avenue NW, Washington, DC 20230; telephone: (202) 482-0665.
On January 16, 2020, Commerce published its
Garg Tube appealed Commerce's
In its
The CIT remanded for a second time, ordering Commerce to further explain or reconsider how its finding that a PMS existed during the POR was supported by substantial evidence, and its resultant use of a PMS adjustment to COP when determining NV on the basis of CV.
In its decision in
Because there is now a final court judgment, Commerce is amending its
Because Garg Tube has a superseding cash deposit rate,
At this time, Commerce remains enjoined by CIT order from liquidating entries that: were produced and/or exported by Garg Tube and were entered, or withdrawn from warehouse, for consumption during the period May 1, 2017, through April 30, 2018. These entries will remain enjoined pursuant to the terms of the injunction during the pendency of any appeals process.
In the event the CIT's ruling is not appealed, or, if appealed, upheld by a final and conclusive court decision, Commerce intends to instruct CBP to assess antidumping duties on unliquidated entries of subject merchandise produced and/or exported by Garg Tube, in accordance with 19 CFR 351.212(b). Because Garg Tube's
Unchanged from the
This notice is issued and published in accordance with sections 516A(c) and (e), and 777(i)(1) of the Act.
Enforcement and Compliance, International Trade Administration, Department of Commerce.
Brenda E. Brown, Office of AD/CVD Operations, Customs Liaison Unit, Enforcement and Compliance, International Trade Administration, U.S. Department of Commerce, 1401 Constitution Avenue NW, Washington, DC 20230, telephone: (202) 482-4735.
Each year during the anniversary month of the publication of an antidumping or countervailing duty order, finding, or suspended investigation, an interested party, as defined in section 771(9) of the Tariff Act of 1930, as amended (the Act), may request, in accordance with 19 CFR 351.213, that the Department of Commerce (Commerce) conduct an administrative review of that antidumping or countervailing duty order, finding, or suspended investigation.
All deadlines for the submission of comments or actions by Commerce discussed below refer to the number of calendar days from the applicable starting date.
In the event Commerce limits the number of respondents for individual examination for administrative reviews initiated pursuant to requests made for the orders identified below, Commerce intends to select respondents based on U.S. Customs and Border Protection (CBP) data for U.S. imports during the period of review. We intend to release the CBP data under Administrative Protective Order (APO) to all parties having an APO within five days of publication of the initiation notice and to make our decision regarding respondent selection within 35 days of publication of the initiation
In the event Commerce decides it is necessary to limit individual examination of respondents and conduct respondent selection under section 777A(c)(2) of the Act:
In general, Commerce finds that determinations concerning whether particular companies should be “collapsed” (
Pursuant to 19 CFR 351.213(d)(1), a party that requests a review may withdraw that request within 90 days of the date of publication of the notice of initiation of the requested review. The regulation provides that Commerce may extend this time if it is reasonable to do so. Determinations by Commerce to
Section 504 of the Trade Preferences Extension Act of 2015 amended the Act by adding the concept of particular market situation (PMS) for purposes of constructed value under section 773(e) of the Act.
Neither section 773(e) of the Act nor 19 CFR 351.301(c)(2)(v) set a deadline for the submission of PMS allegations and supporting factual information. However, in order to administer section 773(e) of the Act, Commerce must receive PMS allegations and supporting factual information with enough time to consider the submission. Thus, should an interested party wish to submit a PMS allegation and supporting new factual information pursuant to section 773(e) of the Act, it must do so no later than 20 days after submission of initial Section D responses.
In accordance with 19 CFR 351.213(b), an interested party as defined by section 771(9) of the Act may request in writing that the Secretary conduct an administrative review. For both antidumping and countervailing duty reviews, the interested party must specify the individual producers or exporters covered by an antidumping finding or an antidumping or countervailing duty order or suspension agreement for which it is requesting a review. In addition, a domestic interested party or an interested party described in section 771(9)(B) of the Act must state why it desires the Secretary to review those particular producers or exporters. If the interested party intends for the Secretary to review sales of merchandise by an exporter (or a producer if that producer also exports merchandise from other suppliers) which was produced in more than one country of origin and each country of origin is subject to a separate order, then the interested party must state specifically, on an order-by-order basis, which exporter(s) the request is intended to cover.
Note that, for any party Commerce was unable to locate in prior segments, Commerce will not accept a request for an administrative review of that party absent new information as to the party's location. Moreover, if the interested party who files a request for review is unable to locate the producer or exporter for which it requested the review, the interested party must provide an explanation of the attempts it made to locate the producer or exporter at the same time it files its request for review, in order for the Secretary to determine if the interested party's attempts were reasonable, pursuant to 19 CFR 351.303(f)(3)(ii).
As explained in
Commerce no longer considers the non-market economy (NME) entity as an exporter conditionally subject to an antidumping duty administrative reviews.
All requests must be filed electronically in Enforcement and Compliance's Antidumping and Countervailing Duty Centralized Electronic Service System (ACCESS) on Enforcement and Compliance's ACCESS website at
Commerce will publish in the
For the first administrative review of any order, there will be no assessment of antidumping or countervailing duties on entries of subject merchandise entered, or withdrawn from warehouse, for consumption during the relevant provisional-measures “gap” period of the order, if such a gap period is applicable to the period of review.
On September 20, 2021, Commerce published the final rule titled “
In accordance with the
As mentioned in the
Interested parties have 30 days after the date of this notice to submit new or amended entries of appearance. Commerce will then finalize the annual inquiry service lists five business days thereafter. For ease of administration, please note that Commerce requests that law firms with more than one attorney representing interested parties in a proceeding designate a lead attorney to be included on the annual inquiry service list.
Commerce may update an annual inquiry service list at any time as needed based on interested parties' amendments to their entries of appearance to remove or otherwise modify their list of members and representatives, or to update contact information. Any changes or announcements pertaining to these procedures will be posted to the ACCESS website at
In the
This notice is not required by statute but is published as a service to the international trading community.
Corporation for National and Community Service.
Notice of information collection; request for comment.
In accordance with the Paperwork Reduction Act of 1995, the
Written comments must be submitted to the individual and office listed in the
You may submit comments, identified by the title of the information collection activity, by any of the following methods:
(1) Electronically through
(2) By mail sent to: AmeriCorps, Attention Nancy Ferguson, 250 E Street SW, Washington, DC, 20525.
(3) By hand delivery or by courier to the AmeriCorps mailroom at the mail address given in paragraph (2) above, between 9 a.m. and 4 p.m. eastern time, Monday through Friday, except Federal holidays.
Comments submitted in response to this notice may be made available to the public through
Nancy Ferguson, 202-569-1395, or by email at
Comments submitted in response to this notice will be summarized and/or included in the request for OMB approval.
Department of Defense (DoD).
Charter renewal of Federal Advisory Committees.
The DoD is publishing this notice to announce that it is renewing the charters for the United States Military Academy Board of Visitors, the United States Naval Academy Board of Visitors, and the Board of Visitors of the United States Air Force Academy; hereafter referred to as “the Military Service Academy Boards of Visitors.”
Jim Freeman, DoD Advisory Committee Management Officer at
The charters for the Military Service Academy Boards of Visitors are being renewed in accordance with the Federal Advisory Committee Act (FACA) (5 U.S.C., appendix) and 41 CFR 102-3.50(d). The charters and contact information for the Military Service Academy Boards of Visitors Designated Federal Officers (DFO) can be found at
The mission/scope for the Military Service Academy Boards of Visitors along with its membership requirements are described in 10 U.S.C. 7455, 8468, and 9455. Members of the Military Service Academy Boards of Visitors who are not full-time or permanent part-time Federal civilian officers or employees, or active duty members of the Uniformed Services are appointed as experts or consultants, pursuant to 5 U.S.C. 3109, to serve as special government employee members. Members of the Military Service Academy Boards of Visitors who are full-time or permanent part-time Federal civilian officers or employees, or active duty members of the Uniformed Services are designated pursuant to 41 CFR 102-3.130(a), to serve as regular government employee members.
The public or interested organizations may submit written statements about the mission and functions of the Military Service Academy Boards of Visitors. Written statements shall be submitted to the respective DFO, and
Federal Student Aid (FSA), Department of Education (ED).
Notice.
In accordance with the Paperwork Reduction Act of 1995, ED is proposing an extension without change of a currently approved collection.
Interested persons are invited to submit comments on or before January 3, 2023.
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.
The Department is required to report to the U.S. Department of the Treasury (Treasury) the status and condition of its non-tax debt portfolio in accordance with the requirements of the Debt Collection Improvement Act of 1996 (DCIA) and the Digital Accountability and Transparency Act of 2014 (DATA Act). Receivable information is reported to Treasury via the Treasury Report on Receivables and Debt Collection Activities (previously called the TROR).
The Department is unable to prepare an accurate and compliant Treasury Report based on the data it currently receives from its GAs. The continuing guidance requires the GAs to age debt according to DCIA; report the eligibility of DCIA-aged debt for referral to the Treasury Offset Program (TOP); and report compliance with Form 1099-C reporting. The updated document is titled DCIA Aging and Compliance Data Requirements for Guaranty Agencies (the Requirements). The Department plans to issue the Requirements to the GAs in Fiscal Year 2023. The data requirements for GA's are not changing. The updated document includes minor edits together with updated GA and FSA contacts.
This constitutes notice, in accordance with 18 CFR 385.2201(b), of the receipt of prohibited and exempt off-the-record communications.
Order No. 607 (64 FR 51222, September 22, 1999) requires Commission decisional employees, who make or receive a prohibited or exempt off-the-record communication relevant to the merits of a contested proceeding, to deliver to the Secretary of the Commission, a copy of the communication, if written, or a summary of the substance of any oral communication.
Prohibited communications are included in a public, non-decisional file associated with, but not a part of, the decisional record of the proceeding. Unless the Commission determines that the prohibited communication and any responses thereto should become a part of the decisional record, the prohibited off-the-record communication will not
Exempt off-the-record communications are included in the decisional record of the proceeding, unless the communication was with a cooperating agency as described by 40 CFR 1501.6, made under 18 CFR 385.2201(e)(1)(v).
The following is a list of off-the-record communications recently received by the Secretary of the Commission. The communications listed are grouped by docket numbers in ascending order. These filings are available for electronic review at the Commission in the Public Reference Room or may be viewed on the Commission's website at
Take notice that on October 12, 2022, Tres Palacios Gas Storage LLC (Tres Palacios), 811 Main Street, Suite 3400, Houston, Texas 77002, filed in Docket No. CP23-3-000, an application pursuant to sections 7(b) and 7(c) of the Natural Gas Act (NGA) and Part 157 of the Commission's regulations, for authorization to expand its natural gas storage capacity at the existing Tres Palacios natural gas storage facility in Matagorda County, Texas.
Specifically, Tres Palacios proposes to: (1) convert and incorporate an existing third-party brine production well (Trull 11) into an additional natural gas storage cavern (Cavern 4) that will add 6.5 billion cubic feet (Bcf) of working gas capacity and 3.5 Bcf of base gas capacity; (2) develop the Trull 11 well pad site; (3) construct a 0.6 mile, 16-inch-diameter pipeline connecting Cavern 4 to the storage facility; (4) install a new 5,500 horsepower (hp) electric-motor driven reciprocating compressor unit; (5) add a new dehydration unit; (6) abandon in-place a 15,300 hp electric-motor driven centrifugal compressor unit; and (7) construct various appurtenances. Further, Tres Palacios requests reaffirmation of its market-based rate authority and related authorizations and waivers, all as more fully set forth in the request which is on file with the Commission and open to public inspection.
In addition to publishing the full text of this document in the
Any questions regarding the application should be directed to Kimberly Gee, Assistant General Counsel, Crestwood Midstream Partners LP, 811 Main Street, Suite 3400, Houston, Texas 77002, by telephone at (832) 519-2200, or by email at:
Pursuant to section 157.9 of the Commission's Rules of Practice and Procedure,
There are two ways to become involved in the Commission's review of this project: you can file comments on the project, and you can file a motion to intervene in the proceeding. There is no fee or cost for filing comments or intervening. The deadline for filing a motion to intervene is 5:00 p.m. Eastern Time on November 16, 2022.
Any person wishing to comment on the project may do so. Comments may include statements of support or objections to the project as a whole or specific aspects of the project. The more specific your comments, the more useful they will be. To ensure that your comments are timely and properly recorded, please submit your comments on or before November 16, 2022.
There are three methods you can use to submit your comments to the Commission. In all instances, please reference the Project docket number CP23-3-000 in your submission.
(1) You may file your comments electronically by using the eComment feature, which is located on the Commission's website at
(2) You may file your comments electronically by using the eFiling feature, which is located on the Commission's website (
(3) You can file a paper copy of your comments by mailing them to the following address below. Your written comments must reference the Project docket number (CP23-3-000).
To file via USPS: Kimberly D. Bose, Secretary, Federal Energy Regulatory Commission, 888 First Street NE, Washington, DC 20426.
To file via any other method: Kimberly D. Bose, Secretary, Federal Energy Regulatory Commission, 12225 Wilkins Avenue, Rockville, Maryland 20852.
The Commission encourages electronic filing of comments (options 1 and 2 above) and has eFiling staff available to assist you at (202) 502-8258 or
Persons who comment on the environmental review of this project will be placed on the Commission's environmental mailing list, and will receive notification when the environmental documents (EA or EIS) are issued for this project and will be notified of meetings associated with the Commission's environmental review process.
The Commission considers all comments received about the project in determining the appropriate action to be taken. However, the filing of a comment alone will not serve to make the filer a party to the proceeding. To become a party, you must intervene in the proceeding. For instructions on how to intervene, see below.
Any person, which includes individuals, organizations, businesses, municipalities, and other entities,
To intervene, you must submit a motion to intervene to the Commission in accordance with Rule 214 of the Commission's Rules of Practice and Procedure
There are two ways to submit your motion to intervene. In both instances, please reference the Project docket number CP23-3-000 in your submission.
(1) You may file your motion to intervene by using the Commission's eFiling feature, which is located on the Commission's website (
(2) You can file a paper copy of your motion to intervene, along with three copies, by mailing the documents to the address below. Your motion to intervene must reference the Project docket number CP23-3-000.
To file via USPS: Kimberly D. Bose, Secretary, Federal Energy Regulatory Commission, 888 First Street NE, Washington, DC 20426.
To file via any other method: Kimberly D. Bose, Secretary, Federal Energy Regulatory Commission, 12225 Wilkins Avenue, Rockville, Maryland 20852.
The Commission encourages electronic filing of motions to intervene (option 1 above) and has eFiling staff available to assist you at (202) 502-8258 or
Protests and motions to intervene must be served to the applicant either by mail or email (with a link to the document) at: Kimberly Gee, Assistant General Counsel, Crestwood Midstream Partners LP, 811 Main Street, Suite 3400, Houston, Texas 77002, or
All timely, unopposed
Throughout the proceeding, additional information about the project will be available from the Commission's Office of External Affairs, at (866) 208-FERC, or on the FERC website at
In addition, the Commission offers a free service called eSubscription which allows you to keep track of all formal issuances and submittals in specific dockets. This can reduce the amount of time you spend researching proceedings by automatically providing you with notification of these filings, document summaries, and direct links to the documents. For more information and to register, go to
Federal Energy Regulatory Commission.
Notice of information collection and request for comments.
In compliance with the requirements of the Paperwork Reduction Act of 1995, the Federal Energy Regulatory Commission (Commission or FERC) is soliciting public comment on the currently approved information collection FERC-574 (Gas Pipeline Certificates: Hinshaw Exemption).
Comments on the collection of information are due Januaru 2, 2023.
You may submit your comments (identified by Docket No. IC22-31-000) by one of the following methods:
Electronic filing through
•
• For those unable to file electronically, comments may be filed by USPS mail or by hand (including courier) delivery:
○
○
Ellen Brown may be reached by email at
The exemption applies to companies engaged in the transportation, sale, or resale of natural gas in interstate commerce if: (a) they receive gas at or within the boundaries of the state from another person at or within the boundaries of that state; (b) such gas is ultimately consumed in such state; (c) the rates, service and facilities of such company are subject to regulation by a State Commission; and (d) that such State Commission is exercising that jurisdiction. 18 CFR part 152 specifies the data required to be filed by pipeline companies for an exemption.
The staff of the Federal Energy Regulatory Commission (FERC or Commission) will prepare an environmental impact statement (EIS) that will discuss the environmental impacts of the Virginia Reliability Project and Commonwealth Energy Connector Project involving construction and operation of facilities by Columbia Gas Transmission, LLC (Columbia) and Transcontinental Gas Pipe Line Company, LLC (Transco), respectively. Columbia's project would involve construction and operation of certain natural gas pipeline facilities in Greensville, Prince George, Sussex, Surry, Southampton, and Isle of Wight Counties, Virginia and in the cities of Suffolk and Chesapeake, Virginia. Transco's project would also involve construction and operation of natural gas pipeline facilities in Mecklenburg, Brunswick, and Greensville Counties, Virginia. The Commission will use this EIS in its decision-making process to determine whether the projects are in the public convenience and necessity. The schedule for preparation of the EIS is discussed in the
As part of the National Environmental Policy Act (NEPA) review process, the Commission takes into account concerns the public may have about proposals and the environmental impacts that could result whenever it considers the issuance of a Certificate of Public Convenience and Necessity. This gathering of public input is referred to as “scoping.” By notice issued on February 22, 2022, in Docket Nos. PF22-3-000 and PF22-4-000, the Commission opened a scoping period during Columbia's and Transco's planning processes for the projects and prior to filing formal applications with the Commission, a process referred to as “pre-filing.” By supplemental notice issued on March 7, 2022, the Commission extended the scoping period due to inadvertent mailing issues. Columbia and Transco have now filed respective applications with the Commission, and staff intends to prepare an EIS that will address the concerns raised during the pre-filing scoping process and comments received in response to this notice.
By this notice, the Commission requests public comments on the scope of issues to address in the environmental document, including comments on potential alternatives and impacts, and any relevant information, studies, or analyses of any kind concerning impacts affecting the quality of the human environment. To ensure that your comments are timely and properly recorded, please submit your comments so that the Commission receives them in Washington, DC on or before 5:00 p.m. Eastern Time on November 25, 2022. Comments may be submitted in written form. Further details on how to submit comments are provided in the
As mentioned above, during the pre-filing process, the Commission opened a scoping period which expired on April 6, 2022; however, Commission staff continued to accept comments during the entire pre-filing process. Staff also held two virtual scoping sessions to take oral scoping comments on March 15 and 30, 2022. All substantive written and oral comments provided during pre-filing will be addressed in the EIS. Therefore, if you submitted comments on these projects to the Commission during the pre-filing process in Docket Nos. PF22-3-000 and PF22-4-000 you do not need to file those comments again. Likewise, if you submitted comments in response to the Notice of Applications issued by the Commission on September 8, 2022, you do not need to file those comments again.
If you are a landowner receiving this notice, a pipeline company representative may contact you about the acquisition of an easement to construct, operate, and maintain the proposed facilities. The company would seek to negotiate a mutually acceptable easement agreement. You are not required to enter into an agreement. However, if the Commission approves the project, the Natural Gas Act conveys the right of eminent domain to the company. Therefore, if you and the company do not reach an easement agreement, the pipeline company could initiate condemnation proceedings in court. In such instances, compensation would be determined by a judge in accordance with state law. The Commission does not grant, exercise, or oversee the exercise of eminent domain authority. The courts have exclusive authority to handle eminent domain cases; the Commission has no jurisdiction over these matters.
Columbia and Transco provided landowners with a fact sheet prepared by the FERC entitled “An Interstate Natural Gas Facility On My Land? What Do I Need To Know? ” which addresses typically asked questions, including the use of eminent domain and how to participate in the Commission's proceedings. This fact sheet along with other landowner topics of interest are available for viewing on the FERC website (
There are three methods you can use to submit your comments to the Commission. The Commission encourages electronic filing of comments and has staff available to assist you at (866) 208-3676 or
(1) You can file your comments electronically using the
(2) You can file your comments electronically by using the
(3) You can file a paper copy of your comments by mailing them to the Commission. Be sure to reference the project docket number (CP22-503-000 for Virginia Reliability Project or CP22-502-000 for Commonwealth Energy Connector Project) on your letter. Submissions sent via the U.S. Postal Service must be addressed to: Kimberly D. Bose, Secretary, Federal Energy Regulatory Commission, 888 First Street NE, Room 1A, Washington, DC 20426. Submissions sent via any other carrier must be addressed to: Kimberly D. Bose, Secretary, Federal Energy Regulatory Commission, 12225 Wilkins Avenue, Rockville, Maryland 20852.
Additionally, the Commission offers a free service called eSubscription. This service provides automatic notification of filings made to subscribed dockets, document summaries, and direct links to the documents. Go to
Columbia proposes to replace and expand existing facilities associated with its VM-107 and VM-108 pipelines in southeast Virginia. The Virginia Reliability Project would increase the capability of Columbia's existing pipeline facilities to provide incremental firm transportation service of 100,000 dekatherms per day (Dth/d), while increasing the reliability of Columbia's system by replacing 1950s vintage pipelines. According to Columbia, its project would meet the increasing market demand of residential, commercial, and industrial consumers in southeast Virginia.
The Virginia Reliability Project would consist of the following:
• replacement of 49.2 miles of existing, 1950s vintage 12-inch-diameter VM-107 and VM-108 pipelines with 24-inch-diameter pipeline mostly within Columbia's existing right-of-way, in Sussex, Surry, Southampton, and Isle of Wight Counties, as well as the cities of Suffolk and Chesapeake;
• installation of one new 5,500-horsepower (HP) dual-drive compressor unit at the existing Emporia Compressor Station in Greensville County;
• a facility upgrade involving additional gas cooling and an increase of 2,700 HP at the existing Petersburg Compressor Station in Prince George County;
• modification of the Emporia Point of Receipt in Greensville County; Regulator Station 7423 in Prince George County; and the MS-831010 Point of Delivery in the City of Chesapeake; and
• eight mainline valve replacements, five new pig launcher/receiver installations,
The general location of the Virginia Reliability Project facilities is shown in appendix 1.
Based on the environmental information provided by Columbia, construction of the proposed facilities would disturb about 802.6 acres of land. Following construction, Columbia would maintain about 307.2 acres for operation of the project facilities; the remaining acreage would be restored and revert to former uses. About 92 percent of the replacement pipeline routes would parallel Columbia's existing right-of-way and/or other existing pipeline, utility, railroad, or road rights-of-way.
Based on an initial review of Columbia's proposal, public comments received during the pre-filing process, and public comments received on the Notice of Application, Commission staff have identified several expected impacts that deserve attention in the EIS. The Virginia Reliability Project would cross 131 waterbodies, 130.2 acres of wetland, several conservation sites, and about 0.5 mile of the Great Dismal Swamp National Wildlife Refuge. Three federally listed species (northern long-eared bat, red-cockaded woodpecker, and eastern black rail) may be affected by the project. Five state-listed species have potential to occur in the project area, and the potential for impacts on these species is being assessed. Environmental justice populations are present in the project area and may be affected by the project. The project would cross about 1.5 miles of the Sunray Agricultural Historic District, along Columbia's existing permanent right-of-way.
Transco proposes to expand its existing natural gas transmission system in southeast Virginia to provide 105,000 Dth/d of incremental firm transportation capacity from its Compressor Station 165 in Pittsylvania County to its existing Emporia Metering and Regulation Station in Greensville County on its existing South Virginia Lateral B-Line Pipeline. According to Transco, the project would provide firm, year-round access to incremental natural gas supply, increase the overall reliability and diversification of energy supply for its customer, and add natural gas infrastructure to meet growing demand in the Mid-Atlantic area.
The Commonwealth Energy Connector Project would consist of the following:
• construction of a 6.35-mile-long, 24-inch-diameter pipeline loop
• addition of a 33,000-HP electric motor-drive compressor unit at the existing Compressor Station 168 in Mecklenburg County; and
• modifications to the existing Emporia Metering and Regulation Station in Greensville County.
The general location of the Commonwealth Energy Connector Project facilities is also shown in appendix 1.
Based on the environmental information provided by Transco, construction of the proposed facilities would disturb about 161.3 acres of land. Following construction, Transco would maintain about 1.8 acres (in addition to the existing permanent right-of-way) for operation of the project facilities. The remaining acreage would be restored and revert to former uses. All of the proposed pipeline route parallels Transco's existing pipeline right-of-way.
Based on an initial review of Transco's proposal, public comments received during the pre-filing process, and public comments received on the Notice of Application, Commission staff have identified several expected impacts that deserve attention in the EIS. Commission staff have identified several expected impacts that deserve attention in the EIS. The project would cross 14 waterbodies and 2.5 acres of wetlands. One federally listed species (northern long-eared bat) potentially occurs within the project area. Fifteen state-protected species potentially occur
The EIS issued by the Commission will discuss impacts that could occur as a result of the construction and operation of the proposed projects under the relevant general resource areas:
• geology and soils;
• water resources and wetlands;
• vegetation and wildlife;
• threatened and endangered species;
• cultural resources;
• socioeconomics and environmental justice;
• land use;
• air quality and noise;
• climate change; and
• reliability and safety.
Commission staff will also make recommendations on how to lessen or avoid impacts on the various resource areas. Your comments will help Commission staff focus its analysis on the issues that may have a significant effect on the human environment.
The EIS will present Commission staff's independent analysis of the issues. The U.S. Army Corps of Engineers (USACE) and U.S. Fish and Wildlife Service (FWS) are cooperating agencies in the preparation of the EIS.
The EIS will evaluate reasonable alternatives that are technically and economically feasible and meet the purpose and need for the proposed actions.
• the no-action alternative, meaning the projects are not implemented;
• Virginia Reliability Project pipeline segment routes that avoid wetlands, waterbodies, the Sunray Agricultural Historic District, or the Great Dismal Swamp National Wildlife Refuge; and
• options to reduce the length of the Commonwealth Energy Connector Project pipeline.
With this notice, the Commission requests specific comments regarding any additional potential alternatives to the proposed actions or segments of the proposed actions. Please focus your comments on reasonable alternatives (including alternative facility sites and pipeline routes) that meet the project(s) objectives, are technically and economically feasible, and avoid or lessen environmental impact.
In accordance with the Advisory Council on Historic Preservation's implementing regulations for section 106 of the National Historic Preservation Act, the Commission initiated section 106 consultation for the projects in the notice issued on February 22, 2022, with the applicable State Historic Preservation Office, and other government agencies, interested Indian tribes, and the public to solicit their views and concerns regarding the projects' potential effects on historic properties.
On September 8, 2022, the Commission issued its Notice of Applications for the projects. Among other things, that notice alerted other agencies issuing federal authorizations of the requirement to complete all necessary reviews and to reach a final decision on the requests for a federal authorization within 90 days of the date of issuance of the Commission staff's final EIS for the projects. This notice identifies the Commission staff's planned schedule for completion of the final EIS for the projects, which is based on an issuance of the draft EIS in April 2023.
If a schedule change becomes necessary for the final EIS, an additional notice will be provided so that the relevant agencies are kept informed of the EIS progress.
The table below lists the anticipated permits and authorizations for the projects required under federal law. This list may not be all-inclusive and does not preclude any permit or authorization if it is not listed here. Agencies with jurisdiction by law and/or special expertise may formally cooperate in the preparation of the Commission's EIS and may adopt the EIS to satisfy its NEPA responsibilities related to these projects. Agencies that would like to request cooperating agency status should follow the instructions for filing comments provided under the
This notice is being sent to the Commission's current environmental mailing list for the projects which includes federal, state, and local government representatives and agencies; elected officials; environmental and public interest groups; Native American Tribes; other interested parties; and local libraries and newspapers. This list also includes all affected landowners (as defined in the Commission's regulations) who are potential right-of-way grantors, whose property may be used temporarily for project purposes, or who own homes within certain distances of aboveground facilities, and anyone who submits comments on the projects and includes a mailing address with their comments. Commission staff will update the environmental mailing list as the analysis proceeds to ensure that Commission notices related to this environmental review are sent to all individuals, organizations, and government entities interested in and/or potentially affected by the proposed projects. State and local government representatives should notify their constituents of these proposed projects and encourage them to comment on their areas of concern.
If you need to make changes to your name/address, or if you would like to remove your name from the mailing list, please complete one of the following steps:
(1) Send an email to
(2) Return the attached “Mailing List Update Form” (appendix 2).
Additional information about the projects is available from the Commission's Office of External Affairs, at (866) 208-FERC, or on the FERC website at
Public sessions or site visits will be posted on the Commission's calendar located at
Take notice that the Commission received the following electric corporate filings:
Take notice that the Commission received the following exempt wholesale generator filings:
Take notice that the Commission received the following electric rate filings:
The filings are accessible in the Commission's eLibrary system (
Any person desiring to intervene or protest in any of the above proceedings must file in accordance with Rules 211 and 214 of the Commission's Regulations (18 CFR 385.211 and 385.214) on or before 5:00 p.m. Eastern time on the specified comment date. Protests may be considered, but intervention is necessary to become a party to the proceeding.
eFiling is encouraged. More detailed information relating to filing requirements, interventions, protests, service, and qualifying facilities filings can be found at:
Federal Energy Regulatory Commission, DOE.
Notice of information collection and request for comments.
In compliance with the requirements of the Paperwork Reduction Act of 1995 (PRA), the Federal Energy Regulatory Commission (Commission or FERC) is soliciting public comment on the currently approved information collection, FERC-725M (Mandatory Reliability Standard: Transmission Vegetation Management).
Comments on the collection of information are due January 3, 2023.
You may submit your comments (identified by Docket No. IC23-3-000) by one of the following methods:
Electronic filing through
•
• For those unable to file electronically, comments may be filed by USPS mail or by hand (including courier) delivery:
○
○
Ellen Brown may be reached by email at:
The currently effective reliability standard is FAC-003-4 (Transmission Vegetation Management). Reliability Standard FAC-003-4 includes the Minimum Vegetation Clearance Distances (MVCDs) which are based on additional testing regarding the appropriate gap factor to be used to calculate clearance distances for vegetation. NERC previously explained that Reliability Standard FAC-003-4 includes higher and more conservative MVCD values and, therefore, maintained that FAC-003-4 would “enhance reliability and provide additional confidence by applying a more conservative approach to determining the vegetation clearing distances.”
On March 4, 2022, a Delegated Letter Order was issued, Docket No. RD22-2-000, approving FAC-003-5. The Reliability Standard FAC-003-5 set fourth requirements to maintain a reliable electric transmission system by using a defense‐in‐depth strategy to manage vegetation located on transmission rights of way (ROW) and minimize encroachments from vegetation located adjacent to the ROW, thus preventing the risk of those vegetation‐related outages that could lead to cascading. Specific to FAC-003-5 modifications were done to replace the Interconnection Reliability Operating Limit (IROL) with new language. The requirements in FAC-003-5 result in two years of one-time costs, which are reflected in the burden table below.
In FERC-725M we are renewing the information collection requirements that are currently in Reliability Standard FAC-003-4 but were not specified in RD22-2-000. Furthermore, we are adjusting the burden in FAC-003-4 to reflect the latest number of applicable entities based on the NERC Compliance Registry as of September 16, 2022.
—Manager (code 11-0000), $102.41
—Information and Records Clerks (code 43-4199), $42.35
—Electrical Engineer (code 17-2071), $77.02
The average hourly burden cost for this collection is $68.08 [($102.41 + $42.35 + $77.02)/3 = $73.93)]. and is rounded to $74.00 an hour.
Take notice that the Commission has received the following Natural Gas Pipeline Rate and Refund Report filings:
Any person desiring to intervene or protest in any of the above proceedings must file in accordance with Rules 211 and 214 of the Commission's Regulations (18 CFR 385.211 and 385.214) on or before 5:00 p.m. Eastern time on the specified comment date. Protests may be considered, but intervention is necessary to become a party to the proceeding.
The filings are accessible in the Commission's eLibrary system (
eFiling is encouraged. More detailed information relating to filing requirements, interventions, protests, service, and qualifying facilities filings can be found at:
The license for the Yellowstone Hydroelectric Project No.1773 was issued for a period ending September 30, 2022.
Section 15(a)(1) of the FPA, 16 U.S.C. 808(a)(1), requires the Commission, at the expiration of a license term, to issue from year-to-year an annual license to the then licensee(s) under the terms and conditions of the prior license until a new license is issued, or the project is otherwise disposed of as provided in section 15 or any other applicable section of the FPA. If the project's prior license waived the applicability of section 15 of the FPA, then, based on section 9(b) of the Administrative Procedure Act, 5 U.S.C. 558(c), and as set forth at 18 CFR 16.21(a), if the licensee of such project has filed an application for a subsequent license, the licensee may continue to operate the project in accordance with the terms and conditions of the license after the minor or minor part license expires, until the Commission acts on its application. If the licensee of such a project has not filed an application for a subsequent license, then it may be required, pursuant to 18 CFR 16.21(b), to continue project operations until the Commission issues someone else a license for the project or otherwise orders disposition of the project.
If the project is subject to section 15 of the FPA, notice is hereby given that an annual license for Project No.1773 is issued to the Moon Lake Electric Association, Inc for a period effective October 1, 2022, through September 30, 2023, or until the issuance of a new license for the project or other disposition under the FPA, whichever comes first. If issuance of a new license (or other disposition) does not take place on or before September 30, 2023, notice is hereby given that, pursuant to 18 CFR 16.18(c), an annual license under section 15(a)(1) of the FPA is renewed automatically without further order or notice by the Commission, unless the Commission orders otherwise.
If the project is not subject to section 15 of the FPA, notice is hereby given that the Moon Lake Electric Association, Inc. is authorized to continue operation of the Yellowstone Hydroelectric Project under the terms and conditions of the prior license until the issuance of a new license for the project or other disposition under the FPA, whichever comes first.
Tuesday, November 15, 2022, at 10:00 a.m. and its continuation at the conclusion of the open meeting on November 17, 2022.
1050 First Street NE, Washington, DC, and Virtual (This meeting will be a hybrid meeting).
This meeting will be closed to the public.
Compliance matters pursuant to 52 U.S.C. 30109.
Matters relating to internal personnel decisions, or internal rules and practices.
Information the premature disclosure of which would be likely to have a considerable adverse effect on the implementation of a proposed Commission.
Matters concerning participation in civil actions or proceedings or arbitration.
Judith Ingram, Press Officer, Telephone: (202) 694-1220.
The companies listed in this notice have applied to the Board for approval, pursuant to the Bank Holding Company Act of 1956 (12 U.S.C. 1841
The public portions of the applications listed below, as well as other related filings required by the Board, if any, are available for immediate inspection at the Federal Reserve Bank(s) indicated below and at the offices of the Board of Governors. This information may also be obtained on an expedited basis, upon request, by contacting the appropriate Federal Reserve Bank and from the Board's Freedom of Information Office at
Comments regarding each of these applications must be received at the Reserve Bank indicated or the offices of the Board of Governors, Ann E. Misback, Secretary of the Board, 20th Street and Constitution Avenue NW, Washington, DC 20551-0001, not later than December 1, 2022.
1.
Federal Trade Commission.
Proposed consent agreement; request for comment.
The consent agreement in this matter settles alleged violations of federal law prohibiting unfair or deceptive acts or practices. The attached Analysis of Proposed Consent Order to Aid Public Comment describes both the allegations in the draft complaint and the terms of the consent order—embodied in the consent agreement—that would settle these allegations.
Comments must be received on or before December 1, 2022.
Interested parties may file comments online or on paper by following the instructions in the Request for Comment part of the
Jamie Hine (202-326-2188) or Elizabeth Averill (202-326-2993), Bureau of Consumer Protection, Federal Trade Commission, 600 Pennsylvania Avenue NW, Washington, DC 20580.
Pursuant to section 6(f) of the Federal Trade Commission Act, 15 U.S.C. 46(f), and FTC Rule § 2.34, 16 CFR 2.34, notice is hereby given that the above-captioned consent agreement containing a consent order to cease and desist, having been filed with and accepted, subject to final approval, by the Commission, has been placed on the public record for a period of 30 days. The following Analysis to Aid Public Comment describes the terms of the consent agreement and the allegations in the complaint. An electronic copy of the full text of the consent agreement package can be obtained at
You can file a comment online or on paper. For the Commission to consider your comment, we must receive it on or before December 1, 2022. Write “Drizly, LLC; File No. 202 3185” on your comment. Your comment—including your name and your state—will be placed on the public record of this proceeding, including, to the extent practicable, on the
Because of heightened security screening, postal mail addressed to the Commission will be subject to delay. We strongly encourage you to submit your comments online through the
If you prefer to file your comment on paper, write “Drizly, LLC; File No. 202 3185” on your comment and on the envelope, and mail your comment to the following address: Federal Trade Commission, Office of the Secretary, 600 Pennsylvania Avenue NW, Suite CC-5610 (Annex D), Washington, DC 20580.
Because your comment will be placed on the publicly accessible website at
Comments containing material for which confidential treatment is requested must be filed in paper form, must be clearly labeled “Confidential,” and must comply with FTC Rule § 4.9(c). In particular, the written request for confidential treatment that accompanies the comment must include the factual and legal basis for the request, and must identify the specific portions of the comment to be withheld from the public record.
Visit the FTC website at
The Federal Trade Commission (“Commission”) has accepted, subject to final approval, an agreement containing a Proposed Consent Order (“Proposed Order”) from Drizly, LLC (“Drizly” or “Corporate Respondent”) and James Cory Rellas (“Rellas” or “Individual Respondent”), individually and as an officer of Drizly (collectively, “Respondents”).
The Proposed Order has been placed on the public record for 30 days for receipt of comments from interested persons. Comments received during this period will become part of the public record. After 30 days, the Commission will again review the agreement and the comments received and will decide whether it should withdraw from the agreement and take appropriate action or make final the agreement's Proposed Order.
This matter involves Respondents' data security practices. Drizly operates an e-commerce platform that enables local retailers to sell alcohol online to consumers of legal drinking age and stored personal information for more than 2.5 million consumers. Respondents engaged in a number of unreasonable data security practices which caused or are likely to cause substantial consumer injury. In addition, Corporate Respondent made a number of misrepresentations to consumers in its privacy policies about the measures it took to protect consumers' personal information.
The Commission's proposed two-count complaint alleges that Respondents have violated section 5(a) of the Federal Trade Commission Act. First, the complaint alleges that Respondents have engaged in a number of unreasonable security practices that led to a hacker's unauthorized download of personal information about 2.5 million consumers.
The complaint alleges that Respondents:
• Failed to develop adequate written information security standards, policies, procedures, or practices; assess or enforce compliance with the written standards, policies, procedures, and practices that it did have; and implement training for employees (including engineers) regarding such standards, policies, procedures, and practices;
• Failed to securely store AWS and database login credentials, by including them in GitHub repositories, and failed to use readily available measures to scan these repositories for unsecured credentials (such as usernames, passwords, API keys, secure access tokens, and asymmetric private keys);
• Failed to impose reasonable data access controls such as: (1) unique and complex passwords or multifactor authentication to access source code or databases; (2) enforcing role-based access controls; (3) monitoring and terminating employee and contractor access to source code once they no longer needed such access; (4) restricting inbound connections to known IP addresses; and (5) requiring appropriate authentications between Drizly applications and the production environment;
• Failed to prevent data loss by monitoring for unauthorized attempts to transfer or exfiltrate consumers' personal information outside the company's network boundaries; continually log and monitor its systems and assets to identify data security events; and perform regular assessments as to the effectiveness of protection measures;
• Failed to test, audit, assess, or review its products' or applications' security features; and failed to conduct regular risk assessments, vulnerability scans, and penetration testing of its networks and databases; and
• Failed to have a policy, procedure, or practice for inventorying and deleting consumers' personal information stored on its network that was no longer necessary.
The complaint alleges that Respondents could have addressed each of the failures described through well known, readily available, and relatively low-cost measures. It also alleges Respondent's failures caused or are likely to cause substantial injury to consumers that is not outweighed by countervailing benefits to consumers or competition and is not reasonably avoidable by consumers themselves. Such practice constitutes an unfair act or practice under section 5 of the FTC Act.
Second, the complaint alleges Drizly made false statements on its corporate website and in its mobile apps about its information security practices. Specifically, Corporate Respondent misrepresented to consumers that the information it collects from them is securely stored and protected by commercially reasonable security practices. The complaint alleges Corporate Respondent's actions constitute deceptive acts or practices in violation of section 5(a) of the FTC Act.
The Proposed Order contains injunctive provisions addressing the alleged unfair and deceptive conduct in connection with Respondent's sale of dealer management system software and services. Part I of the Proposed Order prohibits Corporate Respondent from misrepresenting the privacy and security measures it uses to protect consumers' information and privacy.
Part II of the Proposed Order requires Corporate Respondent to delete within 60 days any “Covered Information” that is not being used or retained in connection with providing products or services to consumers, and to provide written statements to the Commission describing the specific deletion of any such “Covered Information.” In addition, Corporate Respondent must refrain from collecting or maintaining any future “Covered Information,” if the purpose is not necessary for specific purposes described in a retention schedule.
Part III of the Proposed Order requires Drizly to create and display on its website and apps a retention schedule for any “Covered Information” it collects, maintains, uses, discloses, or provides access. The schedule must provide a purpose for the information collection, the business need for any retention, and a timeframe for eventual deletion.
Part IV of the Proposed Order requires Corporate Respondent to implement an Information Security Program, requiring among other things:
• Training in secure software development principles, including secure engineering and defensive programming concepts;
• Measures to prevent the storage of unsecured access keys or other unsecured credentials;
• Implementation of data access controls;
• Risk assessment of source code and controls such as software code review; and
• Use of non-SMS based multi-factor authentication for employees and offering multi-factor authentication as an option for consumers.
Drizly must also obtain initial and biennial third-party assessments of its Information Security Program implementation (Part V), cooperate with the third-party assessor performing such assessments (Part VI), have a senior corporate manager or corporate officer make annual certifications regarding Corporate Respondent's compliance with the Proposed Order's data security requirements (Part VIII), and report to the Commission any event involving consumers' personal information that constitutes a reportable event to any U.S. federal, state, or local government authority (Part IX).
Part VII of the Proposed Order requires Individual Respondent James Cory Rellas, for a period of ten years, for any business that he is a majority owner, or is employed or functions as a CEO or other senior officer with responsibility for information security, to ensure the business has established and implements, and thereafter maintains, an information security program.
Parts X-XIII of the Proposed Order are standard scofflaw provisions requiring acknowledgment of the Order to be delivered for ten years to corporate officers and employees engaged in the
Part XIV of the Proposed Order provides that the order terminates 20 years after its issuance or 20 years after the latest complaint filed in federal court alleging a violation of the order.
The purpose of this analysis is to aid public comment on the Proposed Order. It is not intended to constitute an official interpretation of the complaint or Proposed Order, or to modify in any way the Proposed Order's terms.
By direction of the Commission, Commissioner Wilson dissenting in part.
Today the Commission announced a settlement with the alcohol delivery platform Drizly, LLC, and its CEO, James Cory Rellas, over the company's alleged failure to implement reasonable security policies. According to the complaint, this failure led to several data breaches that exposed the personal information of 2.5 million consumers. Drizly, a wholly owned subsidiary of Uber, collects and stores a vast amount of user data, including names, physical addresses, geolocation, and alcohol order history. It also stores information about consumers that it purchases from third parties.
The Commission's complaint alleges that in 2018, Rellas and Drizly were alerted to security weaknesses that put its stockpile of consumer data at risk, yet they did not address the problem. According to the complaint, the company neglected to implement basic best practices, such as developing a written data security policy or hiring a qualified employee responsible for data security. Then, in 2020, a hacker was able to access a massive trove of customer data by using login credentials reused by an executive across personal accounts. During this period, Drizly also allegedly made multiple misrepresentations about its data security practices in the privacy policy on its corporate website.
The Commission's proposed order imposes several important conditions to prevent similar failures in the future. It prohibits Drizly from collecting or storing consumer data that is not necessary for pre-specified business purposes. Drizly must also implement a comprehensive security program that features the latest multifactor authentication requirements outlined in recent orders and prevents storage of unsecured credentials on its network or in any cloud-based service. In addition, Drizly must create a public retention schedule for such data, including timeframes for eventual deletion of stored data.
Notably, the order applies personally to Rellas, who presided over Drizly's lax data security practices as CEO. In the modern economy, corporate executives sometimes bounce from company to company, notwithstanding blemishes on their track record.
Today's action will not only correct Drizly's lax data security practices but should also put other market participants on notice. Limiting the baseline collection and retention of data, as we do here, is a critical tool for protecting Americans from the risks of data breaches, and we will continue to explore remedies centered on limiting the data that is collected or retained in the first place.
The kinds of lax and unreasonable data security practices the Commission has alleged in this settlement with Drizly
This order is commendable and marks a meaningful step forward in our data security enforcement. Naming Drizly's CEO, James Corey Rellas, who oversaw these practices, helps ensure that corporate leadership must take seriously their obligation to safeguard customer information. Mechanisms like the proposed data retention schedule are also an excellent approach to provide accountability for data use and misuse. Ensuring that Drizly only collects information necessary to effectuate its published business needs should exert a disciplining influence on its collection of consumer information. The retention schedule also provides a clear hook for future FTC enforcement actions should Drizly not follow its strict requirements under this proposed order.
Going forward, I believe the law would support us doing more to safeguard Americans' data, including requiring substantive limits on
There are many ways to approach data collection guardrails. As the FTC further develops a minimization framework, one framework I hope we consider is centering a consumer's reasonable expectation that there should be limits on the collection and use of their information based on the service they've actually requested. I believe the agency is in a better position to effectuate this expectation than it is to anticipate, understand, and police every claim of reasonable business necessity. A consumer centered data minimization standard could work hand-in-hand with the kinds of disclosures and effective data security practices in this proposed order to protect Americans from the ongoing epidemic of data breaches, which are greatly exacerbated by overcollection of consumer information.
I am grateful to the staff for their hard work on this strong order. I look forward to seeing how our work continues to evolve in the pursuit of protecting Americans' data and ensuring our confidence in the practices of the businesses with which we all transact.
Today the Commission announces a complaint and settlement resolving allegations that Drizly, LLC and its CEO, James Cory Rellas, violated Section 5 of the FTC Act. The complaint asserts that Drizly made false statements on its website and in its mobile apps about its information security practices. The Commission also alleges that Drizly engaged in several unreasonable data security practices that led to multiple security breaches, including a hacker's unauthorized download of personal information about 2.5 million consumers.
The FTC has long provided clear guidance to the business community about the fundamentals of sound data security.
While I support the complaint against the corporate defendant, I do not support holding the individual defendant, Rellas, liable. To seek injunctive relief with respect to a CEO or other principal, the Commission must show only that the individual “participated directly in the deceptive practices
The Commission traditionally has exercised its prosecutorial discretion and assessed a variety of factors when deciding whether to name a CEO or principal, including consideration of whether individual liability is necessary to obtain effective relief, and the level of the individual's knowledge and participation in the alleged illegal conduct.
The order against Drizly requires the company to implement extensive data security safeguards regardless of whether Rellas is at the helm of the organization. Naming Rellas does not change the injunctive obligations placed on the company to ensure that customers' personal information is protected going forward. Moreover, the case against Drizly makes clear that the FTC expects technology start-ups to start with security and establish reasonable data security practices that grow with the company.
As for knowledge and participation, the number of issues crossing a CEO's desk on any given day is substantial. In most large companies, I would expect CEOs to have little to no involvement with, and no direct knowledge of, practices that are the subject of an FTC investigation. Here, we do not allege that Rellas oversaw day-to-day operations of the company's data security practices, had any data security expertise, or was responsible for decisions about data security policies, procedures, or programs.
By naming Rellas, the Commission has not put the market on notice that the FTC will use its resources to target lax data security practices. Instead, it has signaled that the agency will substitute its own judgement about corporate priorities and governance decisions for those of companies.
Accordingly, I dissent from the inclusion of the individual defendant in the complaint and settlement in this matter.
Public Buildings Service (PBS), General Services Administration (GSA).
Notice; public meeting.
The General Services Administration (GSA) intends to prepare an Environmental Impact Statement (EIS) and conduct the Section 106 Process of the National Historic Preservation Act (NHPA) to address the future of buildings 202, 208-212, 214 and 220 South State Street between Adams Street and Jackson Boulevard, adjacent to the Dirksen Federal Courthouse in Chicago's South Loop, downtown Chicago, Illinois. All four properties, for which Congress has appropriated funds for demolition, reside in the Loop Retail Historic District listed in the National Register of Historic Places. Two of the four buildings, the Century Building (202 State Street) and the Consumers Building (220 South State Street) are identified as contributing structures to the historic district.
A scoping meeting will be held at the Morrison Conference Center in the Ralph H. Metcalfe Federal Building, 77 W. Jackson Blvd., Chicago, IL 60604, on Thursday, November 10, 2022, from 4 to 7 p.m., CST (Central Standard Time). Written comments must be received by Monday, December 12, 2022, in order to be considered in the EIS. Participants will be given an opportunity to comment based on the order in which they register. Each person will be allowed three minutes to comment during the meeting. Written comments will be accepted before and after the meeting and given the same priority as oral comments.
People wishing to attend the public meeting in-person or virtually are asked to register for the event at this link:
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Mr. Joseph Mulligan, U.S. General Services Administration, 230 S. Dearborn St., Suite 3600, Chicago, IL 60604; email:
The purpose of the public scoping process is to identify relevant issues that will influence the scope of analysis of the human and natural environment including cultural resources. The EIS will include public input on alternatives and impacts. This meeting will also initiate GSA's public consultation required by NHPA. GSA seeks input at this meeting that will assist the agency in planning for the Section 106 consultation process, identifying consulting parties, determining the area of the undertaking's potential effects on cultural resources (Area of Potential Effects), and envisioning alternatives to demolition that will avoid, minimize or mitigate adverse effects. Federal, state, and local agencies, along with affected members of the public, are invited to participate in the NEPA scoping and Section 106 process.
The National Historic Preservation Act (NHPA) and the National Environmental Policy Act (NEPA) are two separate laws which require federal agencies to consider the impacts to historic properties and the human environment before making decisions. NHPA and NEPA are independent statutes, yet may be executed concurrently to optimize efficiencies, transparency, and accountability to better understand the effects to the human, natural, and cultural environment. The EIS will be prepared pursuant to the requirements of the National Environmental Policy Act (NEPA) of 1969, the Council on Environmental Quality NEPA regulations, and the GSA Public Buildings Service
Opportunities for affected members of the public to become a consulting party during the NHPA Section 106 process will be presented during the public scoping meeting. You may submit a comment to express your interest in being a consulting party if you cannot attend the meeting.
The purpose of the Proposed Action and Undertaking is to address the potential security vulnerabilities associated with buildings 202, 208-212,
• The Dirksen Federal Courthouse and its occupants are at particular risk of harm by hostile acts.
• Physical security surrounding the courthouse needs to be maintained and enhanced.
• Congress passed the 2022 Consolidated Appropriations Act with the following expectations:
○ Defined scope to demolish the four properties.
○ Funding for demolition of the four properties.
• There is no federal occupancy need for the buildings.
The proposed action and undertaking are to address the future of buildings 202, 208-212, 214 and 220 South State Street, Chicago, Illinois. GSA has identified the following preliminary alternatives for the proposed action. However, additional alternatives proposed by the public may be considered in the EIS.
1. The Federal government must retain ownership interests to achieve its security objectives, as determined by the government in its discretion.
2. Occupancy/Use: Properties shall not be used for short-term or long-term residential or lodging, places of worship, or medical treatment, services, or research. No use that requires access to outdoor areas is permitted.
3. Access to the roof is restricted to maintenance and repair activities. Personnel and materials that will be present in this area shall be subject to clearance and controls necessary to meet court security objectives.
4. Developer would have no access or use rights to Quincy Court.
5. Loading is prohibited in Quincy Court and otherwise restricted in a manner to achieve court security. Loading on State or Adams Streets would be subject to local ordinance requirements.
6. Occupants and users of the buildings shall have no sight lines into the Dirksen Courthouse, the Dirksen Courthouse ramp, or the Quincy Court properties owned by GSA.
7. No parking or vehicle access is permitted on or within the properties.
8. Developer is responsible for staffing, at their expense, security 24 hours with personnel approved by the Federal Protective Service or an entity to whom security services are delegated by Federal Protective Service.
9. Developer must obtain and maintain access control systems to prevent unauthorized access to any location within the structures. Each exterior entrance point must have an intrusion detection system and access control system installed, and Developer must provide federal law enforcement access to each system.
10. Developer must install and maintain interior and exterior security cameras and provide federal law enforcement officials with access and the ability to monitor the feeds in real time.
11. Developer must install exterior lighting necessary to achieve courthouse security objectives.
12. Perimeter Security: Developer must prevent unauthorized access to the properties that would result in an unapproved sight line.
13. Fire escapes, and any other structures that would allow access from the street, must be removed.
14. All construction documents and specifications for any renovation, rehabilitation, modification, or construction of any portion of the building (interior or exterior) will be subject to review and approval by federal law enforcement agencies.
15. No project may start without the advance approval of GSA.
The EIS will identify, describe, and analyze the potential effects of the Action and No Action alternatives. This will include direct, indirect, and cumulative effects resulting from the implementation of the Action and No Action Alternatives. At present, GSA has identified the following resources for analysis of both beneficial and adverse potential impacts: cultural resources; aesthetic and visual quality; land use and zoning; community cohesion; socioeconomics; hazardous materials; air quality; noise; transportation and traffic; human health and safety; coastal zones; and geology, soils, and topography. The EIS will consider measures that would avoid, minimize, or mitigate identified adverse impacts. GSA welcomes public input on these potential impacts and other resources that should be considered.
In addition to NEPA, federal permits and other federal authorizations may be required for execution of the proposed action and undertaking or its alternatives. GSA's activities to meet its obligations under NEPA and Section 106 are not intended or presumed to effect compliance with all environmental regulation that may apply to the proposed action and undertaking, which involve separate regulatory permitting procedures. Examples include those required by the Clean Water Act, Clean Air Act, and applicable non-federal permitting laws.
The following is a list of
Agency for Healthcare Research and Quality (AHRQ), Department of Health and Human Services (HHS).
Notice of delisting.
The Patient Safety and Quality Improvement Final Rule (Patient Safety Rule) authorizes AHRQ, on behalf of the Secretary of HHS, to list as a patient safety organization (PSO) an entity that attests that it meets the statutory and regulatory requirements for listing. A PSO can be “delisted” by the Secretary if it is found to no longer meet the requirements of the Patient Safety and Quality Improvement Act of 2005 (Patient Safety Act) and Patient Safety Rule, when a PSO chooses to voluntarily relinquish its status as a PSO for any reason, or when a PSO's listing expires. AHRQ accepted a notification of proposed voluntary relinquishment from the SimCore PSO, LLC, PSO number P0189, of its status as a PSO, and has delisted the PSO accordingly.
The delisting was applicable 12:00 Midnight ET (2400) on October 14, 2022.
The directories for both listed and delisted PSOs are ongoing and reviewed weekly by AHRQ. Both directories can be accessed electronically at the following HHS website:
Cathryn Bach, Center for Quality Improvement and Patient Safety, AHRQ, 5600 Fishers Lane, MS 06N100B, Rockville, MD 20857; Telephone (toll free): (866) 403-3697; Telephone (local): (301) 427-1111; TTY (toll free): (866) 438-7231; TTY (local): (301) 427-1130; Email:
The Patient Safety Act, 42 U.S.C. 299b-21 to 299b-26, and the related Patient Safety Rule, 42 CFR part 3, published in the
The Patient Safety Act authorizes the listing of PSOs, which are entities or component organizations whose mission and primary activity are to conduct activities to improve patient safety and the quality of health care delivery.
HHS issued the Patient Safety Rule to implement the Patient Safety Act. AHRQ administers the provisions of the Patient Safety Act and Patient Safety Rule relating to the listing and operation of PSOs. The Patient Safety Rule authorizes AHRQ to list as a PSO an entity that attests that it meets the statutory and regulatory requirements for listing. A PSO can be “delisted” if it is found to no longer meet the requirements of the Patient Safety Act and Patient Safety Rule, when a PSO chooses to voluntarily relinquish its status as a PSO for any reason, or when a PSO's listing expires. Section 3.108(d) of the Patient Safety Rule requires AHRQ to provide public notice when it removes an organization from the list of PSOs.
AHRQ has accepted a notification of proposed voluntary relinquishment from the SimCore PSO, LLC to voluntarily relinquish its status as a PSO. Accordingly, the SimCore PSO, LLC, PSO number P0189, was delisted effective at 12:00 Midnight ET (2400) on October 14, 2022.
SimCore PSO, LLC has patient safety work product (PSWP) in its possession. The PSO will meet the requirements of section 3.108(c)(2)(i) of the Patient Safety Rule regarding notification to providers that have reported to the PSO and of section 3.108(c)(2)(ii) regarding disposition of PSWP consistent with section 3.108(b)(3). According to section 3.108(b)(3) of the Patient Safety Rule, the PSO has 90 days from the effective date of delisting and revocation to complete the disposition of PSWP that is currently in the PSO's possession.
More information on PSOs can be obtained through AHRQ's PSO website at
Centers for Medicare & Medicaid Services, Health and Human Services (HHS).
Notice.
On May 28, 2010, the Office of Management and Budget (OMB) issued Paperwork Reduction Act (PRA) guidance related to the “generic” clearance process. Generally, this is an expedited process by which agencies may obtain OMB's approval of collection of information requests that are “usually voluntary, low-burden, and uncontroversial collections,” do not raise any substantive or policy issues, and do not require policy or methodological review. The process requires the submission of an overarching plan that defines the scope of the individual collections that would fall under its umbrella. On October 23, 2011, OMB approved our initial request to use the generic clearance process under control number 0938-1148 (CMS-10398). It was last approved on April 26, 2021, via the standard PRA process which included the publication of 60- and 30-day
Comments must be received by November 15, 2022.
When commenting, please reference the applicable form number (see below) and the OMB control number (0938-1148). To be assured consideration, comments and recommendations must be submitted in any one of the following ways:
1.
2.
To obtain copies of a supporting statement and any related forms for the proposed collection(s) summarized in this notice, please access the CMS PRA website by copying and pasting the following web address into your web browser:
William N. Parham at (410) 786-4669.
Following is a summary of the use and burden associated with the subject information collection(s). More detailed information can be found in the collection's supporting statement and associated materials (see
1.
Office of Refugee Resettlement, Administration for Children and Families, Department of Health and Human Services.
Request for public comments.
The Office of Refugee Resettlement (ORR), Administration for Children and Families (ACF), U.S. Department of Health and Human Services (HHS), is proposing to collect data for a new Operation Allies Welcome (OAW) Survey of Resettled Afghans.
Written comments and recommendations for the proposed information collection should be sent within 30 days of publication of this notice to
Office of Planning, Research, and Evaluation, Administration for Children and Families, Department of Health and Human Services.
Request for Public Comments.
The Office of Planning, Research, and Evaluation (OPRE), Administration for Children and Families (ACF), is proposing to collect information for The Role of Licensing in Early Care and Education (TRLECE) project. This data collection aims to examine the child care and early education (CCEE) licensing system through surveys of child care licensing administrators, front-line child care licensing staff, and child care providers.
Written comments and recommendations for the proposed information collection should be sent within 30 days of publication of this notice to
1. A one-time nationwide survey of the child care licensing administrator in each state, territory, and the District of Columbia (N=56) regarding the licensing system, as well as administrators' characteristics, experiences, and perceptions of the licensing system. Child care licensing administrators oversee critical systems that regulate CCEE settings for young children.
2. A one-time nationwide survey of front-line child care licensing staff from each of the 50 states and the District of Columbia about their characteristics, experiences, responsibilities, and perceptions of the CCEE licensing system. By front-line child care licensing staff we mean individuals who routinely conduct licensing inspections of child care programs. They may have other responsibilities as well, as long as one of their jobs is to routinely conduct inspections.
3. A one-time nationwide survey of licensed child care providers from each of the 50 states and the District of Columbia about their perceptions of and experiences with the CCEE licensing system. For the purposes of this study, licensed providers are defined as program owners/directors who oversee the day-to-day operations in a licensed center, as well as owners/operators of licensed family child care (FCC) programs (including group and family child care homes).
Food and Drug Administration, HHS.
Notice.
The Food and Drug Administration (FDA or Agency or we) is announcing an opportunity for public comment on the proposed collection of certain information by the Agency. Under the Paperwork Reduction Act of 1995 (PRA), Federal Agencies are required to publish notice in the
Either electronic or written comments on the collection of information must be submitted by January 3, 2023.
You may submit comments as follows. Please note that late, untimely filed comments will not be considered. The
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 Dockets Management Staff, 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
Domini Bean, Office of Operations, Food and Drug Administration, Three White Flint North, 10A-12M, 11601 Landsdown St., North Bethesda, MD 20852, 301-796-5733,
Under the PRA (44 U.S.C. 3501-3521), Federal Agencies must obtain approval from the Office of Management and Budget (OMB) for each collection of information they conduct or sponsor. “Collection of information” is defined in 44 U.S.C. 3502(3) and 5 CFR 1320.3(c) and includes Agency requests or requirements that members of the public submit reports, keep records, or provide information to a third party. Section 3506(c)(2)(A) of the PRA (44 U.S.C. 3506(c)(2)(A)) requires Federal Agencies to provide a 60-day notice in the
With respect to the following collection of information, FDA invites comments on these topics: (1) Whether the proposed collection of information is necessary for the proper performance of FDA's functions, including whether the information will have practical utility; (2) the accuracy of FDA's estimate of the burden of the proposed collection of information, including the validity of the methodology and assumptions used; (3) ways to enhance the quality, utility, and clarity of the information to be collected; and (4) ways to minimize the burden of the collection of information on respondents, including through the use
This information collection supports Agency regulations and recommendations found in associated guidance pertaining to BLA procedures and requirements. A BLA is a request for permission to introduce, or deliver for introduction, a biological product into interstate commerce (601.2 (21 CFR 601.2)). BLAs are regulated under parts 600 through 680 (21 CFR parts 600 through 680). A BLA is submitted by any legal person or entity who is engaged in manufacture or an applicant for a license who takes responsibility for compliance with product and establishment standards. Interested persons may visit
Regulations in part 601 set forth applicable procedures for the submission of license application information, including content and format elements. The regulations also explain requirements for suspension, revocation, and reissuance of BLAs and communicate procedures for requesting a hearing. Additionally, the information collection includes the submission of manufacturing change information governed by section 506A of the Federal Food, Drug, and Cosmetic Act (FD&C Act) (21 U.S.C. 356a), as well as postmarketing reports for approved human drugs and licensed biological products governed by section 506B of the FD&C Act (21 U.S.C. 356b). Finally, regulations in parts 610 through 680 establish both general and specific biological product standards.
To implement these provisions, we have developed the following collection instruments:
Form FDA 356h,
Form FDA 2252,
Form FDA 2253,
Form FDA 3674,
As provided for under part 601.2(a), we also utilize cover sheets, so denoted for purposes of identifying specific content information within a given application.
The guidance document “Cooperative Manufacturing Arrangements for Licensed Biologics,” (November 2008), available at
All Agency guidance documents issued are consistent with our good guidance practice regulations in 21 CFR 10.115, which provide for public comment at any time. We maintain a searchable database of our guidance documents at
Respondents to this collection of information are licensed manufacturers of biological products. Based on the number of 2021 fiscal year application submissions, we estimate there are 371 such respondents. The total annual responses are based on the number of submissions (
We estimate the burden of this collection of information as follows:
Our estimated burden for the information collection reflects an overall increase of 467,907 hours and a corresponding increase in responses. We attribute part of this adjustment in the total hours to an increase in the number of submissions that we have received under 601.12(b)(1) and (3), (e), and (f)(4), and 601.45 over the last few years, which accounts for an increase of 467,549 hours. An additional increase of 358 hours is associated with certifications on Form FDA 3674.
Food and Drug Administration, HHS.
Notice.
The Food and Drug Administration (FDA or Agency) is announcing an opportunity for public comment on the proposed collection of certain information by the Agency. Under the Paperwork Reduction Act of 1995 (PRA), Federal Agencies are required to publish notice in the
Either electronic or written comments on the collection of information must be submitted by January 3, 2023.
You may submit comments as follows. Please note that late, untimely filed comments will not be considered. The
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 Dockets Management Staff, 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
Rachel Showalter, Office of Operations, Food and Drug Administration, Three White Flint North, 10A-12M, 11601 Landsdown St., North Bethesda, MD 20852, 240-994-7399,
Under the PRA (44 U.S.C. 3501-3521), Federal Agencies must obtain approval from the Office of Management and Budget (OMB) for each collection of information they conduct or sponsor. “Collection of information” is defined in 44 U.S.C. 3502(3) and 5 CFR 1320.3(c) and includes Agency requests or requirements that members of the public submit reports, keep records, or provide information to a third party. Section 3506(c)(2)(A) of the PRA (44 U.S.C. 3506(c)(2)(A)) requires Federal Agencies to provide a 60-day notice in the
With respect to the following collection of information, FDA invites comments on these topics: (1) whether the proposed collection of information is necessary for the proper performance of FDA's functions, including whether the information will have practical utility; (2) the accuracy of FDA's estimate of the burden of the proposed collection of information, including the validity of the methodology and assumptions used; (3) ways to enhance the quality, utility, and clarity of the information to be collected; and (4) ways to minimize the burden of the collection of information on respondents, including through the use of automated collection techniques, when appropriate, and other forms of information technology.
This information collection request supports Agency guidance entitled “Special Protocol Assessment” (Revision 1) (2018) that describes Agency procedures to evaluate issues related to the adequacy (
As described in the guidance, a sponsor interested in an FDA assessment of a carcinogenicity protocol should notify the appropriate division in FDA's Center for Drug Evaluation and Research (CDER) or the Center for Biologics Evaluation and Research (CBER) of an intent to request special protocol assessment at least 30 days prior to submitting the request. With such notification, the sponsor should submit relevant background information so that FDA may review reference material related to carcinogenicity protocol design before receiving the carcinogenicity protocol.
The guidance asks that a request for special protocol assessment be submitted as an amendment to the investigational new drug application (IND) for the underlying product and that it be submitted to FDA in triplicate along with Form FDA 1571.
FDA suggests that the cover letter to the request for special protocol assessment be submitted via Fax to the appropriate division in CDER or CBER to enable FDA staff to prepare for the arrival of the protocol for assessment. FDA recommends that a request for special protocol assessment be submitted as an amendment to an IND for two reasons: (1) to ensure that each request is kept in the administrative file with the entire IND and (2) to ensure that pertinent information about the request is entered into the appropriate tracking databases. Use of the information in FDA's tracking databases enables the appropriate Agency official to monitor progress on the evaluation of the protocol and to ensure that appropriate steps will be taken in a timely manner.
The guidance recommends that the following information should be submitted to the appropriate CBER or CDER division with each request for special protocol assessment so that the division may quickly and efficiently respond to the request:
• Questions to FDA concerning specific issues regarding the protocol.
• All data, assumptions, and information needed to permit an adequate evaluation of the protocol, including: (1) the role of the study in the overall development of the drug; (2) information supporting the proposed trial, including power calculations, the choice of study endpoints, and other critical design features; (3) regulatory outcomes that could be supported by the results of the study; (4) final labeling that could be supported by the results of the study; and (5) for a stability protocol, product characterization, and relevant manufacturing data.
FDA estimates the burden of this collection of information as follows:
The information collection reflects an adjustment decrease in burden by 196 hours. We attribute this adjustment to a decrease in the number of notifications for carcinogenicity protocols and an increase in the number of requests for special protocol assessment reports we received over the last few years.
Food and Drug Administration, HHS.
Notice of availability.
The Food and Drug Administration (FDA or Agency) is announcing the availability of a draft guidance for industry entitled “Measuring Growth and Evaluating Pubertal Development in Pediatric Clinical Trials.” The purpose of this draft guidance is to outline the most appropriate methods for measuring and recording growth and evaluating pubertal development for drugs or biological products in development for pediatric use when such an assessment is necessary to support safety. This draft guidance is intended to encourage a consistent approach to collecting interpretable and accurate growth and pubertal development data. This draft guidance does not address use of growth or pubertal development data to support primary evidence of efficacy in growth disorders and does not address evaluation of nutritional status.
Submit either electronic or written comments on the draft guidance by January 3, 2023 to ensure that the Agency considers your comment on this draft guidance before it begins work on the final version of the guidance.
You may submit comments on any guidance at any time 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 Dockets Management Staff, 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
You may submit comments on any guidance at any time (see 21 CFR 10.115(g)(5)).
Submit written requests for single copies of the draft guidance to the Division of Drug Information, Center for Drug Evaluation and Research, Food and Drug Administration, 10001 New Hampshire Ave., Hillandale Building, 4th Floor, Silver Spring, MD 20993-0002; or the Office of Communication, Outreach, and Development, Center for Biologics Evaluation and Research, Food and Drug Administration, 10903 New Hampshire Ave., Bldg. 71, Rm. 3128, Silver Spring, MD 20993-0002. Send one self-addressed adhesive label to assist that office in processing your requests. See the
George Greeley, Center for Drug Evaluation and Research, Food and Drug Administration, 10903 New Hampshire Ave., Bldg. 22, Rm. 6406, Silver Spring, MD 20993-002, 301-796-4025; or Stephen Ripley, Center for Biologics Evaluation and Research, Food and Drug Administration, 10903 New Hampshire Ave., Bldg. 71, Rm. 7301, Silver Spring, MD 20993-0002, 240-402-7911.
FDA is announcing the availability of a draft guidance for industry entitled “Measuring Growth and Evaluating Pubertal Development in Pediatric Clinical Trials.” The purpose of this draft guidance is to assist sponsors in monitoring growth and pubertal development in clinical trials that enroll pediatric patients with both rare and common diseases. This draft guidance is focused on the most appropriate methods for measuring and recording growth and evaluating pubertal development for evaluation of safety.
If an investigational drug or biological product may affect growth or pubertal development, then accurate, serial measurement and recording of growth parameters are essential for data interpretation in pediatric clinical trials. In general, growth is assessed using measurements of weight, linear growth (length and height), and when appropriate, head circumference. Additional measurements and calculations may be needed in certain pediatric age groups and disease populations. In general, pubertal development is assessed using clinical phenotyping. Identifying the onset and progression of puberty are essential for accurate interpretation of growth data.
This draft guidance addresses measurement of growth, evaluation of pubertal development, and other measurements. The discussion of growth measurements consists of general considerations to ensure accurate, reproducible measurements followed by specific suggestions about how to measure weight, linear growth (length and height), and head circumference in the entire pediatric population starting at birth. The recommendations for pubertal development focus on use of the sexual maturity rating. The draft guidance also provides recommendations on other measurements, specifically use of skeletal age and dual-energy X-ray absorptiometry.
This draft guidance is being issued consistent with FDA's good guidance practices regulation (21 CFR 10.115). The draft guidance, when finalized, will represent the current thinking of FDA on “Measuring Growth and Evaluating Pubertal Development in Pediatric Clinical Trials.” It does not establish any rights for any person and is not binding on FDA or the public. You can use an alternative approach if it satisfies the requirements of the applicable statutes and regulations.
While this guidance contains no new collection of information, it does refer to previously approved FDA collections of information. Therefore, clearance by the Office of Management and Budget (OMB) under the Paperwork Reduction Act of 1995 (PRA) (44 U.S.C. 3501-3521) is not required for this guidance. The previously approved collections of information are subject to review by OMB under the PRA. The collections of information in 21 CFR part 312 have been approved under OMB control number 0910-0014. The collection of information in 21 CFR part 314 has been approved under OMB control number 0910-0001.
Persons with access to the internet may obtain the draft guidance at
Centers for Disease Control and Prevention, HHS.
Notice of meeting. notice of request for comment (RFC).
Pursuant to the Federal Advisory Committee Act, the Department of Health and Human Services (HHS) announces the following advisory committee meeting and related Request for Comment (RFC). The meeting is open to the public. The public is welcome to obtain the link to attend this meeting by following the instructions posted on the Committee website:
Name: National Committee on Vital and Health Statistics (NCVHS) Standards Subcommittee Meeting.
The meeting will be held Wednesday, January 18, 2023: 10:00 a.m.-5:30 p.m. EST and Thursday, January 19, 2023: 10:00 a.m.-5:30 p.m. EST.
To submit comments in response to the RFC, please send by close of business December 15, 2022, to
Virtual open meeting.
Substantive program information may be obtained from Rebecca Hines, MHS, Executive Secretary, NCVHS, National Center for Health Statistics, Centers for Disease Control and Prevention, 3311 Toledo Road, Hyattsville, Maryland 20782, via electronic mail to
Should you require reasonable accommodation, please telephone the CDC Office of Equal Employment Opportunity at (770) 488-3210 as soon as possible.
As outlined in its Charter, the National Committee on Vital and Health Statistics assists and advises the Secretary of HHS on health data, data standards, statistics, privacy, national health information policy, and the Department's strategy to best address those issues. This includes the adoption and implementation of transaction standards, unique identifiers, and code sets adopted under the Health Insurance Portability and Accountability Act of 1996 (HIPAA),
The agenda for the hearing dedicates one day to the X12 proposed standards updates and one day to the proposed updated and new operating rules. The agenda on both days will include time for public comment. Meeting times and topics are subject to change.
The RFC includes suggested topics and questions to guide commenters. However, comments are welcome on any subject relevant to the Committee's inquiry and any aspect of the agenda. The suggested topics and questions are available on the Committee's website at:
On June 7, 2022, X12 submitted a letter to NCVHS to recommend an update of adopted transactions: from version 5010 to version 8020 for the adopted administrative standard for the health care claims (professional, institutional, and dental) and the remittance advice transactions.
HIPAA requires the Secretary of HHS to promulgate regulations adopting standards, code sets, and identifiers to support the exchange of electronic health information between covered entities, including standards for retail pharmacy and medical transactions. Standards setting organizations or the Designated Standards Maintenance Organization (DSMO) bring forward new versions of the adopted standards to NCVHS after completion of a consensus-based review and evaluation process. Under section 1173(3)(B), the organizations with whom a DSMO should consult for input include the National Uniform Billing Committee, the National Uniform Claim Committee, the Workgroup for Electronic Data Interchange, and the American Dental Association.
On May 23, 2022, the CAQH CORE submitted a letter to NCVHS to consider a package of CAQH CORE Operating Rules for federal adoption as follows:
• Updated Eligibility & Benefits Data Content Rule;
• Updated Claim Status Infrastructure Rule (updates + reference to new Connectivity rule);
• Updated Payment & Remittance Advice Infrastructure Rule (reference to new Connectivity rule);
• Updated Eligibility & Benefits Infrastructure Rule (updates + reference to new Connectivity rule).
• CAQH CORE Connectivity Rule vC4.0.0—replaces existing connectivity requirements in infrastructure components of adopted operating rules; adds new requirements to all operating rules;
• New CAQH CORE Eligibility & Benefits (270/271) Single Patient Attribution Data Content Rule;
• New Attachments Prior Authorization Infrastructure Rule;
• New Attachments Prior Authorization Data Content Rule;
• New Attachments Health Care Claims Infrastructure Rule;
• New Attachments Health Care Claims Data Content Rule.
Section 1104 of ACA amended HIPAA by introducing the requirement to adopt operating rules to support the business function of each HIPAA-adopted standard transaction. HHS has adopted operating rules for the eligibility, claim status, electronic remittance advice, and electronic funds transfer transactions. HHS has not yet adopted operating rules for health care claims, enrollment/disenrollment, premium payments, prior authorization for referrals, or health care claim attachments transactions.
In addition to the January 18-19, 2023, hearing and RFC, the Committee is collaborating with the Workgroup for Electronic Data Interchange (WEDI) in its role as advisor to the Secretary of Health and Human Services (HHS). WEDI is considered an authority on the use of health information technology (HIT) to improve health information exchange. Its membership includes a cross-section of HIPAA covered entities that implement the HIPAA standards and operating rules, as well as vendors and other subject matter experts who support those implementations. WEDI is supporting NCVHS' efforts to obtain input from a diverse group of stakeholders through educational programs, its annual conference October 25-27, 2022, and other organized information gathering activities. WEDI will compile and analyze this information and share the results with NCVHS by early December 2022. Additional information regarding the WEDI conference and its upcoming outreach efforts is available at:
Pursuant to section 10(d) of the Federal Advisory Committee Act, as amended, notice is hereby given of the following meeting.
The meeting will be closed to the public in accordance with the provisions set forth in sections 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., as amended. The grant applications and the discussions could disclose confidential trade secrets or commercial property such as patentable material, and personal information concerning individuals associated with the grant applications, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.
Clinical Trials SEP (UG3, U24, R34).
Pursuant to section 10(d) of the Federal Advisory Committee Act, as amended, notice is hereby given of the following meetings.
The meetings will be closed to the public in accordance with the provisions set forth in sections 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., as amended. The grant applications and the discussions could disclose confidential trade secrets or commercial property such as patentable material, and personal information concerning individuals associated with the grant applications, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.
Pursuant to section 10(d) of the Federal Advisory Committee Act, as amended, notice is hereby given of the following meeting.
The meeting will be closed to the public in accordance with the provisions set forth in sections 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., as amended. The grant applications and the discussions could disclose confidential trade secrets or commercial property such as patentable material, and personal information concerning individuals associated with the grant applications, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.
Pursuant to section 10(d) of the Federal Advisory Committee Act, as amended, notice is hereby given of the following meetings.
The meetings will be closed to the public in accordance with the provisions set forth in sections 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., as amended. The grant applications and the discussions could disclose confidential trade secrets or commercial property such as patentable material, and personal information concerning individuals associated with the grant applications, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.
National Institutes of Health, HHS.
Notice.
The Department of Health and Human Services (HHS) (Department) has created the Interagency Pain Research Coordinating Committee and is seeking nominations for this committee.
Nominations are due by 5:00 p.m. EST on November 30, 2022.
Nominations must be submitted through the following webform:
Linda Porter,
As specified in Public Law 111-148 (“Patient Protection and Affordable Care Act”) the Committee will: (a) develop a summary of advances in pain care research supported or conducted by the
Membership on the committee will include six (6) non-Federal members from among scientists, physicians, and other health professionals and six (6) non-Federal members of the general public who are representatives of leading research, advocacy, and service organizations for individuals with pain-related conditions. Members will serve overlapping three-year terms. It is anticipated that the committee will meet at least once a year.
The Department strives to ensure that the membership of HHS Federal advisory committees is fairly balanced in terms of points of view represented and the committee's function. Every effort is made to ensure that the views of diverse ethnic and racial groups and people with disabilities are represented on HHS Federal advisory committees, and the Department, therefore, encourages nominations of qualified candidates from these groups. The Department also encourages geographic diversity in the composition of the Committee. Appointment to this Committee shall be made without discrimination on the basis of age, race, ethnicity, gender, sexual orientation, disability, and cultural, religious, or socioeconomic status.
The Department is soliciting nominations for one (1) non-Federal member from among scientists, physicians, and other health professionals and for two (2) non-Federal members of the general public who represent a leading research, advocacy, or service organization for people with pain-related conditions. These candidates will be considered to fill positions opened through completion of current member terms. Nominations are due by 5:00 p.m. EST on November 30, 2022, using the following webform:
Pursuant to section 10(a) of the Federal Advisory Committee Act, as amended, notice is hereby given of a meeting of the Sleep Disorders Research Advisory Board.
The meeting will be open to the public, with attendance limited to space available. Individuals who plan to attend and need special assistance, such as sign language interpretation or other reasonable accommodations, should notify the Contact Person listed below in advance of the meeting.
Any member of the public interested in presenting oral comments to the committee may notify the Contact Person listed on this notice at least 10 days in advance of the meeting. Interested individuals and representatives of organizations may submit a letter of intent, a brief description of the organization represented, and a short description of the oral presentation. Only one representative of an organization may be allowed to present oral comments and if accepted by the committee, presentations may be limited to five minutes. Both printed and electronic copies are requested for the record. In addition, any interested person may file written comments with the committee by forwarding their statement to the Contact Person listed on this notice. The statement should include the name, address, telephone number and when applicable, the business or professional affiliation of the interested person.
Information is also available on the Institute's/Center's home page:
Pursuant to section 10(d) of the Federal Advisory Committee Act, as amended, notice is hereby given of the following meeting.
The meeting will be closed to the public in accordance with the provisions set forth in sections 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., as amended. The grant applications and the discussions could disclose confidential trade secrets or commercial property such as patentable material, and personal information concerning individuals associated with the grant applications, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.
Substance Abuse and Mental Health Services Administration, HHS.
Notice.
The Department of Health and Human Services (HHS) notifies federal agencies of the laboratories and Instrumented Initial Testing Facilities (IITFs) currently certified to meet the standards of the Mandatory Guidelines for Federal Workplace Drug Testing Programs using Urine or Oral Fluid (Mandatory Guidelines).
Anastasia Donovan, Division of Workplace Programs, SAMHSA/CSAP, 5600 Fishers Lane, Room 16N06B, Rockville, Maryland 20857; 240-276-2600 (voice);
In accordance with Section 9.19 of the Mandatory Guidelines, a notice listing all currently HHS-certified laboratories and IITFs is published in the
If any laboratory or IITF has withdrawn from the HHS National Laboratory Certification Program (NLCP) during the past month, it will be listed at the end and will be omitted from the monthly listing thereafter.
This notice is also available on the internet at
The Department of Health and Human Services (HHS) notifies federal agencies of the laboratories and Instrumented Initial Testing Facilities (IITFs) currently certified to meet the standards of the Mandatory Guidelines for Federal Workplace Drug Testing Programs (Mandatory Guidelines) using Urine and of the laboratories currently certified to meet the standards of the Mandatory Guidelines using Oral Fluid.
The Mandatory Guidelines using Urine were first published in the
The Mandatory Guidelines using Oral Fluid were first published in the
The Mandatory Guidelines were initially developed in accordance with Executive Order 12564 and section 503 of Public Law 100-71 and allowed urine drug testing only. The Mandatory Guidelines using Urine have since been revised, and new Mandatory Guidelines allowing for oral fluid drug testing have been published. The Mandatory Guidelines require strict standards that laboratories and IITFs must meet in order to conduct drug and specimen validity tests on specimens for federal agencies. HHS does not allow IITFs to conduct oral fluid testing.
To become certified, an applicant laboratory or IITF must undergo three rounds of performance testing plus an on-site inspection. To maintain that certification, a laboratory or IITF must participate in a quarterly performance testing program plus undergo periodic, on-site inspections.
Laboratories and IITFs in the applicant stage of certification are not to be considered as meeting the minimum requirements described in the HHS Mandatory Guidelines using Urine and/or Oral Fluid. An HHS-certified laboratory or IITF must have its letter of certification from HHS/SAMHSA (formerly: HHS/NIDA), which attests that the test facility has met minimum standards. HHS does not allow IITFs to conduct oral fluid testing.
In accordance with the Mandatory Guidelines using Oral Fluid dated October 25, 2019 (84 FR 57554), the following HHS-certified laboratories meet the minimum standards to conduct drug and specimen validity tests on oral fluid specimens:
At this time, there are no laboratories certified to conduct drug and specimen validity tests on oral fluid specimens.
In accordance with the Mandatory Guidelines using Urine dated January 23, 2017 (82 FR 7920), the following HHS-certified IITFs meet the minimum standards to conduct drug and specimen validity tests on urine specimens:
In accordance with the Mandatory Guidelines using Urine dated January 23, 2017 (82 FR 7920), the following HHS-certified laboratories meet the minimum standards to conduct drug and specimen validity tests on urine specimens:
* The Standards Council of Canada (SCC) voted to end its Laboratory Accreditation Program for Substance Abuse (LAPSA) effective May 12, 1998. Laboratories certified through that program were accredited to conduct forensic urine drug testing as required by U.S. Department of Transportation (DOT) regulations. As of that date, the certification of those accredited Canadian laboratories will continue under DOT authority. The responsibility for conducting quarterly performance testing plus periodic on-site inspections of those LAPSA-accredited laboratories was transferred to the U.S. HHS, with the HHS' NLCP contractor continuing to have an active role in the performance testing and laboratory inspection processes. Other Canadian laboratories wishing to be considered for the NLCP may apply directly to the NLCP contractor just as U.S. laboratories do.
Upon finding a Canadian laboratory to be qualified, HHS will recommend that DOT certify the laboratory (
U.S. Customs and Border Protection (CBP), Department of Homeland Security.
30-Day Notice and request for comments; Extension of an existing collection of information.
The Department of Homeland Security, U.S. Customs and Border Protection will be submitting the following information collection request to the Office of Management and Budget (OMB) for review and approval in accordance with the Paperwork Reduction Act of 1995 (PRA). The information collection is published in the
Comments are encouraged and must be submitted (no later than December 1, 2022) to be assured of consideration.
Written comments and/or suggestions regarding the item(s) contained in this notice should be sent within 30 days of publication of this notice to
Requests for additional PRA information should be directed to Seth Renkema, Chief, Economic Impact Analysis Branch, U.S. Customs and Border Protection, Office of Trade, Regulations and Rulings, 90 K Street NE, 10th Floor, Washington, DC 20229-1177, Telephone number 202-325-0056 or via email
CBP invites the general public and other Federal agencies to comment on the proposed and/or continuing information collections pursuant to the Paperwork Reduction Act of 1995 (44 U.S.C. 3501
The respondents to this information collection are members of the trade community who are familiar with CBP regulations.
U.S. Customs and Border Protection (CBP), Department of Homeland Security.
30-Day Notice and request for comments; Extension of an existing collection of information.
The Department of Homeland Security, U.S. Customs and Border Protection will be submitting the following information collection request to the Office of Management and Budget (OMB) for review and approval in accordance with the Paperwork Reduction Act of 1995 (PRA). The information collection is published in the
Comments are encouraged and must be submitted (no later than December 1, 2022) to be assured of consideration.
Written comments and/or suggestions regarding the item(s) contained in this notice should be sent within 30 days of publication of this notice to
Requests for additional PRA information should be directed to Seth Renkema, Chief, Economic Impact Analysis Branch, U.S. Customs and Border Protection, Office of Trade, Regulations and Rulings, 90 K Street NE, 10th Floor, Washington, DC 20229-1177, Telephone number 202-325-0056 or via email
CBP invites the general public and other Federal agencies to comment on the proposed and/or continuing information collections pursuant to the Paperwork Reduction Act of 1995 (44 U.S.C. 3501
The matters that may be protested include: the appraised value of merchandise; the classification and rate and amount of duties chargeable; all charges within the jurisdiction of the Secretary of Homeland Security or the Secretary of the Treasury; exclusion of merchandise from entry or delivery, or demand for redelivery; the liquidation or reliquidation of an entry or any modification of an entry; the refusal to pay a claim for drawback; refusal to reliquidate an entry made before December 18, 2004 under section 520(c) of the Tariff Act of 1930; or refusal to reliquidate an entry under section 520(d) of the Tariff Act of 1930.
The parties who may file a protest or application for further review include: the importer or consignee shown on the entry papers, or their sureties; any person paying any charge or exaction; any person seeking entry or delivery, with respect to a determination of origin under 19 CFR 181 Subpart G any exporter or producer of the merchandise subject to that determination, if the exporter or producer completed and signed a Certification of Origin covering the merchandise as provided for in 19 CR 181.11(a); of any person filing a claim for drawback; or any authorized agent of any of the persons described above.
CBP Form 19 collects information such as the name and address of the protesting party, information about the entry being protested, detailed reasons for the protest, and justification for applying for further review.
The information collected on CBP Form 19 is authorized by Sections 514 and 514(a) of the Tariff Act of 1930, as amended (19 U.S.C. 1514 and 1514 (a)) and provided for by 19 CFR part 174
U.S. Customs and Border Protection (CBP), Department of Homeland Security.
30-Day notice and request for comments; extension of an existing collection of information.
The Department of Homeland Security, U.S. Customs and Border Protection (CBP) will be submitting the following information collection request to the Office of Management and Budget (OMB) for review and approval in accordance with the Paperwork Reduction Act of 1995 (PRA). The information collection is published in the
Comments are encouraged and must be submitted (no later than December 1, 2022) to be assured of consideration.
Written comments and/or suggestions regarding the item(s) contained in this notice should be sent within 30 days of publication of this notice to
Requests for additional PRA information should be directed to Seth Renkema, Chief, Economic Impact Analysis Branch, U.S. Customs and Border Protection, Office of Trade, Regulations and Rulings, 90 K Street NE, 10th Floor, Washington, DC 20229-1177, telephone number 202-325-0056 or via email
U.S. Customs and Border Protection (CBP) invites the general public and other Federal agencies to comment on the proposed and/or continuing information collections pursuant to the Paperwork Reduction Act of 1995 (44 U.S.C. 3501
CBP Form 6478 is accessible at:
U.S. Customs and Border Protection (CBP), Department of Homeland Security.
30-Day notice and request for comments; extension of an existing collection of information.
The Department of Homeland Security, U.S. Customs and Border Protection will be submitting the following information collection request to the Office of Management and Budget (OMB) for review and approval in accordance with the Paperwork Reduction Act of 1995 (PRA). The information collection is published in the
Comments are encouraged and must be submitted (no later than December 1, 2022) to be assured of consideration.
Written comments and/or suggestions regarding the item(s) contained in this notice should be sent within 30 days of publication of this notice to
Requests for additional PRA information should be directed to Seth Renkema, Chief, Economic Impact Analysis Branch, U.S. Customs and Border Protection, Office of Trade, Regulations and Rulings, 90 K Street NE, 10th Floor, Washington, DC 20229-1177, Telephone number 202-325-0056 or via email
CBP invites the general public and other Federal agencies to comment on the proposed and/or continuing information collections pursuant to the Paperwork Reduction Act of 1995 (44 U.S.C. 3501
For preferential treatment of textile and apparel articles under AGOA, the exporter or producer is required to prepare a certificate of origin and provide it to the importer. The certificate of origin includes information such as name and address of the exporter, producer, and importer; the basis for which preferential treatment is claimed; and a description of the imported article(s). The importers are required to have the certificate in their possession at the time of the claim, and to provide it to Customs and Border Protection (CBP) upon request. The collection of this information is provided for in 19 CFR 10.214, 10.215, and 10.216.
Instructions for complying with this regulation are posted on
U.S. Customs and Border Protection (CBP), Department of Homeland Security.
30-Day Notice and request for comments; Extension of an existing collection of information.
The Department of Homeland Security, U.S. Customs and Border Protection will be submitting the following information collection request to the Office of Management and Budget (OMB) for review and approval in accordance with the Paperwork Reduction Act of 1995 (PRA). The information collection is published in the
Comments are encouraged and must be submitted (no later than December 1, 2022) to be assured of consideration.
Written comments and/or suggestions regarding the item(s) contained in this notice should be sent within 30 days of publication of this notice to
Requests for additional PRA information should be directed to Seth Renkema, Chief, Economic Impact Analysis Branch, U.S. Customs and Border Protection, Office of Trade, Regulations and Rulings, 90 K Street NE, 10th Floor, Washington, DC 20229-1177, Telephone number 202-325-0056 or via email
CBP invites the general public and other Federal agencies to comment on the proposed and/or continuing information collections pursuant to the Paperwork Reduction Act of 1995 (44 U.S.C. 3501
This collection of information applies to the importing and trade community who are familiar with import procedures and with the CBP regulations.
Office of the Secretary, Department of Homeland Security.
Correction notice.
This notice corrects the October, 25, 2022 notice announcing the appointment of members of the FY 2022 Senior Executive Service (SES) Performance Review Boards (PRBs) for the Department of Homeland Security
This Notice corrects the notice published on October, 25, 2022 at 87 FR 64513 and is applicable as of October 25, 2022.
Christian Fajardo, Human Resources Specialist, Office of the Chief Human Capital Officer,
This notice corrects the notice published on October, 25, 2022 at 87 FR 64513, to add a name to the FY 2022 SES PRBs for the Department of Homeland Security (DHS), to read as follows:
In accordance with 5 U.S.C. 4314(c) and 5 CFR 430.311, each agency must establish one or more PRBs to make recommendations to the appointing authority (
Office of the Assistant Secretary for Public and Indian Housing, HUD.
Notice, correction.
On August 15, 2022, HUD published a notice in the
Miguel A. Fontánez, Director, Housing Voucher Financial Management Division, Office of Public Housing and Voucher Programs, Office of Public and Indian Housing, Department of Housing and Urban Development, 451 Seventh Street SW, Room 4222, Washington, DC 20410-8000, telephone number 202-402-2934. (This is not a toll-free number). HUD welcomes and is prepared to receive calls from individuals who are deaf or hard of hearing, as well as individuals with speech and communication disabilities. To learn more about how to make an accessible telephone call, please visit
On August 15, 2022, HUD issued the “Notice of Annual Factors for Determining Administrative Fees for the Section 8 Housing Choice Voucher, Mainstream, and Moderate Rehabilitation Programs for Calendar Year 2021” at 87 FR 50095. The notice published omitted specific information and included incorrect website links. This notice replaces that notice in its entirety for added clarity but does not change the Annual Factors for Determining Administrative Fees.
HUD is required by statute to notify the public of the methodology used to determine administrative fee rates for each calendar year. HUD is issuing this Notice in compliance with this statutory requirement. The 2021 administrative fee rates were previously published at the following link:
Mainstream Vouchers are tenant-based vouchers serving households that include a non-elderly person with a disability. The Moderate Rehabilitation program provides project-based rental assistance for low-income families and the Mod Rehab SRO program provides assistance to individuals experiencing homelessness. Both programs have been repealed and no new projects are authorized for development. Assistance is limited to properties previously rehabilitated pursuant to an Agreement to enter into a Housing Assistance Payments (HAP) Contract between an owner and a PHA, with assistance being provided pursuant to a HAP contract between the PHA and owner.
For CY 2021, in accordance with the 2021 Consolidated Appropriations Act (Pub. L. 116-260), administrative fees were determined based on vouchers leased as of the first day of each month. This data was extracted from the Voucher Management System (VMS) at the close of each reporting cycle and validated prior to use. For the Moderate Rehabilitation program, including the SRO program, administrative fees were earned based on the units under a HAP contract. In some cases, the fee rates calculated for CY 2021 were lower than those established for CY 2020. In these cases, the affected PHAs were held harmless at the CY 2020 fee rates.
The fee rates for each PHA generally cover the fees for areas in which the PHA had the greatest proportion of its participants. This was determined using Public Housing Information Center (PIC) data submitted by the PHA. In some cases, PHAs had participants in more than one fee area. If such a PHA chooses, the PHA could request that HUD establish a blended fee rate to proportionately all areas in which participants were located. Once a blended rate was established, it was used to determine the PHA's fee eligibility for all months in CY 2021. The 2021 HCV Funding Implementation Notice described how to apply for blended fee rates and the deadline date for submitting such requests. The notice can be accessed through the following link:
PHAs operating over large geographic areas, defined as multiple counties, could request a higher administrative fee rate if eligible under the criteria described in the CY 2021 implementation notice. The 2021 HCV Funding Implementation Notice described when to apply for higher fee rates and the deadline date for such requests. Higher administrative fee rates differed from blended administrative fee rates in how they were calculated. Requests for higher administrative rates must have clearly demonstrated that the PHA's published rate cannot cover their projected expenses. Next, a breakeven rate was calculated to ensure the PHA received sufficient funds to cover their expenses while also ensuring the administrative fee reserves did not grow.
This notice identifies the monthly per-voucher-unit fee rates that were used in CY 2021 to determine PHA administrative fee eligibility for the programs identified in this notice. These fee rates remain posted on the Department's website at:
Questions concerning this notice should be directed to the PHA's assigned representative at the Financial Management Center or the Financial Management Division at
In cases where an MTW Agency has an alternative formula for calculating HCV administrative fees in Attachment A of its MTW Agreement, HUD calculates the HCV administrative fees in accordance with the MTW Agreement provision.
Fish and Wildlife Service, Interior.
Notice.
The United States, as a Party to the Convention on International Trade in Endangered Species of Wild Fauna and Flora (CITES), will attend the nineteenth regular meeting of the Conference of the Parties to CITES (CoP19) in Panama City, Panama, November 14-25, 2022. This notice announces the availability of tentative U.S. negotiating positions on proposed resolutions, decisions, and amendments to the CITES Appendices (species proposals), as well as other agenda items that have been submitted by other Parties, the permanent CITES committees, and the CITES Secretariat for consideration at CoP19. With this notice, we announce that prior to CoP19 we will make available a summary of our proposed negotiating positions and the reasons for our proposed positions.
The nineteenth regular meeting of the Conference of the Parties to CITES (CoP19) will be held November 14-25, 2022. Information on tentative U.S. negotiating positions on species proposals, draft resolutions and decisions, and agenda items will be available on our website and the Federal eRulemaking Portal on or before November 13, 2022.
Information on tentative U.S. negotiating positions on species proposals, draft resolutions and decisions, and agenda items submitted by other countries, the permanent CITES committees, and the CITES Secretariat for consideration at CoP19 will be available on our website,
For information pertaining to resolutions,
The Convention on International Trade in Endangered Species of Wild Fauna and Flora, hereinafter referred to as CITES or the Convention, is an international treaty designed to control and regulate international trade in certain animal and plant species that are or may be affected by trade and are now, or potentially may become, threatened with extinction. These species are included in Appendices to CITES, which can be found on the CITES Secretariat's website at
Currently there are 184 Parties to CITES—183 countries and 1 regional economic integration organization, the European Union. The Convention calls for regular biennial meetings of the Conference of the Parties, unless the Conference decides otherwise. At these meetings, the Parties review the implementation of CITES, make provisions enabling the CITES Secretariat in Switzerland to carry out its functions, consider amendments to the list of species in appendices I and II, consider reports presented by the Secretariat and the permanent CITES committees (Standing, Animals, and Plants Committees), and make recommendations to improve the effectiveness of CITES. Any country that is a Party to CITES may propose amendments to appendices I and II, as well as resolutions, decisions, and agenda items for consideration by all the Parties at the meetings.
This is our fifth in a series of
A link to the complete list of those
The provisional agenda for CoP19 can be accessed on the CITES Secretariat's website at
On or before November 13, 2022, we will post on
New information that may become available prior to or at CoP19 could lead to modifications of tentative U.S. positions. The U.S. delegation will disclose changes in our negotiating positions and the explanations for those changes during public briefings at CoP19. Species proposals are considered pursuant to 50 CFR 23.89. The United States is concerned about the budgetary implications and workload burden that will be placed upon the Parties, the Committees, and
Information concerning the results of CoP19 will be available after the close of the meeting on the Secretariat's website at
The primary author of this notice is Anne St. John, Division of Management Authority, U.S. Fish and Wildlife Service.
Martha Williams, Director of the U.S. Fish and Wildlife Service, approved this action on October 19, 2022, for publication. On October 26, 2022, Martha Williams authorized the undersigned to sign the document electronically and submit it to the Office of the Federal Register for publication as an official document of the U.S. Fish and Wildlife Service.
The authority for this action is the Endangered Species Act of 1973, as amended (16 U.S.C. 1531
U.S. Geological Survey, Interior.
Notice of Information Collection; request for comment.
In accordance with the Paperwork Reduction Act of 1995, the U.S. Geological Survey (USGS) is proposing a new information collection.
Interested persons are invited to submit comments on or before January 3, 2023.
Send your comments on this information collection request (ICR) by mail to U.S. Geological Survey, Information Collections Officer, 12201 Sunrise Valley Drive, MS 159, Reston, VA 20192; or by email to
To request additional information about this ICR, contact Brian Pellerin by email at
In accordance with PRA and 5 CFR 1320.8(d)(1), all information collections require approval. We may not conduct or sponsor, nor are you required to respond to, a collection of information unless it displays a currently valid OMB control number.
As part of our continuing effort to reduce paperwork and respondent burdens, we invite the public and other Federal agencies to comment on new, proposed, revised, and continuing collections of information. This helps us assess the impact of our information collection requirements and minimize the public's reporting burden. It also helps the public understand our information collection requirements and provide the requested data in the desired format.
We are especially interested in public comment addressing the following:
(1) Whether or not the collection of information is necessary for the proper performance of the functions of the agency, including whether or not the information will have practical utility;
(2) The accuracy of our estimate of the burden for this collection of information, including the validity of the methodology and assumptions used;
(3) Ways to enhance the quality, utility, and clarity of the information to be collected; and
(4) How the agency might minimize the burden of the collection of information on those who are to respond, including through the use of appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology,
Comments that you submit in response to this notice are a matter of public record. We will include or summarize each comment in our request to OMB to approve this ICR. Before including your address, phone number, email address, or other personally identifiable information (PII) in your comment, you should be aware that your entire comment—including your PII—may be made publicly available at any time. While you can ask us in your comment to withhold your PII from public review, we cannot guarantee that we will be able to do so.
The WMA is seeking proposals from industry, academia, nonprofits, and research institutions for the research and development of innovative water-monitoring technologies that could be deployed as part of the Next Generation Water Observing System (NGWOS) effort ongoing within the USGS. The NGWOS Program is an effort to enhance USGS monitoring in space and time to support resource assessments, water management, and ultimately water prediction.
The USGS plans to issue contracts and cooperative agreements in support of this program through a Broad Agency Announcement (BAA), which is a competitive solicitation issued to facilitate the cooperative development of next generation water-monitoring technologies. Single entities or teams from the private sector, academic institutions, Federal agencies, state and local governments, and tribes are eligible to submit proposals. No group of entities is excluded from eligibility. The USGS collects information from applicants about their proposed research activities and team capabilities and then uses that information to determine awards.
An agency may not conduct or sponsor, nor is a person required to respond to, a collection of information unless it displays a currently valid OMB control number.
The authority for this action is the PRA (44 U.S.C. 3501
Office of Surface Mining Reclamation and Enforcement, Interior.
Notice of Information Collection; request for comment.
In accordance with the Paperwork Reduction Act of 1995, we, the Office of Surface Mining Reclamation and Enforcement (OSMRE), are proposing to renew an information collection.
Interested persons are invited to submit comments on or before December 1, 2022.
Written comments and recommendations for the proposed information collection should be sent within 30 days of publication of this notice to
To request additional information about this ICR, contact Mark Gehlhar by email at
In accordance with the Paperwork Reduction Act of 1995 (PRA; 44 U.S.C. 3501
A
As part of our continuing effort to reduce paperwork and respondent burdens, we are again soliciting comments from the public and other Federal agencies on the proposed ICR that is described below. We are especially interested in public comment addressing the following:
(1) Whether or not the collection of information is necessary for the proper performance of the functions of the agency, including whether or not the information will have practical utility;
(2) The accuracy of our estimate of the burden for this collection of information, including the validity of the methodology and assumptions used;
(3) Ways to enhance the quality, utility, and clarity of the information to be collected; and
(4) How might the agency minimize the burden of the collection of information on those who are to respond, including through the use of appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology,
Comments that you submit in response to this notice are a matter of public record. 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.
An agency may not conduct or sponsor and a person is not required to respond to a collection of information unless it displays a currently valid OMB control number.
The authority for this action is the Paperwork Reduction Act of 1995 (44 U.S.C. 3501
Office of Surface Mining Reclamation and Enforcement, Interior.
Notice of Information Collection; request for comment.
In accordance with the Paperwork Reduction Act of 1995, we, the Office of Surface Mining Reclamation and Enforcement (OSMRE), are proposing to renew an information collection.
Interested persons are invited to submit comments on or before December 1, 2022.
Written comments and recommendations for the proposed information collection should be sent within 30 days of publication of this notice to
To request additional information about this ICR, contact Mark Gehlhar by email at
In accordance with the Paperwork Reduction Act of 1995 (PRA; 44 U.S.C. 3501
A
As part of our continuing effort to reduce paperwork and respondent burdens, we are again soliciting comments from the public and other Federal agencies on the proposed ICR that is described below. We are especially interested in public comment addressing the following:
(1) Whether or not the collection of information is necessary for the proper performance of the functions of the agency, including whether or not the information will have practical utility;
(2) The accuracy of our estimate of the burden for this collection of information, including the validity of the methodology and assumptions used;
(3) Ways to enhance the quality, utility, and clarity of the information to be collected; and
(4) How might the agency minimize the burden of the collection of information on those who are to respond, including through the use of appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology,
Comments that you submit in response to this notice are a matter of public record. 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.
An agency may not conduct or sponsor and a person is not required to respond to a collection of information unless it displays a currently valid OMB control number.
The authority for this action is the Paperwork Reduction Act of 1995 (44 U.S.C. 3501
United States International Trade Commission.
Notice.
The Commission hereby gives notice that it has instituted reviews pursuant to the Tariff Act of 1930 (“the Act”), as amended, to determine whether revocation of the antidumping duty orders on stainless steel butt-weld pipe fittings from Italy, Malaysia, and the Philippines would be likely to lead to continuation or recurrence of material injury. Pursuant to the Act, interested parties are requested to respond to this notice by submitting the information specified below to the Commission.
Instituted November 1, 2022. To be assured of consideration, the deadline for responses is December 1, 2022. Comments on the adequacy of responses may be filed with the Commission by January 17, 2023.
Caitlyn Hendricks (202-205-2058), Office of Investigations, U.S. International Trade Commission, 500 E Street SW, Washington, DC 20436. Hearing-impaired persons can obtain information on this matter by contacting the Commission's TDD terminal on 202-205-1810. Persons with mobility impairments who will need special assistance in gaining access to the Commission should contact the Office of the Secretary at 202-205-2000. General information concerning the Commission may also be obtained by accessing its internet server (
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Former Commission employees who are seeking to appear in Commission five-year reviews are advised that they may appear in a review even if they participated personally and substantially in the corresponding underlying original investigation or an earlier review of the same underlying investigation. The Commission's designated agency ethics official has advised that a five-year review is not the same particular matter as the underlying original investigation, and a five-year review is not the same particular matter as an earlier review of the same underlying investigation for purposes of 18 U.S.C. 207, the post-employment statute for Federal employees, and Commission rule 201.15(b) (19 CFR 201.15(b)), 79 FR 3246 (Jan. 17, 2014), 73 FR 24609 (May 5, 2008). Consequently, former employees are not required to seek Commission approval to appear in a review under Commission rule 19 CFR 201.15, even if the corresponding underlying original investigation or an earlier review of the same underlying investigation was pending when they were Commission employees. For further ethics advice on this matter, contact Charles Smith, Office of the General Counsel, at 202-205-3408.
Please note the Secretary's Office will accept only electronic filings at this time. Filings must be made through the Commission's Electronic Document Information System (EDIS,
No response to this request for information is required if a currently valid Office of Management and Budget (“OMB”) number is not displayed; the OMB number is 3117 0016/USITC No. 22-5-546, expiration date June 30, 2023. Public reporting burden for the request is estimated to average 15 hours per response. Please send comments regarding the accuracy of this burden estimate to the Office of Investigations, U.S. International Trade Commission, 500 E Street SW, Washington, DC 20436.
Those responding to this notice of institution are encouraged, but not required, to visit the USITC's website for this proceeding at
(1) The name and address of your firm or entity (including World Wide Web address) and name, telephone number, fax number, and Email address of the certifying official.
(2) A statement indicating whether your firm/entity is an interested party under 19 U.S.C. 1677(9) and if so, how, including whether your firm/entity is a U.S. producer of the
(3) A statement indicating whether your firm/entity is willing to participate in this proceeding by providing information requested by the Commission.
(4) A statement of the likely effects of the revocation of the antidumping duty orders on the
(5) A list of all known and currently operating U.S. producers of the
(6) A list of all known and currently operating U.S. importers of the
(7) A list of 3-5 leading purchasers in the U.S. market for the
(8) A list of known sources of information on national or regional prices for the
(9) If you are a U.S. producer of the
(a) Production (quantity) and, if known, an estimate of the percentage of total U.S. production of the
(b) Capacity (quantity) of your firm to produce the
(c) the quantity and value of U.S. commercial shipments of the
(d) the quantity and value of U.S. internal consumption/company transfers of the
(e) the value of (i) net sales, (ii) cost of goods sold (COGS), (iii) gross profit, (iv) selling, general and administrative (SG&A) expenses, and (v) operating income of the
(10) If you are a U.S. importer or a trade/business association of U.S. importers of the
(a) The quantity and value (landed, duty-paid but not including antidumping or countervailing duties) of U.S. imports and, if known, an estimate of the percentage of total U.S. imports of
(b) the quantity and value (f.o.b. U.S. port, including antidumping and/or countervailing duties) of U.S. commercial shipments of
(c) the quantity and value (f.o.b. U.S. port, including antidumping and/or countervailing duties) of U.S. internal consumption/company transfers of
(11) If you are a producer, an exporter, or a trade/business association of producers or exporters of the
(a) Production (quantity) and, if known, an estimate of the percentage of total production of
(b) Capacity (quantity) of your firm(s) to produce the
(c) the quantity and value of your firm's(s') exports to the United States of
(12) Identify significant changes, if any, in the supply and demand conditions or business cycle for the
(13) (Optional) A statement of whether you agree with the above definitions of the
By order of the Commission.
United States International Trade Commission.
Notice.
The Commission hereby gives notice of the scheduling of a full review pursuant to the Tariff Act of 1930 (“the Act”) to determine whether revocation of the antidumping duty order on pure magnesium from China would be likely to lead to continuation or recurrence of material injury within a reasonably foreseeable time. The Commission has determined to exercise its authority to extend the review period by up to 90 days.
October 27, 2022
Caitlyn Hendricks-Costello (202-205-2058), Office of Investigations, U.S. International Trade Commission, 500 E Street SW, Washington, DC 20436. Hearing-impaired persons can obtain information on this matter by contacting the Commission's TDD terminal on 202-205-1810. Persons with mobility impairments who will need special assistance in gaining access to the Commission should contact the Office of the Secretary at 202-205-2000. General information concerning the Commission may also be obtained by accessing its internet server (
For further information concerning the conduct of this review and rules of general application, consult the Commission's Rules of Practice and Procedure, part 201, subparts A and B (19 CFR part 201), and part 207, subparts A, D, E, and F (19 CFR part 207).
Please note the Secretary's Office will accept only electronic filings during this time. Filings must be made through the Commission's Electronic Document Information System (EDIS,
A nonparty who has testimony that may aid the Commission's deliberations may request permission to present a short statement at the hearing. All parties and nonparties desiring to appear at the hearing and make oral presentations should attend a prehearing conference to be held at 9:30 a.m. on March 8, 2023, if deemed necessary. Parties shall file and serve written testimony and presentation slides in connection with their presentation at the hearing by no later than 4:00 p.m. on March 13, 2023. Oral testimony and written materials to be submitted at the public hearing are governed by sections 201.6(b)(2), 201.13(f), and 207.24 of the Commission's rules. Parties must submit any request to present a portion of their hearing testimony
Additional written submissions to the Commission, including requests pursuant to section 201.12 of the Commission's rules, shall not be accepted unless good cause is shown for accepting such submissions, or unless the submission is pursuant to a specific request by a Commissioner or Commission staff.
In accordance with sections 201.16(c) and 207.3 of the Commission's rules, each document filed by a party to the review must be served on all other parties to the review (as identified by either the public or BPI service list), and a certificate of service must be timely filed. The Secretary will not accept a document for filing without a certificate of service.
The Commission has determined that this review is extraordinarily complicated and therefore has determined to exercise its authority to extend the review period by up to 90 days pursuant to 19 U.S.C.1675(c)(5)(B).
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
Katherine M. Hiner, Acting 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
The Commission has received a complaint and a submission pursuant to § 210.8(b) of the Commission's Rules of Practice and Procedure filed on behalf of Sartorius Bioanalytical Instruments, Inc. on October 25, 2022. 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 regarding certain bio-layer interferometers and components thereof. The complainant names as respondent: Gator Bio, Inc. of Palo Alto, CA. The complainant requests that the Commission issue a limited exclusion order and a cease and desist order, and impose a bond upon respondent's alleged infringing articles during the 60-day Presidential review period pursuant to 19 U.S.C. 1337(j).
Proposed respondents, other interested parties, and members of the public are invited to file comments on any public interest issues raised by the complaint or § 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 United States, or United States consumers.
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 on the public interest 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. Submissions should refer to the docket number (“Docket No. 3652”) 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 §§ 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.
United States International Trade Commission.
Notice.
The Commission hereby gives notice that it has instituted reviews pursuant to the Tariff Act of 1930 (“the Act”), as amended, to determine whether revocation of the antidumping and countervailing duty orders on high pressure steel cylinders from China would be likely to lead to continuation or recurrence of material injury. Pursuant to the Act, interested parties are requested to respond to this notice by submitting the information specified below to the Commission.
Instituted November 1, 2022. To be assured of consideration, the deadline for responses is December 1, 2022. Comments on the adequacy of responses may be filed with the Commission by January 17, 2023.
Andres Andrade (202-205-2078), Office of Investigations, U.S. International Trade Commission, 500 E Street SW, Washington, DC 20436. Hearing-impaired persons can obtain information on this matter by contacting the Commission's TDD terminal on 202-205-1810. Persons with mobility impairments who will need special assistance in gaining access to the Commission should contact the Office of the Secretary at 202-205-2000. General information concerning the Commission may also be obtained by accessing its internet server (
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Former Commission employees who are seeking to appear in Commission five-year reviews are advised that they may appear in a review even if they participated personally and substantially in the corresponding underlying original investigation or an earlier review of the same underlying investigation. The Commission's designated agency ethics official has advised that a five-year review is not the same particular matter as the underlying original investigation, and a five-year review is not the same particular matter as an earlier review of the same underlying investigation for purposes of 18 U.S.C. 207, the post-employment statute for Federal employees, and Commission rule 201.15(b) (19 CFR 201.15(b)), 79 FR 3246 (Jan. 17, 2014), 73 FR 24609 (May 5, 2008). Consequently, former employees are not required to seek Commission approval to appear in a review under Commission rule 19 CFR 201.15, even if the corresponding underlying original investigation or an earlier review of the same underlying investigation was pending when they were Commission employees. For further ethics advice on this matter, contact Charles Smith, Office of the General Counsel, at 202-205-3408.
Please note the Secretary's Office will accept only electronic filings at this time. Filings must be made through the Commission's Electronic Document Information System (EDIS,
No response to this request for information is required if a currently valid Office of Management and Budget (“OMB”) number is not displayed; the OMB number is 3117 0016/USITC No. 22-5-545, expiration date June 30, 2023. Public reporting burden for the request is estimated to average 15 hours per response. Please send comments regarding the accuracy of this burden estimate to the Office of Investigations, U.S. International Trade Commission, 500 E Street SW, Washington, DC 20436.
Information to be Provided in Response to this Notice of Institution: As used below, the term “firm” includes any related firms.
Those responding to this notice of institution are encouraged, but not required, to visit the USITC's website for this proceeding at
(1) The name and address of your firm or entity (including World Wide Web address) and name, telephone number, fax number, and Email address of the certifying official.
(2) A statement indicating whether your firm/entity is an interested party under 19 U.S.C. 1677(9) and if so, how, including whether your firm/entity is a U.S. producer of the
(3) A statement indicating whether your firm/entity is willing to participate in this proceeding by providing information requested by the Commission.
(4) A statement of the likely effects of the revocation of the antidumping and countervailing duty orders on the
(5) A list of all known and currently operating U.S. producers of the
(6) A list of all known and currently operating U.S. importers of the
(7) A list of 3-5 leading purchasers in the U.S. market for the
(8) A list of known sources of information on national or regional prices for the
(9) If you are a U.S. producer of the
(a) Production (quantity) and, if known, an estimate of the percentage of total U.S. production of the
(b) Capacity (quantity) of your firm to produce the
(c) the quantity and value of U.S. commercial shipments of the
(d) the quantity and value of U.S. internal consumption/company transfers of the
(e) the value of (i) net sales, (ii) cost of goods sold (COGS), (iii) gross profit, (iv) selling, general and administrative (SG&A) expenses, and (v) operating income of the
(10) If you are a U.S. importer or a trade/business association of U.S. importers of the
(a) The quantity and value (landed, duty-paid but not including antidumping or countervailing duties) of U.S. imports and, if known, an estimate of the percentage of total U.S. imports of
(b) the quantity and value (f.o.b. U.S. port, including antidumping and/or countervailing duties) of U.S. commercial shipments of
(c) the quantity and value (f.o.b. U.S. port, including antidumping and/or countervailing duties) of U.S. internal consumption/company transfers of
(11) If you are a producer, an exporter, or a trade/business association of producers or exporters of the
(a) Production (quantity) and, if known, an estimate of the percentage of total production of
(b) Capacity (quantity) of your firm(s) to produce the
(c) the quantity and value of your firm's(s') exports to the United States of
(12) Identify significant changes, if any, in the supply and demand conditions or business cycle for the
(13) (Optional) A statement of whether you agree with the above definitions of the
By order of the Commission.
U.S. International Trade Commission.
Notice.
Notice is hereby given that on October 24, 2022, the presiding administrative law judge (“ALJ”) issued an Initial Determination on Violation of Section 337. The ALJ also issued a Recommended Determination on remedy and bonding should a violation be found in the above-captioned investigation. The Commission is soliciting submissions on public interest issues raised by the recommended relief should the Commission find a violation. This notice is soliciting comments from the public only.
Lynde Herzbach, Office of the General Counsel, U.S. International Trade Commission, 500 E Street SW, Washington, DC 20436, telephone (202) 205-3228. Copies of non-confidential documents filed in connection with this investigation may be viewed on the Commission's electronic docket (EDIS) at
Section 337 of the Tariff Act of 1930 provides that, if the Commission finds a violation, it shall exclude the articles concerned from the United States:
The Commission is soliciting submissions on public interest issues raised by the recommended relief should the Commission find a violation, specifically: a limited exclusion order directed to certain video security equipment and systems, related software, components thereof, and products containing same imported, sold for importation, and/or sold after importation by respondent Verkada Inc. of San Mateo, California (“Verkada”); and a cease and desist order directed to Verkada. Parties are to file public interest submissions pursuant to 19 CFR 210.50(a)(4).
The Commission is interested in further development of the record on the public interest in this investigation. Accordingly, members of the public are invited to file submissions of no more than five (5) pages, inclusive of attachments, concerning the public interest in light of the ALJ's Recommended Determination on Remedy and Bonding issued in this investigation on October 24, 2022. Comments should address whether issuance of the recommended remedial orders in this investigation, should the Commission find a violation, 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 United States, or United States consumers.
In particular, the Commission is interested in comments that:
(i) explain how the articles potentially subject to the recommended remedial orders are used in the United States;
(ii) identify any public health, safety, or welfare concerns in the United States relating to the recommended 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 recommended orders within a commercially reasonable time; and
(v) explain how the recommended orders would impact consumers in the United States.
Written submissions must be filed no later than by close of business on November 23, 2022.
Persons filing written submissions must file the original document electronically on or before the deadlines stated above. The Commission's paper filing requirements in 19 CFR 210.4(f) are currently waived. 85 FR 15798 (Mar. 19, 2020). Submissions should refer to the investigation number (“Inv. No. 337-TA-1281”) 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 by marking each document with a header indicating that the document contains confidential information. This marking will be deemed to satisfy the request procedure set forth in Rules 201.6(b) and 210.5(e)(2) (19 CFR 201.6(b) & 210.5(e)(2)). Documents for which confidential treatment by the Commission is properly sought will be treated accordingly. Any non-party wishing to submit comments containing confidential information must serve those comments on the parties to the investigation pursuant to the applicable Administrative Protective Order. A redacted non-confidential version of the document must also be filed simultaneously with any confidential filing and must be served in accordance with Commission Rule 210.4(f)(7)(ii)(A) (19 CFR 210.4(f)(7)(ii)(A)). All information, including confidential business information and documents for which confidential treatment is properly sought, submitted to the Commission for purposes of this investigation may be disclosed to and used: (i) by the Commission, its employees and Offices, and contract personnel (a) for developing or maintaining the records of this or a related proceeding, or (b) in internal investigations, audits, reviews, and evaluations relating to the programs, personnel, and operations of the Commission including under 5 U.S.C. Appendix 3; or (ii) by U.S. government employees and contract personnel, solely for cybersecurity purposes. All contract personnel will sign appropriate nondisclosure agreements. All nonconfidential written submissions will be available for public inspection on EDIS.
This action is taken under the authority of 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.
Occupational Safety and Health Administration (OSHA), Labor.
Notice of NACOSH meetings.
The National Advisory Committee on Occupational Safety and Health (NACOSH) Heat Injury and Illness Prevention Work Group will meet December 13, 2022, by WebEx. The NACOSH full committee will meet on January 10, 2023, by WebEx.
NACOSH was established by Section 7(a) of the Occupational Safety and Health Act of 1970 (OSH Act) (29 U.S.C. 651, 656) to advise, consult with, and make recommendations to the Secretary of Labor and the Secretary of Health and Human Services on matters relating to the administration of the OSH Act. NACOSH is a continuing advisory committee of indefinite duration.
NACOSH operates in accordance with the Federal Advisory Committee Act (FACA) (5 U.S.C. App. 2), its implementing regulations (41 CFR part 102-3), and OSHA's regulations on NACOSH (29 CFR 1912.5 and 29 CFR part 1912a).
The establishment of subcommittees and subgroups, such as the NACOSH Heat Work Group, is contemplated by both the FACA's implementing regulations and OSHA's regulations on NACOSH (see,
Public attendance at both meetings will be virtual only. Meeting information will be posted in the Docket (Docket No. OSHA-2022-0002) and on the NACOSH web page,
The NACOSH Heat Illness and Injury Prevention Work Group (Heat Work Group) will meet from 2:00 p.m. to 4:00 p.m., ET on December 13, 2022. The meeting is open to the public.
NACOSH will meet from 2:00 p.m. to 4:00 p.m., ET, Tuesday, January 10, 2023. The meeting is open to the public.
• OSHA update,
• NACOSH membership update,
• Report from Heat Work Group, and
• Follow-up discussion on OSHA's Whistleblower Protection Program.
James S. Frederick, Deputy Assistant Secretary of Labor for Occupational Safety and Health, authorized the preparation of this notice under the authority granted by 29 U.S.C. 655(b)(1) and 656(b), 5 U.S.C. App. 2, 29 CFR parts 1912 and 1912a, and Secretary of Labor's Order No. 8-2020 (85 FR 58393).
In accordance with the Federal Advisory Committee Act (Pub. L. 92-463, as amended), the National Science Foundation (NSF) announces the following meeting:
NSF, 2415 Eisenhower Avenue, Alexandria, VA 22314/Virtual.
To attend the virtual meeting, please send your request for the virtual meeting link to the following email:
National Transportation Safety Board.
Notice.
Notice is hereby given of the appointment of members of the National
Emily T. Carroll, Chief, Human Resources Division, Office of Administration, National Transportation Safety Board, 490 L'Enfant Plaza SW, Washington, DC 20594-0001, (202)314-6233.
Section 4314(c)(1) through (5) of Title 5, United States Code requires each agency to establish, in accordance with regulations prescribed by the Office of Personnel Management, one or more SES Performance Review Boards (PRB). The board reviews and evaluates the initial appraisal of a senior executive's performance by the supervisor and considers recommendations to the appointing authority regarding the performance of the senior executive.
The following have been designated as members of the 2022 Performance Review Board of the National Transportation Safety Board (NTSB):
Mr. Edward Benthall, Chief Financial Officer, Office of the Chief Financial Officer, National Transportation Safety Board, PRB Chair.
Ms. Barbara Czech, Deputy Director, Office of Research and Engineering, National Transportation Safety Board.
Dr. Robert Molloy, Director, Office of Highway Safety, National Transportation Safety Board.
Mr. Akbar Sultan, Director, Airspace Operations and Safety Program, National Aeronautics and Space Administration.
Ms. Gwendolyn Sykes, Chief Financial Officer, U.S. Secret Service, US Department of Homeland Security.
Mr. David Helson, Deputy Director, Office of Aviation Safety, National Transportation Safety Board (Member to review the evaluations of SES members serving on this PRB and alternate member).
Nuclear Regulatory Commission.
Monthly notice.
Pursuant to section 189.a.(2) of the Atomic Energy Act of 1954, as amended (the Act), the U.S. Nuclear Regulatory Commission (NRC) is publishing this regular monthly notice. The Act requires the Commission to publish notice of any amendments issued, or proposed to be issued, and grants the Commission the authority to issue and make immediately effective any amendment to an operating license or combined license, as applicable, upon a determination by the Commission that such amendment involves no significant hazards consideration (NSHC), notwithstanding the pendency before the Commission of a request for a hearing from any person.
Comments must be filed by December 1, 2022. A request for a hearing or petitions for leave to intervene must be filed by January 3, 2023. This monthly notice includes all amendments issued, or proposed to be issued, from September 16, 2022, to October 13, 2022. The last monthly notice was published on October 4, 2022.
You may submit comments by any of the following methods, however, the NRC encourages electronic comment submission through the Federal rulemaking Website:
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For additional direction on obtaining information and submitting comments, see “Obtaining Information and Submitting Comments” in the
Shirley Rohrer, Office of Nuclear Reactor Regulation, U.S. Nuclear Regulatory Commission, Washington, DC 20555-0001, telephone: 301-415-5411, email:
Please refer to Docket ID NRC-2022-0184, facility name, unit number(s), docket number(s), application date, and subject when contacting the NRC about the availability of information for this action. You may obtain publicly available information related to this action by any of the following methods:
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The NRC encourages electronic comment submission through the Federal rulemaking website (
The NRC cautions you not to include identifying or contact information that you do not want to be publicly disclosed in your comment submission. The NRC will post all comment submissions at
If you are requesting or aggregating comments from other persons for submission to the NRC, then you should inform those persons not to include identifying or contact information that they do not want to be publicly disclosed in their comment submission. Your request should state that the NRC does not routinely edit comment submissions to remove such information before making the comment
For the facility-specific amendment requests shown in this notice, the Commission finds that the licensees' analyses provided, consistent with section 50.91 of title 10 of
The Commission is seeking public comments on these proposed determinations. Any comments received within 30 days after the date of publication of this notice will be considered in making any final determinations.
Normally, the Commission will not issue the amendments until the expiration of 60 days after the date of publication of this notice. The Commission may issue any of these license amendments before expiration of the 60-day period provided that its final determination is that the amendment involves NSHC. In addition, the Commission may issue any of these amendments prior to the expiration of the 30-day comment period if circumstances change during the 30-day comment period such that failure to act in a timely way would result, for example in derating or shutdown of the facility. If the Commission takes action on any of these amendments prior to the expiration of either the comment period or the notice period, it will publish in the
Within 60 days after the date of publication of this notice, any persons (petitioner) whose interest may be affected by any of these actions may file a request for a hearing and petition for leave to intervene (petition) with respect to that action. Petitions shall be filed in accordance with the Commission's “Agency Rules of Practice and Procedure” in 10 CFR part 2. Interested persons should consult a current copy of 10 CFR 2.309. The NRC's regulations are accessible electronically from the NRC Library on the NRC's website at
As required by 10 CFR 2.309(d) the petition should specifically explain the reasons why intervention should be permitted with particular reference to the following general requirements for standing: (1) the name, address, and telephone number of the petitioner; (2) the nature of the petitioner's right to be made a party to the proceeding; (3) the nature and extent of the petitioner's property, financial, or other interest in the proceeding; and (4) the possible effect of any decision or order which may be entered in the proceeding on the petitioner's interest.
In accordance with 10 CFR 2.309(f), the petition must also set forth the specific contentions that the petitioner seeks to have litigated in the proceeding. Each contention must consist of a specific statement of the issue of law or fact to be raised or controverted. In addition, the petitioner must provide a brief explanation of the bases for the contention and a concise statement of the alleged facts or expert opinion that support the contention and on which the petitioner intends to rely in proving the contention at the hearing. The petitioner must also provide references to the specific sources and documents on which the petitioner intends to rely to support its position on the issue. The petition must include sufficient information to show that a genuine dispute exists with the applicant or licensee on a material issue of law or fact. Contentions must be limited to matters within the scope of the proceeding. The contention must be one that, if proven, would entitle the petitioner to relief. A petitioner who fails to satisfy the requirements at 10 CFR 2.309(f) with respect to at least one contention will not be permitted to participate as a party.
Those permitted to intervene become parties to the proceeding, subject to any limitations in the order granting leave to intervene. Parties have the opportunity to participate fully in the conduct of the hearing with respect to resolution of that party's admitted contentions, including the opportunity to present evidence, consistent with the NRC's regulations, policies, and procedures.
Petitions must be filed no later than 60 days from the date of publication of this notice. Petitions and motions for leave to file new or amended contentions that are filed after the deadline will not be entertained absent a determination by the presiding officer that the filing demonstrates good cause by satisfying the three factors in 10 CFR 2.309(c)(1)(i) through (iii). The petition must be filed in accordance with the filing instructions in the “Electronic Submissions (E-Filing)” section of this document.
If a hearing is requested, and the Commission has not made a final determination on the issue of NSHC, the Commission will make a final determination on the issue of NSHC. The final determination will serve to establish when the hearing is held. If the final determination is that the amendment request involves NSHC, the Commission may issue the amendment and make it immediately effective, notwithstanding the request for a hearing. Any hearing would take place after issuance of the amendment. If the final determination is that the amendment request involves a significant hazards consideration, then any hearing held would take place before the issuance of the amendment unless the Commission finds an imminent danger to the health or safety of the public, in which case it will issue an appropriate order or rule under 10 CFR part 2.
A State, local governmental body, Federally recognized Indian Tribe, or agency thereof, may submit a petition to the Commission to participate as a party under 10 CFR 2.309(h)(1). The petition should state the nature and extent of the petitioner's interest in the proceeding. The petition should be submitted to the Commission no later than 60 days from the date of publication of this notice. The petition must be filed in accordance with the filing instructions in the “Electronic Submissions (E-Filing)” section of this document, and should meet the requirements for petitions set forth in this section, except that under 10 CFR 2.309(h)(2) a State, local governmental body, or Federally recognized Indian Tribe, or agency thereof does not need to address the standing requirements in 10 CFR
If a petition is submitted, any person who is not a party to the proceeding and is not affiliated with or represented by a party may, at the discretion of the presiding officer, be permitted to make a limited appearance pursuant to the provisions of 10 CFR 2.315(a). A person making a limited appearance may make an oral or written statement of his or her position on the issues but may not otherwise participate in the proceeding. A limited appearance may be made at any session of the hearing or at any prehearing conference, subject to the limits and conditions as may be imposed by the presiding officer. Details regarding the opportunity to make a limited appearance will be provided by the presiding officer if such sessions are scheduled.
All documents filed in NRC adjudicatory proceedings including documents filed by an interested State, local governmental body, Federally recognized Indian Tribe, or designated agency thereof that requests to participate under 10 CFR 2.315(c), must be filed in accordance with 10 CFR 2.302. The E-Filing process requires participants to submit and serve all adjudicatory documents over the internet, or in some cases, to mail copies on electronic storage media, unless an exemption permitting an alternative filing method, as further discussed, is granted. Detailed guidance on electronic submissions is located in the “Guidance for Electronic Submissions to the NRC” (ADAMS Accession No. ML13031A056) and on the NRC's public website at
To comply with the procedural requirements of E-Filing, at least 10 days prior to the filing deadline, the participant should contact the Office of the Secretary by email at
Information about applying for a digital ID certificate is available on the NRC's public website at
A person filing electronically using the NRC's adjudicatory E-Filing system may seek assistance by contacting the NRC's Electronic Filing Help Desk through the “Contact Us” link located on the NRC's public website at
Participants who believe that they have good cause for not submitting documents electronically must file an exemption request, in accordance with 10 CFR 2.302(g), with their initial paper filing stating why there is good cause for not filing electronically and requesting authorization to continue to submit documents in paper format. Such filings must be submitted in accordance with 10 CFR 2.302(b)-(d). Participants filing adjudicatory documents in this manner are responsible for serving their documents on all other participants. Participants granted an exemption under 10 CFR 2.302(g)(2) must still meet the electronic formatting requirement in 10 CFR 2.302(g)(1), unless the participant also seeks and is granted an exemption from 10 CFR 2.302(g)(1).
Documents submitted in adjudicatory proceedings will appear in the NRC's electronic hearing docket, which is publicly available at
The following table provides the plant name, docket number, date of application, ADAMS accession number, and location in the application of the licensees' proposed NSHC determinations. For further details with respect to these license amendment applications, see the applications for amendment, which are available for public inspection in ADAMS. For additional direction on accessing information related to this document, see the “Obtaining Information and Submitting Comments” section of this document.
During the period since publication of the last monthly notice, the Commission has issued the following amendments. The Commission has determined for each of these amendments that the application complies with the standards and requirements of the Atomic Energy Act of 1954, as amended (the Act), and the Commission's rules and regulations. The Commission has made appropriate findings as required by the Act and the Commission's rules and regulations in 10 CFR chapter I, which are set forth in the license amendment.
A notice of consideration of issuance of amendment to facility operating license or combined license, as applicable, proposed NSHC determination, and opportunity for a hearing in connection with these actions, was published in the
Unless otherwise indicated, the Commission has determined that these amendments satisfy the criteria for categorical exclusion in accordance with 10 CFR 51.22. Therefore, pursuant to 10 CFR 51.22(b), no environmental impact statement or environmental assessment need be prepared for these amendments. If the Commission has prepared an environmental assessment under the special circumstances provision in 10 CFR 51.22(b) and has made a determination based on that assessment, it is so indicated in the safety evaluation for the amendment.
For further details with respect to each action, see the amendment and associated documents such as the Commission's letter and safety evaluation, which may be obtained using the ADAMS accession numbers
For the Nuclear Regulatory Commission.
Pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (“Act”),
The Exchange proposes to amend Options 3, Section 11 related to ISO Functionality.
The text of the proposed rule change is available on the Exchange's website at
In its filing with the Commission, the Exchange included statements concerning the purpose of and basis for the proposed rule change and discussed any comments it received on the proposed rule change. The text of these statements may be examined at the places specified in Item IV below. The Exchange has prepared summaries, set forth in sections A, B, and C below, of the most significant aspects of such statements.
The Exchange proposes to amend Options 3, Section 11 with respect to the ability of Members to submit ISOs in the Exchange's Facilitation Mechanism (“Facilitation ISO”), and Solicited Order Mechanism (“Solicitation ISO”), to codify current System functionality.
As set forth in Options 3, Section 11(b), the Facilitation Mechanism is a process wherein the Electronic Access Member seeks to facilitate a block-size order it represents as agent, and/or a transaction wherein the Electronic Access Member solicited interest to execute against a block-size order it represents as agent. Electronic Access Members must be willing to execute the entire size of orders entered into the Facilitation Mechanism. As set forth in Options 3, Section 11(d), the Solicited Order Mechanism is a process by which an Electronic Access Member can attempt to execute orders of 500 or more contracts it represents as agent against contra orders it solicited. Each order entered into the Solicited Order Mechanism shall be designated as all-or-none.
An ISO is defined in Options 3, Section 7(b)(5) as a limit order that meets the requirements of Options 5, Section 1(h) and trades at allowable prices on the Exchange without regard to the ABBO. Simultaneously with the routing of the ISO to the Exchange, one or more additional ISOs, as necessary, are routed to execute against the full displayed size of any Protected Bid, in the case of a limit order to sell, or any Protected Offer, in the case of a limit order to buy, for the options series with a price that is superior to the limit price of the ISO.
As discussed further below, none of the proposed rule changes will amend current functionality. Rather, these changes are designed to bring greater transparency around certain order types currently available on the Exchange. The Exchange notes that the Facilitation
Today, the Exchange allows the submission of ISOs into its Facilitation Mechanism as Facilitation ISOs. To promote transparency, the Exchange proposes to memorialize Facilitation ISOs as an order type in Supplementary Material .06 to Options 3, Section 11. Specifically, the Exchange proposes:
Today, the Exchange will accept a Facilitation ISO provided the order adheres to the current order entry requirements for the Facilitation Mechanism as set forth in Options 3, Section 11(b)(1),
Assume the following market:
Facilitation order is entered to buy 50 contracts @ 2.05.
No Responses are received.
The Facilitation order executes with resting 50 lot quote @ 2. In this instance, the Facilitation order is able to begin crossed with the contra side Exchange BBO because in execution, the resting 50 lot quote @ 2 is able to provide price improvement to the facilitation order.
Given that the Facilitation ISO is accepted so long as it adheres to the order entry requirements of the underlying Facilitation Mechanism, but without regard to the ABBO, the Exchange believes that it is appropriate and logical to align the order entry checks of the Facilitation ISO in the manner discussed above.
The Exchange processes the Facilitation ISO in the same manner that it processes any other Facilitation orders, except that it will initiate a Facilitation auction without protecting prices away. Instead, the Member entering the Facilitation ISO will bear the responsibility to clear all better priced interest away simultaneously with submitting the Facilitation ISO to the Exchange. The Exchange believes that offering this order type is beneficial for Members as it provides them with an efficient method to initiate a Facilitation auction while preventing trade-throughs.
The Exchange notes that the Facilitation ISO is similar to the PIM ISO that is currently described in Supplementary Material .08 to Options 3, Section 13.
The following example illustrates how Facilitation ISO operates:
Member enters Facilitation ISO with Agency side to buy 50 @ 1.25 and simultaneously routes multiple ISOs to execute against the full displayed size of any Protected Bids priced better than the starting Facilitation auction price.
Facilitation ISO auction period concludes with no responses arriving.
Facilitation ISO executes with contra side 50 @ 1.25 because the away market Best Offer of 1.20 has been cleared by the ISOs clearing the way for the Agency side to trade with the counter-side order at 1.25.
Today, the Exchange allows the submission of ISOs into its Solicited Order Mechanism as Solicitation ISOs. To promote transparency, the Exchange proposes to memorialize Solicitation ISOs as an order type in Supplementary Material .07 to Options 3, Section 11. Specifically, the Exchange proposes:
Today, the Exchange will accept a Solicitation ISO provided the order adheres to the current order entry requirements for the Solicited Order Mechanism as set forth in Options 3, Section 11(d)(1),
The Exchange processes the Solicitation ISO in the same manner that it processes other orders entered in the Solicited Order Mechanism, except that it will initiate a Solicited Order auction without protecting away prices. Instead, the Member entering the Solicitation ISO will bear the responsibility to clear all better priced interest away simultaneously with submitting the Solicitation ISO to the Exchange. Similar to the Facilitation ISO discussed above, the Exchange believes that offering this order type is beneficial for Members as it provides them with an efficient method to initiate an auction in the Solicited Order Mechanism while preventing trade-throughs. Furthermore, Solicitation ISOs are similar to PIM ISOs in the manner described above for Facilitation ISOs.
The following example illustrates how the Solicitation ISO operates:
Member enters Solicitation ISO with Agency side to buy 500 @ 1.25 and simultaneously routes multiple ISOs to execute against the full displayed size of any Protected Bids priced better than the starting Solicitation auction price.
Solicitation ISO auction period concludes with no responses arriving.
Solicitation ISO executes with contra side 500 @ 1.25.
Note that in the case a Solicitation ISO was entered with the Agency side to buy 500 @ 1.35, it would be rejected because it was not at or better than the NBBO on both sides (which is inclusive of an Exchange book check). While the 1.20 away Best Offer was cleared by the simultaneously routed ISOs, the Exchange Best Offer of 1.30 would now be viewed as the National Best Offer for purposes of the Solicitation ISO.
Further note that a Facilitation ISO entered with the Agency side to buy 50 @ 1.35 can start in the same example above because it does not have a contra-side (from the Agency order perspective) Exchange book check to begin. The Facilitation ISO would go on to allocate against the 1.30 offer on the Exchange book upon the conclusion of the auction.
In light of the changes proposed above to adopt the Facilitation ISO and Solicitation ISO into its Rulebook, the Exchange proposes to make related amendments to the ISO rule in Options 3, Section 7(b)(5) to add that “ISOs may be entered on the single leg order book or into the Facilitation Mechanism, Solicited Order Mechanism, or Price Improvement Mechanism, pursuant to Supplementary Material .06 and .07 to Options 3, Section 11, and Supplementary Material .08 to Options 3, Section 13.”
The proposed rule text will be similar to BX's current ISO rule in BX Options 3, Section 7(a)(6), except the Exchange's ISO rule will refer to Exchange functionality that BX does not have today. Specifically, BX does not currently offer Facilitation ISOs or Solicitation ISOs. PIM ISOs are currently codified in Supplementary Material .08 to Options 3, Section 13, so the proposed rule text herein is a non-substantive amendment to add a cross-reference to the PIM ISO rule. The proposed language does not amend the current ISO functionality but rather is intended to add more granularity and more closely align the ISO rule with BX's ISO rule.
The Exchange believes that its proposal is consistent with Section 6(b) of the Act,
The Exchange believes that the proposal to adopt Facilitation ISOs and Solicitation ISOs in Supplementary Material .06 and .07 to Options 3, Section 11 is consistent with the Act. The proposal will codify current functionality, thereby promoting transparency in the Exchange's rules and reducing any potential confusion. As it relates to Solicitation ISOs, the Exchange believes that the proposed rule change promotes fair competition. Specifically, the proposal allows the Exchange to offer Members an order type that is already offered by other options exchanges.
In addition, offering the Facilitation ISO and Solicitation ISO benefits market participants and investors because this functionality provides an additional and efficient method to initiate a Facilitation or Solicited Order auction while preventing trade-throughs. As discussed above, the Exchange processes the Facilitation and Solicitation ISO in the same manner as it processes any other order entered into the Facilitation and Solicited Order Mechanism, except the Exchange will initiate a Facilitation auction or Solicited Order auction without protecting away prices (similar to a regular ISO in Options 3, Section 7(b)(5)). Instead, the entering Member, simultaneous with the transmission of the Facilitation ISO or Solicitation ISO to the Exchange, remains responsible for routing one or more ISOs, as necessary, to execute against the full displayed size of any Protected Bid or Protected Offer that is superior to the starting Facilitation or Solicitation auction price, and for Solicitation ISO, has swept all interest in the Exchange's book priced better than the proposed auction starting price.
The Exchange believes that the proposed changes to the definition of ISOs in Options 3, Section 7(b)(5) are consistent with the Act. As discussed above, the proposed changes are intended to add more granularity and more closely align the level of detail in the ISO rule with BX's ISO rule in BX Options 3, Section 7(a)(6) by specifying how ISOs may be submitted.
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. Offering Facilitation and Solicitation ISOs does not impose an undue burden on competition because it enables the Exchange to provide market participants with an additional and efficient method to initiate a Facilitation or Solicited Order auction while preventing trade-throughs, as discussed above. In addition, all Members may submit a Facilitation ISO or Solicitation ISO. As it relates to the Solicitation ISO, the Exchange believes that the proposed rule change will promote fair competition among options exchanges as it will allow the Exchange to compete with other markets that already allow ISOs in their solicitation auction mechanisms.
The Exchange further believes that the proposed changes to its ISO rule do not impose an undue burden on competition. As discussed above, the proposed changes are intended to add more granularity and more closely align the level of detail in the ISO rule with BX's ISO rule in BX Options 3, Section 7(a)(6) by specifying how ISOs may be submitted, except the Exchange's ISO rule will refer to Exchange functionality that BX does not have today (
No written comments were either solicited or received.
Because the foregoing proposed rule change does not: (i) significantly affect the protection of investors or the public interest; (ii) impose any significant burden on competition; and (iii) become operative for 30 days from the date on which it was filed, or such shorter time as the Commission may designate, it has become effective pursuant to Section 19(b)(3)(A)(iii) of the Act
At any time within 60 days of the filing of the proposed rule change, the Commission summarily may temporarily suspend such rule change if it appears to the Commission that such action is 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.
For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.
Notice is hereby given that pursuant to the Paperwork Reduction Act of 1995 (“PRA”) (44 U.S.C. 3501
The compliance date for Rule 3a71-3 was in November 2021. The representations contemplated by Rule 3a71-3 will be relied upon by counterparties to determine whether such transaction is a “transaction conducted through a foreign branch” of a U.S. bank counterparty, as defined in Rule 3a71-3(a)(3)(i), as well as to verify whether a security-based swap counterparty is a “U.S. person.” Counterparties to security-based swap transactions may voluntarily give such representations to one another to reduce operational costs and allow each party to ascertain whether such transaction is subject to certain Title VII requirements. Because any representations provided to counterparties under Rule 3a71-3 will constitute voluntary third-party disclosures, the Commission will not typically receive these disclosures.
The Commission believes that the representations contemplated by Rule 3a71-3 will, in most cases, be made through amendments to the parties' existing trading documentation (
Pursuant to Rule 3a71-3, parties to security-based swaps are permitted to rely on certain representations from their counterparties when determining whether a transaction falls within the definition of a “transaction conducted through a foreign branch.” Based on its understanding of the current state of the security-based swap market, the Commission staff estimates that nine entities will incur burdens under this collection of information, whether solely in connection with the business conduct requirements or also in connection with the application of the
The Commission estimates the one-time third-party disclosure burden associated with developing representations under this collection of information will be, for each U.S. bank counterparty that will make such representations, no more than five hours, and up to $2,000 for the services of outside professionals. Across the nine respondents, this amounts to approximately 45 hours, or 15 hours per year when annualized over three years. This estimate assumes little or no reliance on standardized disclosure language.
The Commission expects that the majority of the burden associated with the new disclosure requirements will be experienced during the first year as language is developed and trading documentation is amended. The Commission further believes that the ongoing third-party disclosure burden associated with this requirement will be 10 hours per U.S. bank counterparty for verifying representations with existing counterparties, for a total of approximately 90 hours across the nine respondents.
The Commission believes that some of the entities that will comply with Rule 3a71-3 will seek outside counsel to help them develop new representations contemplated by Rule 3a71-3. For PRA purposes, the Commission assumes that all nine respondents will seek outside counsel for the first year only and will, on average, consult with outside counsel for a cost of up to $2,000. The Commission also assumes that none of the nine respondents will seek outside legal services for year two or year three.
Pursuant to Rule 3a71-3(a)(4)(iv), persons may rely on representations from a counterparty that the counterparty does not satisfy the criteria defining U.S. person set forth in Rule 3a71-3(a)(4)(i), unless such person knows or has reason to know that the representation is not accurate. Commission staff has estimated, based on its understanding of OTC derivatives markets, including the domiciles of counterparties that are active in the market, that approximately 3,000 entities will provide representations that they do not meet the criteria necessary to be U.S. persons.
As with representations regarding whether a transaction is conducted through a foreign branch, the Commission estimates the maximum total third-party disclosure burden associated with developing new representations will be, for each counterparty that will make such representations, no more than five hours and up to $2,000 for the services of outside professionals. Across the 3,000 respondents, this aggregates to a maximum of approximately 15,000 hours, or 5,000 hours per year when annualized over three years. This estimate assumes little or no reliance on standardized disclosure language.
The Commission expects that the majority of the burden associated with the disclosure requirements will be experienced during the first year as language is developed and trading documentation is amended. After the new representations are developed and incorporated into trading documentation, the Commission believes that the annual third-party disclosure burden associated with this requirement will be no more than approximately 10 hours per counterparty for verifying representations with existing counterparties and onboarding new counterparties. Across the 3,000 respondents, this aggregates to a maximum of approximately 30,000 hours.
The Commission believes that some of the entities that comply with Rule 3a71-3 will seek outside counsel to help them develop new representations. For PRA purposes, the Commission assumes that all 3,000 respondents will seek outside legal for the first year only and will, on average, consult with outside counsel for a cost of up to $2,000. The Commission also assumes that none of those 3,000 respondents will seek outside legal services for year two or year three. Thus, the Commission expects that the aggregate cost over those 3,000 respondents over the three-year period will be $6 million, or $2 million per year when annualized over three years. The Commission expects the total labor cost per respondent will be approximately $666.67 when annualized over three years.
An agency may not conduct or sponsor, and a person is not required to respond to, a collection of information under the PRA unless it displays a currently valid OMB control number.
The public may view background documentation for this information collection at the following website:
Pursuant to the authority granted to the United States Small Business Administration under the Small Business Investment Act of 1958, as amended, under section 309, and the Small Business Administration Rules and Regulations (13 CFR 107.1900) to function as a small business investment company under the Small Business Investment Company License No. 04/04-0271 issued to BB&T Capital Partners, LLC, said license is hereby declared null and void.
U.S. Small Business Administration.
Amendment 1.
This is an amendment of the Presidential declaration of a major disaster for Public Assistance Only for the State of Arizona (FEMA-4668-DR), dated 09/02/2022.
Issued on 10/21/2022.
Submit completed loan applications to: U.S. Small Business Administration, Processing and Disbursement Center, 14925 Kingsport Road, Fort Worth, TX 76155.
A. Escobar, Office of Disaster Assistance, U.S. Small Business Administration, 409 3rd Street SW, Suite 6050, Washington, DC 20416, (202) 205-6734.
The notice of the President's major disaster declaration for Private Non-Profit organizations in the State of Arizona, dated 09/02/2022, is hereby amended to extend the deadline for filing applications for physical damage as a result of this disaster to 11/03/2022.
All other information in the original declaration remains unchanged.
Notice; request for comment.
President Biden will host leaders from across the African continent from December 13-15, 2022, in Washington, DC, for the U.S.-Africa Leaders Summit. The Summit will demonstrate the United States' enduring commitment to Africa and will underscore the importance of U.S.-Africa relations and increased cooperation on shared global priorities. An important component of the Summit's three-day agenda is the African and Diaspora Young Leaders Forum, which will be held on December 13. A full agenda with speakers will be announced in the coming weeks. The Department is requesting self-nominations from the public of exceptional young leaders to participate in the event.
Nominations are due no later than 12 p.m. ET on November 8, 2022.
Please email nominations to
Jennifer Goodman, 202-341-1833 in the Bureau of African Affairs at the U.S. Department of State at
As President Biden outlined in the U.S. Strategy Toward Sub-Saharan Africa, our African diaspora is a source of strength. The African and Diaspora Young Leaders Forum will elevate our diaspora engagement to strengthen the dialogue between U.S. officials and the diaspora in the United States and provide a platform for young African and diaspora leaders to fashion innovative solutions to pressing challenges. The Forum will feature breakout sessions on higher education, the creative industries, and environmental equity, utilizing the theme “Amplifying Voices: Building Partnerships That Last.”
The African and Diaspora Young Leaders Forum will be held in person on December 13, 2022. The U.S. Department of State is seeking exceptional young leaders to participate in the event. Ideal participants will be Africans and people of African descent living outside of Africa who are between the ages of 21-35 and actively engaged on issues related to higher education, creative industries, or environmental equity. If you are interested in participating, please send an email to the address listed in the
Please note that we will not be able to invite all nominated individuals to the Forum and that attendees will need to pay for their own travel and accommodations. Invited individuals will be contacted directly.
All interested parties will receive consideration without regard to race, color, sex, age, national origin, religion, disability, veteran status, sexual orientation, marital status, citizenship, or any other protected status.
Federal Aviation Administration (FAA), DOT.
Notice and request for comments.
In accordance with the Paperwork Reduction Act of 1995, FAA invites public comments about our intention to request the Office of Management and Budget (OMB) approval to renew an information collection. The
Written comments should be submitted by December 1, 2022.
Written comments and recommendations for the proposed information collection should be sent within 30 days of publication of this notice to
Jim Anderson by email at:
Air carrier maintenance has evolved from mostly an “in-house” operation to an extended network of maintenance providers that fulfill contracts with air carriers to perform their aircraft maintenance. Any person performing maintenance for an air carrier must follow the air carrier's maintenance manual.
The FAA has found that, although an air carrier is required to list its maintenance providers and a general description of the work to be done in its maintenance manual, these lists are not always kept up to date, are not always complete, and are not always in a format that is readily useful for FAA oversight and analysis purposes. Without accurate and complete information on the work being performed for air carriers, the FAA cannot adequately target its inspection resources for surveillance and make accurate risk assessments.
This collection of information supports regulatory requirements necessary under 14 CFR part 121 and part 135 to ensure safety of flight by requiring air carriers to provide a list that includes the name and physical (street) address, or addresses, where the work is carried out for each maintenance provider that performs work for the certificate holder, and a description of the type of maintenance, preventive maintenance, or alteration that is to be performed at each location. The list must be updated with any changes, including additions or deletions, and the updated list provided to the FAA in a format acceptable to the FAA by the last day of each calendar month.
This collection also supports the FAA's strategic goal to provide to the next level of safety, by achieving the lowest possible accident rate and always improving safety, so all users of our aviation system can arrive safely at their destinations.
Federal Aviation Administration (FAA), DOT.
Notice and request for comments.
In accordance with the Paperwork Reduction Act of 1995, FAA invites public comments about our intention to request the Office of Management and Budget (OMB) approval to renew an information collection. The
Written comments should be submitted by December 1, 2022.
Written comments and recommendations for the proposed information collection should be sent within 30 days of publication of this notice to
Raymond Zee by email at:
Federal Aviation Administration (FAA), DOT.
Notice and request for comments.
In accordance with the Paperwork Reduction Act of 1995, FAA invites public comments about our intention to request the Office of Management and Budget (OMB) approval to renew an information collection. The
Written comments should be submitted by December 1, 2022.
Written comments and recommendations for the proposed information collection should be sent within 30 days of publication of this notice to
Joedy Collado, AIR-634 by email at:
Federal Aviation Administration (FAA), DOT.
Notice and request for comments.
In accordance with the Paperwork Reduction Act of 1995, FAA invites public comments about our intention to request the Office of Management and Budget (OMB) approval to renew an information collection. The
Written comments should be submitted 30 days after date of publication in the
Written comments and recommendations for the proposed information collection should be sent within 30 days of publication of this notice to
Robert Franklin by email at:
The information collected on the FAA Form 8120-11, Suspected Unapproved Parts Report, is reported voluntarily by manufacturers, repair stations, aircraft owner/operators, air carriers, and the general public who wish to report suspected unapproved parts (SUP) to the FAA for review. The report information is collected and correlated by the FAA Hotline Program Office, and used to determine if an unapproved part investigation is warranted. When unapproved parts are confirmed that are likely to exist on other products or aircraft of the same or similar design or are being used in other facilities, the information is used as a basis for an aviation industry alert or notification. Alerts are used to inform industry of situations essential to the prevention of accidents, if the information had not been collected. The consequence to the aviation community would be the inability to determine whether or not unapproved parts are being offered for sale or use for installation on type-certificated products.
Procedures and processes relating to the SUP program and associated reports are found in FAA Order 8120.16A, Suspected Unapproved Parts Program, and Advisory Circular 21-29, Detecting and Reporting Suspected Unapproved Parts. When unapproved parts are identified, the FAA notifies the public by published Field Notifications, disseminated using Unapproved Parts Notifications, Aviation Maintenance Alerts, Airworthiness Directives, entry into an issue of the Service Difficulty Reporting Summary, a Special Airworthiness Information Bulletin, a display on an internet site, or direct mailing. Reporting of information is strictly voluntary. The information is requested from any individual or facility suspecting an unapproved part. Any burden is minimized by requesting only necessary information to warrant an investigation.
Federal Highway Administration (FHWA), DOT.
Notice and request for comments.
The FHWA invites public comments about our intention to request the Office of Management and Budget's (OMB) approval for a new information collection, which is summarized below under
Please submit comments by January 3, 2023.
You may submit comments identified by DOT Docket ID Number 2022-0030 by any of the following methods:
Jason Broehm, Office of Safety 202-366-2201 Federal Highway Administration, Department of Transportation, 1200 New Jersey Avenue,SE, Washington, DC 20590. Office hours are from 9 a.m. to 5:30 p.m., Monday through Friday, except Federal holidays.
This program includes grant funds to develop a comprehensive safety action plan; to conduct planning, design and development activities for projects and strategies identified in a comprehensive safety action plan; or to carry out projects and strategies identified in a comprehensive safety action plan. To receive applications for grant funds, evaluate the effectiveness of projects that have been awarded grant funds, and monitor project financial conditions and project progress, a collection of information is necessary.
Eligible applicants will request Safe Streets and Roads for All funds in the form of a grant application. Additional information submission will be required of grant recipients during the grant agreement, implementation, and evaluation phases.
Responding to the grant opportunity is on a voluntary-response basis, utilizing an electronic grant platform. The grant application is planned as a one-time information collection. DOT estimates that it will take approximately 30 hours to complete an application for a comprehensive safety action plan grant and approximately 110 hours to complete an application for an implementation grant.
During the project management phase, the grantee will complete quarterly progress and monitoring reports to ensure that the project budget and schedule are maintained to the maximum extent possible, that compliance with Federal regulations will be met, and that the project will be
During the project management phase, each grantee that expends $750,000 or more during their own fiscal year in all Federal awards must have a single or program-specific audit conducted for that year in accordance with the provisions of 2 CFR 200.501. (The $750,000 threshold is not limited to Safe Streets and Roads for All funding.) This reporting responsibility is required annually and uses a form, the SF-SAC. It is estimated that this survey will take an average of 100 hours for large auditees and 21 hours for all other auditees to complete, including the time for reviewing instructions, searching existing data sources, gathering and maintaining the data needed, and completing and reviewing the collection of information.
During the project evaluation phase, the reporting requirement is necessary to assess program effectiveness for the Federal government and to comply with Subsection 24112(g). This report provides information regarding how the project is achieving the outcomes that grantees have targeted to help measure the effectiveness of the Safe Streets and Roads for All Grant Program. In addition, under Subsection 24112(h), at the end of the period of performance for a grant under the program each grant recipient is required to submit a report that describes the costs of each eligible project carried out using the grant funds; the outcomes and benefits generated; the lessons learned; and any recommendations relating to future projects or strategies.
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Approximately 100 hours for large grantees.
Approximately 21 hours for all other grantees.
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Federal Motor Carrier Safety Administration (FMCSA), Department of Transportation (DOT).
Notice of applications for exemption; request for comments.
FMCSA announces receipt of applications from 13 individuals for an exemption from the prohibition in the Federal Motor Carrier Safety Regulations (FMCSRs) against persons with a clinical diagnosis of epilepsy or any other condition that is likely to cause a loss of consciousness or any loss of ability to control a commercial motor vehicle (CMV) to drive in interstate commerce. If granted, the exemptions would enable these individuals who have had one or more seizures and are taking anti-seizure medication to operate CMVs in interstate commerce.
Comments must be received on or before December 1, 2022.
You may submit comments identified by the Federal Docket Management System Docket No. FMCSA-2022-0045 using any of the following methods:
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To avoid duplication, please use only one of these four methods. See the “Public Participation” portion of the
Ms. Christine A. Hydock, Chief, Medical Programs Division, (202) 366-4001,
If you submit a comment, please include the docket number for this notice (Docket No. FMCSA-2022-0045), indicate the specific section of this document to which each comment applies, and provide a reason for each suggestion or recommendation. You may submit your comments and material online or by fax, mail, or hand delivery, but please use only one of these means. FMCSA recommends that you include your name and a mailing address, an email address, or a phone number in the body of your document so that FMCSA can contact you if there are questions regarding your submission.
To submit your comment online, go to
If you submit your comments by mail or hand delivery, submit them in an unbound format, no larger than 8
FMCSA will consider all comments and material received during the comment period.
To view comments go to
In accordance with 49 U.S.C. 31315(b)(6), DOT solicits comments from the public on the exemption request. DOT posts these comments, without edit, including any personal information the commenter provides, to
Under 49 U.S.C. 31136(e) and 31315(b), FMCSA may grant an exemption from the FMCSRs for no longer than a 5-year period if it finds such exemption would likely achieve a level of safety that is equivalent to, or greater than, the level that would be achieved absent such exemption. The statute also allows the Agency to renew exemptions at the end of the 5-year period. FMCSA grants medical exemptions from the FMCSRs for a 2-year period to align with the maximum duration of a driver's medical certification.
The 13 individuals listed in this notice have requested an exemption from the epilepsy and seizure disorders prohibition in 49 CFR 391.41(b)(8). Accordingly, the Agency will evaluate the qualifications of each applicant to determine whether granting the exemption will achieve the required level of safety mandated by statute.
The physical qualification standard for drivers regarding epilepsy found in § 391.41(b)(8) states that a person is physically qualified to drive a CMV if that person has no established medical history or clinical diagnosis of epilepsy or any other condition which is likely to cause the loss of consciousness or any loss of ability to control a CMV.
In addition to the regulations, FMCSA has published advisory criteria
The criteria states that if an individual has had a sudden episode of a non-epileptic seizure or loss of consciousness of unknown cause that did not require anti-seizure medication, the decision whether that person's condition is likely to cause the loss of consciousness or loss of ability to control a CMV should be made on an individual basis by the ME in consultation with the treating physician. Before certification is considered, it is suggested that a 6-month waiting period elapse from the time of the episode. Following the waiting period, it is suggested that the individual have a complete neurological examination. If the results of the examination are negative and anti-seizure medication is not required, then the driver may be qualified.
In those individual cases where a driver has had a seizure or an episode of loss of consciousness that resulted from a known medical condition (
Drivers who have a history of epilepsy/seizures, off anti-seizure medication and seizure-free for 10 years, may be qualified to operate a CMV in interstate commerce. Interstate drivers with a history of a single unprovoked seizure may be qualified to drive a CMV in interstate commerce if seizure-free and off anti-seizure medication for a 5-year period or more.
As a result of MEs misinterpreting advisory criteria as regulation, numerous drivers have been prohibited from operating a CMV in interstate commerce based on the fact that they have had one or more seizures and are taking anti-seizure medication, rather than an individual analysis of their circumstances by a qualified ME based on the physical qualification standards and medical best practices.
On January 15, 2013, FMCSA announced in a Notice of Final Disposition titled, “Qualification of Drivers; Exemption Applications; Epilepsy and Seizure Disorders,” (78 FR 3069), its decision to grant requests from 22 individuals for exemptions from the regulatory requirement that interstate CMV drivers have “no established medical history or clinical diagnosis of epilepsy or any other condition which is likely to cause loss of consciousness or any loss of ability to control a CMV.” Since that time, the Agency has published additional notices granting requests from individuals for exemptions from the regulatory requirement regarding epilepsy found in § 391.41(b)(8).
To be considered for an exemption from the epilepsy and seizure disorders
Mr. Bollman is a 57-year-old class CM license holder in Pennsylvania. He has a history of seizure disorder and has been seizure free since 1984. He takes anti-seizure medication with the dosage and frequency remaining the same since 1984. His physician states that he is supportive of Mr. Bollman receiving an exemption.
Ms. Berggren is a 54-year-old class C license holder in Oregon. She has a history of epilepsy and has been seizure free since 2011. She takes anti-seizure medication with the dosage and frequency remaining the same since 2011. Her physician states that he is supportive of Ms. Berggren receiving an exemption.
Mr. Freedman is a 32-year-old chauffer license holder in Michigan. He has a history of seizure disorder and has been seizure free since 2007. He takes anti-seizure medication with the dosage and frequency remaining the same since April 2019. His physician states that he is supportive of Mr. Freedman receiving an exemption.
Mr. Friedman is a 30-year-old class D license holder in New York. He has a history of seizure disorder and has been seizure free since 2002. He takes anti-seizure medication with the dosage and frequency remaining the same since May 2019. His physician states that he is supportive of Mr. Friedman receiving an exemption.
Mr. Higginbotham is a 23-year-old class C license holder in Nevada. He has a history of epilepsy and has been seizure free since 2012. He takes anti-seizure medication with the dosage and frequency remaining the same since 2012. His physician states that he is supportive of Mr. Higginbotham receiving an exemption.
Mr. Jacobson is a 27-year-old class C license holder in Pennsylvania. He has a history of seizures and has been seizure free since 2013. He takes anti-seizure medication with the dosage and frequency remaining the same since 2016. His physician states that he is supportive of Mr. Jacobson receiving an exemption.
Mr. Maat is a 37-year-old class C license holder in Kansas. He has a history of partial seizures evolving to secondary generalized seizures disorder and has been seizure free since 2011. He takes anti-seizure medication with the dosage and frequency remaining the same since July 2019. His physician states that he is supportive of Mr. Maat receiving an exemption.
Mr. Raymond is a 34-year-old class B CDL holder in New York. He has a history of epilepsy and has been seizure free since 1999. He takes anti-seizure medication with the dosage and frequency remaining the same since 1999. His physician states that he is supportive of Mr. Raymond receiving an exemption.
Mr. Rieschick is a 35-year-old class O license holder in Nebraska. He has a history of generalized tonic-clonic seizure disorder and has been seizure free since 2009. He takes anti-seizure medication with the dosage and frequency remaining the same since 2009. His physician states that he is supportive of Mr. Rieschick receiving an exemption.
Mr. Schultz is a 34-year-old class DM license holder in Illinois. He has a history of seizures and has been seizure free since 2001. He takes anti-seizure medication with the dosage and frequency remaining the same since 2019. His physician states that he is supportive of Mr. Schultz receiving an exemption.
Mr. Shively is a 53-year-old class C license holder in Virginia. He has a history of seizures and has been seizure free since 1991. He takes anti-seizure medication with the dosage and frequency remaining the same since 1991. His physician states that he is supportive of Mr. Shively receiving an exemption.
Mr. St. Marthe is a 27-year-old class C license holder in North Carolina. He has a history of focal epilepsy with secondary generalization and has been seizure free since 2012. He takes anti-seizure medication with the dosage and frequency remaining the same since 2014. His physician states that he is supportive of Mr. St. Marthe receiving an exemption.
Mr. Thode is a 58-year-old class B CDL holder in Washington. He has a history of epilepsy and has been seizure free since 2014. He takes anti-seizure medication with the dosage and frequency remaining the same since 1990. His physician states that he is supportive of Mr. Thode receiving an exemption.
In accordance with 49 U.S.C. 31136(e) and 31315(b), FMCSA requests public comment from all interested persons on the exemption petitions described in this notice. We will consider all comments received before the close of business on the closing date indicated under the
Federal Motor Carrier Safety Administration (FMCSA), Department of Transportation (DOT).
Notice of renewal of exemptions; request for comments.
FMCSA announces its decision to renew exemptions for 23 individuals from the hearing requirement in the Federal Motor Carrier Safety Regulations (FMCSRs) for interstate commercial motor vehicle (CMV) drivers. The exemptions enable these hard of hearing and deaf individuals to continue to operate CMVs in interstate commerce.
Each group of renewed exemptions were applicable on the dates stated in the discussions below and will expire on the dates provided below. Comments must be received on or before December 1, 2022.
You may submit comments identified by the Federal Docket Management System Docket No. FMCSA-2015-0329, Docket No. FMCSA-2016-0002, Docket No.
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To avoid duplication, please use only one of these four methods. See the “Public Participation” portion of the
Ms. Christine A. Hydock, Chief, Medical Programs Division, (202) 366-4001,
If you submit a comment, please include the docket number for this notice (Docket No. FMCSA-2015-0329, Docket No. FMCSA-2016-0002, Docket No. FMCSA-2017-0058, Docket No. FMCSA-2017-0059, Docket No. FMCSA-2017-0061, Docket No. FMCSA-2018-0135, Docket No. FMCSA-2018-0138, or Docket No. FMCSA-2020-0027), indicate the specific section of this document to which each comment applies, and provide a reason for each suggestion or recommendation. You may submit your comments and material online or by fax, mail, or hand delivery, but please use only one of these means. FMCSA recommends that you include your name and a mailing address, an email address, or a phone number in the body of your document so that FMCSA can contact you if there are questions regarding your submission.
To submit your comment online, go to
If you submit your comments by mail or hand delivery, submit them in an unbound format, no larger than 8
FMCSA will consider all comments and material received during the comment period.
To view comments go to
In accordance with 49 U.S.C. 31315(b)(6), DOT solicits comments from the public on the exemption request. DOT posts these comments, without edit, including any personal information the commenter provides, to
Under 49 U.S.C. 31136(e) and 31315(b), FMCSA may grant an exemption from the FMCSRs for no longer than a 5-year period if it finds such exemption would likely achieve a level of safety that is equivalent to, or greater than, the level that would be achieved absent such exemption. The statute also allows the Agency to renew exemptions at the end of the 5-year period. FMCSA grants medical exemptions from the FMCSRs for a 2-year period to align with the maximum duration of a driver's medical certification.
The physical qualification standard for drivers regarding hearing found in 49 CFR 391.41(b)(11) states that a person is physically qualified to drive a CMV if that person first perceives a forced whispered voice in the better ear at not less than 5 feet with or without the use of a hearing aid or, if tested by use of an audiometric device, does not have an average hearing loss in the better ear greater than 40 decibels at 500 Hz, 1,000 Hz, and 2,000 Hz with or without a hearing aid when the audiometric device is calibrated to American National Standard (formerly ASA Standard) Z24.5—1951.
This standard was adopted in 1970 and was revised in 1971 to allow drivers to be qualified under this standard while wearing a hearing aid, 35 FR 6458, 6463 (Apr. 22, 1970) and 36 FR 12857 (July 3, 1971).
The 23 individuals listed in this notice have requested renewal of their exemptions from the hearing standard in § 391.41(b)(11), in accordance with FMCSA procedures. Accordingly, FMCSA has evaluated these applications for renewal on their merits and decided to extend each exemption for a renewable 2-year period.
Interested parties or organizations possessing information that would otherwise show that any, or all, of these drivers are not currently achieving the statutory level of safety should immediately notify FMCSA. The Agency will evaluate any adverse evidence submitted and, if safety is being compromised or if continuation of the exemption would not be consistent with the goals and objectives of 49 U.S.C. 31136(e) and 31315(b), FMCSA
In accordance with 49 U.S.C. 31136(e) and 31315(b), each of the 23 applicants has satisfied the renewal conditions for obtaining an exemption from the hearing requirement. The 23 drivers in this notice remain in good standing with the Agency. In addition, for commercial driver's license (CDL) holders, the Commercial Driver's License Information System and the Motor Carrier Management Information System are searched for crash and violation data. For non-CDL holders, the Agency reviews the driving records from the State Driver's Licensing Agency. These factors provide an adequate basis for predicting each driver's ability to continue to safely operate a CMV in interstate commerce. Therefore, FMCSA concludes that extending the exemption for each of these drivers for a period of 2 years is likely to achieve a level of safety equal to that existing without the exemption.
In accordance with 49 U.S.C. 31136(e) and 31315(b), the following groups of drivers received renewed exemptions in the month of October and are discussed below.
As of October 13, 2022, and in accordance with 49 U.S.C. 31136(e) and 31315(b), the following 14 individuals have satisfied the renewal conditions for obtaining an exemption from the hearing requirement in the FMCSRs for interstate CMV drivers:
The drivers were included in docket number FMCSA-2015-0329, FMCSA-2016-0002, FMCSA-2017-0058, FMCSA-2017-0059, FMCSA-2017-0061, FMCSA-2018-0135, or FMCSA-2018-0138. Their exemptions were applicable as of October 13, 2022 and will expire on October 13, 2024.
As of October 30, 2022, and in accordance with 49 U.S.C. 31136(e) and 31315(b), the following nine individuals have satisfied the renewal conditions for obtaining an exemption from the hearing requirement in the FMCSRs for interstate CMV drivers:
The drivers were included in docket number FMCSA-2020-0027. Their exemptions are applicable as of October 30, 2022 and will expire on October 30, 2024.
The exemptions are extended subject to the following conditions: (1) each driver must report any crashes or accidents as defined in § 390.5; and (2) report all citations and convictions for disqualifying offenses under 49 CFR 383 and 49 CFR 391 to FMCSA; and (3) each driver prohibited from operating a motorcoach or bus with passengers in interstate commerce. The driver must also have a copy of the exemption when driving, for presentation to a duly authorized Federal, State, or local enforcement official. In addition, the exemption does not exempt the individual from meeting the applicable CDL testing requirements. Each exemption will be valid for 2 years unless rescinded earlier by FMCSA. The exemption will be rescinded if: (1) the person fails to comply with the terms and conditions of the exemption; (2) the exemption has resulted in a lower level of safety than was maintained before it was granted; or (3) continuation of the exemption would not be consistent with the goals and objectives of 49 U.S.C. 31136(e) and 31315(b).
During the period the exemption is in effect, no State shall enforce any law or regulation that conflicts with this exemption with respect to a person operating under the exemption.
Based upon its evaluation of the 23 exemption applications, FMCSA renews the exemptions of the aforementioned drivers from the hearing requirement in § 391.41(b)(11). In accordance with 49 U.S.C. 31136(e) and 31315(b), each exemption will be valid for two years unless revoked earlier by FMCSA.
Departmental Offices; Department of the Treasury.
The Department of the Treasury, as part of its continuing effort to reduce paperwork burdens, invites the general public and other Federal agencies to comment on revisions of an information collection that are proposed for approval by the Office of Management and Budget. The Office of International Affairs within the Department of the Treasury is soliciting comments concerning the revisions of the Treasury International Capital (TIC) Forms BC, BL-1, BL-2, BQ-1, BQ-2, and BQ-3 (called the “TIC B forms”).
Written comments should be received on or before January 3, 2023 to be assured of consideration.
Direct all written comments to Dwight Wolkow, International Portfolio Investment Data Systems, Department of the Treasury, Room 1050, 1500 Pennsylvania Avenue NW, Washington DC 20220. In view of possible delays in mail delivery, please also notify Mr. Wolkow by email (
Dwight Wolkow, International Portfolio Investment Data Systems, Department of the Treasury, 202-622-1276. Copies of the proposed TIC B Forms and instructions are available on the Treasury's TIC Forms web page,
Veterans Health Administration, Department of Veterans Affairs.
Notice.
Veterans Health Administration (VHA), 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 January 3, 2023.
Submit written comments on the collection of information through Federal Docket Management System (FDMS) at
Maribel Aponte, Office of Enterprise and Integration, Data Governance Analytics (008), 810 Vermont Ave. NW, Washington, DC 20006, (202) 266-4688 or email
Under the PRA of 1995, Federal agencies must obtain approval from the Office of Management and Budget (OMB) for each collection of information they conduct or sponsor. This request for comment is being made pursuant to section 3506(c)(2)(A) of the PRA.
With respect to the following collection of information, VHA invites comments on: (1) whether the proposed collection of information is necessary for the proper performance of VHA's functions, including whether the information will have practical utility; (2) the accuracy of VHA'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.
Public Law 104-13; 44 U.S.C. 3501-3521.
By direction of the Secretary.
Notice.
The Department of Veterans Affairs (VA), Veterans Benefits Administration (VBA), is seeking nominations of qualified candidates to be considered for appointment as members of the Veterans' Advisory Committee on Rehabilitation (hereinafter referred to as “the Committee”).
Nominations for membership on the Committee must be received by no later than 4 p.m. EST on December 6, 2022. Packages received after this time will not be considered for the current membership cycle.
All nomination packages should be emailed to
Mrs. Latrese Thompson at 202-461-9773. A copy of Committee charter and list of the current membership can be obtained by contacting Mrs. Thompson.
Duties and Responsibilities: In carrying out the duties set forth, the Committee responsibilities include, but are not limited to, submit to the Secretary an annual report on the rehabilitation programs and activities of the VA.
Members of the Committee are appointed by the Secretary from the general public, including but not limited to:
(1) Veterans with service-connected disabilities;
(2) Persons who have distinguished themselves in the public and private sectors in the fields of rehabilitation medicine, vocational guidance, vocational rehabilitation, and employment and training programs;
(3) Ex-officio members of the Committee shall include one representative from the Veterans Health Administration and one from the Veterans Benefits Administration; one representative each from the Rehabilitation Services Administration of the Department of Education, and the National Institute for Handicapped Research of the Department of Education; and one representative of the Assistant Secretary for Veterans' Employment and Training of the Department of Labor.
To the extent possible, the Secretary seeks members who have diverse professional and personal qualifications. We ask that nominations include information of this type so that VA can ensure a balanced Committee membership.
(1) A letter of nomination that clearly states the name and affiliation of the nominee, the basis for the nomination (
(2) the nominee's contact information, including name, mailing address, telephone numbers, and email address;
(3) the nominee's curriculum vitae or resume; and
(4) a summary of the nominee's experience and qualifications relative to the membership considerations described above; and
(5) a statement confirming that he/she is not a federally registered lobbyist.
Individuals appointed to the Committee by the Secretary shall be invited to serve a three-year term. The Secretary may reappoint a member for an additional term of service. In accordance with Federal Travel Regulation, Committee members will receive travel expenses and a per diem allowance for any travel made in association with duties as members of the Committee and within federal travel guidelines. Self- nominations are acceptable. Any letters of nomination from organizations or other individuals should accompany the package when it is submitted. Non-Veterans are also eligible for nomination.
The Department makes every effort to ensure that the membership of VA Federal advisory committees is balanced
Office of Energy Efficiency and Renewable Energy, Department of Energy.
Final rule.
In this final rule, the U.S. Department of Energy (“DOE”) amends the test procedure for automatic commercial ice makers to update incorporated references to the latest version of the industry standards; establish a relative humidity test condition; provide additional detail regarding certain test conditions, settings, setup requirements, and calculations; include a voluntary measurement of potable water use; clarify certification and reporting requirements; and add enforcement provisions. This final rule also provides additional detail to the DOE test procedure to improve the representativeness and repeatability of the current test procedure.
The effective date of this rule is December 1, 2022. The final rule changes will be mandatory for equipment testing starting October 27, 2023. The incorporation by reference of certain publications listed in the rule is approved by the Director of the Federal Register on December 1, 2022.
The docket, which includes
A link to the docket web page can be found at
For further information on how to review the docket contact the Appliance and Equipment Standards Program staff at (202) 287-1445 or by email:
Ms. Julia Hegarty, U.S. Department of Energy, Office of Energy Efficiency and Renewable Energy, Building Technologies Office, EE-2J, 1000 Independence Avenue SW, Washington, DC 20585-0121. Telephone: (202) 586-0729. Email:
Ms. Sarah Butler, U.S. Department of Energy, Office of the General Counsel, GC-33, 1000 Independence Avenue SW, Washington, DC 20585-0121. Telephone: (202) 586-1777. Email:
DOE incorporates by reference the following industry standards into part 431:
AHRI Standard 810 (I-P)-2016 with Addendum 1, “Performance Rating of Automatic Commercial Ice-Makers,” January 2018; and
ANSI/ASHRAE Standard 29-2015, “Method of Testing Automatic Ice Makers,” approved April 30, 2015.
AHRI standards can be obtained from the Air-Conditioning, Heating, and Refrigeration Institute (AHRI), 2111 Wilson Blvd., Suite 500, Arlington, VA 22201, 703-524-8800,
ASHRAE standards can be purchased from the American Society of Heating, Refrigerating and Air-Conditioning Engineers, Inc. (ASHRAE), 1791 Tullie Circle NE, Atlanta, GA 30329, (404) 636-8400,
For a further discussion of these standards, see section IV.N of this document.
Automatic commercial ice makers (“ACIMs” or “ice makers”) are included in the list of “covered equipment” for which the U.S. Department of Energy (“DOE”) is authorized to establish and amend energy conservation standards and test procedures. (42 U.S.C. 6311(1)(F)) DOE's energy conservation standards and test procedures for ACIMs are currently prescribed at 10 CFR 431.136 and 431.134, respectively. The following sections discuss DOE's authority to establish test procedures for ACIMs and relevant background information regarding DOE's consideration of test procedures for this equipment.
The Energy Policy and Conservation Act, as amended (“EPCA”),
The energy conservation program under EPCA consists essentially of four parts: (1) testing, (2) labeling, (3) Federal energy conservation standards, and (4) certification and enforcement procedures. Relevant provisions of EPCA specifically include definitions (42 U.S.C. 6311), test procedures (42 U.S.C. 6314), labeling provisions (42 U.S.C. 6315), energy conservation standards (42 U.S.C. 6313), and the authority to require information and reports from manufacturers (42 U.S.C. 6316; 42 U.S.C. 6296).
The Federal testing requirements consist of test procedures that manufacturers of covered equipment must use as the basis for: (1) certifying to DOE that their equipment complies with the applicable energy conservation standards adopted pursuant to EPCA (42 U.S.C. 6316(a); 42 U.S.C. 6295(s)), and (2) making other representations about the efficiency of that equipment (42 U.S.C. 6314(d)). Similarly, DOE must use these test procedures to determine whether the equipment complies with relevant standards promulgated under EPCA. (42 U.S.C. 6316(a); 42 U.S.C. 6295(s))
Federal energy efficiency requirements for covered equipment established under EPCA generally supersede State laws and regulations concerning energy conservation testing, labeling, and standards. (42 U.S.C. 6316(a) and 42 U.S.C. 6316(b); 42 U.S.C. 6297) DOE may, however, grant waivers of Federal preemption for particular State laws or regulations, in accordance with the procedures and other provisions of EPCA. (42 U.S.C. 6316(b)(2)(D))
Under 42 U.S.C. 6314, EPCA sets forth the criteria and procedures DOE must follow when prescribing or amending test procedures for covered equipment. EPCA requires that any test procedures prescribed or amended under this section must be reasonably designed to produce test results which reflect energy efficiency, energy use, or estimated annual operating cost of a given type of covered equipment during a representative average use cycle (as determined by the Secretary) and requires that test procedures not be unduly burdensome to conduct. (42 U.S.C. 6314(a)(2))
EPCA prescribed the first Federal test procedure for ACIMs, directing that the ACIM test procedure shall be the AHRI Standard 810-2003, “Performance Rating of Automatic Commercial Ice-Makers” (“AHRI Standard 810-2003”). (42 U.S.C. 6314(a)(7)(A)) EPCA requires if AHRI Standard 810-2003 is amended, that DOE must amend the Federal test procedures as necessary to be consistent with the amended AHRI standard, unless DOE determines, by rule, published in the
EPCA also requires that, at least once every 7 years, DOE evaluate test procedures for each type of covered equipment, including ACIMs, to determine whether amended test procedures would more accurately or fully comply with the requirements for the test procedures to not be unduly burdensome to conduct and be reasonably designed to produce test results that reflect energy efficiency, energy use, and estimated operating costs during a representative average use cycle. (42 U.S.C. 6314(a)(1))
If the Secretary determines, on her own behalf or in response to a petition by any interested person, that a test procedure should be prescribed or amended, the Secretary shall promptly publish in the
DOE is publishing this final rule in satisfaction of the 7-year review requirement specified in EPCA. (42 U.S.C. 6314(b)(1))
DOE's existing test procedures for ACIMs appear at title 10 of the Code of Federal Regulations (“CFR”), part 431, § 431.134.
On March 19, 2019
(1) Updating the referenced methods of test to AHRI Standard 810 (I-P)-2016 with Addendum 1 and ASHRAE Standard 29-2015, except for the provisions as discussed;
(2) Including definitions and test requirements for low-capacity ACIMs;
(3) Incorporating changes to improve test procedure representativeness, accuracy, and precision, which include: clarifying calorimeter constant test instructions; specifying ambient temperature measurement requirements; establishing a relative humidity test condition; establishing an allowable range of water hardness; clarifying the stability requirements that were updated in ASHRAE Standard 29-2015; clarifying water pressure requirements; and increasing the tolerance on capacity collection time;
(4) Specifying certain test settings, conditions, and installations, including: clarifying ice hardness test conditions; clarifying baffle use for testing; amending clearance requirements; clarifying automatic purge control settings; and providing instructions for testing ACIMs with automatic dispensers;
(5) Including voluntary provisions for measuring potable water use;
(6) Including clarifying language for calculations, rounding requirements, sampling plan calculations, and certification instructions; and
(7) Adding language to the equipment-specific enforcement provisions.
DOE received comments in response to the December 2021 NOPR from the interested parties listed in Table I.1.
A
In this final rule, DOE amends the representation provisions, product-specific enforcement provisions, and test procedure for ACIMs as follows:
(1) Updating the referenced methods of test to AHRI Standard 810 (I-P)-2016 with Addendum 1 and ASHRAE Standard 29-2015, except for the provisions as discussed;
(2) Including definitions and test requirements for low-capacity ACIMs;
(3) Incorporating changes to improve test procedure representativeness, accuracy, and precision, which include: clarifying calorimeter constant test instructions; specifying ambient temperature measurement requirements; establishing a relative humidity test condition; clarifying the stability requirements that were updated in ASHRAE Standard 29-2015; and clarifying water pressure requirements;
(4) Specifying certain test settings, conditions, and installations, including: clarifying ice hardness test conditions; clarifying baffle use for testing; amending clearance requirements; clarifying automatic purge control settings; and providing instructions for testing ACIMs with automatic dispensers;
(5) Including voluntary provisions for measuring potable water use;
(6) Including clarifying language for calculations, rounding requirements, sampling plan calculations, and certification instructions; and
(7) Adding language to the equipment-specific enforcement provisions.
The adopted amendments are summarized in Table II.1 compared to the test procedure provisions prior to the amendment, as well as the reason for the adopted change.
DOE has determined that while the amendments will introduce additional test requirements compared to the current approach, any impact to the measured efficiency of certified ACIMs is expected to be
The effective date for the amended test procedures adopted in this final rule is 30 days after publication of this document in the
In the following sections, DOE describes the amendments to the test procedures for ACIMs. This reflects DOE's review of the updates to the referenced industry test procedures, the comments received in response to the March 2019 RFI and the December 2021 NOPR, and other relevant information.
DOE defines automatic commercial ice maker as a factory-made assembly (not necessarily shipped in 1 package) that: (1) consists of a condensing unit and ice-making section operating as an integrated unit, with means for making and harvesting ice and (2) may include means for storing ice, dispensing ice, or storing and dispensing ice. 10 CFR 431.132 (see also, 42 U.S.C. 6311(19)) The current DOE test procedure for ACIMs applies to both batch type and continuous type ice makers
The regulatory and statutory definitions of ACIM are not limited by harvest rate (
DOE had previously considered test procedures for low-capacity ACIMs in a December 16, 2014, NOPR for test procedures for miscellaneous refrigeration products (“MREFs”). 79 FR 74894 (“December 2014 MREF Test Procedure NOPR”).
As discussed, EPCA defines “covered equipment” to include certain types of “industrial equipment,” including automatic commercial ice makers. 42 U.S.C. 6311(1). EPCA defines “industrial equipment” to mean equipment, including automatic commercial ice makers, (1) which in operation consumes, or is designed to consume, energy, (2) which, to any significant extent, is distributed in commerce for industrial or commercial use; and (3) which is not a “covered product” as defined in 42 U.S.C. 6291(a)(2), other than a component of a covered product with respect to which there is in effect a determination under 42 U.S.C. 6312(c); without regard to whether such article is in fact distributed in commerce for industrial or commercial use. 42 U.S.C. 6311(2).
As discussed, the regulatory and statutory definitions of ACIM are not limited by harvest rate (s
In the December 2014 MREF Test Procedure NOPR, DOE stated it is aware that manufacturers are using the DOE ACIM test procedure to represent the energy use of consumer ice makers (
In the December 2021 NOPR, DOE proposed a test procedure for low-capacity ACIMs and requested comment on the proposal to include test procedure provisions for low-capacity ACIMs within the scope of the ACIM test procedure. 86 FR 72322,72328.
In response to the December 2021 NOPR, the Joint Commenters responded that there are many low-capacity models on the market, and these units currently are not subject to DOE efficiency standards or test procedures. (Joint Commenters, No. 15, p. 1)
The CA IOUs and the Joint Commenters expressed support for DOE's proposal to include ACIMs with daily harvest rates below 50 lb/day into the scope of the test procedure, with the Joint Commenters adding that this will ensure any manufacturer claims about capacity and efficiency will be based on standardized test procedures to help purchasers make informed choices. (CA IOUs, No. 16, p. 1; Joint Commenters, No. 15, p. 1)
The CA IOUs stated that they believe extending the scope of the test procedure to low-capacity ice makers is a reasonable first step to a future rulemaking to set minimum energy efficiency standards for these low-capacity ACIM units. (CA IOUs, No. 16, p. 1)
Hoshizaki and AHRI stated that they do not agree with adding provisions for low-capacity ACIMs. (Hoshizaki, No. 14, p. 1; AHRI, No. 13, p. 2) AHAM stated that they do not agree with adding provisions for low-capacity ACIMs to the extent that they include consumer or residential ice makers. (AHAM, No. 18, p. 2) IOM stated that it supports the goal of developing an industry standard to allow for the consistent testing of low-capacity ACIMs.. (IOM, No. 11, p. 1) However, IOM, AHRI, and Hoshizaki stated that such a standard should be developed by an industry organization (ASHRAE 29 or AHRI 810) to determine proper methodology for consistent testing. (IOM, No. 11, p. 1; AHRI, No. 13, p. 2; Hoshizaki, No. 14, p. 1)
AHAM stated that DOE first examined establishing coverage for consumer stand-alone ice makers as part of the rulemaking to establish coverage for miscellaneous refrigeration products. (AHAM, No. 18, p. 2) AHAM noted that, per the recommendation of an Appliance Standards Rulemaking Advisory Committee (ASRAC) working group and its agreed-upon term sheet, DOE declined to cover consumer stand-alone ice makers as part of that rulemaking with the stated reasoning that those products were too different from the other products over which DOE was proposing to establish coverage under the miscellaneous refrigeration product category.
AHAM stated that consumer stand-alone ice makers are not automatic commercial ice makers.
AHAM commented that there are several distinguishing design features or characteristics of stand-alone or under-counter ice makers with low capacities including: space constraints, ice quality (
Hoshizaki commented that repeatability is key with low-production models where one cube or chunk could cause the test to be out of tolerance. (Hoshizaki, No. 14, p. 1) Hoshizaki stated that a very low-production machine could have 31% stability swings and could prove impossible to meet the stability threshold in the ASHRAE 29 test.
In the December 2021 NOPR, DOE also requested comment on whether there are any industry test procedures for testing and rating low-capacity ACIMs, specifically asking about features specific to low-capacity ACIMs that might need addressed to produce results representative of an average use cycle. 86 FR 72322,72328.
Hoshizaki, AHRI, and AHAM commented they are not aware of any test procedures for low-capacity ice makers. (Hoshizaki, No. 14, p. 1; AHRI, No. 13, p. 2; AHAM, No. 18, p. 8) AHRI and Hoshizaki added that a study would be needed to determine a repeatable process to accurately represent ice capacity and energy use.
As stated in the December 2021 NOPR, the energy performance of low-capacity ACIMs are typically either not specified or based on the existing ACIM industry test procedures. 86 FR 72322,72328. However, the lack of a DOE test procedure could allow for manufacturers to make performance claims using other unknown test procedures, which could result in inconsistent ratings from model to model.
DOE is still unaware of an industry test procedure for testing and rating low-capacity ACIMs. Manufacturers continue to use the DOE ACIM test procedure to represent the energy use of low-capacity ACIMs or do not specify the energy use. DOE acknowledges the comments regarding including low-capacity ACIMs within scope of industry test standards and will consider any updated industry test
DOE discusses stability requirements for low-capacity ACIMs in section III.D.1 of this final rule.
In response to AHAM's comments regarding low-capacity ACIMs, as previously stated, EPCA defines “industrial equipment” to mean equipment (1) which in operation consumes, or is designed to consume, energy, (2) which, to any significant extent, is distributed in commerce for industrial or commercial use; and (3) which is not a “covered product” as defined in 42 U.S.C. 6291(a)(2), other than a component of a covered product with respect to which there is in effect a determination under 42 U.S.C. 6312(c); without regard to whether such article is in fact distributed in commerce for industrial or commercial use. 42 U.S.C. 6311(2). DOE has determined that low-capacity ACIMs (1) consume energy; (2) are, to a significant extent, distributed in commerce for commercial use; and (3) are not covered products. As such, notwithstanding that low-capacity ACIMs may also be distributed in commerce for personal use or consumption by individuals, low-capacity ACIMs meet the definition of “industrial equipment” and therefore are covered under the EPCA definition of “covered equipment.” DOE has determined that establishing a test procedure for low-capacity ACIMs will allow purchasers to make more informed decisions regarding the performance of low-capacity ACIMs. DOE is amending the scope of the ACIM test procedure to include all automatic commercial ice makers with capacities up to 4,000 lb/24 h (
As noted, 10 CFR 431.132 provides definitions concerning ACIMs. DOE adds new definitions to support test procedure amendments elsewhere in this document, as discussed in the following paragraphs.
Typical self-contained ACIMs have an ice storage bin that is insulated but provides no active refrigeration. As a result, the ice melts at a certain rate and the ice maker must periodically replenish the melted ice. Conversely, some self-contained low-capacity ACIMs feature a refrigerated storage bin that prevents melting of the stored ice. Because of the additional refrigeration system components, ACIMs with a refrigerated storage bin (
In the December 2021 NOPR, DOE proposed to define “refrigerated storage automatic commercial ice maker” as an automatic commercial ice maker that has a refrigeration system that actively refrigerates the self-contained storage bin in 10 CFR 431.132 for refrigerated storage ACIMs. 86 FR 72322, 72328.
In the December 2021 NOPR, DOE requested comment on the proposed definitions for refrigerated storage automatic commercial ice maker. 86 FR 72322, 72328.
In response to the December 2021 NOPR, Hoshizaki commented that it is not aware of any standard, self-contained refrigerated storage commercial ice makers. (Hoshizaki, No. 14, p. 1)
AHRI commented it was unable to categorize this equipment class with the information provided and would appreciate clarification on this equipment class and the desired intent behind its potential inclusion. (AHRI, No. 13, p. 2) Hoshizaki additionally requested examples of this product, and requested that this be addressed in AHRI 810 and ASHRAE 29 for definition. (Hoshizaki, No. 14, p. 1)
As stated in the December 2021 NOPR, DOE included a definition of refrigerated storage ACIMs to effectively differentiate refrigerated storage ACIMs from ACIMs with unrefrigerated storage bins, and to support the proposed test provisions for refrigerated storage ACIMs. 86 FR 72322, 72328. An example of a refrigerated storage ACIM is the Whynter UIM-155.
DOE will consider any updated industry standards, if available, during future ACIM test procedure rulemakings.
DOE is modifying the definition of refrigerated storage automatic commercial ice maker in this final rule.
Some low-capacity ACIMs are “portable” and do not require connection to water supply plumbing to operate. Instead, these units contain a reservoir that the user manually fills with water prior to operation and must refill when it becomes empty. In the December 2014 MREF Test Procedure NOPR, DOE proposed to define “portable ice maker” as an ice maker that does not require connection to a water supply and instead has one or more reservoirs that would be manually supplied with water. 79 FR 74894, 74916. DOE noted that the lack of a fixed water connection and the small size of these units contribute to their portability.
In the December 2021 NOPR, DOE proposed a definition for a portable ice maker as proposed in the December 2014 MREF Test Procedure NOPR, but with additional specification that ACIMs with an optional connection to a water supply line would not be considered portable ACIMs (
In the December 2021 NOPR, DOE requested comment on the proposed definition for portable automatic commercial ice maker.
In response to the December 2021 NOPR, AHRI commented that the proposed definitions seemed reasonable. (AHRI, No. 13, p. 2-3) However, Hoshizaki and AHRI requested that DOE work with AHRI and ASHRAE to add this definition in both AHRI 810 and ASHRAE 29. (Hoshizaki, No. 14, p. 1-2; AHRI, No. 13, p. 2-3)
AHAM stated that portable ice makers are designed to fit on the countertop and rely on a reservoir instead of being plumbed into the water supply. (AHAM, No. 18, p.4)
The CA IOUs commented on two types of portable ACIMs: portable drawer ice machines and portable bin ice machines. (CA IOUs, No. 16, p. 3)
DOE notes that the proposed definition of portable automatic commercial ice maker does not distinguish between portable ACIMs with and without doors. DOE has also not identified any need to differentiate between these portable ACIM configurations for the purposes of testing. Therefore, all portable ACIMs would be included under this definition and any further categorization of portable ACIM equipment classes could be investigated in any energy conservation standards rulemaking for portable ACIMs.
DOE is maintaining the definition of portable automatic commercial ice maker in this final rule, consistent with the December 2021 NOPR.
In addition to the definitions specified at 10 CFR 431.132, the current DOE test procedure at 10 CFR 431.134 references section 3, “Definitions” of AHRI Standard 810-2007, which includes many of the same terms DOE defines at 10 CFR 431.132 and 31.134. In the December 2021 NOPR, to avoid potential confusion regarding multiple definitions of similar terms, DOE proposed to clarify in 10 CFR 431.134 that where definitions in AHRI Standard 810 conflict with those in DOE's regulations, the DOE definitions take precedence. 86 FR 72322, 72328-72329.
AHRI Standard 810 (I-P)-2016 with Addendum 1 updated its definition of “Energy Consumption Rate” to require expressing the rate in multiples of 0.01 kWh/100 lb of ice. To maintain consistency with the industry standard, DOE proposed to incorporate this same rounding requirement in its definition of “Energy use” at 10 CFR 431.132 instead of the current requirement of multiples of 0.1 kWh/100 lb of ice. 86 FR 72322, 72328.
AHRI Standard 810 (I-P)-2016 with Addendum 1 also deleted its definition of “Cubes Type Ice Maker” and replaced it with a definition of “Batch Type Ice-Maker.” 86 FR 72322, 72328. To be consistent with this industry update, DOE proposed to remove the reference to cubes type ice maker in the definition of “batch type ice maker” in 10 CFR 431.132.
In the December 2021 NOPR, DOE requested comment on its proposal to amend 10 CFR 431.132 to revise the previously described definitions, consistent with updates to AHRI Standard 810 (I-P)-2016 with Addendum 1, additionally requesting feedback on the proposed clarification that the DOE definitions take precedence over any conflicting industry standard definitions. 86 FR 72322, 72329.
Hoshizaki agreed with this proposal, but requested that AHRI 810, ASHRAE 29, and 10 CFR 431.132 definitions be consistent. (Hoshizaki, No. 14, p. 2)
AHRI commented that the proposed definitions seemed reasonable, but stated that this should go to ASHRAE SPC 29 and AHRI standard 810 for consideration and inclusion. (AHRI, No. 13, p. 2-3)
DOE is amending 10 CFR 431.132 to revise the previously described definitions in this final rule. These updates are consistent with updates in the current industry standard AHRI Standard 810 (I-P)-2016 with Addendum 1. DOE is also maintaining in this final rule the clarification that the DOE definitions take precedence over any conflicting industry standard definitions, consistent with the December 2021 NOPR.
The following section discusses additional updates included in the latest versions of the industry standards.
The existing DOE ACIM test procedure incorporates by reference AHRI Standard 810-2007 and ASHRAE Standard 29-2009. 10 CFR 431.134(b). Since publication of the January 11, 2012 test procedure final rule (“January 2012 final rule”), both AHRI and ASHRAE have published new versions of the referenced standards. 77 FR 1591. The most recent versions are AHRI Standard 810 (I-P)-2016 with Addendum 1 and ASHRAE Standard 29-2015 (reaffirmed in 2018). DOE has reviewed the most recent versions of both AHRI Standard 810 and ASHRAE Standard 29 and has compared the updated versions of these industry standards to those currently incorporated by reference in the ACIM test procedure.
The updates in ASHRAE Standard 29-2015 provide additional specificity to several aspects of the test method. In general, these updates increase the precision and improve the repeatability of the test method, but do not fundamentally change the testing process, conditions, or results. In addition, ASHRAE made several grammatical, editorial, and formatting changes to improve the clarity of the test method. DOE summarizes these changes in Table III.2.
DOE also reviewed the updates to AHRI Standard 810 (I-P)-2016 with Addendum 1 and identified the following revisions: new definitions for, among others, ice hardness factor and potable water use rate; and an updated rounding requirement for energy consumption rate (from 0.1 kilowatt hours per 100 pounds (“kWh/100 lb”) to 0.01 kWh/100 lb). The changes to AHRI Standard 810 (I-P)-2016 with Addendum 1 are primarily clerical in nature and provide greater consistency in the use of terms and specific definitions for those terms.
DOE also compared the latest version of ASHRAE Standard 29-2015 to the requirements in the current DOE test procedure in 10 CFR 431.134. These test methods specify different conditions for calorimetry testing of continuous ice makers. Specifically, the current DOE test procedure requires an ambient air temperature of 70 ± 1 °F, with an initial water temperature of 90 ± 1 °F. 10 CFR 431.134(b)(2)(ii). ASHRAE Standard 29-2015 states in appendix A3 that room temperature shall be kept between 65 °F and 75 °F, and that the water
In the December 2021 NOPR, DOE tentatively determined that the current ambient and water condition requirements for calorimetry testing in the DOE test procedure are appropriate because they provide more precise and repeatable measurements than the tolerances described in ASHRAE Standard 29-2015. 86 FR 72322, 72331. Additionally, manufacturers have been meeting the requirements to maintain 70 °F ± 1 °F ambient air temperature and 90 °F ± 1 °F initial water temperature for calorimetry testing as part of the current DOE test procedure in 10 CFR 431.134. The current DOE test approach also is consistent with the industry test standard requirements,
Additionally, added specificity may be needed to accurately determine the calorimeter constant. DOE has found that the lack of specificity as to the location of the temperature measurement of the block of pure ice may lead to variation in the resulting calorimeter constant. Therefore, in the December 2021 NOPR, DOE proposed to specify that the block of pure ice, as specified in section A2.e of ASHRAE Standard 29-2015, is measured by a thermocouple embedded at approximately the geometric center of the interior of the block. 86 FR 72322, 72331. Furthermore, DOE proposed to specify that any liquid water present on the block of ice must be wiped off the surface of the block before placing the block into the calorimeter.
In the December 2021 NOPR, DOE proposed to adopt by reference AHRI Standard 810 (I-P)-2016 with Addendum 1 and ASHRAE Standard 29-2015 (note that AHRI Standard 810 (I-P)-2016 with Addendum 1 refers to ASHRAE Standard 29-2015 and not the 2018 re-affirmed version) as the basis for DOE's ACIM test procedure, with additional proposed provisions as specified in the December 2021 NOPR. 86 FR 72322, 72331.
In the December 2021 NOPR, DOE requested comment on its proposal to maintain the current specifications for ambient air temperature and initial water temperature for calorimetry testing. 86 FR 72322, 72331. DOE additionally requested comment on its proposal to clarify that the harvested ice used to determine the ice hardness factor be collected from the ACIM under test at the Standard Rating Conditions specified in section 5.2.1 of AHRI Standard 810 (I-P)-2016 with Addendum 1.
In response to the December 2021 NOPR, Hoshizaki commented that it does not agree with this change, and requested that any changes to the test procedure be brought to the ASHRAE 29 standard committee for clarification and acceptance. (Hoshizaki, No. 14, p. 2)
Similarly, AHRI commented that members are not opposed to this change but note that such a change must follow the proper channels and first be incorporated into the ASHRAE 29 method of test before being adopted into federal regulation. (AHRI, No. 13, p. 3)
AHAM commented that requiring the ice sample to be used for calorimetry testing be intercepted using a non-perforated container, precooled to ice temperature is not necessary because the measurement of ice sample weight is very quick (about five seconds) and will not reduce the accuracy due to the ice sample melting or evaporating. (AHAM, No. 18, p. 13) AHAM stated that this requirement does not add a large burden, but it is an unnecessary burden.
The test approach proposed in the December 2021 NOPR is consistent with the industry test standard requirements and manufacturers have been meeting the requirements to maintain 70 °F ± 1 °F ambient air temperature and 90 °F ± 1 °F initial water temperature for calorimetry testing as part of the current DOE test procedure in 10 CFR 431.134.
DOE is maintaining in this final rule the current specifications for ambient air temperature and initial water temperature for calorimetry testing and clarifying that the harvested ice used to determine the ice hardness factor be collected from the ACIM under test at the Standard Rating Conditions specified in section 5.2.1 of AHRI Standard 810 (I-P)-2016 with Addendum 1.
Additionally, DOE requested comment on its proposal to clarify that the temperature of the block of pure ice, as specified in section A2.e. of ASHRAE Standard 29-2015, is measured by a thermocouple embedded at approximately the geometric center of the interior of the block. 86 FR 72322, 72331. DOE also requested comment on its proposal to clarify that any water that remains on the block of ice must be wiped off the surface of the block before placing the ice into the calorimeter.
In response to the December 2021 NOPR, Hoshizaki requested that any clarification of wording in ASHRAE 29 be brought to the ASHRAE 29 standard committee for discussion and acceptance. (Hoshizaki, No. 14, p. 2)
AHRI encouraged DOE to bring any requests for clarification or interpretation to the proper industry working groups for consideration, since consistency and repeatability are of utmost importance to ensure that all original equipment manufacturers (“OEMs”) and testing bodies address these provisions in a constant manner. (AHRI, No. 13, p. 3)
The test approach proposed in the December 2021 NOPR is consistent with the industry test standard requirements and would limit variation in determining the calorimeter constant. Therefore, DOE is maintaining these clarifications in this final rule, consistent with the December 2021 NOPR.
Additionally, DOE requested comment on its proposal to adopt by reference AHRI Standard 810 (I-P)-2016 with Addendum 1 and ASHRAE Standard 29-2015, except for the provisions for calorimetry testing as discussed previously, for all ACIMs. 86 FR 72322, 72331.
Hoshizaki and AHRI agreed to the adoption of AHRI Standard 810 (I-P)-2016 with Addendum 1 and ASHRAE 29-2015. (Hoshizaki, No. 14, p. 2; AHRI, No. 13, p. 3) However, Hoshizaki supports adoption of the standards in their entirety with no exceptions, otherwise there is a risk that changes not reflected in the standards will not be realized by testers. (Hoshizaki, No. 14, p. 2) Hoshizaki and AHRI requested that any proposed changes be brought before the relevant standard committees for discussion and acceptance. (Hoshizaki, No. 14, p. 2)
DOE is adopting by reference AHRI Standard 810 (I-P)-2016 with Addendum 1 and ASHRAE Standard 29-2015, except for the additional amendments as specified in this final rule. DOE has determined that the additional amendments are consistent with the test requirements in the industry standards but provide added specificity to limit variation in testing. These modifications are consistent with section 8(c) of 10 CFR part 430, subpart
As part of this rulemaking, DOE conducted testing to identify whether ASHRAE Standard 29-2015 and AHRI Standard 810 (I-P)-2016 with Addendum 1 could potentially benefit from additional detail and to investigate topics discussed in the March 2019 RFI and December 2021 NOPR. The testing and initial findings are discussed along with any corresponding amendments in the following sections.
DOE examined the comments received in response to the December 2014 MREF Test Procedure NOPR to consider what test method would be appropriate for low-capacity ACIMs. During the December 2014 MREF Test Procedure NOPR public meeting, True Manufacturing commented that there are very few differences between ice makers with harvest rates less than 50 lb/24 h and those with harvest rates greater than 50 lb/24 h. (Public Meeting Transcript, No. EERE-2013-BT-TP-0029-0014 at p. 31) Hoshizaki commented in response to the December 2014 MREF Test Procedure NOPR that the ASHRAE 29 test needs to be evaluated for accuracy for units that make less than 50 lb/24 h, as they are outside the listed scope of the standard. (Hoshizaki, No. EERE-2013-BT-TP-0029-0011 at p. 1)
In the December 2021 NOPR, DOE evaluated the provisions in its existing ACIM test procedure to determine if any modifications are necessary to ensure the proposed test method would provide representative and repeatable measures of performance for low-capacity ACIMs and would not be unduly burdensome to conduct. 86 FR 72322, 72331. DOE also evaluated the provisions in AHRI Standard 810 (I-P)-2016 with Addendum 1 and ASHRAE Standard 29-2015 to determine their applicability to low-capacity ACIMs.
From its test sample, DOE determined that a water retention weight of no more than 4.0 percent would allow for testing low-capacity ACIMs with the lowest batch weights with a typical collection container. Accordingly, in the December 2021 NOPR, DOE proposed that the water retention requirement in section 5.5.2(a) not apply to batch type low-capacity ACIMs, and instead to require a water retention weight of no more than 4.0 percent of the smallest batch of ice for which the container is used. 86 FR 72322, 72332.
During the January 24, 2022, webinar to discuss the December 2021 NOPR, AHRI commented that the water retention weight requirement for low-capacity ACIMs and DOE's test data should be considered by the method of test committee (
DOE will consider any updated industry standards, if available, during future ACIM test procedure rulemakings.
DOE is maintaining that the water retention requirement in section 5.5.2(a) of ASHRAE Standard 29-2015 not apply to batch type low-capacity ACIMs, and instead to require a water retention weight of no more than 4.0 percent of the smallest batch of ice for which the container is used, consistent with the December 2021 NOPR.
For portable ACIMs, DOE has determined that some provisions for measuring and maintaining inlet water conditions in ASHRAE Standard 29-2015 are not appropriate:
To determine typical operation and the corresponding need for additional test procedure instructions regarding the water supply for portable ACIMs, DOE conducted tests on portable ACIMs according to the requirements of AHRI Standard 810 (I-P)-2016 with Addendum 1 and ASHRAE Standard 29-2015, except for sections 5.4, 5.6, 6.2, and 6.3 of ASHRAE Standard 29-2015. From this testing, DOE has determined that additional instructions are needed regarding supply water characteristics and filling the water reservoirs in portable ACIMs.
Section 5.2.1 of AHRI Standard 810 (I-P)-2016 with Addendum 1 specifies an inlet water temperature of 70.0 °F for ACIM testing. Because portable ACIMs do not have a continuous water supply, the water filled in the water reservoir is not maintained at a constant temperature; the temperature may change after the initial fill based on heat transfer with the ambient air and the other components of the ACIM. Accordingly, DOE has determined that specifying only the initial fill temperature of the water supplied to the reservoir is most representative of typical use. In the December 2021 NOPR, DOE proposed to establish the initial water temperature in a separate external container before transferring the water to the water reservoir. 86 FR 72322, 72332. In DOE's experience, using an external container to establish and verify the initial water temperature is significantly less burdensome than measuring and adjusting the water temperature within the water reservoir itself. Therefore, in the December 2021 NOPR, DOE proposed that the initial water temperature condition be established in an external container and verified by inserting a temperature sensor into approximately the geometric center of the water in the external container. 86 FR 72322, 72332. The initial water temperature would be defined as 70 °F ± 1.0 °F, consistent with the condition as specified in section 5.2.1 of AHRI Standard 810 (I-P)-2016 with Addendum 1 and the tolerance as
Portable ACIM users may have an option of filling the reservoirs to varying levels. To determine the appropriate fill level for testing, DOE reviewed operating instructions for portable ACIMs available from a range of manufacturers. DOE observed that the operating instructions typically instruct the user to fill to the maximum specified level, or to any level up to the maximum. To ensure repeatable and reproducible test results, DOE determined that filling the water reservoir to the maximum volume of water as specified by the manufacturer is representative of typical use. In addition, specifying a consistent fill level for testing at the maximum fill level would limit variability associated with reservoir water temperature and would ensure the portable ACIM has sufficient water to conduct the test.
In summary, in the December 2021 NOPR, DOE proposed that portable ACIMs be subject to the test procedure as proposed in the NOPR, except that sections 5.4, 5.6, 6.2, and 6.3 of ASHRAE Standard 29-2015 would not apply. 86 FR 72322, 72332. DOE proposed to provide the following additional test instructions necessary for testing portable ACIMs: ensure that the ice storage bin is empty; fill an external container with water; establish a water temperature in the external container that is consistent with the requirements of section 5.2.1 of AHRI Standard 810 (I-P)-2016 with Addendum 1 and the tolerance specified in section 6.2 of ASHRAE Standard 29-2015 (
DOE also determined that additional instructions are needed for portable ACIMs to meet the requirements of section 6.6 of ASHRAE Standard 29-2015, which requires that “bins shall be used when testing and shall be filled one-half full with ice.” Because section 6.6 of ASHRAE Standard 29-2015 does not specify how the bin would be filled with ice, a laboratory may fill the ice storage bin one-half full of externally produced ice (
In contrast, the conditions within the ice storage bin of a portable ACIM do directly impact performance because portable ACIMs typically recycle the melt water (at 32 degrees) from the internal ice storage bin and combine it with water from the reservoir (initially at 70 degrees) to make additional ice. Accordingly, any externally produced ice introduced to a portable ACIM to fill the bin one-half full prior to testing could affect the performance of the system during the test when compared to the tested performance using ice produced by the portable ACIM under test.
To limit test variability that could occur due to the introduction of externally produced ice, in the December 2021 NOPR DOE proposed that for portable ACIMs, the ice storage bin must be empty prior to the initial water fill, and the unit under test must be operated to produce ice into the ice storage bin until the bin is one-half full (
In the December 2021 NOPR, DOE requested comment on its proposal regarding reservoir water and ice storage bin instructions for portable ACIMs. 86 FR 72322, 72332-72333.
Hoshizaki agreed with the proposal if the portable units have a way to collect the ice in a way not to confuse the ice made in each cycle from the
AHRI commented that consistency and repeatability are of utmost importance to ensure that all manufacturers and testing bodies address these provisions in a constant manner. (AHRI, No. 14, p. 3)
AHAM commented that the 70 °F ± 1.0 °F tolerance requirement for the initial water temperature is unnecessarily tight for low-capacity ACIMs, including portable ACIMs, which adds unnecessary test burden. (AHAM, No. 18, p. 10-11) AHAM commented that the test procedure should specify that the water should be stirred to eliminate gradients that would naturally occur because some models recirculate melt water to the reservoir and that, for all low-capacity ACIMs, the temperature of the inlet water will vary throughout the entire test with little effect on the ultimate result.
AHAM commented that the DOE's proposed test procedure for portable ACIMs does not specify that the bin should be emptied and dried out before the first 15-minute run, which AHAM suggests may be implicit in the proposed test procedure but should be stated clearly. (AHAM, No. 18, p. 12)
DOE notes that, in the December 2021 NOPR, DOE proposed that the ice storage bin is empty prior to the initial potable water reservoir fill and that the initial water temperature of 70 °F ± 1.0 °F for testing portable ACIMs is only required to be verified in an external container immediately before filling the portable ACIM water reservoir. 86 FR 72322, 72332-72333.
DOE testing has shown that portable ACIMs are able to have ice collected in a similar manner to non-portable ACIMs which distinguish the ice made in each cycle from the ice already present in the ice storage bin. DOE has additionally determined that the additional provisions regarding reservoir water fill are necessary to allow for testing of portable ACIMs.
DOE is maintaining the test requirements as proposed in the December 2021 NOPR for portable ACIMs in this final rule.
DOE has determined that refrigerated storage ACIMs can be tested according to the current DOE ACIM test procedure as well as AHRI Standard 810 (I-P)-2016 with Addendum 1 and ASHRAE Standard 29-2015. DOE investigated whether additional specification was necessary to ensure that these test methods would provide representative and repeatable results for refrigerated storage ACIMs and would not be unduly burdensome to conduct.
DOE identified two aspects of refrigerated storage ACIM testing that may need further specification to limit variability: door openings for refrigerated storage ACIMs and refrigeration set point controls.
Door opening durations may affect the measured performance of refrigerated storage ACIMs more than non-refrigerated storage ACIMs because the refrigeration system provides cooling for the entire self-contained storage bin rather than only for the ice making evaporator. Thus, when opening the storage container door to collect ice from refrigerated storage ACIMs, some
From investigative testing, DOE has determined that the process of opening the bin door, carefully removing or replacing the ice collection container, and closing the door can be readily performed in under 10 seconds. Therefore, in the December 2021 NOPR, DOE proposed that for refrigerated storage ACIMs, any storage bin door openings shall be conducted with the door in the fully open position for 10 ± 1 seconds. 86 FR 72322, 72333. DOE proposed to specify that “fully open” means opened to an angle of not less than 75 degrees (or to the maximum angle possible, if that is less than 75 degrees), which is consistent with the definition for fully open in ANSI/ASHRAE Standard 72-2018, “Method of Testing Open and Closed Commercial Refrigerators and Freezers.”
Refrigeration set point controls may also affect the measured performance of refrigerated storage ACIMs, if the controls can be adjusted by the user to maintain different storage compartment temperatures. DOE investigated whether refrigerated storage ACIMs allow the user to adjust the refrigeration set point of the ACIM and if so, how. DOE reviewed user manuals for several refrigerated storage ACIMs and found that the models either do not allow the user to adjust the refrigeration set point, or have a factory preset temperature control that can be adjusted by the user, but not in an easily accessible manner (
In the December 2021 NOPR, DOE requested comment on its proposal to test refrigerated storage ACIMs consistent with AHRI Standard 810 (I-P)-2016 with Addendum 1, with the specified proposed door opening duration and frequency. 86 FR 72322, 72333. DOE requested comment on whether a specific refrigeration set point or internal air temperature should be specified instead of the manufacturer's factory preset.
In response to the December 2021 NOPR, Hoshizaki and AHRI both requested DOE clarify refrigerated storage ACIMs and share examples before feedback can be given. (Hoshizaki, No. 14, p. 3; AHRI, No. 13, p. 4)
AHRI commented that ASHRAE 29 does not cover products installed in residential refrigerators or freezers, and if these are the type of systems being referred to as self-contained refrigerated storage ACIMs, the scope of both ASHRAE 29 and the DOE rulemaking would need to be expanded to cover such equipment. (AHRI, No. 13, p. 4) AHRI suggested that DOE clarify the equipment type and bring this issue to ASHRAE SPC 29 for consideration.
DOE is not referring to products installed in residential refrigerators or freezers in this Final rule. Refrigerated storage ACIMs are explicitly excluded from the freezer definition at 10 CFR 430.2 and differ from the refrigerator-freezer definition at 10 CFR 430.2 because refrigerated storage ACIMs only produce and store ice in a single compartment. Section III.B.1 provides further clarity and an example of refrigerated storage ACIMs.
Because DOE did not receive any comments regarding the refrigerated storage ACIM proposals, DOE is maintaining the test requirements as proposed in the December 2021 NOPR for refrigerated storage ACIMs in this final rule.
The current DOE test procedure, through reference to section 7.1.1 of ASHRAE Standard 29-2009, defines ACIM stability based on the harvest rate. Specifically, continuous type ice makers shall be considered stabilized when the weights of three consecutive 14.4-minute samples taken within a 1.5-hour period do not vary by more than ±2 percent. Batch type ice makers are considered stable when the weights from the samples from two consecutive cycles do not vary by more than ±2 percent.
Section 7.1.1 of ASHRAE Standard 29-2015 revised the stabilization criteria to consider continuous type ice makers stable when the weights of two consecutive 15.0 minute ± 2.5 seconds samples do not vary by more than the greater of ±2 percent, or 0.055 pounds. Section 7.1.1. of ASHRAE Standard 29-2015 specifies that batch type ice makers are considered stable when the 24-hour calculated ice production rate from samples taken from two consecutive cycles do not vary by the greater of ±2 percent or 2.2 pounds. Compared to the 2009 version, ASHRAE Standard 29-2015 added absolute stability criteria of 0.055 lb/15 minutes for continuous equipment and 2.2 lb/24 h for batch equipment.
In addition, ASHRAE Standard 29-2009 states that the unit must be stable before the capacity tests are started. This provision was changed in ASHRAE Standard 29-2015, which instead states that the ice maker must be stable for capacity test data to be valid. In application, the stability provision in ASHRAE Standard 29-2009 means that any cycle or sample after the stability criteria is met is valid to be used for the capacity test. DOE notes that the applicability of the stability criteria in ASHRAE Standard 29-2015 could be understood in one of two ways: (1) Unchanged from ASHRAE Standard 29-2009, meaning that any cycle or sample after the stability criteria are met is valid to be used for the capacity test; or (2) the ice production rate for each cycle used for the capacity test relative to any other cycle or sample used for the capacity test must be within the greater of ±2 percent and 2.2 lb/24 h for batch type ice makers, and each sample used for the capacity test must be within the greater of ±2 percent and 0.055 lb/15 mins for continuous ice makers. The second interpretation limits potential variability compared to the first interpretation because it puts specific limits on the variability between cycles and samples to be used for the capacity tests. The difference in the potential interpretations of the stability provisions in ASHRAE Standard 29-2015 could result in variation in capacity ratings. Additionally, the second interpretation limits test burden by not requiring separate cycles for
In the December 2021 NOPR, DOE requested comment on its interpretation of section 7.1.1 of ASHRAE Standard 29-2015 and proposal to require that all cycles or samples used for the capacity test meet the stability criteria. 86 FR 72322, 72334.
Hoshizaki agreed that all cycles should meet the stability criteria. (Hoshizaki, No. 14, p. 3) AHRI commented that the stability criteria should match the requirements of ASHRAE 29. (AHRI, No. 13, p. 4)
AHRI commented that some units vary in performance each cycle due to water dump frequency by design, and DOE should ask the ASHRAE committee for an interpretation if DOE is concerned about ambiguity in ASHRAE 29. (AHRI, No. 13, p. 4)
IOM commented that this proposal would take the stabilization criteria further than ASHRAE Standard 29-2009 and ASHRAE Standard 29-2015, requiring that all cycles not differ by more than 2%. (Ice-O-Matic, No. 11, p. 1) IOM added that a dataset with small linear growth (100, 102, and 104 lb/24 hr) would not be considered stabilized under this DOE rule, while it would be considered stabilized under ASHRAE Standard 29-2015.
DOE has determined that clarifying the stability criteria specified in ASHRAE 29-2015 will produce test results that are more representative, repeatable, and reproducible. As indicated in the IOM comment, the current ASHRAE 29-2009 approach may introduce potential variability in test results. Additionally, reducing the number of cycles or samples required for the capacity test will reduce test burden by reducing total test time. DOE discusses test burden in section III.F.1 of this final rule.
Therefore, DOE is maintaining in this final rule its interpretation of section 7.1.1 of ASHRAE Standard 29-2015 and requirement that all cycles or samples used for the capacity test meet the stability criteria, consistent with the December 2021 NOPR.
Section 7.1.1 of ASHRAE Standard 29-2015 added a requirement that the duration of each sample for continuous type ice makers be 15.0 minutes ±2.5 seconds. DOE testing indicated that removing the plastic pan or bucket within the tolerance of ±2.5 seconds can be difficult depending on the specific test setup (
In the December 2021 NOPR, DOE proposed to increase the tolerance to collect samples for continuous ice makers from 15.0 minutes ± 2.5 seconds to 15.0 minutes ± 9.0 seconds. 86 FR 72322, 72334. Increasing the tolerance to 9.0 seconds could affect the weight of each sample; however, variability would not increase because the samples used for the capacity test would still need to meet the proposed stability criteria.
In the December 2021 NOPR, DOE requested comment on the proposal to increase the tolerance for continuous ice makers to collect samples to 15.0 minutes ± 9.0 seconds. 86 FR 72322, 72334.
In response to the December 2021 NOPR, IOM commented in support of the proposal to increase the tolerance on sample collection for continuous ice makers. (Ice-O-Matic, No. 11, p. 1)
Hoshizaki and AHRI commented that they do not agree with the proposed change. (Hoshizaki, No. 14, p. 3; AHRI, No. 13, p. 4) Hoshizaki commented such time could impact high-capacity continuous models and have a significant impact on capacity and energy totals, and AHRI added that the proposed changes could impact the output depending on the capacity of the unit.
AHRI added that the increase to ±9.0 seconds would allow high-capacity units to potentially collect a greater sample and while the test was not designed to be applied to low-capacity machines, the impact of this proposed change could be substantially less.
Hoshizaki requests that further discussion be put through the ASHRAE 29 committee. (Hoshizaki, No. 14, p. 3)
DOE has re-evaluated its proposal and determined that although a greater tolerance would reduce test burden on manufacturers to test continuous ACIMs, the collection duration tolerance in ASHRAE 29-2015 provides a repeatable and reproducible method of test. DOE has determined that the specified tolerance included in ASHRAE 29-2015 demonstrates that manufacturers can meet the specified tolerance without the need for an increased tolerance. Therefore, DOE is declining to allow for a greater collection duration tolerance than the tolerance specified for continuous ACIMs in ASHRAE 29-2015 (
Section 7.1.1 of ASHRAE 29-2015 includes stabilization requirements, which specify: (1) For continuous ACIMs, collected weights must not vary by more than ±2 percent or 25 g (0.055 lb), whichever is greater; or (2) for batch ACIMs, the calculated 24-hour ice production rates must not vary by more than ±2 percent or 1 kg (2.2 lb), whichever is greater.
Based on investigative testing conducted as part of this rulemaking, DOE observed that the absolute stability criteria of 2.2 lb/24 h for batch type ice makers would not necessarily represent stable operation for low-capacity batch ACIMs. DOE conducted a market
DOE also considered whether applying only the ±2 percent stability criterion would be appropriate for low-capacity ACIMs. Due to the lower overall ice harvest rates, a ±2 percent stability requirement represents much smaller weight variations for low-capacity ACIMs. For example, a 2 percent stability requirement for the 7 lb/24 h model represents a variation of 0.14 lb/24 h, which may be difficult to achieve for low-capacity ACIMs.
The ±2 percent stability requirement is also not currently applicable to the lowest capacity ACIMs currently in scope for the DOE test procedure (
Therefore, for consistency (on a percentage basis) with the ASHRAE 29-2015 test requirements for the lowest capacity ACIMs currently in scope and to limit test burden, in the December 2021 NOPR, DOE proposed to require a ±4 percent stability criterion (without an absolute stability criterion) for testing low-capacity ACIMs. 86 FR 72322, 72334.
In the December 2021 NOPR, DOE requested comment on the proposal to require that all cycles or samples of low-capacity ACIMs used for the capacity test meet a ±4 percent stability criterion and not be subject to an absolute stability criterion. 86 FR 72322, 72334.
In response to the December 2021 NOPR, Hoshizaki and AHRI requested that this proposal be brought to the ASHRAE 29 standard committee with supporting testing to show that this stability is necessary and adequate for these products since currently they are outside of the scope, and that ASHRAE 29 was not developed for low-capacity ACIMs. (Hoshizaki, No. 14, p. 3; AHRI, No. 13, p. 4-5) AHRI added that the units should not be allowed to bypass stability requirements currently in the standard simply because the method of test has not been designed to incorporate such units. (AHRI, No. 13, p. 4-5) AHRI commented that members do not currently have testing data to show that 4 percent would be accurate or comparable for this equipment type.
AHAM commented in support of the ±4 percent stability criterion for low-capacity ice makers. (AHAM, No. 18, p. 11) AHAM stated that DOE's ACIM energy conservation standards or test procedure need a method to account for this planned variation such that the variation does not penalize manufacturers when the test procedure is used for enforcement purposes.
DOE observed from testing of low-capacity ACIMs to support the December 2021 NOPR that a ±4 percent stability criterion is appropriate and ensures representative, repeatable, and reproducible measures of performance for low-capacity ACIMs. A ±4 percent stability criterion is consistent with the absolute stability requirements from ASHRAE 29-2015 for the lowest capacity ACIMs currently in scope (
DOE is maintaining in this final rule the requirement that all cycles or samples of low-capacity ACIMs used for the capacity test meet a ±4 percent stability criterion and not be subject to an absolute stability criterion, consistent with the December 2021 NOPR.
The DOE test procedure specifies standard test conditions to ensure that test results reflect energy use during a representative average use cycle and are not unduly burdensome for manufacturers to perform.
DOE discusses test conditions, including tolerances and instrumentation accuracies, in the following sections.
Variation in the moisture content of ambient air may affect the energy consumption of automatic commercial ice makers. However, neither the current DOE test procedure, nor AHRI Standard 810 (I-P)-2016 with Addendum 1 or ASHRAE Standard 29-2015 include requirements to control for moisture content for testing. In contrast, industry test standards for other refrigeration equipment, such as commercial refrigerators, freezers and refrigerator-freezers (“CRE”) and refrigerated bottled or canned beverage vending machines (“BVMs”), have requirements for the moisture content.
In the December 2021 NOPR, DOE presented data from three ACIMs tested at relative humidity levels of 35, 55, and 75 percent at the standard rating conditions to investigate the effect of relative humidity on energy use, as replicated in Table III.3. 86 FR 72322, 72335. The results showed a wide range of impacts on energy use among the three tested units when relative humidity is varied.
In the December 2021 NOPR, DOE considered relative humidity test conditions for ACIMs by comparing the test conditions required for testing other types of commercial food service equipment, including CRE, BVMs, and refrigerated buffet and preparation tables. 86 FR 72322, 72335. In particular, DOE compared the moisture content level corresponding to the combination of ambient temperature and relative humidity specified for these other equipment types.
Based on these considerations, DOE proposed to require a relative humidity test condition of 35 percent for ACIM testing. 86 FR 72322, 72335. As indicated in Table III.4, the proposed relative humidity condition of 35 percent, in combination with the ambient air condition of 90 °F, would correspond to a moisture content of 0.011 lbs water vapor/lbs dry air. This would closely match the moisture contents associated with the test procedures for the other types of commercial food service equipment.
In the December 2021 NOPR, DOE also investigated appropriate tolerances to specify for the relative humidity test condition. 86 FR 72322, 72336. DOE considered a test condition tolerance and test operating tolerance on relative humidity.
DOE also investigated typical accuracies of relative humidity sensors, finding that accuracies of ±2.0 percent are typical for relative humidity sensors.
Based on this analysis, DOE proposed a relative humidity test condition tolerance of ±5.0 percent.
In summary, DOE proposed to require a relative humidity test condition of 35 percent. 86 FR 72322, 72335. DOE proposed that the relative humidity be maintained and measured at the same location used to confirm ambient dry bulb temperature, or as close as the test setup permits. 86 FR 72322, 72336. DOE proposed to add a test condition tolerance on the proposed relative humidity test condition of ±5.0 percent.
DOE requested comment on the proposal to control relative humidity at
In response to the December 2021 NOPR, Hoshizaki and AHRI commented that due to inherent humidity caused by ice makers in the production of ice, the control of relative humidity has been left out of the test protocols currently used (
IOM and The Legacy Companies commented that they do not support the proposal to control humidity. (IOM, No. 11, p. 2; The Legacy Companies, January 24, 2022 webinar to discuss the December 2021 NOPR)
AHRI, Hoshizaki, IOM, Joint Commenters, and Manitowoc Ice commented that test data should be reviewed and validated to confirm the need for relative humidity control. (AHRI, Public Meeting Transcript, No. EERE-2017-BT-TP-0006-0012 at p. 29; Hoshizaki, No. 14, p. 3; IOM, No. 11, p. 2; Joint Commenters, No. 15, p. 1-2; Manitowoc Ice, January 24, 2022 webinar to discuss the December 2021 NOPR)
AHRI, Hoshizaki, IOM, Welbilt, and Joint Commenters commented that a relative humidity of 35 percent may be unrepresentative of the variety of environments housing ACIMs. (AHRI, No. 13, p. 5; Hoshizaki, No. 14, p. 3; IOM, No. 11, p. 2; Welbilt, January 24, 2022 webinar to discuss the December 2021 NOPR;
AHRI commented that the ambient temperatures would also vary greatly by application and such a humidity would be difficult to control while entering the test chamber for sample collection. (AHRI, No. 13, p. 5) IOM believes that a ±5 percent tolerance is too narrow and would be difficult to control during tests. (IOM, No. 11, p. 2) IOM suggested a ±10 percent tolerance if humidity is controlled.
AHRI, IOM, and Welbilt asserted that the addition of humidity control requirements would impose undue burden to OEMs and testing facilities without benefiting the efficiency or testing of ACIMs. (AHRI, No. 13, p. 5; IOM, No. 11, p. 2; Welbilt, January 24, 2022 webinar to discuss the December 2021 NOPR
Hoshizaki requested that this be addressed in the ASHRAE 29 standard committee for consensus. (Hoshizaki, No. 14, p. 3)
DOE has reviewed and confirmed the validity of the test data from the three units presented in the December 2021 NOPR.
DOE has also conducted further analysis of the test data from Test Unit 2 to further investigate that unit's significant variation in energy use among the different relative humidity test conditions. DOE notes that during the January 24, 2022 webinar to discuss the December 2021 NOPR, True Manufacturing commented in response to a request for comment about the relative humidity test condition that some ACIMs that have poor insulation may inadvertently make ice on the back side of the evaporator plate or other unwanted areas, which could possibly decrease the harvest rate.
Based on the technical characteristics of Test Unit 2, DOE calculated the theoretical amount of additional energy use that would be required by Test Unit 2 to condense the amount of additional drain water measured.
As indicated in Table III.6, DOE's calculated approach to determine the additional energy use required to condense the amount of additional drain water measured closely matched the measured approach. This indicates that the additional energy use at the 75 percent relative humidity test condition was likely due to the difference in condensed moisture accumulated at the 75 percent test condition, thus supporting that the relative humidity level during the test may have a direct impact on measured energy performance.
DOE also evaluated additional test data from previous investigative ACIM testing to further confirm the effects of relative humidity on measured energy use. DOE previously tested four batch style ACIMs at 55 and 75 percent relative humidity using the standard rating conditions specified in AHRI 810. Although this testing was not conducted at 35 percent relative humidity, the test data is instructive on whether a difference in relative humidity affects ACIM performance. Table III.7 summarizes the results of this previous testing.
These results show that for some ACIM models, a difference in relative humidity makes very little impact on ACIM performance, but for other models, a difference in relative humidity makes a significant impact on ACIM performance. Considering the three tested units presented in the December 2021 NOPR in addition to these four units, out of a total test sample of 7 ACIMs, relative humidity had a significant impact on ACIM performance for at least two ACIMs. This suggests that a difference in relative humidity may affect a substantial portion of the ACIM market.
As summarized previously in this section, comments received in response to the December 2021 NOPR indicate that certain manufacturers do not measure relative humidity of the ambient air during testing, and that ACIM test chambers typically do not control the relative humidity of the ambient air. Commenters also generally suggested defining a broader tolerance as compared to the proposed tolerance of ±5 percent, asserting that controlling relative humidity to within ±5 percent during testing would be difficult.
Based on the additional analysis discussed in this final rule, including consideration of comments received in
See section III.F.1 of this final rule for a discussion of DOE's analysis of any expected costs or impacts on measured performance as a result of this amendment.
ASHRAE Standard 29-2015 and AHRI Standard 810 (I-P)-2016 with Addendum 1 do not specify the water hardness of the water supply used for testing. The United States Geological Survey (“USGS”) defines water hardness as the concentration of calcium carbonate in milligrams per liter (“mg/L”) of water and lists general guidelines for the classification of water hardness as 0 to 60 mg/L of calcium carbonate for soft water; 61 to 120 mg/L of calcium carbonate for moderately hard water; 121 to 180 mg/L of calcium carbonate for hard water; and more than 180 mg/L of calcium carbonate for very hard water.
As part of this rulemaking, DOE conducted testing to investigate whether changing the water hardness could affect the energy consumption and harvest rate of ACIMs. Testing was conducted on new models (
According to the USGS, the vast majority of water hardness in the United States ranges from 0 mg/L to 250 mg/L of calcium carbonate.
These test results show that water hardness can impact measured harvest rates and energy consumption rates, and that very hard water generally resulted in more favorable performance than soft water. DOE acknowledges that the observed test results show the opposite impact on performance than expected and discussed in the January 2012 final rule (
In the December 2021 NOPR, DOE proposed to require that water used for testing have a maximum hardness of 180 mg/L of calcium carbonate. 86 FR 72322, 72337. DOE stated that establishing a maximum water hardness of 180 mg/L would ensure that ACIMs are tested with water that is not considered “very hard” according to the USGS and that the tested water hardness is within a range representative of water hardness that ACIMs are likely to experience in actual use.
In the December 2021 NOPR, DOE proposed that water hardness must be measured using a water hardness meter with an accuracy of ±10 mg/L or taken from the most recent version of the water quality report that is sent by water suppliers, which is updated at least annually and is accessible at:
In the December 2021 NOPR, DOE also noted that this proposal would not conflict with any provisions of the industry test and rating standards and would provide additional specifications to ensure the representativeness of the results and improve the repeatability and reproducibility of the test results. 86 FR 72322, 72337.
In the December 2021 NOPR, DOE requested comment on its proposal that water used for ACIM testing have a maximum water hardness of 180 mg/L of calcium carbonate and on whether any test facilities would not have water hardness supplied within the proposed allowable range. 86 FR 72322, 72337. DOE requested comment on whether the supply water is softened when testing ACIMs and, if the water is not softened, the burden associated with implementing controls for water hardness. 86 FR 72322, 72337-72338. Additionally, DOE requested information on whether this requirement should only be applicable to potable water used to make ice (and not any condenser cooling water). 86 FR 72322, 72338.
In response to the December 2021 NOPR, Hoshizaki agreed that water hardness would be good to investigate for the test standard. (Hoshizaki, No. 14, p. 4) However, Hoshizaki and AHRI requested that water hardness be brought to the ASHRAE 29 committee for consideration. (Hoshizaki, No. 14, p. 4; AHRI, No. 14, p. 5)
Joint Commenters supported DOE's proposal to introduce a water hardness requirement to improve the reproducibility of the test procedure. (Joint Commenters, No. 15, p. 2) The Joint Commenters added that since the hardness of tap water varies throughout the U.S., DOE's proposal to establish a water hardness condition will likely increase the reproducibility of the test procedure, and therefore stated support for DOE's proposal to establish a maximum water hardness for testing of 180 mg/L, which will exclude very hard water.
AHRI commented that different regions experience hard water that can consistently exceed 180 mg/L, so this issue would need to be evaluated across regions to ensure that undue burden is not being unfairly inflicted on specific areas of the country. (AHRI, No. 14, p. 5) During the January 24, 2022 ACIM test procedure public meeting, True Manufacturing commented that their test facilities have potable water that is approximately 300 mg/L all year long.
IOM commented that although DOE's test data showed that harvest rate increases and energy use decreases when increasing calcium carbonate concentration, DOE does not provide any details on the characteristics of their test water besides calcium carbonate concentration. (IOM, No. 11, p. 2) If the “very soft” water was created by softening the “very hard” sample water using a salt-based ion-exchange water softener, the total dissolved solids (TDS) of the test water would remain the same, as ion-exchange systems simply replace calcium and magnesium with sodium chloride.
IOM commented the only way to reliably supply consistent test water to IOM's laboratory with specifications around calcium carbonate concentration would be to implement reverse osmosis systems, which are costly to install and maintain, and consume a significant amount of energy during use. (IOM, No. 11, p. 2)
IOM requested that if DOE were to implement this rule, it should only be applicable to the potable water used to make ice, unless DOE is able to demonstrate that hardness has an effect on energy consumption in water-cooled ACIMs. (IOM, No. 11, p. 2)
Comments from interested parties indicated that some ACIM test facilities have potable water with water hardness above of 180 mg/L of calcium carbonate and that softening or controlling the water hardness would impose a burden on certain manufacturers. DOE acknowledges that DOE's expectation in the December 2021 NOPR that any test facilities in locations with water supply hardness greater than 180 mg/L would likely already incorporate water softening controls was incorrect and therefore, updates to certain existing test facilities would be needed to control for water hardness. Although the USGS designates water hardness above of 180 mg/L of calcium carbonate as very hard water, DOE has determined that further investigation is necessary before establishing a water hardness test condition and is declining to specify a water hardness range for ACIM testing in this final rule. DOE notes that because a specific water hardness range is not specified, all water hardness levels will be considered valid for ACIM testing.
The current ACIM test procedure incorporates by reference section 5.1.1 of ASHRAE Standard 29-2009, which stipulates that, with the ice maker at rest, the vertical ambient temperature gradient in any foot of vertical distance from 2 inches above the floor or supporting platform to a height of 7 feet above the floor, or to a height of 1 foot above the top of the ice maker cabinet, whichever is greater, shall not exceed 0.5 °F/foot. This language, which is consistent with the requirement in section 5.1.1 of ASHRAE Standard 29-2015, is consistent with the test room requirements for residential refrigerators, as specified in section 7.2 of ANSI-AHAM Standard HRF-1-1979, “Household Refrigerators, Combination Refrigerator-Freezers, and Household Freezers” (ANSI/AHAM HRF-1-1979), the version of the AHAM standard that was incorporated by reference in the DOE test procedure for residential refrigerators in a final rule published August 10, 1982. 47 FR 34517. DOE modified the requirements associated with temperature gradient for residential refrigerators, in a final rule published April 21, 2014, to remove the reference to a 7 feet height requirement and require only that the gradient be maintained to a height 1 foot higher than the top of the unit. 79 FR 22320, 22335.
In the December 2021 NOPR, DOE did not propose any changes to the ambient temperature gradient requirements, except through an updated reference to ASHRAE Standard 29-2015, and requested comment on this approach and on whether any modifications would improve test accuracy or decrease test burden. 86 FR 72322, 72338.
In response to the December 2021 NOPR, Hoshizaki commented that if ASHRAE 29-2015 is adopted, it supports use of the ambient temperature gradient requirements in that edition. (Hoshizaki, No. 14, p. 4) AHRI agreed with the adoption of ASHRAE Standard 29-2015 and its gradient requirements. (AHRI, No. 13, p. 5)
DOE is maintaining in this final rule the existing ambient temperature gradient requirements, through an updated reference to ASHRAE Standard 29-2015.
The current DOE ACIM test procedure incorporates by reference AHRI 810-2007, which specifies an ambient temperature of 90 °F and a supply water temperature of 70 °F. AHRI Standard 810 (I-P)-2016 with Addendum 1 provides the same specifications. However, many ice makers may be installed in conditioned environments such as offices, schools, hospitals, hotels, and convenience stores (see 80 FR 4646, 4700 (Jan. 28, 2015)), which may have ambient air temperatures and supply water temperatures higher or lower than those specified in AHRI Standard 810.
In the December 2021 NOPR, DOE proposed to maintain the single set of rating conditions currently required in the DOE test procedure. 86 FR 72322,72338. Specifically, DOE proposed to maintain the reference to AHRI Standard 810, through AHRI Standard 810 (I-P)-2016 with Addendum 1, for rating conditions because those were selected as representative, repeatable rating conditions of this equipment.
In addition, the response of ACIM refrigeration systems to varying ambient conditions is different than the response of refrigeration systems in other refrigeration and heating, ventilation, and air-conditioning (“HVAC”) equipment. Other refrigeration or HVAC equipment are typically designed to maintain conditions within a space. Accordingly, as ambient conditions change, the refrigeration systems typically cycle (or in the case of variable-speed compressors, adjust speed) to match the varying heat loads. In the case of ACIMs, the refrigeration system continuously operates while actively making ice, as heat is constantly removed from the water throughout the freezing process. As a result, introducing a second lower-temperature test condition would not result in part-load operation for ACIMs and would not additionally differentiate between units based on a part-load response, as is the case for other refrigeration or HVAC equipment. Thus, in the December 2021 NOPR, DOE tentatively determined that the existing test conditions provide representative, repeatable rating conditions for this equipment, and DOE expected that the burden of introducing a second test condition (which would approximately double test duration) would not be justified. 86 FR 72322,72339.
In the December 2021 NOPR, DOE requested comment on its proposal to maintain the existing ambient temperature and water supply temperature requirements. If modifications should be considered to improve test representativeness or decrease test burden, DOE requested supporting data and information. 86 FR 72322,72339.
In response to the December 2021 NOPR, AHRI commented that the current 90 °F ambient temperature (which includes 90 °F for both the indoor ambient temperature and the condenser air inlet temperature for ACIMs with remote condensing units) and 70 °F water inlet temperature test conditions are representative for much of the installed base. (AHRI, No. 13, p. 6) AHRI stated that changing the test point would disrupt historical data and understanding of the performance of the equipment, for both manufacturers and consumers. (
AHAM commented that the 90 °F ambient temperature is applicable to commercial settings but not residential settings and that any measured energy use at a 90 °F ambient temperature is not representative of real-world use because most residential ice makers are installed in air-conditioned spaces with ambient temperature closer to 70 °F. (AHAM, No. 18, p. 10) AHAM clarified that they are not suggesting that DOE lower the proposed ambient temperature because most of the test chambers used for residential ice maker manufacturers are set to 90 °F because that is the test condition required for other refrigeration products.
DOE is maintaining in this final rule the existing ambient temperature and water supply temperature requirements.
As discussed in section III.C and shown in Table III.2, ASHRAE Standard 29-2015 now includes water pressure measurement requirements, whereas ASHRAE Standard 29-2009 did not address water pressure. Section 6.3 of ASHRAE Standard 29-2015 directs that the pressure of the supply water be measured within 8 inches of the ACIM and that the pressure remains within the specified range (AHRI Standard 810-2007 and 2016 both specify 30 ± 3 psig water supply) during the period of time that water is flowing into the ACIM inlet(s).
Certain ACIMs do not continuously draw water into the unit during the entire test. The portions of the test when the water inlet valve begins to open may result in a short, transient state when the water pressure falls outside of the allowable tolerance. Eliminating such transient periods would likely require certain laboratories to re-configure their water supply setups. Because of this burden and the relatively low impact of these transient periods on water consumed (
Section 2.4 of the DOE test procedure for consumer dishwashers addresses this same issue by requiring that the specified water pressure be achieved within 2 seconds of opening the water supply valve. 10 CFR part 430, subpart B, appendix C1. The sampling rate in section 5.7 of ASHRAE Standard 29-2015 requires a maximum interval between data samples for water pressure of no more than 5 seconds. Therefore, in the December 2021 NOPR, DOE proposed to clarify that water pressure, when water is flowing into the ice maker, must be within the allowable range within 5 seconds of opening the water supply valve. 86 FR 72322, 72339. DOE did not expect that this proposal would impact tested performance under the current DOE test procedure as it provides additional specificity regarding the existing water pressure requirements.
In the December 2021 NOPR, DOE requested comment on its proposal to require that water pressure when water is flowing into the ice maker be within the allowable range within 5 seconds of opening the water supply valve. 86 FR 72322, 72339.
In response to the December 2021 NOPR, IOM supported DOE's proposal
AHAM commented that the maximum five second sampling rate for water pressure is unnecessary, impractical, burdensome, and adds difficulty and complexity to the test procedure. (AHAM, No. 18, p. 12) AHAM commented that energy measurement only needs a timestamp and Watt-hour reading at the beginning and end of the test and that the intermediate scans check for ambient and gradient temperatures which can have a sampling rate of 30 seconds to one minute which is similar to the test procedure for refrigeration products.
DOE is maintaining in this final rule the requirement that water pressure, when water is flowing into the ice maker, be within the allowable range within 5 seconds of opening the water supply valve, consistent with the December 2021 NOPR.
Since publication of the January 2012 final rule, DOE has issued two final guidance documents addressing certain aspects of the ACIM test procedure: prohibiting the use of temporary baffles and requiring use of a fixed purge water setting. As discussed in the following paragraphs, DOE has reviewed the guidance documents to determine whether they should be maintained and expressly included in the test procedure. In addition, in reviewing the existing DOE ACIM test procedure, DOE has determined that the representativeness and repeatability of the test procedure could be further improved through certain test setup and equipment configuration amendments as discussed in the following paragraphs.
After publication of the January 2012 final rule, DOE issued a guidance document on September 24, 2013, regarding the use of temporary baffles during testing.
In the guidance document, DOE expressly stated that installing such temporary baffles is inconsistent with the ACIM test procedure, which states that the unit must be “set up for testing according to the manufacturer's written instruction provided with the unit” and that “no adjustments of any kind shall be made to the test unit prior to or during the test that would affect the ice capacity, energy usage, or water usage of the test sample.”
Based on the final guidance document, DOE proposed in the December 2021 NOPR to define the term “baffle” consistent with the description in the guidance document and to expressly prohibit the use of baffles when testing of ACIMs unless the baffle is (a) a part of the ice maker or (b) shipped with the ice maker to be installed according to the manufacturer's installation instructions. 86 FR 72322, 72340. In the December 2021 NOPR, DOE stated the proposed approach based on manufacturer installation instruction is likely how an ice maker would be installed during use and is most representative of the energy use of ACIMs operated in the field.
In the December 2021 NOPR, DOE requested comment on its proposal to expressly provide that a baffle must not be used when testing ACIMs unless the baffle is (a) a part of the ice maker or (b) shipped with the ice maker to be installed according to the manufacturer's installation instructions. 86 FR 72322, 72340.
In response to the December 2021 NOPR, Hoshizaki and AHRI agreed that the unit should be installed in accordance with the manufacturer's installation instructions, and that baffles should only be used if instructed to do so in installation instructions. (Hoshizaki, No. 14, p. 4; AHRI, No. 13, p. 6)
AHAM commented that DOE's proposal to expressly provide that a baffle must not be used when testing ACIMs unless the baffle is (a) a part of the ice maker or (b) shipped with the ice maker to be installed according to the manufacturer's installation instructions fails to account for the differences between built-in and freestanding ice makers (
The proposal to expressly provide that a baffle must not be used when testing ACIMs unless the baffle is (a) a part of the ice maker or (b) shipped with the ice maker to be installed according to the manufacturer's installation instructions is representative because a baffle is permitted to be used in testing if it is integral to the ice maker or shipped with the ice maker and instructed to be installed in the manufacturer's installation instructions. Regarding other installation requirements, DOE provides a
DOE is maintaining in this final rule the requirement that a baffle must not be used when testing ACIMs unless the baffle is (a) a part of the ice maker or (b) shipped with the ice maker to be installed according to the manufacturer's installation instructions, consistent with the December 2021 NOPR.
The guidance document issued by DOE on September 24, 2013, also acknowledged that warm air discharged from an ice maker's outlet can affect the ambient air temperature measurement such that it fluctuates outside the maximum allowed ±1 °F or ±2 °F range, and that baffles can prevent such fluctuation. Because temporary baffles are not permitted for use during testing, DOE stated in the guidance document that if the ambient air temperature fluctuations cannot be maintained within the required tolerances, temperature measuring devices may be shielded so that the indicated temperature will not be affected by the intermittent passing of warm discharge air at the measurement location. DOE also stated that the shields must not block recirculation of the warm discharge air into the condenser or ice maker inlet.
Based on the final guidance document, in the December 2021 NOPR, DOE proposed to specify in the test procedure that if the ambient air temperature fluctuations (and relative humidity as discussed in section III.D.3.a) cannot be maintained within the required tolerances, temperature measuring devices (and relative humidity measuring devices) may be shielded to limit the impact of intermittent passing of warm discharge air at the measurement locations. 86 FR 72322, 72340. DOE further proposed that if shields are used, they must not block recirculation of the warm discharge air into the condenser or ice maker inlet.
In the December 2021 NOPR, DOE requested comment on its proposal to specify that temperature measuring devices may be shielded to limit the impact of intermittent warm discharge air at the measurement locations and that if shields are used, they must not block recirculation of the warm discharge air into the condenser or ice maker air inlet. 86 FR 72322, 72340.
In response to the December 2021 NOPR, Hoshizaki and AHRI agreed with DOE's proposal to specify that temperature measuring devices may be shielded to limit the impact of intermittent warm discharge air at the measurement locations. (Hoshizaki, No. 14, p. 4; AHRI, No. 13, p. 6) However, Hoshizaki requested that this be addressed in the ASHRAE 29 standard committee. (Hoshizaki, No. 14, p. 4)
DOE is maintaining in this final rule the requirement that temperature and relative humidity measuring devices may be shielded to limit the impact of intermittent warm discharge air at the measurement locations and that if shields are used, they must not block recirculation of the warm discharge air into the condenser or ice maker air inlet, consistent with the December 2021 NOPR.
In the December 2021 NOPR, DOE also requested comment on whether any ACIM models discharge air such that the temperature and relative humidity measuring devices would be unable to maintain the required ambient air temperature or relative humidity tolerances even with the measuring devices shielded. 86 FR 72322, 72340. If so, DOE requested comment on whether alternate ambient air temperature and relative humidity measurement locations would be necessary (
In response to the December 2021 NOPR, Hoshizaki and AHRI commented that they are not aware of a need for alternate ambient temperature locations. (Hoshizaki, No. 14, p. 4; AHRI, No. 13, p. 6)
Based on comments from interested parties that alternate ambient air temperature and relative humidity measurement locations are not necessary, DOE is maintaining the current ambient measurement locations for ACIM testing in this final rule, except as discussed in section III.D.4.d.
Purge water refers to water that is introduced into the ice maker during an ice-making cycle to flush dissolved solids out of the ice maker and prevent scale buildup on the ice maker's wetted surfaces. Ice makers generally allow for setting the purge water controls to provide different amounts of purge water or different frequencies of purge cycles. Different amounts of purge water may be appropriate for different levels of water hardness or contaminants in the ACIM water supply. Most ice makers have manually set purge settings that provide a fixed amount of purge water, but some ice makers include an automatic purge water control setting that automatically adjusts the purge water quantity based on the supply water hardness.
Because purge water is cooled by the ice maker, allowing a different purge water quantity will result in a different measured energy use. To ensure representative and consistent test results for ice makers with automatic purge water controls, on September 25, 2013, DOE issued final guidance stating that ice makers with automatic purge water control should be tested using a fixed purge water setting that is described in the written instructions shipped with the unit as being appropriate for water of normal, typical, or average hardness.
Consistent with DOE's existing guidance, in the December 2021 NOPR, DOE proposed that ice makers with automatic purge water control must be tested using a fixed purge water setting that is described in the manufacturer's written instructions shipped with the unit as being appropriate for water of normal, typical, or average hardness. 86 FR 72322, 72341. Such a control setting is likely to reflect the most typical ACIM installation and operation. Any other automatic purge controls (
DOE stated that this proposal would not conflict with any of the setup or installation requirements in AHRI Standard 810 (I-P)-2016 with Addendum 1. 86 FR 72322, 72341. Additionally, this proposal would not add burden to manufacturers or impact ACIM performance as measured under the existing test procedure, as it would codify the final guidance document issued on September 25, 2013,
In the December 2021 NOPR, DOE requested comment on its proposal to require ACIMs with automatic purge water control to be tested using a fixed purge water setting that is described in the manufacturer's written instructions shipped with the unit as being appropriate for water of normal, typical, or average hardness. 86 FR 72322, 72342.
In response to the December 2021 NOPR, Hoshizaki and AHRI requested that units be tested per normal operating instructions in accordance with manufacturer installation instructions. (Hoshizaki, No. 14, p. 5; AHRI, No. 13, p. 7)
DOE is maintaining in this final rule the requirement that ACIMs with automatic purge water control be tested using a fixed purge water setting that is described in the manufacturer's written instructions shipped with the unit as being appropriate for water of normal, typical, or average hardness, consistent with the December 2021 NOPR.
In support of the December 2021 NOPR, DOE conducted testing to investigate the energy and water consumption associated with flush or purge cycles. 86 FR 72322, 72341. DOE testing of a batch ACIM showed that the purge occurred once every 5 hours under the default setting and coincided with the start of a harvest, resulting in no separate purge cycle.
DOE observed that purge cycles for both batch and continuous ACIMs did not significantly contribute to the energy consumption over a period of normal operation.
Accounting for purge cycle operation would require extending the test period to capture both stable ice production and normal purge operation.
The energy and water consumption during the flush or purge cycles are very small relative to the energy and water consumed during normal ice production, and the additional test burden associated with measuring purge events would be a significant increase in test burden. Therefore, in the December 2021 NOPR, DOE did not propose to address flush or purge cycles in its test procedure. 86 FR 72322, 72342.
In the December 2021 NOPR, DOE requested comment on its initial determination to not directly account for energy or water used during intermittent flush or purge cycles. 86 FR 72322, 72342. DOE also requested data regarding the energy and water use impacts of purge cycles.
In response to the December 2021 NOPR, Hoshizaki agreed with DOE that the test should not be changed to account for intermittent flush or purge cycles. (Hoshizaki, No. 14, p. 5) Hoshizaki added that accounting for purge cycles would require a significant increase in total test time, resulting in significant increase in test burden with only a small amount of energy and water contribution. (Hoshizaki, No. 14, p. 5) During the January 24, 2022 ACIM test procedure public meeting, Hoshizaki stated that for continuous ACIMs, a normal purge cycle contains less than five ounces of water and occurs once every 12 hours.
Joint Commenters stated that DOE may have underestimated the frequency of purge cycles, citing the DOE's test of a batch type ACIM with a default purge setting of a purge every 5 hours (coinciding with the start of a harvest, resulting in no separate purge cycle). (Joint Commenters, No. 15, p. 2) However, Joint Commenters added that for batch type ACIMs, the purge water setting used in the field may differ from that in the manufacturer's instructions or default settings and may be set such that a separate purge cycle occurs as frequently as every batch cycle.
DOE is not aware of and did not receive any data to indicate how purge water settings used in the field may differ from that in the manufacturer's instructions or default settings. However, if a default purge setting was as frequent as every batch cycle, purges would be accounted for in the amended ACIM test procedure because the batches would likely be consistent even with the purge occurring every cycle and therefore the batches would meet the stability criteria as amended in this final rule.
DOE is maintaining in this final rule its determination to not directly account for energy or water used during intermittent flush or purge cycles, consistent with the December 2021 NOPR.
As discussed in section III.C and shown in Table III.2, the clearance requirements around a unit under test changed between ASHRAE Standard 29-2009 and ASHRAE Standard 29-2015. The current DOE test procedure, through reference to section 6.4 of ASHRAE Standard 29-2009, requires a clearance of 18 inches on all four sides of the test unit, while section 6.5 of ASHRAE Standard 29-2015 requires a minimum clearance of 3 feet to adjacent test chamber walls, or the minimum clearance specified by the manufacturer, whichever is greater.
In response to the March 2019 RFI, Howe Corporation (“Howe”) commented that it is reasonable for customers to expect units to perform at their ratings when using the minimum clearances as described in the manufacturer literature. Howe recommended that DOE require a clearance of 3 feet, or the minimum clearance allowed by the manufacturer, whichever is less, to better represent an average use cycle. Howe also commented that this clearance should include all machine clearances, not just walls within the test chamber, and that a minimum clearance enclosure be built for testing ACIMs based on the harshest manufacturer-recommended operating installation, without blocking an intake air path to the ice maker. Howe also commented that this setup would not be a large test burden as many manufacturers test units of similar size, and the enclosures could be used over multiple tests. (Howe, No. 6 at p. 4)
In support of the December 2021 NOPR, DOE conducted testing to assess how different clearance requirements could affect the measured energy consumption and harvest rate of ACIMs. 86 FR 72322, 72342. DOE investigated the performance of ACIMs under four clearance setups: (1) the clearance required by ASHRAE Standard 29-2015, (2) the clearance required by the current DOE test procedure (through reference to ASHRAE Standard 29-2009), (3) all minimum clearances as recommend by the manufacturer, and (4) the rear minimum clearance as recommend by the manufacturer with all other clearances per ASHRAE Standard 29-2015.
The tests indicate that the different clearance requirements, except for the installation with all minimum clearances, have little to no impact on the measured performance of ACIMs.
Based on these test results, an installation configuration that provides only the minimum manufacturer test clearances for all sides represents a worst-case installation for ACIM performance.
Similarly, a minimum clearance of 3 feet to adjacent test chamber walls or a clearance of 18 inches on all four sides (as required by ASHRAE Standard 29-2015 and the current DOE test procedure, respectively) may also not be a typical ACIM installation.
Therefore, in the December 2021 NOPR, DOE proposed that ACIMs be tested according to the manufacturer's specified minimum rear clearance requirements, or 3 feet from the rear of the ACIM, whichever is less. 86 FR 72322, 72343. DOE proposed testing be conducted with a minimum clearance of 3 feet or the minimum clearance specified by the manufacturer, whichever is greater, on all other sides of the ACIM and all sides of the remote condenser, if applicable.
In the December 2021 NOPR, DOE did not propose specific requirements for the wall used to maintain the rear clearance when conducting the test. 86 FR 72322, 72343. Test laboratories would be able to satisfy the clearance requirements in any way they choose, as long as the test installation meets the proposed requirements.
In the December 2021 NOPR, DOE requested comment on its proposal to require that ACIMs be tested according to the manufacturer's specified minimum rear clearance requirements, or 3 feet from the rear of the ACIM, whichever is less, and that all other sides of the ACIM and all sides of the remote condenser, if applicable, shall be tested with a minimum clearance of 3 feet or the minimum clearance specified by the manufacturer, whichever is greater. 86 FR 72322, 72343. DOE also requested comment on whether this proposal would affect measured energy use and harvest rate compared to the existing DOE test procedure.
In response to the December 2021 NOPR, Hoshizaki requested that this be explored in the ASHRAE 29 standard committee to clarify any changes to the current test specifications. (Hoshizaki, No. 14, p. 5) IOM did not support this proposal to change clearance requirements. (IOM, No. 11, p. 3)
AHRI commented that depending on the condenser location and air discharge, changes to the clearance requirements could impact performance of the unit. (AHRI, No. 13, p. 7) IOM commented that reducing the rear minimum clearance will very likely increase measured energy use and decrease measured harvest rate. (IOM, No. 11, p. 3) IOM added that minimum clearances are established to provide guidelines for installation from a product safety standpoint, not a performance standpoint, and it is well understood in the industry that increasing clearance around the unit will result in improved performance and efficiency.
IOM commented that measuring performance and efficiency of a product in its worst possible installation configuration is unfair to manufacturers. (IOM, No. 11, p. 3) AHRI added that the requirements in ASHRAE Standard 29 are clear and effective regarding the clearance allowed and changes to these requirements could result in undue burden to test facilities that have already setup for ASHRAE 29 requirements. (AHRI, No. 13, p. 7)
DOE notes that, in response to the March 2019 RFI, Howe commented that it is reasonable for customers to expect ACIMs to perform at their certified ratings when using the minimum clearances as described in the manufacturer literature. (Howe, No. 6 at p. 4) While manufacturers might provide minimum clearances for all sides of an ACIM, the expectation may be that ACIMs are installed such that one or more of the sides have clearances exceeding the manufacturer minimum.
ACIMs may have different condenser locations and air discharge but because ACIMs are typically installed in commercial food service applications with space constraints, end users likely install their ACIMs against at least a rear wall using the manufacturer minimum clearance to maximize available working space and, therefore, the manufacturer's minimum rear clearance should be accounted for in the tested performance. Based on the test data in Table III.10, testing according to the manufacturer-specified minimum rear clearance has little to no measured impact on ACIM performance for the four test units. However, because ACIMs may exhaust condenser air from the rear of the unit, an inappropriate manufacturer minimum rear clearance (or lack of manufacturer instructions regarding rear clearance) could adversely affect ACIM performance while being representative of typical use and should be captured in the tested performance.
DOE notes that, in the December 2021 NOPR, DOE did not propose specific requirements for the wall used to maintain the rear clearance, which is the only change from the ASHRAE 29-2015 clearance requirements, when conducting the test and that test facilities would be able to setup the clearance requirements in any way they choose, as long as the test installation meets the proposed requirements, in order to limit any potential test burden.
DOE will consider any updated industry standards, if available, during future ACIM test procedure rulemakings.
DOE is maintaining in this final rule that ACIMs be tested according to the manufacturer's specified minimum rear clearance requirements, or 3 feet from the rear of the ACIM, whichever is less, consistent with the December 2021 NOPR. On all other sides of the ACIM and all sides of the remote condenser, if applicable, testing shall be conducted with a minimum clearance of 3 feet or the minimum clearance specified by the manufacturer, whichever is greater. Test laboratories may satisfy the clearance requirements in any way they choose, as long as the test installation meets the amended requirements.
Air temperature fluctuations from the test chamber or the ACIM's condenser exhaust air can potentially affect an ACIM's measured energy consumption and harvest rate.
The current ACIM test procedure, which is based on AHRI Standard 810-2007 and ASHRAE Standard 29-2009, does not specify whether a weighted or unweighted sensor is to be used to measure ambient temperature. A weighted sensor measures the temperature of a high conductivity (isothermal) mass to which it is connected. The mass slows equilibration of the measured temperature with the surrounding air, thus damping out air temperature fluctuations. This may result in a weighted sensor indicating that the fluctuations are within the required temperature test condition tolerances, whereas an unweighted sensor could indicate temperature extremes exceeding the required temperature test condition tolerances. This difference in function of the sensors impacts the application of the required temperature test condition tolerances,
In support of the December 2021 NOPR, DOE conducted testing to evaluate the ability to meet the specified tolerances of ASHRAE Standard 29-2015 using both weighted and unweighted temperature sensors. 86 FR 72322, 72344. The temperature fluctuations recorded by weighted temperature sensors may be less than
Therefore, in the December 2021 NOPR, DOE proposed to specify that unweighted sensors be used to make all ambient temperature measurements. 86 FR 72322, 72344. Based on comments received in the March 2019 RFI, this proposal reflects current industry practice and would not add any burden.
In the December 2021 NOPR, DOE requested comment on its proposal to specify that ambient temperature measurements be made using unweighted sensors. 86 FR 72322, 72344.
In response to the December 2021 NOPR, Hoshizaki agreed with the proposal, but noted that if a clarification is needed that this be addressed by the ASHRAE 29 standard committee. (Hoshizaki, No. 14, p. 5) AHRI commented that the testing location is currently allowed to designate the sensor type used, and this has not negatively impacted ratings or product performance and therefore should not be changed without further clarification of issues that it may resolve and discussion at the method of test level. (AHRI, No. 13, p. 7) AHRI added that the change to requiring unweighted sensors could incur associated costs without providing benefits to the test results, but if such a change is to be considered, it should go through the ASHRAE 29 standards committee.
AHAM commented that in DOE's proposed test procedure the mean of the ambient temperatures is more important than a momentary fluctuation of temperature. (AHAM, No. 18, p. 13) AHAM commented in support of weighted sensors because they would dampen the influence of other units being simultaneously tested on the ambient and gradient measurements and disagreed with the use of unweighted sensors because they are more easily influenced by changes in temperature, including those resulting from opening and closing the test room door.
Based on DOE's analysis indicating that the specified test conditions can be met with an unweighted sensor, which was presented in the December 2021 NOPR, DOE is maintaining in this final rule that ambient temperature measurements be made using unweighted sensors, consistent with the December 2021 NOPR.
The current DOE guidance and proposal in the December 2021 NOPR regarding the use of temporary baffles, as discussed in section III.D.4.a, illustrates that temporary baffles can reduce or prevent recirculation of warm air from an ACIM's condenser exhaust air to its air inlet. This recirculation of warm air can potentially affect an ACIM's measured energy consumption and harvest rate and using a temporary baffle for testing is unrepresentative of actual ACIM use. The recirculation of warm air may also affect the ability to maintain ambient temperature within the range specified in AHRI Standard 810 (I-P)-2016 with Addendum 1 and relative humidity within the range proposed in the December 2021 NOPR. For example, if the condenser exhaust is warm enough and directed towards the air inlet location (and corresponding ambient temperature measurement), the measured ambient temperature may be warmer than the representative ambient temperature around the unit under test, even with shielding around the temperature sensor.
To evaluate the extent of this potential impact on temperature, DOE tested, in support of the December 2021 NOPR, an ACIM which exhausted its warm condenser air on the side of the ACIM adjacent to the side with the air intake. 86 FR 72322, 72344. Three ambient thermocouples were placed 1 foot from the geometric center of each side around the ACIM in addition to the unshielded ambient thermocouple that was placed 1 foot from the air inlet.
As shown in Table III.12, the air within the chamber had to be reduced below 89 °F (outside the 90 ± 1 °F allowable ambient temperature range specified in ASHRAE Standard 29-2015) to maintain the temperature at the air inlet near the specified 90 °F condition.
The ambient temperature measurement is meant to represent the temperature of the air around the unit under test that is not impacted by unit operation.
Test installation according to the manufacturer's minimum rear clearance requirements, as discussed in section III.D.4.c, may affect the ability to measure the ambient temperature and relative humidity one foot from the air inlet if the air intake is through the rear side of the ACIM and the minimum rear clearance is less than 1 foot from the air inlet.
In the December 2021 NOPR, DOE proposed that if a measurement location 1 foot from the rear of an ACIM is not feasible for testing that would otherwise require a measurement at that location, the ambient temperature and relative humidity shall instead be measured 1 foot from the cabinet, centered with respect to the surface(s) of the ACIM, for any surfaces around the perimeter of the ACIM that do not include an air discharge or air inlet. 86 FR 72322, 72345. DOE similarly did not expect this proposal to impact current ACIM measurements as it provides an alternative measurement location for the existing ambient temperature and relative humidity requirements. 86 FR 72322, 72345.
In the December 2021 NOPR, DOE requested comment on its proposal to allow for an alternate ambient temperature (and relative humidity) measurement location to avoid complications associated with shielding the measurement in front of the air inlet, as currently required. 86 FR 72322, 72345. DOE also requested comment on the proposal for measuring ambient temperature and relative humidity for ACIMs for which the proposed rear clearance would preclude temperature measurements at the rear of the unit under test.
In response to the December 2021 NOPR, Hoshizaki and AHRI commented that if manufacturers need an alternate location for ambient temperatures, this can either be addressed by waiver or addressed through the ASHRAE 29 standard committee to change the requirements. (Hoshizaki, No. 14, p. 5; AHRI, No. 13, p. 7) AHRI added it does not feel that a dictated alternative measurement location will address any concerns that may arise with a particular model. (AHRI, No. 13, p. 7)
As discussed in section III.D.4.c, DOE is maintaining that ACIMs be tested according to the manufacturer's specified minimum rear clearance requirements, or 3 feet from the rear of the ACIM, whichever is less. The alternate measurement location is necessary to allow for testing certain equipment configurations—for example, if the air intake is through the rear side of the ACIM and the minimum rear clearance is less than 1 foot from the air inlet. Therefore, DOE is maintaining in this final rule to allow for an alternate ambient temperature (and relative humidity) measurement location, consistent with the December 2021 NOPR.
DOE is aware that some ice makers have the capability to make various sizes of cubes. The size of the cube can typically be selected on the control panel of the ice maker, for example. Section 5.2 of AHRI Standard 810 (I-P)-2016 with Addendum 1 states that for machines with adjustable ice cube settings, standard ratings are determined for the largest and the smallest cube settings, and that ratings for intermediate cube settings may be published as application ratings. This is consistent with the current DOE requirement as incorporated by reference in AHRI Standard 810-2007.
In the December 2021 NOPR, DOE did not propose any change to the existing industry requirement to determine ratings under the largest and smallest cube settings for ACIMs with adjustable ice cube settings. 86 FR 72322, 72345. EPCA requires the DOE test procedure to be reasonably designed to produce test results which reflect energy use during a representative average use cycle. The current requirement to test using the largest and smallest cube setting is based on the industry standard, which was developed based on industry's experience with this equipment. There is no information to support that testing at the “worst possible configuration” would be representative of an average use cycle. As such, DOE did not propose to change the current requirement to test at both the smallest and largest cube setting, which is the same as the requirement in AHRI Standard 810 (I-P)-2016 with Addendum 1.
In the December 2021 NOPR, DOE requested comment on maintaining the current requirement to test at the largest and smallest ice cube size settings, consistent with AHRI Standard 810 (I-P)-2016 with Addendum 1. 86 FR 72322, 72345. DOE also requested information on the ice cube size setting typically used by customers with ACIMs with multiple size settings (largest, smallest, default,
In response to the December 2021 NOPR, Hoshizaki and AHRI agreed with maintaining the requirements set by AHRI Standard 810 (I-P)-2016 with Addendum 1 for cube size settings. (Hoshizaki, No. 14, p. 5; AHRI, No. 13, p. 8)
DOE is maintaining in this final rule the current requirement to test at the largest and smallest ice cube size settings, consistent with AHRI Standard 810 (I-P)-2016 with Addendum 1.
DOE is aware of certain self-contained ACIMs that dispense ice to a user through an automatic dispenser when prompted by the user. Testing according to the current DOE test procedure or the updated industry standards as proposed in the December 2021 NOPR may be difficult or impossible for certain ACIM configurations with automatic dispensers. 86 FR 72322, 72345.
Section 6.6 in ASHRAE Standard 29-2015 specifies that an ACIM must have its bin one-half full of ice when collecting capacity measurements. DOE is aware of self-contained ACIMs with dispensers that contain internal storage bins that are not accessible during normal operation (
Section 6.10 of ASHRAE Standard 29-2015 requires that the ACIM be completely assembled with all panels, doors, and lids in their normally closed positions during the test. Additionally, section 4.1.4 of AHRI Standard 810 (I-P)-2016 with Addendum 1 requires that the test unit shall be configured for testing per the manufacturer's written instructions provided with the unit. It also requires that no adjustments of any kind shall be made to the test unit prior to or during the test that would affect the ice capacity, energy usage, or water usage of the test sample. Many self-contained ACIMs with dispensers would require removing case panels or the top lid to access the internal ice bin for ice collection or establishing initial test setup. In typical operation, users would access the ice only through the dispenser mechanism.
Through a letter dated January 28, 2020, Hoshizaki petitioned for a waiver and interim waiver from the DOE ACIM test procedure at 10 CFR 431.134 for ice/water dispenser ACIM basic models to address the test issues previously described in this section (case number 2020-001).
The decision and order requires, prior to the start of the test, removing the front panel of the unit under test and inserting a bracket to hold the shutter (which allows for the dispensing of ice during the test) completely open for the duration of the test. After inserting the bracket, return the front panel to its original position on the unit under test. Conduct the test procedure as specified in 10 CFR 431.134 except that the internal ice bin for the unit under test shall be empty at the start of the test and intercepted ice samples shall be obtained from a container in an external ice bin that is filled one-half full with ice and is connected to the outlet of the ice dispenser through the minimum length of conduit that can be used.
This waiver granted to Hoshizaki includes instructions for testing the specific basic models addressed in that waiver process. However, other ACIM models with dispensers would likely require similar testing instructions. Moreover, after the granting of any waiver, DOE must publish in the
In the December 2021 NOPR, DOE requested comment on its proposal to collect capacity samples for ACIMs with dispensers through the continuous production and dispensing of ice throughout testing, using an empty internal storage bin at the beginning of the test period and collecting the ice sample through the dispenser in an external bin one-half full of ice. 86 FR 72322, 72346. DOE also requested comment on its proposal to allow for certain mechanisms within the ACIM that would prohibit the continuous production and dispensing of ice throughout testing to be overridden to the minimum extent that allows for the continuous production and dispensing of ice.
In response to the December 2021 NOPR, Hoshizaki and AHRI agreed with adopting the approach stated, and AHRI noted that this process is also being proposed to the ASHRAE 29 committee for consideration. (Hoshizaki, No. 14, p. 6; AHRI, No. 13, p. 8)
AHAM commented that DOE's proposed test procedure does not account for integrated dispensing, such as for a dispenser ice maker with ice internal to the unit (a feature offered in certain residential products). (AHAM, No. 18, p. 11) AHAM states that, for these products, there is no way to determine if the bin is half full during the run-in portion of the test, and that DOE proposes to override the dispensing function so that it continually dispenses, which is not possible on all units that have this feature.
The CA IOUs commented that a self-contained ice maker category type that DOE recognized needs specialized test methodology is the ice dispenser ice maker. (CA IOUs, No. 16, p. 4) The CA IOUs noted that the ice is made inside the ice bin and an automated ice dispenser is located underneath the bin to dispense ice into a cup.
In the December 2021 NOPR, DOE proposed that mechanisms must be overridden to the minimum extent which allows for the continuous production and dispensing of ice (
DOE notes that the test method proposed in the December 2021 NOPR would apply to all ACIMs with dispensers, not just the basic model for which there is a test procedure waiver. DOE has not identified the need for additional test instructions for any other ACIMs with dispensers and DOE has not received any additional petitions for waiver for other ACIMs with dispensers. Therefore, DOE is maintaining in this final rule the test method proposed in the December 2021 NOPR for ACIMs with dispensers. Further categorization of equipment may be discussed in any amended energy conservation standards for ACIMs with dispensers.
DOE did not propose amendments to the existing test procedures for testing remote condensing ACIMs in the December 2021 NOPR. 86 FR 72322, 72346. Based on a review of manufacturer installation instructions for ACIMs with dedicated remote condensing units, manufacturers typically recommend line sets and/or limitations to installation locations. DOE preliminarily determined that testing according to the manufacturer recommendations, as is currently required, rather than one specified remote setup, would represent typical use in the field and would produce consistent test results. 86 FR 72322, 72347. DOE also did not propose any amendments to its test procedure to address ACIMs installed with a compressor rack because it lacked information on typical installation locations, operation, and market availability, and because any ACIMs designed only for connection to remote compressor racks are out of the scope of DOE's regulations. 86 FR 72322, 72344.
In the December 2021 NOPR, DOE requested comment on its initial determination that additional test setup and installation instructions are not required for testing remote condensing ACIMs. 86 FR 72322, 72347.
In response to the December 2021 NOPR, Hoshizaki and AHRI agreed that no additional test setup or installation instructions are required for units with dedicated remote condensing units. (Hoshizaki, No. 14, p. 6; AHRI, No. 13, p. 8) Hoshizaki added that if a manufacturer has further requests that are different from its instructions, it could file that with DOE so it is in the record of special instructions or taken through the waiver process for clarification. (Hoshizaki, No. 14, p. 6)
In response to the December 2021 NOPR, Hoshizaki and AHRI agreed with DOE in not establishing test procedures for ACIMs for rack units. (Hoshizaki, No. 14, p. 6; AHRI, No. 13, p. 8) Hoshizaki added that the sector is very small, and a new test criterion would need to be addressed in the ASHRAE 29 standard. (Hoshizaki, No. 14, p. 6)
DOE is maintaining in this final rule that additional test setup and installation instructions are not required for testing ACIMs with dedicated remote condensing units, consistent with the December 2021 NOPR. DOE is also not establishing separate test procedures for ACIMs intended for installation with a compressor rack.
An ice maker could be designed to be capable of operating at multiple capacity levels,
DOE conducted market research and examined publicly available sources to determine the prevalence of modulating capacity ice makers. DOE did not find any modulating capacity ice makers that are currently available in the market. Therefore, in the December 2021 NOPR, DOE did not propose test procedures for modulating capacity ice makers. 86 FR 72322, 72347.
In the December 2021 NOPR, DOE requested comment on its initial determination regarding the lack of availability of modulating capacity ice makers on the market. 86 FR 72322, 72347.
In response to the December 2021 NOPR, AHRI agreed with DOE's determination. (AHRI, No. 13, p. 8) Hoshizaki commented it is not aware of any modulating capacity ice makers on the market. (Hoshizaki, No. 14, p. 6) Hoshizaki requested that DOE share examples of modulating capacity ACIMs, and if examples exist, Hoshizaki will review and then offer comment.
DOE continues to not be aware of any modulating capacity ice makers available on the market. Therefore, DOE is not establishing test instructions for modulating capacity ice makers in this final rule.
The current ACIM test procedure considers only active mode energy use when an ice maker is actively producing ice and represents that consumption using a metric of energy use per 100 pounds of ice. The existing ACIM test procedure does not address standby energy use associated with continuously powered sensors and controls or ice storage outside of active mode operation. When not actively making ice, an ice maker continues to consume energy to power sensors and controls. In addition, ice that is stored in an integral or paired ice storage bin will melt over time and the ice maker will use additional energy to replace the ice that has melted to keep the bin full. In these ways, standby energy use from control devices and energy use associated with ice storage can impact the daily energy consumption of ACIM equipment.
DOE researched available test methods for determining energy use associated with ice storage. The AHRI certification program currently includes rating ice storage bins using AHRI 820-2017, “Performance Rating of Ice Storage Bins.” Similar methods are currently referenced in the Australian and Canadian test methods and standards applicable to self-contained ice makers and storage bins.
Many ice makers (including ice making heads (“IMHs”) and remote condensing unit (“RCU”) ice makers) can be paired with any number of storage bins, including those produced by other manufacturers. These ice makers are typically paired in the field with a bin chosen by the end user, rather than the manufacturer. However, DOE understands that many IMH and RCU equipment are advertised as compatible with a list of specific bins and, therefore, may be able to be rated based on recommended bin combinations.
In the December 2021 NOPR, DOE initially determined that the energy use of ACIMs in standby mode is likely very low compared to active mode ice making energy use. 86 FR 72322, 72348. Additionally, the contribution of any standby mode energy use to overall energy use can vary significantly depending on the specific installation and end use of the ACIM.
At the time of the December 2021 NOPR, DOE did not have sufficient data and information to establish test procedures for standby energy use or energy use associated with ice storage. 86 FR 72322, 72348. In addition, incorporating standby energy use and energy use associated with ice storage would require significant test procedure changes requiring an increase in test time. Therefore, because of the lack of data and undue burden on manufacturers, DOE did not propose to amend its test procedures to account for standby or ice storage energy use in the December 2021 NOPR.
In the December 2021 NOPR, DOE requested comment on its proposal to not amend its test procedures to account for standby or ice storage energy use. 86 FR 72322, 72348. DOE also requested data on the typical durations and associated energy use for all ACIM operating modes and on the potential burden associated with testing energy use in those modes.
In response to the December 2021 NOPR, Hoshizaki and AHRI agreed that DOE should not amend the test procedure to account for standby energy use. (Hoshizaki, No. 14, p. 6; AHRI, No. 13, p. 8)
Hoshizaki commented the normal bin control switch in low-voltage test data shows very little power used to communicate with the control board. (Hoshizaki, No. 14, p. 6) Hoshizaki added that accounting for standby energy would require a significant increase in total test time, which would be a significant increase in test burden to measure a very small amount of energy.
Joint Commenters commented that the standby power associated with powered controls outside of active icemaking can be around 25-50 kWh per year. (Joint Commenters, No. 15, p. 2) Joint Commenters noted that in the 2015 Final Rule Technical Support Document (“TSD”) for ACIM standards, DOE assumed a utilization factor (
The CA IOUs recommended that for self-contained machines the ice-melt rate procedure from AHRI 820 should be integrated into the method of test, and the ice-melt rate should be reported or integrated into the daily energy and harvest rate. (CA IOUs, No. 16, p. 7) The CA IOUs added that self-contained ice machines have an ice bin that is integral to the unit, and ice-melt rate should be reported for these units or have the ice-melt rate accounted for in the reported energy consumption.
Joint Commenters urged DOE to capture the energy use associated with ice storage due to replacement cycles in the test procedures for self-contained units (SCU), which include an integrated storage bin, as well as for ice-making heads (IMH) and remote-condensing units (RCU). (Joint Commenters, No. 15, p. 3) Joint Commenters noted that in a NOPR published on December 16, 2014, regarding the miscellaneous refrigeration products (“MREFs”) test procedure (“December 2014 MREF Test Procedure NOPR”; 79 FR 74894), DOE proposed a test procedure that included a measurement of both the energy consumed during active ice production and the energy use associated with replenishing the ice supply to replace melted ice during ice storage.
Joint Commenters commented that the operation of ice makers includes replacement cycles (
For IMHs and RCUs, Joint Commenters encouraged DOE to consider an approach that could involve establishing default values that represent the energy use associated with ice replacement. (Joint Commenters, No. 15, p. 3) Joint Commenters added the melt rates associated with the least-efficient storage bins on the market could be used to determine the extent of replacement cycle operation during a fixed period, such as 24 hours, noting that the default value of replacement cycle energy would take the form of an adder to measured energy consumption in the normal icemaking cycle.
In the December 2021 NOPR, DOE initially determined that the contribution of any standby mode energy use to overall energy use can vary significantly depending on the specific installation and end use of the ACIM. 86 FR 72322, 72348. Because ACIMs may be installed and operated in a range of end uses (
DOE also initially determined that IMHs and RCU ice makers are typically paired in the field with a storage bin chosen by the end user, rather than the manufacturer, which can result in IMHs and RCU ice makers paired with storage bins from a different manufacturer. 86 FR 72322, 72348. DOE acknowledges that self-contained ice makers contain a storage bin that is integral to the ACIM. However, the energy use associated with ice storage of all ACIMs, including self-contained ice makers, can vary significantly depending on the specific installation and end use of the ACIM.
DOE acknowledges the comments regarding DOE's utilization factor from the 2015 Final Rule TSD for ACIM standards.
DOE has determined that the measurement of active mode energy use, when an ice maker is actively producing ice, and the metric of energy use per 100 pounds of ice represent a repeatable and reproducible test method that is reasonably designed to produce test results which reflect energy use during a representative average use cycle. Therefore, DOE is maintaining in this final rule to not amend its test procedures to account for standby or ice storage energy use.
As compared to ASHRAE Standard 29-2009, section 9.1.1 of ASHRAE Standard 29-2015 specifies averaging instructions for calculating the gross weight of product produced. ASHRAE Standard 29-2015 specifies to “average the quantity for the three samples to determine the ice produced.” However, this averaging instruction is not specified for the water or energy consumption calculations.
In the December 2021 NOPR, DOE proposed to provide explicitly that the energy use, condenser water use, and potable water use (as described in section III.D.8) be calculated by averaging the measured values for each of the three samples for each respective metric. 86 FR 72322, 72348. DOE added that this clarification would not affect the measured performance of ACIMs but would more explicitly present the calculation approach.
In the December 2021 NOPR, DOE requested comment on the proposal to clarify that the energy use, condenser water use, and potable water use (as described in section III.D.8) be calculated by averaging the calculated values for the three measured samples for each respective metric. 86 FR 72322, 72348.
In response to the December 2021 NOPR, AHRI agreed with DOE that these could be valid proposed changes. (AHRI, No. 13, p. 9) However, AHRI and Hoshizaki requested that any clarifications to the ASHRAE 29 be addressed by the ASHRAE 29 standard committee. (AHRI, No. 13, p. 9; Hoshizaki, No. 14, p. 6).
DOE has determined to amend the test procedure in this final rule to clarify that the energy use, condenser water use, and potable water use (as described in section III.D.8) be calculated by averaging the calculated values for the three measured samples for each respective metric.
The regulations in 10 CFR 431.132 specify rounding requirements for the ACIM metrics “energy use” and “maximum condenser water use.” Specifically, DOE requires energy use to be in multiples of 0.1 kWh/100 lb and condenser water use to be in multiples of 1 gallon per 100 pounds of ice (“gal/100 lb”). 10 CFR 431.132.
AHRI Standard 810-2007, which is currently incorporated by reference in the DOE test procedure, and AHRI Standard 810 (I-P)-2016 with Addendum 1, which was proposed for use in the December 2021 NOPR, specify rounding requirements for the following quantities:
In the December 2021 NOPR, DOE proposed to incorporate by reference AHRI Standard 810 (I-P)-2016 with Addendum 1, which would include the rounding requirements shown in Table III.12, with the exception of the provision for harvest rate. 86 FR 72322, 72349. For harvest rate, the specified rounding to the nearest 1 lb/24 h could represent a significant percentage of harvest rates for low-capacity ACIMs. As discussed in section III.D.2, DOE observed low-capacity ACIMs available on the market with harvest rates as low as 7 lb/24 h. For this harvest rate, rounding to the nearest pound would allow a range of measured performance of approximately ±7 percent to have the same harvest rate result. Section 5.5.1 of ASHRAE Standard 29-2015 provides that ice-weighing instruments have accuracy and readability of ±1.0% of the quantity measured. Therefore, to avoid rounding harvest rate to a level that could impact test procedure accuracy, DOE proposed that harvest rate be rounded to the nearest 0.1 lb/24 h for ACIMs with harvest rates less than or equal to 50 lb/24 h. 86 FR 72322, 72349. DOE further discusses rounding requirements in section III.E.2.
DOE has determined to amend the test procedure in this final rule to require the rounding requirements specified in AHRI Standard 810 (I-P)-2016 with Addendum 1 except that for ACIMs with harvest rates less than or equal to 50 lb/24 h, the harvest rate shall be rounded to the nearest 0.1 lb/24 h.
DOE also proposed in the December 2021 NOPR to specifically state that all calculations must be performed with raw measured values and that only the resultant energy use, condenser water use, and harvest rate metrics be rounded. 86 FR 72322, 72349.
In response to the December 2021 NOPR, Hoshizaki and AHRI agreed with this assessment, but requested that any clarification be addressed by the ASHRAE 29 standard committee.
DOE has determined to amend the test procedure in this final rule to require that all calculations must be performed with raw measured values and that only the resultant energy use, water use, and harvest rate metrics be rounded.
In addition, ASHRAE Standard 29-2015 specifies stabilization requirements in terms of either percent or absolute weight without specifically referencing a calculation for percent variation. In the December 2021 NOPR, DOE proposed to apply the following equation to calculate the percent difference between any two measurements. 86 FR 72322, 72349. This includes any calculation to determine if the ice production rate has stabilized between cycles or samples, as described in section III.D.2.
The proposed equation for calculating percent difference may affect when a unit meets the stability criteria, but DOE determined it would not affect the stabilization determination for any of the over 50 ice maker tests conducted prior to this rulemaking. 86 FR 72322, 72344.
In the December 2021 NOPR, DOE requested comment on its proposal to clarify that percent difference shall be calculated based on the average of the two measured values. 86 FR 72322, 72349.
In response to the December 2021 NOPR, Hoshizaki agreed that this proposal can help in understanding of how percent difference is calculated and should be spelled out in the Code of Federal Regulation's language but requested that this be addressed by the ASHRAE 29 standard committee. (Hoshizaki, No. 14, p. 7) AHRI agreed with DOE that these could be valid proposed changes. (AHRI, No. 13, p. 9)
To ensure consistency in stability determinations, DOE is amending the test procedure in this final rule to require that percent difference be calculated based on the average of the two measured values.
The water use of an ACIM includes water used in making the harvested ice; any dump or purge water used as part of the ice making process; and for water-cooled ACIMs, the water used to transfer heat from the condenser. In establishing initial standards for ACIMs, Congress addressed the latter type of water use. For ACIMs that produce cube type ice with capacities between 50 and 2,500 pounds per 24-hour period, EPCA specified maximum condenser water use rates (in gallons per 100 pounds of ice). (42 U.S.C. 6313(d)(1)) In a note to the table establishing initial maximum condenser water use rates, the statute provides that “Water use is for the condenser only and does not include potable water used to make ice.” (
In the January 2012 final rule, DOE noted that 42 U.S.C. 6313(d) does not require DOE to develop a water conservation test procedure or standard for potable water use in cube type ice makers or other ACIMs; rather, it sets forth energy and condenser water use standards for cube type ice makers at 42 U.S.C. 6313(d)(1), and allows, but does not require, the Secretary to issue analogous standards for other types of ACIMs under 42 U.S.C. 6313(d)(2). 77 FR 1591, 1605.
DOE further stated that ambiguous statutory language may lead to multiple interpretations in the development of regulations.
DOE also stated that while there is generally a positive correlation between energy use and potable water use, DOE understands that at a certain point the relationship between potable water use and energy consumption reverses due to scaling.
ASHRAE Standard 29-2015 and AHRI Standard 810 (I-P)-2016 with Addendum 1 include measurements and rating requirements for potable water use. The measurement of “non-condenser” potable water use (
As stated in the March 2019 RFI, DOE reviewed the relationship between potable water use with harvest rate and daily energy consumption by analyzing reported ACIM data from the AHRI directory and the ENERGY STAR product database.
Because energy use can be affected by many factors other than potable water use, the lack of a clear trend between energy use and potable water use does not provide a definitive indication of the extent of the relationship between energy use and potable water use. 86 FR 72322, 72350. Although the exact
In the December 2021 NOPR, DOE initially determined that ACIMs currently available on the market have a wide range of potable water use, and the relationship between potable water use and energy use and harvest rate is not clear. 86 FR 72322, 72350. Based on its inclusion in the AHRI certification program and ENERGY STAR qualification criteria, potable water use may be a useful measurement as part of characterizing the energy use associated with ACIM performance.
DOE proposed that the measurement of potable water use would generally follow the test methods in AHRI Standard 810 (I-P)-2016 with Addendum 1 and ASHRAE Standard 29-2015, but with the additional test procedure amendments as proposed in the December 2021 NOPR. 86 FR 72322, 72350. This proposed approach is generally consistent with the methods currently used for the AHRI and ENERGY STAR programs; additionally, DOE does not expect that the additional test provisions as proposed in the December 2021 NOPR would impact performance as measured under the existing approaches used by AHRI (AHRI Standard 810 (I-P)-2016 with Addendum 1) or ENERGY STAR (AHRI Standard 810-2007).
DOE also proposed to add a definition of “potable water use” in 10 CFR 431.132. 86 FR 72322, 72350. DOE proposed to define “potable water use” as the amount of potable water used in making ice, which is equal to the sum of the ice harvested, dump or purge water, and the harvest water, expressed in gal/100 lb, in multiples of 0.1, and excludes any condenser water use.
In the December 2021 NOPR, DOE noted that AHRI Standard 810 (I-P)-2016 with Addendum 1 specifies under the “Certified Ratings” section that potable water use rate is applicable to batch type ice makers only, but that AHRI's Directory of Certified Product Performance includes the potable water use rate for both batch type and continuous type ACIMs.
In the December 2021 NOPR, DOE requested comment on the proposal to include a voluntary method for measuring potable water use, including the value or drawbacks of such an approach, in 10 CFR 431.134 according to the industry standards and additional test procedure proposals as discussed in the NOPR. 86 FR 72322, 72350.
In response to the December 2021 NOPR, Hoshizaki and AHRI commented that potable water requirements are not covered by the regulation today and added that potable water restrictions should be reviewed against sanitation requirements to ensure no issues or impact on performance. (Hoshizaki, No. 13, p. 9; AHRI, No. 13, p. 9) Hoshizaki added that ASHRAE 29 and AHRI 810 account for the collected water use. (Hoshizaki, No. 14, p. 7)
The Joint Commenters and CA IOUs encouraged DOE to require that potable water use be measured and reported, which would ensure that information about the potable water use of all ice maker models is available to purchasers so that they can make informed decisions. (Joint Commenters, No. 15, p. 3; CA IOUs, No. 16, p. 4) The CA IOUs added that due to the ambiguous relationship between potable water use and efficiency, more reporting from manufacturers will elucidate these impacts. (CA IOUs, No. 16, p. 7) The CA IOUs supported DOE's potable water usage measurement. (CA IOUs, No. 16, p. 4)
The Joint Commenters stated that manufacturers are already measuring potable water use as part of the ENERGY STAR and AHRI certification and programs. (Joint Commenters, No. 15, p. 3) The CA IOUs commented that ASHRAE 29 covers water consumption methodology; however, manufacturers only report water consumption data to ENERGY STAR, which covers approximately 30 percent of the market. (CA IOUs, No. 16, p. 4) The Joint Commenters added that while most ACIM models in the AHRI directory meet the ENERGY STAR potable water use requirements, the three highest water-consuming models consume 120%, 97%, and 72% more potable water than the ENERGY STAR requirements.
The CA IOUs commented that DOE's NOPR cites “Prohibited Representations,” to avoid imposing a mandate for representations with regard to potable water use (86 FR 72322, 72350); however, CA IOUs stated that nowhere in this provision does Congress bar DOE from imposing a representation requirement for water use.
CA IOUs commented that currently, the ASHRAE 29 test method does not adequately capture water consumption from purge cycles, which may occur every one to twelve harvest cycles and can be adjusted by a technician in the field, and recommended that purge cycle water consumption should be measured for batch machines and integrated into the reported total water consumption of the machine. (CA IOUs, No. 16, p. 4) The CA IOUs added that the results for energy use may differ; energy use may increase as pre-cooled water near the freezing point is lost as purge water, or it may decrease if additional dump and purge water leads to lessened scaling in the ice maker.
Because DOE does not regulate ACIM potable water use and because the DOE test procedures are used to determine compliance with energy and condenser water use (as applicable) standards, the harvest rate, energy use, and condenser water use (as applicable) are the relevant required metrics. DOE acknowledges that potable water use may be a useful measurement as part of characterizing the performance of an ACIM and is providing a repeatable and reproducible test method that allows potable water use to be tested consistently with the other performance metrics. DOE is maintaining in this final rule a voluntary method for measuring potable water use in 10 CFR 431.134 that generally follows the test methods in AHRI Standard 810 (I-P)-2016 with Addendum 1 and ASHRAE Standard 29-2015 with some modifications, consistent with the December 2021 NOPR.
In the December 2021 NOPR, DOE did not propose to adjust potable water use based on ice hardness factor, as is currently required for energy use and condenser water use. 86 FR 72322, 72351. Both energy use and condenser water use correspond to the amount of heat removed from the potable water in producing ice.
In the December 2021 NOPR, DOE requested comment on its proposal that potable water use is not adjusted based on ice hardness factor. 86 FR 72322, 72351.
In response to the December 2021 NOPR, Hoshizaki and AHRI agreed that potable water should not be adjusted based on ice hardness. (Hoshizaki, No. 14, p. 7; AHRI, No. 13, p. 9)
DOE has determined in this final rule to not adjust the potable water use based on ice hardness.
Potable water use for portable ACIMs is different than for ACIMs with a fixed water connection. As discussed, portable ACIMs require that the fill reservoir be filled manually with the maximum volume of water that is recommended by the manufacturer. In a portable ACIM, the unused ice collected in the ice storage bin slowly melts. This melt water is recycled back into the potable water reservoir to be reused. Unlike batch type non-portable ACIMs, there is no dump or purge water to be measured. For portable ACIMs, water introduced to the reservoir is typically only removed from the unit as ice (and any corresponding melt water). Therefore, in the December 2021 NOPR, DOE proposed that the potable water use rate for portable ACIMs be defined as equal to the weight of ice and any corresponding melt water collected for the capacity test as specified in section 7.2 of ASHRAE Standard 29-2015. 86 FR 72322, 72351.
In the December 2021 NOPR, DOE requested comment on the proposal that the potable water use rate of portable ACIMs be defined as equal to the weight of ice and water captured for the capacity test, as specified in section 7.2 of ASHRAE Standard 29-2015. 86 FR 72322, 72351.
In response to the December 2021 NOPR, Hoshizaki agreed to the calculation method if the ASHRAE 29-2015 standard is adopted at this time. (Hoshizaki, No. 14, p. 7)
DOE is maintaining in this final rule that the potable water use rate of portable ACIMs be defined as equal to the weight of ice and water captured for the capacity test, as specified in section 7.2 of ASHRAE Standard 29-2015, consistent with the December 2021 NOPR.
In addition to updates to the ACIM test procedure, DOE proposed in the December 2021 NOPR revisions to the provisions related to the sampling plan and the determination of represented values currently specified at 10 CFR 429.45. 86 FR 72322, 72351. DOE also proposed to add equipment-specific enforcement provisions for ACIMs to 10 CFR 429.134.
In subpart B to 10 CFR part 429, DOE provides uniform methods for manufacturers to determine representative values of energy- and non-energy-related metrics for each basic model of covered equipment. The purpose of a statistical sampling plan is to provide a method to ensure that the test sample size (
DOE currently specifies the ACIM-specific sampling plans and requirements for the determination of represented values at 10 CFR 429.45. The sampling plan and method for determining represented values applies to represented values of maximum energy use, or other measures of energy consumption for which consumers would favor lower values.
The reference to “maximum energy use” and “maximum condenser water use” in 10 CFR 429.45 could be misinterpreted to refer to the energy and water conservation standard levels for that basic model (
Similarly, 10 CFR 431.132 includes a definition for the term “maximum condenser water use.” This language may also be misinterpreted to refer to the condenser water conservation standard level for a basic model as opposed to the tested condenser water use. Therefore, in the December 2021 NOPR, DOE proposed to modify the term and definition of “maximum condenser water use” to instead refer to the term “condenser water use.” 86 FR 72322, 72351. This modification is consistent with the existing definition of “energy use” in 10 CFR 431.132.
In 10 CFR 429.45(a)(2)(ii), DOE also specifies calculation procedures for energy efficiency metrics, or measures of energy consumption where consumers would favor higher values. As DOE's test procedure does not require determining any values of energy efficiency or other measure of performance for which consumers would favor higher values, DOE proposed to remove this provision in the December 2021 NOPR. 86 FR 72322, 72351.
In addition to energy related metrics, 10 CFR 429.45 mandates the reporting of harvest rate, a key non-energy metric associated with determining energy and condenser water standards for ACIM equipment, as applicable. However, 10 CFR 429.45 does not specify how the represented value of harvest rate for
In the December 2021 NOPR, DOE requested comment on its proposal to amend the sampling plan and reporting requirements for ACIMs in 10 CFR 429.45. 86 FR 72322, 72351. DOE sought information on how manufacturers are currently interpreting “maximum energy use” and “maximum condenser water use” in the context of the sampling and certification report requirements, how manufacturers are currently determining harvest rates, and whether the proposed amendments would impose any burden on manufacturers.
In response to the December 2021 NOPR, Hoshizaki and AHRI commented that further clarification is needed for this proposal. (Hoshizaki, No. 14, p. 7; AHRI, No. 13, p. 9) Hoshizaki requested that this be brought to the ASHRAE 29 standard committee for clarification and comment. (Hoshizaki, No. 14, p. 7)
AHRI commented that the definitions used by the method of test and rating standards are accurate today and should be adopted by DOE without modification. (AHRI, No. 13, p. 9-10) AHRI added that there are differences between reporting for some certification programs and DOE reporting although all values are determined per the current method of test and rating standard. (AHRI, No. 13, p. 9-10)
The sampling plan and determination of represented values amendments proposed in the December 2021 NOPR would clarify the terminology and requirements and would not impose any additional burden on manufacturers because DOE believes the clarifications are consistent with how manufacturers are currently testing.
DOE is maintaining in this final rule the amends to the sampling plan and reporting requirements for ACIMs in 10 CFR 429.45, replacing the term “maximum energy use” and “maximum condenser water use” in 10 CFR 429.45 with the term “energy use” and “condenser water use”, respectively, and modifying the term and definition of “maximum condenser water use” at 10 CFR 431.132 to instead refer to “condenser water use”, consistent with the December 2021 NOPR.
DOE currently requires test results for ACIMs to be rounded, as discussed in section III.D.7; however, the requirements in 10 CFR 429.45 do not specify how values calculated in accordance with 10 CFR 429.45(a) would be rounded. To ensure consistency, DOE proposed, in the December 2021 NOPR, that any calculations according to 10 CFR 429.45 be rounded consistent with the rounding requirements for individual test results. 86 FR 72322, 72351-72352. Specifically, DOE proposed to require that values calculated from a test sample be rounded as follows: energy use to the nearest 0.01 kWh/100 lb, condenser water use to the nearest gal/100 lb, and harvest rate to the nearest 1 lb/24 h (for ACIMs with harvest rates greater than 50 lb/24 h) or to the nearest 0.1 lb/24 h (for ACIMs with harvest rates less than or equal to 50 lb/24 h). 86 FR 72322, 72352.
In the December 2021 NOPR, DOE requested comment on its proposal to require that values calculated from a test sample be rounded as follows: energy use to the nearest 0.01 kWh/100 lb, condenser water use to the nearest gal/100 lb, and harvest rate to the nearest 1 lb/24 h (for ACIMs with harvest rates greater than 50 lb/24 h) or to the nearest 0.1 lb/24 h (for ACIMs with harvest rates less than or equal to 50 lb/24 h). 86 FR 72322, 72352.
In response to the December 2021 NOPR, Hoshizaki and AHRI requested that any changes to the calculation of values be addressed by the AHRI 810 standard committee. (Hoshizaki, No. 14, p. 7; AHRI, No. 13, p. 10) AHRI added that changes made during this rulemaking should be consistent with the current version of AHRI Standard 810, and DOE is welcome to participate in any AHRI standard working groups to provide suggestions for consideration. (AHRI, No. 13, p. 10)
As discussed in section III.D.7, DOE is amending the rounding requirements in this final rule to be consistent with AHRI Standard 810 (I-P)-2016 with Addendum 1, except that for ACIMs with harvest rates less than or equal to 50 lb/24 h, the harvest rate shall be rounded to the nearest 0.1 lb/24 h.
DOE is maintaining in this final rule that values calculated from a test sample are required to be rounded as follows: energy use to the nearest 0.01 kWh/100 lb, condenser water use to the nearest gal/100 lb, and harvest rate to the nearest 1 lb/24 h (for ACIMs with harvest rates greater than 50 lb/24 h) or to the nearest 0.1 lb/24 h (for ACIMs with harvest rates less than or equal to 50 lb/24 h), consistent with the December 2021 NOPR.
Subpart C of 10 CFR part 429 establishes enforcement provisions applicable to covered products and covered equipment, including ACIMs. Product-specific enforcement provisions are provided in 10 CFR 429.134, but that section currently does not specify product-specific enforcement provisions for ACIMs. The DOE requirements in 10 CFR 429.134 provide which ratings or measurements will be used to determine the applicable energy or condenser water conservation standard. Normally, DOE provides that the certified metric would be used for enforcement purposes (
Section 7.1 of ASHRAE Standard 29-2009, incorporated by reference into the DOE ACIM test procedure, allows for a two percent weight variation between collected ice samples when establishing stability of an ACIM. Additionally, section 5.5.1 of ASHRAE Standard 29-2009 specifies that the ice-weighing instruments are required to be accurate to within 1.0 percent of the quantity measured. Due to the allowable variability in test measurements, a five percent tolerance around the rated capacity value likely is appropriate for ACIMs. This tolerance is consistent with the tolerance for ice harvest rate ratings as specified in section 5.4 of AHRI Standard 810 (I-P)-2016 with Addendum 1. In the December 2021 NOPR, DOE proposed that the certified capacity metric for ACIMs (
In the December 2021 NOPR, DOE requested comment on its proposal to include a new paragraph in 10 CFR 429.134 to specify how to determine whether the certified or measured harvest rate is used to calculate the maximum energy consumption and maximum condenser water use levels. 86 FR 72322, 72352. DOE also requested comment on whether a five percent tolerance for the average measured harvest rate compared to the certified harvest rate is an appropriate tolerance for such purposes, and if not, what tolerance is appropriate.
In response to the December 2021 NOPR, Hoshizaki commented that further clarification is needed to determine a response. (Hoshizaki, No. 14, p. 7) Hoshizaki requested that this be brought to the ASHRAE 29 standard committee for clarification and comment. (Hoshizaki, No. 14, p. 7)
Subpart C of 10 CFR 429.134 establishes product-specific enforcement provisions applicable to covered products and covered equipment. The DOE requirements in 10 CFR 429.134 provide which ratings or measurements will be used to determine the applicable energy or water conservation standard. DOE's enforcement provisions are outside the scope of industry standards and, therefore, ASHRAE 29 does not apply to DOE's enforcement provisions.
DOE is maintaining in this final rule the inclusion of a new paragraph in 10 CFR 429.134 to specify how to determine whether the certified or measured harvest rate is used to calculate the maximum energy consumption and maximum condenser water use levels and to establish a five percent tolerance for the average measured harvest rate compared to the certified harvest rate, consistent with the December 2021 NOPR.
In this final rule, DOE amends the ACIM test procedure to include low-capacity ACIMs in the scope of the test procedure; references the most recent versions of the test procedures incorporated by reference; clarifies the stability criteria; revises clearances for test installations; includes additional updates to clarify appropriate test measurements, conditions, settings, and setup requirements; establishes provisions for the voluntary measurement of potable water use; and updates calculation instructions. The following paragraphs discuss DOE's determination of any impacts on testing costs or measured performance resulting from these amendments.
In the January 2012 final rule, DOE estimated a per-test cost of $5,000 to $7,500 for the current ACIM test procedure. 77 FR 1591, 1610. In the December 2021 NOPR, DOE initially determined that the low end of that range, or $5,000, is representative of current ACIM per test cost. 86 FR 72322, 72352.
As discussed in section III.D.2, the current test procedure requires multiple cycles to determine stability, after which additional cycles are performed to measure performance. In this final rule, DOE references the updated version of ASHRAE Standard 29-2015, which includes updated stabilization requirements, and expressly requires that the cycles or samples used for the capacity test are stable, thus eliminating the need to perform separate cycles for meeting the stability criteria and for testing performance (
In the December 2021 NOPR, DOE estimated that total ice maker test duration, including set up, pull-down, and test operation currently requires 8 hours. 86 FR 72322, 72352. Under the amended approach, consistent with the December 2021 NOPR, DOE estimates that the total test time will decrease by approximately 1 hour, representing a 12.5-percent reduction in test duration. Taking overhead costs into account, consistent with the December 2021 NOPR, DOE estimates that the proposed stabilization requirement will decrease the test cost by approximately 6 percent, or $300 per test based on the initial $5,000 per-test estimate. Because DOE requires manufacturers to test at least two units per model to certify performance, testing will cost manufacturers approximately $600 less per basic model for all future basic models tested in accordance with this amended test procedure, resulting in a total test cost of $9,400 per basic model.
In response to the December 2021 NOPR, Hoshizaki commented that the use of test cycles to confirm stability is already done, so no additional cost is associated. (Hoshizaki, No. 14, p. 7)
AHRI commented that stability should be determined in accordance with ASHRAE Standard 29 Provisions to avoid any incurred cost to testing. (AHRI, No. 13, p. 10)
IOM commented that DOE's proposal to further restrict the definition of “stability” has the potential to increase burden and cost, as all test cycles must have ice harvest rates within 2% rather than consecutive test cycles. (IOM, No. 11, p. 3)
AHAM commented that DOE deviated from ASHRAE and AHRI standards in some ways in order to create a test procedure that could be applicable to residential products but that the proposed test and its deviations are unworkable, unrealistic, and burdensome given the way residential appliance manufacturers carry out testing and the test facilities residential ice maker manufacturers have. (AHAM, No. 18, p. 9) AHAM also stated that since the proposed test requires complete attention to the test once it starts, the technician must be dedicated to this test due to the time requirements of 15 minutes for the fill, plus-or-minus nine seconds to empty the bin, and the five minute requirement to start the next test. (AHAM, No. 18, p. 13-14) AHAM states that this is a burdensome requirement because it will require active monitoring by the test technician as opposed to a test that can be largely automated, which may require manufacturers to hire additional technicians.
DOE acknowledges the comment regarding the potential for the amended stability requirements to increase burden and cost. Although it is possible a test unit will require additional cycles to meet the amended stability requirements, based on investigative testing using the amended stability requirements, DOE observed that the average number of cycles or samples required to reach stability was 3.0 based on a sample of 39 batch ACIM tests and 6 continuous ACIM tests which indicates that unstable operation would represent a minority of tests conducted. DOE estimates that the total test time will decrease by approximately 1 hour, representing a 12.5-percent reduction in
DOE reaffirms its determination that testing will cost manufacturers approximately $600 less per basic model for all future basic models tested in accordance with this amended test procedure, as compared to the existing test procedure. DOE recognizes that testing does require facilities and technician labor, and maintains the cost estimate of $4,700 per individual test or $9,400 when testing to certify performance of a basic model (requiring at least two test units).
As discussed in section III.D.3.a, this final rule implements a relative humidity test condition.
In the December 2021 NOPR, DOE estimated the one-time cost for purchasing relative humidity controls to range from $1,000 to $5,000, depending on the method that is chosen. 86 FR 72322, 72353. DOE estimated that the purchase and installation of a humidifier boiler with modulating valves that releases steam on the wall to control relative humidity costs $5,000, although less expensive options could be used, such as a dedicated coil with reheat, steam generators, humidifiers, and dehumidifiers.
Hoshizaki and AHRI stated that upgrading facilities for water hardness and relative humidity could incur significant facility upgrade costs. (Hoshizaki, No. 14, p. 8; AHRI, No. 13, p. 10-11) AHAM stated that the relative humidity requirement is unduly burdensome for manufacturers. (AHAM, No. 18, p. 12-13) AHAM commented that unless the test chamber was initially designed with dehumidification capabilities and appropriately sealed, there is a significant investment to achieve the 35.0 ± 5.0 percent levels required in the proposed test procedure.
Hoshizaki stated that extending tests for purge water and/or standby energy would require additional test time that would hamper design cycles. (Hoshizaki, No. 14, p. 8)
This final rule does not implement water hardness requirements as proposed in the December 2021 NOPR. Similarly, this final rule does not directly account for energy or water used during intermittent flush or purge cycles nor accounts for standby or ice storage energy use. Regarding humidity controls, DOE has reviewed and maintains its estimates from the December 2021 NOPR regarding the costs associated with purchasing relative humidity controls and instrumentation, as described in this section.
As discussed in section III.A, this final rule expands the scope of the test procedure to include low-capacity ACIMs. This final rule incorporates additional test procedure requirements to ensure appropriate testing of low-capacity ACIMs, as discussed in section III.D.1. In the December 2021 NOPR, DOE requested comment on any expected costs associated with the proposed amendment to expand test procedure scope to include low-capacity ACIMs. 86 FR 72322, 72353. Specifically, DOE requested comment on whether any manufacturers are currently making representations of low-capacity ACIM energy consumption based on test methods that would produce measures of performance that would be inconsistent with the existing DOE test procedure or the test procedure for low-capacity ACIMs as proposed in the December 2021 NOPR. 86 FR 72322, 72353-72354.
DOE stated in the December 2021 NOPR that based on a review of low-capacity ACIMs available on the market, DOE preliminarily determined that manufacturers either make no claims regarding the energy consumption of their low-capacity ACIM models, or currently specify energy consumption in accordance with the existing DOE test procedure (and referenced industry standards). DOE stated that it expects that the manufacturers currently electing to make no claims regarding low-capacity ACIM energy consumption will continue to do so even after a test procedure is established.
In response to the December 2021 NOPR, Hoshizaki commented there are representations of low-capacity ACIM energy consumption. (Hoshizaki, No. 14, p. 8) However, Hoshizaki and AHRI commented that low-capacity ACIMs were not included in the scope for DOE's 2010 or 2018 ACIM energy conservation standards. (Hoshizaki, No. 14, p. 8; AHRI, No. 13, p. 11) AHRI urged DOE to exclude low-capacity units until they are included into the appropriate method of test because including these units would require significant testing to factor the energy use and any changes to meet the current standards designed for units above 50 pounds. (AHRI, No. 13, p. 11)
Hoshizaki requested that this be brought up in the ASHRAE 29 standard committee to discuss test method options for low-capacity ACIMs. (Hoshizaki, No. 14, p. 8)
As discussed, DOE estimates that the amended test procedure has a per-test cost of $4,700, and that testing two basic models for certification purposes would have a total cost of $9,400. To the extent that manufacturers are currently voluntarily making representations of low-capacity ACIM energy consumption based on test methods inconsistent with the DOE test procedure as amended by this final rule, such manufacturers would incur a one-time cost of $9,400 per basic model to make voluntary representations consistent with the DOE test procedure as amended by this final rule.
Low-capacity ACIMs are not currently subject to DOE testing or energy conservation standards. Manufacturers will not be required to test low-capacity ACIMs until such time as the compliance date for any newly established energy conservation standards for such equipment. Under the amended test procedure, were a manufacturer to choose to make representations of the energy efficiency or energy use of a low-capacity ACIM, beginning 360 days after publication of the final rule in the
DOE expects that any impact from the other amendments to the measured efficiency of certified ACIMs is
Specifically, DOE incorporated the following amendments: (1) updating references to the latest versions of the relevant industry standards (see section III.C); (2) clarifying stabilization criteria; (3) incorporating a test condition for relative humidity and a clarification regarding water pressure (see section
In response to the December 2021 NOPR, Hoshizaki and AHRI commented that addressing all the proposed amendments would necessitate retesting most ACIM units, placing undue burden on manufacturers. (Hoshizaki, No. 14, p. 8; AHRI, No. 13, p. 10-11) Hoshizaki added that the proposals would require testing of 190 models with multiple samples of each. (Hoshizaki, No. 14, p. 8)
DOE does not agree with Hoshizaki and AHRI's assertions that the amended test procedure would necessitate retesting most ACIM units. As this final rule discusses within each relevant section, DOE expects that any impact on measured performance from these amendments is expected to be
DOE's established practice is to adopt relevant industry standards as DOE test procedures unless such methodology would be unduly burdensome to conduct or would not produce test results that reflect the energy efficiency, energy use, water use (as specified in EPCA) or estimated operating costs of that product during a representative average use cycle. 10 CFR 431.4; section 8(c) of appendix A to subpart C of part 430. In cases where the industry standard does not meet EPCA statutory criteria for test procedures, DOE will make modifications through the rulemaking process to these standards and incorporate the modified standard as the DOE test procedure.
The test procedure for ACIMs at 10 CFR 431.134 incorporates by reference certain provisions of AHRI Standard 810-2007 and ASHRAE Standard 29-2009. DOE references 810-2007 for definitions and test procedure requirements. DOE references ASHRAE Standard 29-2009 for test procedure requirements and ice hardness factor calculations. In January 2018, AHRI released an updated version of the 810 Standard which DOE evaluated as part of this rulemaking. In January 2015, ASHRAE released an updated version of the 29 Standard which DOE evaluated as part of this rulemaking. The industry standards DOE is incorporating by reference via amendments described in this final rule are discussed in further detail in section IV.N.
The effective date for the adopted test procedure amendment will be 30 days after publication of this final rule in the
Upon the compliance date of test procedure provisions in this final rule any waivers that had been previously issued and are in effect that pertain to issues addressed by such provisions are terminated. 10 CFR 431.404(h)(3). Recipients of any such waivers are required to test the products subject to the waiver according to the amended test procedure as of the compliance date of the amended test procedure. The amendments adopted in this document pertain to issues addressed by a waiver granted to Hoshizaki in Case No. 2020-001. 85 FR 68315.
Executive Order (“E.O.”) 12866, “Regulatory Planning and Review,” as supplemented and reaffirmed by E.O. 13563, “Improving Regulation and Regulatory Review,” 76 FR 3821 (Jan. 21, 2011), requires agencies, to the extent permitted by law, 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 E.O. 13563 requires agencies to use the best available techniques to quantify anticipated present and future benefits and costs as accurately as possible. In its guidance, the Office of Information and Regulatory Affairs (“OIRA”) in the Office of Management and Budget (“OMB”) 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, this final regulatory action is consistent with these principles.
Section 6(a) of E.O. 12866 also requires agencies to submit “significant regulatory actions” to OIRA for review. OIRA has determined that this final regulatory action does not constitute a “significant regulatory action” under section 3(f) of E.O. 12866. Accordingly, this action was not submitted to OIRA for review under E.O. 12866.
The Regulatory Flexibility Act (5 U.S.C. 601
DOE reviewed this final rule under the provisions of the Regulatory Flexibility Act and the procedures and policies published on February 19, 2003. DOE has concluded that this rule would not have a significant impact on a substantial number of small entities. The factual basis for this certification is as follows: 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. The size standards and codes are established by the 2017 North American Industry Classification System (“NAICS”).
ACIM manufacturers are classified under NAICS code 333415, “Air-conditioning and Warm Air Heating Equipment and Commercial and Industrial Refrigeration Equipment Manufacturing,” which includes ice-making machinery manufacturing.
DOE conducted a focused inquiry into small business manufacturers of the equipment covered by this rulemaking. To identify companies that import or otherwise manufacture ACIMs with harvest rates greater than 50 lb/24h, DOE expanded on the analysis conducted for the December 2021 NOPR. This updated analysis included a review of DOE's Compliance Certification Database (“CCD”),
DOE then consulted publicly available data, such as individual company websites and subscription-based market research tools (
Consistent with its preliminary determination in the December 2021 NOPR, DOE does not expect small domestic ACIM OEMs to incur costs as a result of the amended test procedure. However, in the event that any test facilities require upgrade to meet the amended test conditions for relative humidity, DOE has estimated the costs of this potential upgrade to be $5,500, as discussed in section III.F.1.a of this final rule.
In response to the December 2021 NOPR, Hoshizaki commented that the proposed changes would necessitate re-testing of ACIM models by many manufacturers. Hoshizaki suggested that small entities may not have the means to test their models in house and would have to send units to test at third party labs. (Hoshizaki, No. 14, p. 8) AHRI noted that the changes outlined in the December 2021 NOPR would necessitate retesting of existing models and would therefore “most definitely place undue burden and additional cost on OEMs.” Specifically, they stated that the humidity control requirement would require retesting of every model and would also necessitate facility upgrade costs. AHRI also asserted that this requirement may limit the ability to find external test labs with appropriate test chambers and thereby disadvantage small entities who do not have the means to test in house and would be subject to scheduling at third party testing facilities. AHRI noted that the costs associated with the proposal “would not be miniscule” and such testing would not be advantageous with all the third-party testing needed to verify safety for ACIM's that are changing to flammable refrigerants. AHRI also noted that the proposed 3-foot side clearance requirement could also impact the ability of small entities participating in this market. (AHRI, No. 13, p. 11)
As detailed in section III.F.1 of this final rule, DOE expects that the impact from these amendments to the measured efficiency of certified ACIMs is expected to be
Therefore, DOE concludes that the cost effects accruing from the final rule would not have a “significant economic impact on a substantial number of small entities,” and that the preparation of a FRFA is not warranted. DOE has submitted a certification and supporting statement of factual basis to the Chief Counsel for Advocacy of the Small Business Administration for review under 5 U.S.C. 605(b).
Manufacturers of ACIMs must certify to DOE that their products comply with any applicable energy conservation standards. To certify compliance, manufacturers must first obtain test data for their products according to the DOE test procedures, including any amendments adopted for those test procedures. DOE has established regulations for the certification and recordkeeping requirements for all covered consumer products and commercial equipment, including ACIMs. (
DOE is not amending the certification or reporting requirements for ACIMs in this final rule. Instead, DOE may consider proposals to amend the certification requirements and reporting for ACIMs under a separate rulemaking regarding appliance and equipment certification. DOE will address changes to OMB Control Number 1910-1400 at that time, as necessary.
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.
In this final rule, DOE establishes test procedure amendments that it expects will be used to develop and implement future energy conservation standards for ACIMs. DOE has determined that this rule falls into a class of actions that are categorically excluded from review under the National Environmental Policy Act of 1969 (42 U.S.C. 4321
Executive Order 13132, “Federalism,” 64 FR 43255 (August 4, 1999), imposes certain requirements on 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 examined this final rule and determined that it will not have a substantial direct effect on the States, on the relationship between the National Government and the States, or on the distribution of power and responsibilities among the various levels of government. EPCA governs and prescribes Federal preemption of State regulations as to energy conservation for the products that are the subject of this final rule. States can petition DOE for exemption from such preemption to the extent, and based on criteria, set forth in EPCA. (42 U.S.C. 6297(d)) No further action is required by Executive Order 13132.
Regarding the review of existing regulations and the promulgation of new regulations, section 3(a) of Executive Order 12988, “Civil Justice Reform,” 61 FR 4729 (Feb. 7, 1996), imposes on Federal agencies the general duty to adhere to the following requirements: (1) eliminate drafting errors and ambiguity; (2) write regulations to minimize litigation; (3) provide a clear legal standard for affected conduct rather than a general standard; and (4) promote simplification and burden reduction. 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 sections 3(a) and 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 final rule meets the relevant standards of Executive Order 12988.
Title II of the Unfunded Mandates Reform Act of 1995 (“UMRA”) requires each Federal agency to assess the effects of Federal regulatory actions on State, local, and Tribal governments and the private sector. (Pub. L. 104-4, sec. 201 (codified at 2 U.S.C. 1531)). For a regulatory action resulting 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
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 final rule will not have any impact on the autonomy or integrity of the family as an institution. Accordingly, DOE has concluded that it is not necessary to prepare a Family Policymaking Assessment.
DOE has determined, under Executive Order 12630, “Governmental Actions and Interference with Constitutionally Protected Property Rights,” 53 FR 8859 (March 18, 1988), that this regulation will not result in any takings that might require compensation under the Fifth Amendment to the U.S. Constitution.
Section 515 of the Treasury and General Government Appropriations Act, 2001 (44 U.S.C. 3516 note) provides for 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). Pursuant to OMB Memorandum M-19-15, Improving Implementation of the Information Quality Act (April 24, 2019), DOE published updated guidelines which are available at
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 OMB, a Statement of Energy Effects for any significant energy action. A “significant energy action” is defined as any action by an agency that promulgated or is expected to lead to promulgation of a final rule, and that (1) is a significant regulatory action under Executive Order 12866, or any successor order; and (2) is likely to have a significant adverse effect on the supply, distribution, or use of energy; or (3) is designated by the Administrator of OIRA as a significant energy action. For any significant energy action, the agency must give a detailed statement of any adverse effects on energy supply, distribution, or use if the regulation is implemented, and of reasonable alternatives to the action and their expected benefits on energy supply, distribution, and use.
This regulatory action is not a significant regulatory action under Executive Order 12866. Moreover, it would not have a significant adverse effect on the supply, distribution, or use of energy, nor has it been designated as a significant energy action by the Administrator of OIRA. Therefore, it is not a significant energy action, and, accordingly, DOE has not prepared a Statement of Energy Effects.
Under section 301 of the Department of Energy Organization Act (Pub. L. 95-91; 42 U.S.C. 7101), DOE must comply with section 32 of the Federal Energy Administration Act of 1974, as amended by the Federal Energy Administration Authorization Act of 1977. (15 U.S.C. 788; “FEAA”) Section 32 essentially provides in relevant part that, where a proposed rule authorizes or requires use of commercial standards, the notice of proposed rulemaking must inform the public of the use and background of such standards. In addition, section 32(c) requires DOE to consult with the Attorney General and the Chairman of the Federal Trade Commission (“FTC”) concerning the impact of the commercial or industry standards on competition.
The modifications to the test procedure for ACIMs adopted in this final rule incorporates testing methods contained in certain sections of the following commercial standards: AHRI Standard 810 (I-P)-2016 with Addendum 1 and ASHRAE Standard 29-2015. DOE has evaluated these standards and is unable to conclude whether it fully complies with the requirements of section 32(b) of the FEAA (
As required by 5 U.S.C. 801, DOE will report to Congress on the promulgation of this rule before its effective date. The report will state that it has been determined that the rule is not a “major rule” as defined by 5 U.S.C. 804(2).
DOE incorporates by reference the following standards:
AHRI Standard 810 (I-P)-2016 with Addendum 1. Specifically, the test procedure codified by this final rule references section 3, “Definitions,” section 4, “Test Requirements,” and section 5.2, “Standard Ratings”. AHRI Standard 810 (I-P)-2016 with Addendum 1 is an industry-accepted standard that provides a method to rate the performance of automatic commercial ice makers.
AHRI standards are reasonably available from the Air-Conditioning, Heating, and Refrigeration Institute, 2111 Wilson Blvd., Suite 500, Arlington, VA 22201, 703-524-8800,
ASHRAE Standard 29-2015. ASHRAE Standard 29-2015 is an industry-accepted standard that provides a method of test to measure the performance of automatic commercial ice makers.
Copies of ASHRAE standards are reasonably available from the American Society of Heating, Refrigerating and Air-Conditioning Engineers, Inc., 1791 Tullie Circle NE, Atlanta, GA 30329, (404) 636-8400,
The Secretary of Energy has approved publication of this final rule.
Administrative practice and procedure, Confidential business information, Energy conservation, Household appliances, Imports, Intergovernmental relations, Reporting and recordkeeping requirements, Small businesses.
Administrative practice and procedure, Confidential business information, Energy conservation test procedures, Incorporation by reference, Reporting and recordkeeping requirements.
This document of the Department of Energy was signed on October 6, 2022, by Francisco Alejandro Moreno, Acting Assistant Secretary for Energy Efficiency and Renewable Energy, pursuant to delegated authority from the Secretary of Energy. That document with the original signature and date is maintained by DOE. For administrative purposes only, and in compliance with requirements of the Office of the Federal Register, the undersigned DOE Federal Register Liaison Officer has been authorized to sign and submit the document in electronic format for publication, as an official document of the Department of Energy. This administrative process in no way alters the legal effect of this document upon publication in the
For the reasons stated in the preamble, DOE amends parts 429 and 431 of chapter II of title 10, Code of Federal Regulations as set forth below:
42 U.S.C. 6291-6317; 28 U.S.C. 2461 note.
(a) * * *
(2) For each basic model of automatic commercial ice maker selected for testing, a sample of sufficient size shall be randomly selected and tested to ensure that any represented value of energy use, condenser water use, or other measure of consumption of a basic model for which consumers would favor lower values shall be greater than or equal to the higher of:
(i) The mean of the sample, where:
And, x
(ii) The upper 95 percent confidence limit (UCL) of the true mean divided by 1.10, where:
And x
(3) The harvest rate of a basic model is the mean of the measured harvest rates for each tested unit of the basic model, based on the same tests to determine energy use and condenser water use, if applicable. Round the mean harvest rate to the nearest pound of ice per 24 hours (lb/24 h) for harvest rates above 50 lb/24 h; round the mean harvest rate to the nearest 0.1 lb/24 h for harvest rates less than or equal to 50 lb/24 h.
(w)
(1) If the certified harvest rate is found to be valid, the certified harvest rate will be used as the basis for determining the maximum energy use and maximum condenser water use, if applicable, allowed for the basic model.
(2) If the certified harvest rate is found to be invalid, the average measured harvest rate of the units in the sample will be used as the basis for determining the maximum energy use and maximum condenser water use, if applicable, allowed for the basic model.
42 U.S.C. 6291-6317; 28 U.S.C. 2461 note.
The additions and revisions read as follows:
Certain material is incorporated by reference into this subpart with the approval of the Director of the Federal Register in accordance with 5 U.S.C. 552(a) and 1 CFR part 51. To enforce any edition other than that specified in this section, the U.S. Department of Energy (DOE) must publish a document in the
(a)
(1) AHRI Standard 810 (I-P)-2016 with Addendum 1,
(2) [Reserved]
(b)
(1) ANSI/ASHRAE Standard 29-2015,
(2) [Reserved]
On or after October 27, 2023, any representations, including certifications of compliance for automatic commercial ice makers, made with respect to the energy use or efficiency of automatic commercial ice makers must be made in accordance with the results of testing pursuant to this section. Prior to October 27, 2023, any representations with respect to energy use or efficiency of automatic commercial ice makers must be made either in accordance with the results of testing pursuant to this section or with the results of testing pursuant to this section as it appeared in 10 CFR 431.134 in the 10 CFR parts 200-499 edition revised as of January 1, 2022.
(a)
(b)
(c)
(2)
(3)
(4)
(ii)
(iii)
(iv)
(5)
(d)
(2)
(e)
(2)
(3)
(f)
(g)
(h)
(ii)
(iii)
(2) [Reserved]
(i)
(j)
(k)
Office of Postsecondary Education, Department of Education.
Final regulations.
The Secretary establishes new regulations governing the William D. Ford Federal Direct Loan (Direct Loan) Program to establish a new Federal standard and a process for determining whether a borrower has a defense to repayment on a loan based on an act or omission of their school. We also are amending the Direct Loan Program regulations to prohibit participating schools from using certain contractual provisions regarding dispute resolution processes and to require certain notifications and disclosures by institutions (institutions or schools) regarding their use of mandatory arbitration. Additionally, we are amending the Direct Loan regulations to eliminate interest capitalization in instances where it is not required by statute. We are also amending the regulations governing closed school discharges and total and permanent disability (TPD) discharges in the Federal Perkins Loan (Perkins), Direct Loan, and Federal Family Education Loan (FFEL) programs. We are also amending the regulations governing false certification discharges in the Direct Loan and FFEL programs. Finally, we are amending the regulations governing Public Service Loan Forgiveness (PSLF) in the Direct Loan program to improve the application process, and to clarify and expand definitions for full-time employment, qualifying employers, and qualifying monthly payments. The changes would bring greater transparency and clarity and improve the administration of Federal student financial aid programs to assist and protect students, participating institutions, and taxpayers.
These regulations are effective July 1, 2023. For the implementation dates of the regulatory provisions, see the Implementation Date of These Regulations in
For further information related to interest capitalization, contact Vanessa Freeman at (202) 987-1336 or by email at
If you are deaf, hard of hearing, or have a speech disability and wish to access telecommunications relay services, please dial 7-1-1.
The Secretary amends the regulations in seven areas affecting the Direct Loan Program and several areas that also affect the Perkins Loan Program or the FFEL Program. First, we amend the regulations governing the Direct Loan Program to establish a new Federal standard and process for determining whether a borrower has a defense to repayment of a loan. We also limit the use of certain contractual provisions regarding dispute resolution processes by participating institutions and require certain notifications and disclosures by institutions regarding their use of mandatory arbitration. Additionally, we amend the Perkins, Direct Loan, and FFEL program regulations to improve the process for granting TPD discharges by eliminating the income monitoring period, expanding the circumstances in which borrowers can qualify for discharges based on a finding of disability by the Social Security Administration, expanding allowable documentation, and allowing additional health care professionals to provide a certification that a borrower is totally and permanently disabled. We further amend the closed school discharge provisions in the Perkins Loan, Direct Loan, and FFEL programs to expand borrower eligibility for automatic discharges and eliminate provisions pertaining to reenrollment in a comparable program. Additionally, we amend the Direct Loan and FFEL regulations to streamline the regulations governing false certification discharges. We also amend the Direct Loan regulations to eliminate interest capitalization in instances where it is not required by statute. Finally, we amend regulations governing PSLF in the Direct Loan program to improve the application process and to clarify and expand the definitions of full-time employment, employee or employed, and qualifying monthly payments. The changes will bring greater transparency and clarity and improve the administration of Federal student financial aid programs to assist and protect students, participating institutions, and taxpayers.
The final regulations—
• Amend the Direct Loan regulations to establish a new Federal standard for BD claims applicable to applications received on or after July 1, 2023. Applications pending on July 1, 2023, will also be considered under the new standard. In addition, this final rule expands the existing definition of misrepresentation, provides an additional basis for a BD claim based on aggressive and deceptive recruitment practices, and allows claims based on State law standards for loans first disbursed prior to July 1, 2017.
• Provide that the Department will use a preponderance of the evidence standard to determine whether the institution committed an actionable act or omission and, as a result, the borrower suffered detriment, such that the circumstances warrant BD relief and the borrower's BD claim should be approved. In determining whether relief is warranted the Secretary will consider the totality of the circumstances, including the nature and degree of the acts or omissions and of the detriment caused to borrowers.
• Provide for a full discharge of all remaining loan balances and a refund of all amounts paid to the Secretary for loans associated with an approved BD claim.
• Establish processes for group BD claims that may be formed in response to evidence provided by third-party requestors or at the Secretary's discretion, including based on prior Secretarial Final Actions. We define Secretarial Final Actions as fine, limitation, suspension, or termination actions taken by the Department against the institution, denying the institution's application for recertification, or revoking the institution's provisional program participation agreement.
• Stop interest accrual on the borrowers' loans beginning 180 days after the initial grant of forbearance or
• Issue decisions on claims within a certain period or the loans will be deemed unenforceable.
• Establish a reconsideration process for review of denied BD claims.
• Establish a process for recouping the cost of approved discharges.
• Prohibit institutions that wish to participate in title IV programs from requiring borrowers to agree to mandatory pre-dispute arbitration agreements or waiver of class action lawsuits.
• Require institutions to disclose publicly and notify the Secretary of judicial and arbitration filings and awards pertaining to a BD claim.
• Eliminate interest capitalization on Direct Loans where such capitalization is not required by statute.
• Modify the Perkins, FFEL, and Direct Loan regulations to streamline the application process for a TPD discharge by expanding the Department's use of Social Security Administration (SSA) continuing disability review codes beyond “Medical Improvement Not Expected” when deciding if a borrower qualifies for TPD discharge.
• Revise the Perkins, FFEL, and Direct Loan regulations to eliminate the 3-year post-discharge income monitoring period for borrowers eligible for TPD discharge to allow borrowers to retain their discharges without unnecessary paperwork burden.
• Allow borrowers to receive a TPD discharge if the established onset date of their disability as determined by SSA was at least 5 years prior to the application to better align the regulations with statutory requirements for a TPD discharge.
• Expand the list of health professionals who may certify that a borrower is totally and permanently disabled to include licensed nurse practitioners (NPs), physician's assistants (PAs), and clinical psychologists to help borrowers more easily complete the application for a TPD discharge.
• Amend the Perkins, FFEL, and Direct Loan regulations to simplify the closed school discharge process by expanding access to automatic discharges and clarify the circumstances when borrowers who reenroll in a comparable program are not eligible for a discharge.
• Streamline the FFEL and Direct Loan false certification regulations to provide one set of regulatory standards that will cover all false certification discharge claims.
• Clarify that, to determine eligibility for a false certification discharge, the Department relies on the borrower's status at the time the Direct loan was originated, and at the time the FFEL loan was certified.
• Revise the regulations for PSLF to improve the application process, expand what counts as an eligible monthly payment, expand the definition of “full-time” employment, and provide additional clarifying definitions of public service employment to reduce confusion and to clearly establish the definitions of qualifying employment for borrowers.
• Expand the definition of “employee” or “employed” to include someone who works as a contracted employee for a qualifying employer in a position or provides services which, under applicable State law, cannot be filled or provided by a direct employee of the qualifying employer.
Affordability of postsecondary education and student loan debt have been significant challenges for many Americans. Total outstanding student loan debt has risen over the past 10 years as student loan repayment has slowed, while the inability to repay student loan debt has been cited as a major obstacle to entry into the middle class.
This final rule provides several significant improvements to existing programs authorized under the Higher Education Act of 1965, as amended (HEA)
The final rule makes changes related to discharges available to borrowers in the three major Federal student loan programs: Direct Loans, FFEL, and Perkins Loans. The most significant effects are in the Direct Loan program, which has been the predominant source of all new Federal student loans since 2010. In this program, the Department makes loans directly to the borrower and then contracts with private companies known as student loan servicers to manage the borrower's repayment experience on behalf of the Department. Several components of these regulations, such as interest capitalization, BD, the prohibition on the use of mandatory pre-dispute arbitration and class action waivers, and the PSLF program only apply to Direct Loans. Other provisions addressed in these regulations, such as closed school discharge, and TPD discharges, affect Direct Loans as well as loans previously made under the FFEL Program and the Perkins Loan Program.
The negotiated rulemaking committee (Committee) that considered the draft regulations on these topics reached consensus on the proposed regulations relating to interest capitalization, false certification discharges, and TPD; they did not reach consensus on BD, pre-dispute arbitration agreements and class action waivers, closed school discharge, or PSLF.
On July 13, 2022, the Secretary published a notice of proposed rulemaking (NPRM) for these parts in the
The costs to taxpayers in the form of transfers include BD claims that are not reimbursed by institutions; additional relief through closed school, PSLF, TPD, and false certification discharges to borrowers through programs to which they are legally entitled under the HEA; and the foregone interest where capitalizing interest is not required. The paperwork burden associated with reporting and disclosure requirements necessary to ensure compliance with these regulations represents an additional cost to institutions.
Consistent with the Department's objective to improve the implementation of PSLF, the Secretary intends to exercise his authority under section 482(c) to designate the simplified definition for full-time employment in PSLF as a provision that an entity subject to the provision may, in the entity's discretion, choose to implement prior to the effective date of July 1, 2023. The Secretary may specify in the designation when, and under what conditions, an entity may implement the provision prior to the effective date. The Secretary will publish any designation under this subparagraph in the
The Secretary does not intend to exercise his authority to designate any other regulations in this document for early implementation. The final regulations included in this document are effective July 1, 2023.
We developed these regulations through negotiated rulemaking. Section 492 of the HEA requires that, before publishing any proposed regulations to implement programs under title IV of the HEA, the Secretary must obtain public involvement in the development of the proposed regulations. After obtaining advice and recommendations, the Secretary must conduct a negotiated rulemaking process to develop the proposed regulations. The negotiated rulemaking Committee considered each issue separately to determine consensus and reached consensus on the proposed regulations addressing interest capitalization, TPD, and false certification discharges. The Committee did not reach consensus on the remaining proposed regulations that we published on July 13, 2022.
We group major issues according to subject, with appropriate sections of the regulations referenced in parentheses. We discuss other substantive issues under the sections of the regulations to which they pertain. Generally, we do not address minor, non-substantive changes (such as renumbering paragraphs, adding in a word, or typographical errors). Additionally, we do not address recommended changes that the statute does not authorize the Secretary to make (such as forgiving all student loans, setting interest rates to 0 percent, or providing forgiveness under PSLF after 60 payments instead of 120) or comments pertaining to operational processes. We also do not address comments pertaining to issues that were not within the scope of the NPRM. An analysis of the public comments received and of the changes in the regulations since publication of the NPRM follows.
As the Federal negotiator explained in the first negotiated rulemaking session, the Department deliberately placed students front and center in the discussion by including constituencies for dependent students, independent students, and student loan borrowers.
While the Department did not identify civil rights organizations as a stand-alone constituency for this negotiated rulemaking table, representatives from that group had several opportunities to be involved with negotiated rulemaking, including during the public comment period after each rulemaking session and by submitting written comments on the proposed rule. In fact, several civil rights organizations submitted comments to the Department. With respect to the request for greater representation of proprietary schools, the Department believes it correctly identified proprietary institutions as a single constituency group. None of the negotiated topics discussed during these sessions related solely to the proprietary sector. Moreover, these institutions represent a smaller share of students than those in the private nonprofit sector, which also had only a single representative.
The full negotiated rulemaking Committee reached agreement on its protocols, including the constituencies represented on the committee and committee membership.
Finally, the Department disagrees that the negotiated rulemaking process was rushed. We conducted three public hearings to comment on the rulemaking agenda.
Second, while the Executive Orders cited by the commenters direct each agency to afford the public a meaningful opportunity to comment, those Executive Orders do not require a 60-day comment period.
Unlike simple notice-and-comment rulemaking, the negotiated rulemaking process affords ample opportunities for the public to not only comment but also to understand the Department's proposed rules and policies. We livestreamed the complete negotiated rulemaking sessions on our website, posted recordings of the livestreams, as well as the transcripts of the rulemaking sessions for later review. In addition, we provided an opportunity for public comment at the end of each day the committee met, and posted each iteration of draft proposed regulatory text that the committee reviewed. Thus, the Department has met the requirements provided in those Executive Orders to afford the public a meaningful opportunity to comment and participate in the Department's rulemaking process.
These regulations also provide a path for recouping the cost of approved discharges from institutions when warranted and after significant due process opportunities. We address commenters' arguments with respect to specific provisions of the regulations in the sections of this preamble specific to those provisions.
Commenters also argued that the Department lacks the legal authority to issue these regulations, that components of the regulations were too vague, that institutions are not afforded sufficient due process under the proposed rules, and that the regulations represented impermissible Departmental involvement in matters of State law. Commenters also expressed displeasure with other specific components of the regulations, such as the proposed group process.
The Department believes that the proposed rule included procedures that would allow it to deny claims that lacked sufficient evidence or that did not meet the standard for a BD claim. In particular, under the proposed rules, the Department would obtain information from institutions and, in the case of a claim alleging misrepresentation by the institution, require a showing of reasonable reliance by the borrower. Nevertheless, in this final rule we have adopted additional changes suggested by commenters to clarify the standard that must be met for a claim to be approved and to specify how the Department will ensure claims include sufficient detail to permit consideration by the Department. The final regulations require that, to approve a claim, the Department must conclude that the institution's act or omission is an actionable ground for BD that caused detriment to the borrower that warrants relief (the Federal standard definition for a BD in § 685.401). This general standard incorporates enumerated categories of conduct (“actionable act or omission”) that affect the fairness of the transaction underlying the borrower's loan obligation. (Unless otherwise indicated hereinafter, “act or omission” refers to an “
Under this standard and its accompanying regulations, the Department will have flexibility in determining the universe of evidence to be considered, while ensuring that relief-worthy claims are supported by sufficient evidence of the institution's wrongdoing. The Department is also providing greater clarity regarding what constitutes a materially complete application that can then be adjudicated (§§ 685.402(c) and 685.403(b)), which will ensure that applications include a sufficient degree of detail and, where applicable, evidentiary support.
These regulations should have a deterrent effect dissuading institutions from engaging in conduct that would give rise to a defense to repayment. To be clear, however, the Department does not consider recoupment for the amounts of BD discharges to be a sanction or punishment for the acts or omissions that impugn the underlying transaction involving a borrower's enrollment, tuition, and loan. The deterrent effect that flows from the risk of punishment is applied by operation of the Department's regulations providing for fine, suspension, termination, and other sanctions.
The regulations should, however, have the type of deterrent effect that proceeds from predictably ensuring parties fulfill the commitments they have made. By setting forth a clearer and more robust Federal standard for BD claims and a rigorous group claim process, institutions that might otherwise engage in questionable behavior will change their practices and act more ethically and truthfully. That is, the Department believes the standards and processes in this rule will mitigate the risk of moral hazard if unfulfilled commitments are ignored. The Department believes there will be a future deterrent effect even in the situations where the institution is not held liable for the expense of the approved discharge because there would be a higher likelihood of successful recoupment on more recently disbursed loans.
In this context, the Department notes that the circumstances in which an institution is most likely to face considerable costs related to BD claims are likely the strongest indication of actionable wrongdoing. BD applications filed by State regulators following
The Department also does not agree that the commenters' concerns about reputational harm for institutions, the potential for actions by other regulators, and the possibility of borrower lawsuits solely stemming from approved claims are reasons to make significant changes to the proposed rules. To the extent commenters refer to the risk of erroneous BD decisions causing harm to the institution, we will only grant a discharge when adequate evidentiary support exists—a finding that will occur only after considering evidence and arguments submitted by the institution. Additionally, we only assess liabilities against the institution if we initiate a recoupment action. That action will afford schools the same procedural rights and protections available in any other situation in which an institution is assessed a monetary liability associated with title IV.
Regarding potential risks for institutions independent of actual liability determinations, the Department notes that the HEA clearly provides borrowers the right to assert a defense to repayment based on an alleged wrongdoing by an institution in the same way any consumer may invoke legal remedies against a seller or service provider. The Department is obligated to consider those claims. The Department does not conclude that concerns about hypothetical institutional harms, independent of actual liability determinations, override the concern for students harmed by institutional misconduct and the Department's obligation to consider claims alleging such harm.
To the extent commenters are concerned with risks flowing from the sole act of the Department granting claims, irrespective of recoupment or any determination of actual liability on the school's part, the Department does not consider the marginal risk of such harm to warrant conditioning borrower relief on a finding of school liability or changing the sequence of those determinations. Were the Department to make borrower relief and school liability coextensive or to make each adjudicatory step an adversarial process between the borrower and the school, it would create unrealistic barriers for borrowers and an insurmountable administrative burden for the Department.
Furthermore, although the Department must disclose certain records upon request, it does not publicize the outcomes of individual BD applications. Commenters did not point to specific or particularized harm that any open school has suffered as a result of the Department granting any individual applications in the past. At least one comment from an institution referenced inquiries it had received from a State regulator and a lender because the settlement agreement that, at the time of this final rule, has received preliminary approval.
To the extent that harm from solely granting a borrower's claim could be shown, either now or in the future, that is simply a by-product of the statute and structure of title IV. First, by its terms, the defense to repayment under the HEA is invoked against the Department, not schools. For that reason, regulations giving context to the HEA's BD provision must principally address the circumstances in which borrowers invoke that defense. Properly separating the BD discharge decisions from liability determinations provides a process that is administratively feasible for the Department and allows borrowers to have claims based on that defense asserted and resolved in a realistic way.
Second, the risk of harm from relief determinations between the borrower and the Department, to the extent there is any, is simply a by-product of participation in title IV that schools are aware of when they seek eligibility. Indeed, the processes set forth in the HEA and Department regulations, including Department BD relief determinations, are expressly incorporated into schools' program participation agreements (PPAs). Title IV funding is structured such that schools receive federal funds that can be used to pay tuition and fees up front and leave the subsequent details of repayment, including defenses thereto, to borrowers and the Department. If the Department's resolution of borrower claims implicates some attenuated risks, without any determination of actual liability, then that is simply a by-product of title IV's inherent structure.
The Department also notes that institutional participation in the Direct Loan program is voluntary, and the BD rules, including possible BD liability, have been part of the program almost since its inception. The proposed regulation has incorporated safe harbors so as not to enlarge schools' liability for past conduct beyond what was included in past versions of the regulation and provided robust procedural rights in cases where the Department assesses actual liability against the school. If, going forward, institutions find the risk of hypothetical collateral risks too great, they can easily avoid those risks by choosing not to participate in title IV loan programs.
Finally, regarding the potential for regulatory scrutiny from other agencies or borrower lawsuits, the Department does not dictate evidentiary standards applicable to other regulators, nor do our regulations impact the pleading rules or evidentiary standards for borrower lawsuits.
The 2019 regulations also required the borrower to prove individualized harm. Our experience in processing claims has shown that certain calculations used to determine the amount of relief in the 2019 regulations would be an inappropriate barrier to relief for the borrower, not because harm did not occur, but because the process to show individualized harm required the borrower to have knowledge about regional and national employment opportunities. We believe that a borrower is unlikely to know how to locate regional or national unemployment rates and connect those data to their own experience.
Collectively, the authorities granted to the Secretary in the HEA and other general provisions provide the statutory basis to develop a BD framework. In response to the comment that this regulatory scheme is unprecedented and unlawful, the Department reminds commenters that the collapse of the Corinthian Colleges (Corinthian) and the flood of claims submitted by Corinthian students stemming from the institution's misconduct necessitated the need for a more robust BD regulatory framework. Prior to Corinthian's precipitous closure, BD was a rarely used discharge despite the fact that those regulations existed since 1995. And the number of BD applications has not meaningfully abated in the years since Corinthian's closure, further supporting the continued need for clear regulations to address claims from hundreds of thousands of borrowers. Here, based on the Department's broad statutory authority, we are building upon the lessons learned from past BD frameworks to ensure borrowers have full access to the discharge provided by law.
Additionally, with very limited exceptions, BD adjudications do not involve the enforcement of common law causes of action at all. That is, they apply a federal standard that differs from that of actions for common law fraud or contract. Although a BD claim may incorporate common law principles, it differs with respect to the claim's scope, application, and available remedies. The limited exception is for claims based on loans disbursed before July 1, 2017, which if denied may invoke state-law causes of action in a request for reconsideration. But even in such cases, the dispute does not involve claims between two private parties in the same way as cases that implicate separation-of-powers concerns.
To the extent that entertaining state-law claims on reconsideration implicates “private rights” limitations, those rights are asserted against or by a Federal agency and have the character of public rights, even if the resolution of those rights invokes some common law principles because it turns on application of State law.
Finally, there is no separation-of-powers issue here because BD claims and potential subsequent recoupment actions are adjudicated through processes to which both the borrower and participant school have consented.
As a threshold matter, the absence of adjudications under the 2019 rule is not a “refusal to administer it,” as one comment claims, and instead simply reflects practical circumstances. That is, the 2019 regulation went into effect on July 1, 2020. This fell between two important events. The first occurred roughly three months earlier when the pause on student loan repayment, interest, and collections stemming from the COVID-19 national emergency began. Because this pause affected all new loans, loan issued on or after July 1, 2020, have not entered repayment. Without an ongoing loan payment, a borrower may not yet fully appreciate the effects of enrolling in a program or institution and incurring student loans due to one of the bases for borrower defense.
The second event occurred about three months after the regulation's effective date, when in October 2020, the Department entered a stipulation in the then-titled case
Nonetheless, the Department did perform initial reviews of some claims that would have been covered by the 2019 regulation in connection with borrowers consolidating older loans but found that all of them would have been barred by the regulation's statute of limitations. However, because it had stipulated that it would not issue denials, it could not adjudicate those claims and issue a final agency decision.
It would also make little practical sense to address the relatively sparse volume of pending claims subject to the 2019 regulation (approximately 3 percent of claims filed since July 1, 2020) in light of the large volume of pending claims it does not cover. The Department has a significant number of pending claims stemming from the lack of decisions being rendered on claims for multiple years. The number of claims filed has only increased since then. To address that backlog without violating the commitment on denials, the Department has prioritized claims that fall into large groups with compelling evidence supporting approval. Based on time alone, those claims are much more likely to fall under the 1994 and 2016 regulations. They are unlikely to fall under the 2019 regulation, which only took effect several months before the Department agreed to halt denials. To say that adjudications have not proceeded under the 2019 regulation reflects that reality rather than a refusal to apply it.
We disagree with the comments arguing that the Department's experience adjudicating claims under the 1995 and 2016 regulation cannot inform its conclusions of the need for changes from the 2019 regulation. Courts have long acknowledged that changed circumstances and experience provide a permissible basis for improving existing regulations, noting “it is not arbitrary and capricious for an agency to change its mind in light of experience”.
Here, the Department's experience evaluating claims under the 1995 and 2016 regulations provides a valuable reference for how that process would unfold for the 2019 regulation.
Finally, in the time since the 2019 rule's promulgation, the Department has learned that there are implementation challenges with administering the 2019 regulation and with reviewing claims under the standard and processes it would require. The issue relates to the requirement that the Department share not just the borrower's application for relief but also a copy of all other evidence related to the claim in the Department's possession. The Department is currently unable to comply with those record-sharing requirements, nor have we identified a workable platform to do so. In some cases, the evidence relevant to one applicant's claim may flow from information that includes other borrowers' personally identifiable information, which cannot be shared with the applicant without violating those other borrowers' privacy rights. In other situations, the Department has received large amounts of evidence related to the claim (some of which might not be relevant to the final determination). The Department does not have a mechanism for transmitting such large amounts of information and it would likely overwhelm the borrower as well as many institutions. The Department has also found that it does not have the capacity to provide the necessary evidentiary redactions on a borrower-by-borrower basis as anticipated by the 2019 regulation. These experiences thus inform our decision to improve upon the 2019 regulation's approach in this rule.
The Department thus fully considered the likely effect of the 2019 regulations on the adjudication of claims and is making appropriate changes to counter those effects.
We acknowledge that regulations have added costs, and we explain how those costs may be offset in the
Because the commenters misconstrue the scope and impact of the regulations, they also misapply the due process analysis. The regulations provide ample due process at all stages and with respect to all interested parties. Fundamentally, the commenters failed to distinguish between the BD loan discharge process and the BD recoupment process. As clearly stated in the regulations and discussed throughout this document, the loan discharge process is between the borrower and the Secretary. The regulations include extensive processes tailored to that relationship, which includes the opportunity for institutional response. In response to public comment, the Department enhanced the proposed procedures to provide more notice to affected parties, to require BD discharge applications to be submitted under penalty of perjury, and to add an additional opportunity for institutional response prior to the decision on whether to form a group for adjudication.
The loan discharge process is separate from any recoupment proceeding that the Secretary elects to pursue against an institution. The recoupment efforts contemplated are recoveries of financial liabilities, not sanctions. The recoupment process involves a number of procedural steps, including many of the protections the commenters claimed were missing from the regulations, such as motions practice, interlocutory challenges, and multiple levels of appeals.
As of the publication of these final regulations, the financial responsibility regulations referred to by the commenters are proposals, not binding regulations. Current regulations at § 668.171(c)(1)(i)(A) require the Department to establish liability against an institution under an administrative proceeding in which the institution has an opportunity to present its position before a hearing official. That structure addresses the concerns raised by the commenters. The public will have an opportunity to provide comments on any future regulations related to financial responsibility triggers when they are published in an NPRM.
With respect to the comment that the HEA does not grant power of adjudication to circumscribe presumptions, we again refer commenters to the general provisions granting authority to the Secretary in GEPA, authority extended in the Department's organization act, and numerous provisions in the HEA. Along with a statutory directive to define which acts and omissions provide a defense to repayment, those statutory provisions grant the Department authority to promulgate regulations giving content to the statutory BD provision, including an adjudication framework like the one this rule prescribes. We discuss the issues pertaining to liabilities more fully and elsewhere in this document.
The Department disagrees that the Supreme Court's
Thus, contrary to the commenters' arguments, the rule does not reflect “unheralded” action only loosely tethered to a congressional grant of authority.
Moreover, limiting BD only to loans in default would be illogical. Only allowing claims from loans in default would place borrowers in an unfair situation of either intentionally defaulting in the hopes that a BD claim is successful or repaying a loan that potentially should be discharged due to the acts or omissions of an institution. Given that institutions must keep their default rates below certain thresholds established in statute and regulations, creating an incentive for default could end up inadvertently hurting an institution that has large numbers of BD claims.
In this regulation, the Department simplifies the standard that governs whether the borrower should be relieved of their loan repayment obligation. The Department's approach ensures that a single standard is used to evaluate BD claims arising from the same acts or omissions, regardless of whether the borrower has multiple loans that were obligated in multiple years or whether a borrower's loans were consolidated. This approach ensures more consistent decision-making and treatment of borrowers.
The Department is not applying this approach to recoupment. Institutions will only be subject to recoupment actions for claims that would be approved under the standard in place at the time the act or omission occurred. In other words, a claim that is approved due to a misrepresentation, omission, breach of contract, aggressive and deceptive recruitment, judgment, or final Secretarial action that occurred prior to July 1, 2023, would only result in recoupment if the claim would have been approved under the 1994, 2016, or 2019 regulations, whichever is applicable. We appreciate the feedback from commenters who noted that this concept was not sufficiently expressed in the NPRM and have updated the final amendatory text to make this point clearer.
Commenters also raised concerns that some FFEL borrowers are ineligible to consolidate into Direct Loans, thus making it impossible for them to receive a BD discharge if their claim was approved. As examples of FFEL borrowers who cannot consolidate into Direct Loans, these commenters pointed to borrowers who are current on a FFEL Consolidation Loan and do not have any additional loans to consolidate, as well as FFEL borrowers who are subject to enforced collection orders, such as wage garnishment, or who have a judgment on their FFEL loans. These commenters suggested that the Department promulgate final regulations that make borrower defense discharges available to borrowers with FFEL Loans, including FFEL Consolidation loans, even if they cannot or do not consolidate.
Commenters also expressed concerns that a FFEL borrower whose defense to repayment claim is only partially approved may be left worse off if the resulting Direct Consolidation Loan is not fully discharged and urged the Department to ensure that a Direct Consolidation loan would not be automatically effectuated if doing so would adversely affect the borrower. These commenters noted that consolidation is one of the few avenues that borrowers can use to get their loans out of default but borrowers whose loans are already consolidated generally lose the option to consolidate. Commenters stressed that these borrowers should not lose the option to get out of default, arguing that many borrowers with approved borrower defense claims are also likely to be at high risk of delinquency or default.
Commenters requested that the Department clarify whether it will refund amounts paid on FFEL loans before they were consolidated.
Other commenters did not support the inclusion of FFEL borrowers. They argued that a BD claim is based on the acts or omissions of an institution at the time the loan was issued, which for any FFEL loan would precede the issuance of any Direct Loan through consolidation. That is, because Sec. 455 of the HEA only applies to Direct Loans, the commenters argued that conduct that occurred while the loan was in the FFEL Program should not qualify for a BD discharge. These commenters argued that FFEL loans should be ineligible for a BD discharge.
We also want to assure commenters who were concerned that the regulatory language might not provide adequate protection for FFEL borrowers who consolidated into a Direct Loan. Through a Direct Consolidation Loan, FFEL borrowers will have a pathway to BD.
Operationally, the Department will streamline the claims process for FFEL borrowers by having the BD claim application also function as a Direct Consolidation Loan application, which would only be executed if the claim is approved. In 2009, the Department issued Dear Colleague letter FP-09-03 in which we told FFEL lenders that they cannot decline to complete a Loan Verification Certificate solely because the borrower is attempting to consolidate only a FFEL Consolidation Loan without any additional loans.
The Department appreciates the commenters' concern for borrowers with an involuntary collection order such as wage garnishment or a judgment through a court order but notes the statutory constraints and the Department's limitations. As provided in Sec. 428C(a)(3)(A)(i) of the HEA, borrowers will need to take preliminary steps, such as having those wage garnishment orders lifted or those judgements vacated, in order to facilitate consolidation. Finally, with respect to refunds, the Department will refund amounts previously paid to the Department. We cannot refund amounts the Department did not receive.
Other commenters argued that the Department official should be an “officer” rather than a career employee, suggesting further that ideally this individual would be a principal officer who is named by the President and confirmed by the U.S. Senate. Commenters argued for this change
The role of the Department official is to review the BD claim, consider the evidence, and recommend approval or denial of the claim. The Department official also recommends whether a group should be formed where applicable. The Secretary or the Secretary's delegate may accept or reject the recommendations and is the final decision maker. The Department has clarified this through changes to § 685.406.
We do not agree with the commenters who believe that the Department official cannot be part of FSA, or must be a third-party, such as an ALJ. These FSA staff members handle BD processes, which is separate from the institutional compliance work performed by FSA program reviewers and enforcement staff.
After the collapse of Corinthian in 2016, the then-Under Secretary of Education appointed a BD Special Master to advise the Department on BD issues.
The Department further believes that requiring the Department official to be a certain type of individual—such as a special master or ALJ—would impermissibly tie the agency's hands with respect to future Congressional appropriations. Requiring that claims only be considered by a certain type of employee would constrain the Department in how to best use Congressional appropriations for salaries and expenses and would limit the Secretary's flexibility to address changing circumstances and appropriations. The definition of Department official in these regulations provides necessary flexibility to allocate staff to review and make recommendations on BD claims.
Furthermore, under Sec. 412 of the Department of Education Organization Act,
A few commenters suggested the Department permit representatives of certified classes of borrowers to submit group BD applications. These commenters further stated the Department repeatedly acknowledges the value of lawsuits, particularly class action lawsuits, to promote the purposes of the Direct Loan program. They noted that permitting only State requestors to submit group applications will likely result in differential treatment of student borrowers based solely on where they live. In addition, the commenters stated that counsel representing classes of harmed borrowers can assemble a wealth of relevant evidence.
After careful reconsideration, we are persuaded by the commenters' arguments that allowing legal assistance organizations to request a group formation could give borrowers who would otherwise not have a pathway to relief the ability to file a BD claim. Allowing these additional organizations to request the consideration of group claims affords another channel for the Department to receive valuable information that we can use to assess BD claims. The commenters' point that legal assistance organizations may have potentially greater awareness regarding some institutional conduct than States is important, given that we have received claims pertaining to thousands of institutions.
The Department also initially cited concerns about the potential added burden of allowing legal assistance organizations to make group requests. The overall requirements for a group request will mitigate this concern, particularly the requirement that a group request must include evidence beyond sworn borrower statements to be considered for a decision. Though not an exhaustive list, in the past the Department has found that additional evidence such as an institution's internal training materials and communications, the documentation used to calculate job placement rates, and copies of misleading advertisements have all been helpful in adjudicating BD claims. Group requests without additional evidence and information will be deemed incomplete. That means a group request will require additional evidence from the third-party requestor.
To make this change operationally manageable, the Department is adding a new definition of a “third-party requestor,” which will encompass State requestors and “legal assistance organizations” (also newly defined in the regulations) and will allow such third-party requestor the ability to request group formation, subject to certain conditions. The definition of “legal assistance organization” in the regulations is drawn, in part, from Sec. 428L(b)(1) of the HEA which defines a civil legal assistance attorney with the exception of where their employer receives their funding as outlined in Sec. 428L(b)(1)(A)(ii) of the HEA. Beyond being a nonprofit organization, we do not believe a legal assistance organization's funding source should have any bearing on their request to form a group under § 685.402. We believe relying on a modified definition created by Congress is better than trying to craft a new one.
The regulations also add a requirement that third-party requestors that are legal assistance organizations may only request to form a group in which all borrowers have entered into a representation agreement with the legal assistance organization. In this respect, legal assistance organizations significantly differ from State requestors. This legal distinction is required for several reasons. First, confidential borrower-related information must be exchanged as part of BD determinations. The Department is permitted to exchange that information with the offices of State attorneys general but must obtain borrower-specific privacy waivers to share such information with private counsel. It is far more likely that the Department will be able to exchange such borrower-related information for borrowers that legal assistance organizations represent. Second, State attorneys general may act as their constituents' public legal representative based on the nature of their role. Non-governmental groups, on the other hand, generally have no comparable right to assert claims on behalf of non-clients. Class counsel who represent plaintiffs in a civil class action lawsuit are one exception to this general bar, but only following specific determinations about class counsel and the class representatives, their clients.
The Department declines to allow representatives of certified classes of borrowers to submit requests to form a group seeking BD if they do not fall under the definition of a legal assistance organization. While we appreciate these external entities' interest, the Department believes that expanding the scope of third-party requestors presents administrative issues that are not feasible for the Department to address at this time. We also note that the ability to use judgments to support BD claims means that representatives of certified classes can obtain relief for their clients if they secure a judgment that meets the requirements under § 685.401(b)(5). And, of course, nothing prevents these entities from independently sharing general information with the Department.
We disagree with commenters opposed to the inclusion of State requestors. As discussed in the NPRM as well as in this final rule, the Department has benefited repeatedly from information provided by State attorneys general in its adjudication of claims. The Department has also received many requests for consideration of group claims from attorneys general. Creating a formal process for the handling of these group requests is better for States, the Department, affected borrowers, and institutions. For States, the regulations provide more clarity around what is needed in an application and lays out timelines for when to expect decisions. Borrowers who may not understand how to file a BD claim or who may not have the information necessary to support all elements of a claim on their own will benefit from the expertise and support of state officials who regularly act on behalf of consumers in their states in many contexts. For institutions, they will also have a clearer role in responding to both the request to form the group, as well as whether the group should be approved. These regulations also give the Department a clear process to follow for the handling of group claims and will ensure consistent treatment and consideration of claims. We also note that third-party requestors are only involved in the submission of claims by borrowers; they are not involved in any proceeding brought by the Department against the institution.
We disagree with the concerns raised that allowing any third-party requestor—whether from a State or legal assistance organization—would result in attempts to influence the Department or influence litigation or oversight matters within a state. The Department's concern is ensuring it receives evidence that can help it make fair decisions about the merits of BD claims. The Department does not have a role in the resolution of matters at the State level between an attorney general and an institution or other State entities.
With regard to which borrowers a State may request a group around, the Department does not believe it needs to add any language specifying the extent of a group. We note that to date all requests for group consideration from State attorneys general have only covered borrowers within their states.
Finally, the Department believes it will have the capacity to review material from States. It has already done so for several group requests and the requirements for what is needed in a group application will help ensure the Department will receive additional useful evidence when reviewing requests for group claims.
Commenters argued that the absence of some or all of these elements would
The Federal standard goes on to enumerate the different categories of conduct that, if shown, may serve as a sufficient basis for satisfying the general definition's first prong (“actionable act or omission”). That is, the following subsections enumerate the “acts or omissions” that fall within the scope of what is ”actionable” for purposes of BD, which are: substantial misrepresentation, substantial omission of fact, breach of contract, aggressive and deceptive recruitment, judgments, and final Secretarial actions. By structuring the standard with general elements proceeding from the BD definition, claims must satisfy each of those general elements to be approved under any of the different conduct-related grounds for BD.
This simplified approach sets forth the shared elements of a claim: actionable acts or omissions by the institution; detriment to the borrower from having taken out a loan and enrolled; a causal link between the school's conduct and the borrower's injury; and that the appropriate remedy for such conduct and resulting injury is to discharge the borrower's remaining repayment obligations, refund payments already made to the Secretary, and take curative steps for any prior consequences related to credit reporting or default. The first three elements involve a factual determination about school's conduct and its impact on the borrower. The final prong ties those elements to the unique remedy that a defense to repayment provides. The section below on “
The changes to the definition of a BD make several improvements that clarify the standard and address various commenters' concerns. Principally, a general definition accompanied by enumerated actionable acts or omissions clarifies the shared elements without shoehorning them into each specific way of establishing a defense to repayment.
For causation, the Department chose a straightforward general element of causation instead of specific articulations such as reliance and materiality. First, a general causation element fulfills the function that reliance and materiality play in many actions for common law fraud, but in a way that more appropriately reflects the unique context of BD and student loans generally. Indeed, the decision to take out Federal loans to pay tuition in exchange for education, training, and credentials differs from the conventional context of common law fraud. The core concern for BD is ensuring it is a remedy for injuries caused by the identified acts and omissions, which is a concern that a general causation standard more appropriately addresses.
General causation can also be expressed in terms that will make more sense to a borrower. As numerous commenters observed, requiring applicants to use specific phrases risks filtering out applicants who do not understand terms with specific legal meanings instead of focusing on the borrower's actual entitlement to relief. The Department was also persuaded by concerns from commenters that reliance is a complicated element to rebut because only the borrower will truly know if they relied upon an act or omission. Causation, meanwhile, requires describing factual circumstances that show a connection between the act and the detriment to the borrower.
Detriment to the borrower is also a general element of a defense to repayment. The Department opted for this element rather than the suggestion of a few commenters to require borrowers to establish harm in specific forms or financial quantities. As noted in the NPRM, the Department is concerned that past requirements to establish harm have set unrealistic bars for borrowers, such as ruling out factors like regional or national recessions and a poor job-search process as causes for a borrower's inability to find employment or denying relief to borrowers who succeed despite their program. Requiring specific forms or values of harm would present an unrealistic barrier for many borrowers likely entitled to relief.
Furthermore, some comments on this topic appear to conflate the
A claim's final general element proceeds from the remedy for BD, and involves a determination that the nature of the relevant acts or omissions and resulting detriment warrant the remedy available in BD. This feature of the updated definition and Federal standard, among others, addresses many of the concerns raised by commenters representing institutions or the interests of institutions. Regarding the concerns these comments raise, an approved claim requires the Department to conclude that the act or omission caused detriment to the borrower such that the circumstances warrant the relief of removing the borrower's obligation to repay the loan's remaining balance, refunding amounts paid to the Secretary, and other benefits like changes to credit reporting and determining that the borrower is not in default. In making that determination, the Secretary will weigh the totality of the circumstances, including the nature and degree of the acts or omissions and of the detriment caused to borrowers, along with any other relevant facts. As explained below, when making that determination for cases involving closed schools, there will be a rebuttable presumption that relief is warranted, which reflects the Department's experience that the circumstances warranting such relief are likely to exist in cases involving closed schools shown to have committed actionable acts or omissions.
As we explain elsewhere, BD relief, though unique, bears features of remedies like rescission, restitution, avoidance, reliance costs, and an obligor's claims and defenses against the enforcement of an unsecured loan. As rules and principles for those remedies reflect, whether rescissionary relief is appropriate often depends on the facts and circumstances of a particular case.
The Department considers this flexible inquiry superior to specific benchmarks of cognizable harm requested by numerous commenters. Principally, it corresponds more closely to the remedy of a discharge and refund. As noted, the remedies that BD resembles generally call for a weighing of equities and case-specific circumstances. Because of the variety of interests involved in BD and the nature of the remedy it provides, a similar approach is appropriate to incorporate into the Federal standard. It also provides a limiting principle that addresses the comments concerned that full discharges and refunds would be warranted for trivial misstatements or borrowers with negligible harm.
As part of this determination, the standard provides for a rebuttable presumption that applicants who attended closed schools and otherwise establish a claim to relief are presumed to have suffered detriment that warrants BD relief. This presumption is based on the Department's experience that the circumstances in which BD has been the appropriate remedy to date are in cases involving closed schools. This does not mean that every alleged act or omission by a closed school will warrant relief, nor does it mean that borrowers who attended a closed school should expect the Department to automatically grant applications for BD. In cases where a school closes but there is no evidence of an act or omission that could give rise to a BD claim, the HEA still provides a path for borrowers who are otherwise harmed by the closure itself to get relief through the closed school discharge process. Applicants for BD who attended closed schools will still have to show, by a preponderance of the evidence, that the school committed actionable acts or omissions that caused them detriment. Although there is a presumption that such circumstances warrant BD remedies, it may be rebutted by evidence or reasons suggesting that the circumstances do not warrant the remedy of discharge and refund. The Department opted for this presumption because it acknowledges the context and challenges with obtaining additional evidence that often accompanies closed schools, while also allowing the Department to exercise its discretion based on the specific circumstances of each case.
Finally, the Department disagrees with the suggestion that the regulations require a finding of intent or knowledge by the institution for a BD claim to be approved. Requiring intent would place too great a burden on an individual borrower, who would need to have some way to know why the institution, or its representative committed the improper act or omission. Moreover, if the action resulted in detriment to the borrower that warrants relief, the Department does not believe whether it was taken with knowledge or intent should be relevant. The borrower still suffered detriment that warrants relief and so, if proven, should be relieved of their repayment obligation. The inclusion of a requirement that the action caused detriment to the borrower that warrants the relief of a full discharge and refunds means that harmless and inadvertent errors are unlikely to be approved. It is unlikely that a trivial action caused detriment and the Department will most likely not reach that conclusion. An error of consequence that causes detriment to a borrower that warrants relief should result in relief, however, regardless of whether it was made with knowledge.
We also added, in § 685.401(e), the general parameters that the Department will consider when determining whether detriment caused by a school's act or omission warrants relief. This involves the Secretary considering the totality of the circumstances, including the nature and degree of the acts or omissions and of the detriment caused to borrowers. The standard also provides that for borrowers who attended a closed school shown to have committed actionable acts or omissions that caused the borrower detriment, there will be a rebuttable presumption that the detriment suffered warrants relief under this section.
Commenters also disagreed with the Department's citation to authority held by the Federal Trade Commission (FTC). The commenters argued that the FTC can only employ its presumption when there is proven widespread violations, which include material and widely disseminated misrepresentations. The commenters argued that the Department's proposed standard represented a lower bar than what the FTC uses. The commenters also said the presumption does not comport with Supreme Court rulings related to the application of presumptions and stated that some misrepresentations as outlined in § 668.72 must require a showing of individual reliance. Finally, a few commenters stated that borrowers should bear the burden of proving reliance. They noted that only the borrower knows if they relied upon a particular act or omission, and it would be difficult for an institution to rebut a presumption of reliance.
Regarding concerns about applying a presumption of individual reliance, the final regulation includes a general causation element in the definition of BD that addresses this concern in some ways. In this respect, approved claims must be based on a showing that a school's actionable act or omission caused the borrower detriment. That showing may be based on an inference of causation that does not meet the strictures of a conventional common law fraud claim, but the Department will not presume causation based on a borrower establishing an actionable act or omission, standing alone. The general causation requirement and the reasons for adopting it are explained in response to other comments in this section.
The updated regulation does, however, retain the feature that adopts a rebuttable presumption that identified acts or omissions impacted each borrower in a group recommended for consideration under the proposed § 685.402. This is a logical feature of a process that considers claims collectively.
Contrary to a few commenters' suggestions, this feature does not permit a presumption where there is no rational nexus between the established and presumed facts. Rather, the regulation contemplates that a recommendation to consider certain borrowers' claims as a group will stem from facts supporting a logical inference that certain acts or omissions impacted members of the group in similar ways. For that reason, the rebuttable presumption accompanying a formed group will reflect a rational nexus between the proven facts and the presumed facts.
Likewise, a rebuttable presumption does not change the burden of persuasion, which will still require that the evidence show an entitlement to relief by a preponderance of the evidence. For purposes of schools' liabilities, the presumption will simply operate to shift the evidentiary burden to the school, while still allowing the school to rebut the presumption as to individuals in the identified group, or as to the group as a whole. In any recoupment action related to such a case, the members of the group will be identified. Although the group may include borrowers who did not file an individual application, the members of the group will be known as part of the fact-finding process. Because the Federal standard now focuses on causation rather than reliance, there is no need for the changes regarding presumptions for individual claims that commenters requested.
We disagree that the Secretary lacks the authority to provide for presumptions in the procedures for resolving BD claims. It is a well-established principle that administrative agencies may establish adjudication procedures that include evidentiary presumptions based on logical inferences drawn from certain facts.
We also disagree with commenters' attempts to distinguish the principles underlying presumptions drawn from FTC jurisprudence. The presumptions that the FTC uses are not limited to contempt proceedings and also apply in actions for restitution under Sec. 19 of the FTC Act.
The upshot of these differences is that the procedural steps required for FTC presumptions are based on many reasons that do not apply to the BD context. That obviates the need to recreate similar procedures as a prerequisite to applying presumptions in BD-related proceedings. That is particularly the case because recreating such procedures would meaningfully hinder the efficient administration of BD proceedings, which are an integral part of the Department's role as the administrator of title IV Federal loan programs. The Department has authority to administer those programs in a way that honors borrowers' right under the HEA to raise a defense to collection of their loan and that ensures schools satisfy the financial commitments and obligations they undertake as a condition of title IV participation. Thus, the interagency differences that the comments mention support the Department's authority to craft a context-specific process for resolving claims for BD.
With regard to pleading standards, revisions to the regulations set forth basic requirements for a materially complete individual claim application. These requirements are discussed in greater detail in the section in
The Department declines to adopt a plausibility requirement. Principally, the BD adjudication process does not implicate the plausibility standard's goal of resolving claims early to avoid expensive and burdensome discovery costs.
Accordingly, we clarify the definition of a materially complete application to require that borrowers provide certain details that form the basis of a claim, but we are not asking borrowers to provide factual support for claim elements that they are unlikely to know or have the ability to obtain, such as centralized corporate practices, advertising plans, or the calculation formulas behind institutional job placement rates.
The Department also notes that the Federal standard for BD incorporates misrepresentations as defined in § 668.71(c), which include representations to accrediting agencies, State agencies, and others. Whether any such statement amounts to a substantial misrepresentation will depend on whether it is false or misleading. For purposes of BD, the Department would have to further conclude that the misrepresentation misled a particular borrower and caused the borrower detriment such that it warrants a full discharge and refund. Thus, not every substantial misrepresentation under part 668, subpart F will support a defense to repayment and the remedies it entails. In addition to this flexibility, the regulations permit the Department to seek additional evidence from requestors, when appropriate, and permit schools with various opportunities to be heard. Given these features, the Department disagrees that the definition of substantial misrepresentation should be changed.
After reviewing the proposed language following questions from the commenters, the Department has simplified the phrasing in § 668.72(m) concerning selectivity rates to state: “Institutional or program admissions selectivity if the institution or program actually employs an open enrollment policy.” This language better captures the concept in the first type of misrepresentation, which involves the false presentation of an institution as selective when it is in fact open access. We added “program” to this definition as well, to acknowledge that some open-access institutions have individual programs that are selective and thus would not trigger a misrepresentation under this section.
In making this change, the Department deleted the components related to admissions profiles and requirements, which are vague and difficult to follow. We have also deleted the references to presenting rankings that are materially different from those presented to others. The Department is not aware of instances where an institution has presented a ranking different than what a rankings organization published. Instead, the Department has seen instances in which institutions have presented incorrect data that resulted in the ranking assigned being higher than it would otherwise have been and that ranking is then advertised accurately. Accordingly, we have simplified this type of misrepresentation to reflect past misbehavior observed at institutions.
In response to the commenter who requested clarification on the Department's approach to “highly ranked and highly selective programs,” we decline to further elaborate as we have revised the definition of this type of misrepresentation under § 668.72(m).
As for the omission-related element commenters sought, we note that actionable omissions incorporate the definition of misleading conduct from part 668, subpart F, which requires that the omission make the school's interaction with a borrower misleading under the circumstances. Otherwise, we disagree that an omission must be accompanied by a specific duty to disclose or scienter requirement to be actionable. Not only would those requirements be unrealistic for borrowers to prove without the tools of civil discovery, but it would overlook the realities of transactions at the core of student loans and BD. In circumstances where the school's failure to disclose certain facts causes the borrower to be misled, such circumstances should be actionable. The updated regulations reflect that reality, but by adding a general causation element, it also ensures that defense to repayment is only available when such omissions are shown to have caused the borrower detriment.
With regard to the commenters who are concerned that requiring employment disclosures would confuse borrowers, adding the requirement in the Federal standard that the Department must conclude the act or omission caused detriment to the borrower that warrants relief gives an institution a framework to consider whether failing to disclose the role of a contractor could meet such a standard. If failure to provide such a disclosure does not meet this standard, then it would not result in an approved borrower defense claim.
The reporting of third-party servicers to the Department is insufficient to address this concern. The regulations at § 668.25 provide the general framework governing the situations in which schools may contract with entities to help with administering the title IV programs but this relationship is largely unknown to students or borrowers; these students and borrowers view the third-party servicer and the institution as one and the same. Moreover, the regulations are intended to address the responsibilities of the institution and third-party servicer to the Department within the context of the title IV programs. While both the school and the third-party servicer are liable for any related actions by the third-party servicer, the school is ultimately held accountable if a third-party servicer mismanages the title IV programs. As noted by the commenters, a borrower's understanding of whether they are talking to an employee or contractor when making judgments about whether to enroll is important for making a decision. Such information thus needs to be provided to the borrower if failing to tell them could cause detriment to the borrower that warrants borrower defense relief.
The commenters mischaracterize the Department's regulations. Under these regulations the Department will only determine whether the borrower has stated a basis for a BD claim on their Direct Loan based on the alleged breach of contract by the school. This determination resolves the borrower's qualification for a Federal benefit and does not make any determination of the rights of the parties under the contract itself or under the State laws which apply to those contracts.
While we acknowledge that a breach of contract could be a misrepresentation, in some instances a breach of contract claim may very well not fit into the Department's substantial misrepresentation standard. Where a breach of contract does not meet the elements of substantial misrepresentation, borrowers would have a basis for a BD claim based on the institution's failure to deliver educational services per the contract. We also explain in the NPRM why we were convinced to include breach of contract in the Federal standard and concluded that borrowers may be able to allege breach of contract more readily.
We further dismiss any notion that the Department's inclusion of breach of contract would be too vague to include in the Federal standard. A breach needn't be an extreme case such as, for example, a closed school. Because a breach of contract is a cause of action that is well established with the same basic elements in the laws of all States, territories, and the District of Columbia, codifying breach of contract in the Federal standard in the area of contracts between the student-institution would ensure consistency and predictability in this area. Furthermore, it is a common practice for the standards in Federal regulations draw on common law concepts and principles.
Several commenters expressed confusion about the phrasing in § 668.500(a) that says aggressive and deceptive recruitment is prohibited in all forms, including “the effects of those tactics or conduct” that are reflected in the institution's marketing or promotional materials, among other things. They said it is unclear how the effect of a tactic can be expressed in marketing materials. Other commenters suggested that § 685.501(a)(3) be rewritten to require the institution took “unreasonable” advantage instead of just advantage of the student. Many commenters also expressed concerns about § 685.501(a)(5) saying it was unclear how failing to respond to information could be considered aggressive recruitment and expressing concerns about how to handle excessive requests for information from borrowers. One commenter asked for a safe harbor tied to this provision if they could show that an institution provided necessary information at some point during the enrollment process. Several commenters in the cosmetology sector also provided examples of mandated disclosures required by their accreditor in which students sign agreements noting that they understood provisions about an institution's programs and courses, among other things. They asked how that would interact with aggressive recruitment.
We disagree with commenters who state that our definition of aggressive recruitment is not supported by statute and does not provide reasonable clarity to students, institutions, or the public.
In keeping with the other grounds for BD that emphasize the importance of borrowers making enrollment and borrowing decisions uncorrupted by misinformation and manipulation, the specific conduct in the definition of aggressive recruitment is derived from what the Department has seen in its own oversight work as well as in State and other Federal investigations into conduct by postsecondary institutions.
We disagree with commenters who state that a BD claim that is approved under subpart R would be captured as a substantial misrepresentation or substantial omission of fact. In the NPRM, we cite our reason for including this new designation of acts or omissions as its own category. To those same points, aggressive and deceptive tactics capture a category that is in keeping with the other types of acts or omissions that are actionable, because based on the Department's experience, the combination of deceptive statements and aggressive tactics may coerce borrowers in such a way that in their enrollment or borrowing decisions they are similarly deprived of the right to make such consequential choices free of misinformation and manipulation. While these misrepresentations or omissions might not, on their own, amount to an act or omission that causes detriment warranting relief, when combined with aggressive sales tactics, it may deprive borrowers of the right to make a full and informed choice.
Overall, laying out the categories of behavior that constitute aggressive and deceptive recruitment in a non-exhaustive list balances clarity for the field with enough flexibility such that other similar conduct identified later could also fall under this category. The commenters' concerns about vagueness are better addressed by the changes made to the overall Federal standard. The Department is changing § 685.401(b) to require that an approved borrower defense claim result from a finding that the act or omission by the institution caused detriment to the borrower that warrants relief. This requirement ensures that an inadvertent or immaterial instance of what otherwise might seem to be aggressive and deceptive recruitment, standing alone, will not necessarily warrant relief, nor would the type of reasonable contact that the commenters described—such as a reminder of upcoming financial aid deadlines. Rather, relief will be available in cases where the practices cause detriment to borrowers for which the appropriate remedy is discharge, refund, and other remedies that accompany a successful defense to repayment. This requirement also provides a framework for an institution to disprove an allegation of aggressive recruitment since they could show how the conduct did cause any detriment.
The Department did, however, identify some components of aggressive
Substantively, unreasonable advantage is a different concept than a requirement to show that an institution took advantage of someone. It acknowledges that the institution or its representatives had information not available to the borrower that indicated the product being marketed—in this case a postsecondary education—was not worth what the borrower was going to pay for it. This has shown up in the past when institutions made loans to students where they had estimates that showed 60 percent of more of the borrowers would likely default. Or, when an institution marketed programs that required externships that it knew it did not have sufficient spots for everyone it was admitting. As noted above, unreasonable advantage is also a concept that exists at the CFPB, which provides the Department additional precedent to consider. By contrast, simply requiring a finding that an institution took advantage of someone would be harder to ascertain because it would create a new legal standard that may be more challenging to define and apply consistently. Accordingly, a standard of unreasonable advantage will result in more consistent determinations.
Again, coupled with the requirement to show an act caused detriment to a student that warrants relief, this phrasing clarifies that the Department seeks to address conduct that falls outside normal and reasonable interactions and causes detriment that is appropriately addressed by discharging a borrower's outstanding loan balance, refunding amounts previously paid to the Secretary, and receiving the default- and credit-related relief that accompanies those two remedies. We also further revised § 668.501(a)(4) concerning an institution that obtains a student's or prospective student's contact information through websites to include other means of communication to curb aggressive communications regardless of the source. We have also accepted the recommendation of commenters to delete proposed § 668.501(a)(5) concerning failure to respond to a student or prospective student's requests for more information. While institutions should ensure students get the information they request, we are persuaded by the concern that this provision lacked clarity about what information the institution would need to provide in response or how to address repeated requests for significant amounts of unnecessary information. Removing this requirement eliminates the need for the safe harbor requested by a commenter.
The Department also agrees with the commenters that the language in § 668.500(a) about the effect of tactics and conduct is confusing and will delete it.
Finally, with respect to the disclosures raised by commenters we note that such information would be useful to provide during the institutional response process in accordance with § 685.405.
The situation is very different in 2022. The Department for several years has had a dedicated unit that has built up expertise in reviewing BD claims. We have approved findings at several different institutions and for misrepresentations related to employment prospects, the ability to transfer credits, whether the program had necessary accreditation, and other acts or omissions. The borrower defense group staff have reviewed hundreds of thousands of applications. This includes adjudicating well over 250,000 applications, though we note that roughly half of those were denials that have since been challenged in court. As a result, we have a much stronger sense of what types of allegations we receive, what evidence we have obtained from borrowers or other third parties that have been useful in adjudicating claims, and what type of conduct appears to be associated with practices that can result in borrowers being harmed.
Our years of experience since last considering this issue have shown that the recruitment process is consistently one of the most common concerns raised by borrowers and when many of the misrepresentations that lead to borrower defense approvals occurred. The recruitment process is thus a period that raises concerns for the Department that millions if not billions of dollars are being loaned to students as a result of a process that has not allowed borrowers to fully understand the educational product underlying those loans.
The types of aggressive and deceptive recruitment covered by this rule represent both specific practices the Department has grave reservations about in addition to recruitment processes that are designed to exploit borrowers, incentivize manipulatively aggressive tactics, and are implemented at a structural and organizational level. The specific practices that give the Department reservations include gaining borrowers' contact information under false pretenses by pretending to be a website for receiving other Federal benefits. The organizational approaches that exploit borrowers are recruiting structures that either implement or unavoidably incentivize practices like using abusive or threatening language, misrepresenting decision deadlines to manufacture time pressure, discouraging them from consulting other individuals, and rushing them through the enrollment process.
Today, the Department's accumulated capabilities combine additional experience evaluating practices generally and accumulated examples of aggressive and deceptive recruitment we have observed. Together, these give the Department confidence it can make consistent and reasoned decisions on whether to approve claims alleging aggressive and deceptive recruitment. We further explain the inclusion of aggressive recruitment as a basis for a defense to repayment in the NPRM, 87 FR 41878, 41893-95 (July 13, 2022). The Department also consulted with the FTC and other Federal agencies to thoroughly analyze Federal laws on UDAP, and we believe UDAP violations could act as a relevant factor that would favor a finding of one of the enumerated bases for a defense to repayment.
As we stated in 2016, we believe that a comprehensive Federal standard appropriately addresses the Department's interests in accurately identifying and providing relief to borrowers for misconduct by institutions in appropriate cases; providing clear standards for the resolution of claims; and, avoiding for all parties the burden of interpreting the authority of other Federal agencies and States in the BD context.
In general, a “trial period” is the beginning of the student's attendance in an eligible program where the institution has not admitted the student
The Department declines to incorporate the safe harbor provision that the commenter suggests. A safe harbor would allow institutions that have trial periods the ability to engage in aggressive recruitment as an act that could rise to a defense to repayment and borrowers would be unable to assert that conduct as an act that could give rise to a defense to repayment. The Department does not share the commenter's view that trial periods prevent the pressured decision-making envisioned in these regulations, because an institution could still engage in aggressive recruitment even if it offers a trial period. Regardless of whether a student decides to continue enrollment beyond the trial period, that student must be able to make an informed decision about continuing enrollment without unnecessary duress.
While the Department disagrees with the commenter's suggestion to eliminate the application of aggressive recruitment altogether during a trial period, we have combined proposed § 668.501(a)(1) and (2) into a single item related to pressuring a student to enroll, including falsely claiming that a student would lose the opportunity to attend. This removes the mention of enrollment on the first day, which the commenter had suggested removing. It also addresses other comments concerned about the vagueness of specific terms in § 668.501(a)(1).
To ensure the community has an adequate definition of prospective student for purposes of subpart R, the Department will incorporate the definition of prospective student as defined in § 668.71.
We also decline to incorporate a bar on borrower defense claims if the borrower has sought or obtained independent relief from the school itself. Because different underlying legal or factual bases may have been involved in the judgment, the borrower could still raise a defense to repayment and have a valid claim that the institution otherwise engaged in an act or omission. Likewise, there are many potential actions that borrowers could have against schools that provide remedies that complement a defense to repayment rather than supplant it. The Department will, however, follow established principles of collateral estoppel in its determination of borrower defense claims, which reflects past Department practice.
The Department does not believe that further elaboration is necessary regarding the inclusion of a judgment obtained by a governmental agency, such as a State attorney general, in the universe of acceptable judgments that could form the basis for a defense to repayment. Existing regulations at § 685.222(b) provide that the governmental agency (in the case of a State attorney general) that obtains a favorable judgment against the institution based on State or Federal law in a court or administrative tribunal, in connection with the provision of educational services for which the loan was provided or the institution's act or omission relating to the borrower's attendance, could assert this basis as a defense to repayment. Therefore, no further clarification is needed.
Finally, a settlement is not a judgment and thus would not be captured under this provision. The Department could, however, consider underlying evidence that may have been used, produced, or considered as part of a settled lawsuit's filings or proceedings as part of the process for adjudicating a borrower defense claim under other elements of the Federal standard.
This exhaustive list and the explicit mention of a connection to a BD claim will provide the clarity requested by commenters. It also results in the removal of the provisions where commenters raised concerns about a lack of clarity.
This list represents the most serious and significant actions that the Department takes against a participating institution. Institutions already would have significant interests in challenging these actions, especially those that could result in loss of participation in the Federal student financial aid programs. Accordingly, this provision does not present the risk raised by commenters that institutions might challenge actions they would not otherwise contest. Similarly, given the seriousness of these actions, it is unlikely that the possibility of a related BD claim will encourage institutions to attempt settlement just to avoid the findings.
Other commenters argued that the Department should limit application of the State law standard to borrowers with loans that would otherwise be covered under the 1994 regulations. They argued that the Department's rationale for including a State law standard, at most, justified its inclusion only for loans covered by the 1994 regulation. A few commenters argued for the complete elimination of the State law standard. Some commenters also argued against the use of a State law standard saying that it runs counter to the Department's arguments about streamlining the borrower defense process, that the Department lacks the ability to review State laws, and that inclusion of a State law standard violates principles of federalism.
As we explained in the NPRM, during negotiated rulemaking non-Federal negotiators proposed that violations of State law be included in the initial adjudication as one element of the Federal standard. The Department believed such an upfront analysis would be unduly burdensome and would delay relief to borrowers whose claims merited approval.
In applying these regulations, the Department will first adjudicate the claim under the Federal standard in § 685.401(b) which we believe will resolve most claims that would be approved under either the Federal or State standard. Where adjudication under the Federal standard does not result in an approval, the State law standard is available to certain borrowers as part of the reconsideration process. Where applicable, both third-party requestors and individual claimants will be able to request application of a State law standard upon reconsideration.
The Department, however, is persuaded by both public comments and consideration of operational needs that determinations under State law should be limited to reconsideration for loans disbursed prior to July 1, 2017. On the first point, the Department has articulated that one of its goals in issuing this regulation is constructing a single Federal standard that can ensure consistency in decision-making across all claims pending on July 1, 2023 or received on or after that date. Adopting a single Federal standard provides clarity to borrowers who file an application so they know what standards will apply to their claim. The current lack of a uniform Federal standard for all claims risks substantial borrower confusion regarding the necessary elements for a successful claim. Those elements could vary widely depending on the applicable state law, which might also be unclear due to ambiguity from choice-of-law
The ongoing usage of a State law standard also represents very significant operational challenges for the Department. For one, State laws frequently change. That would require the Department to regularly confirm laws haven't changed, and if they have, determine the dates that such alterations occurred and how they might affect borrowers, including those with pending claims. That would add a very significant amount of work and require the continual monitoring and analysis of all 50 State laws, plus the District of Columbia, Puerto Rico, and the territories. For each claim the Department would also have to conduct a choice-of-law analysis and confirm that we have the evidence needed to apply the relevant law selected. This all adds significant time and complexity to the claims resolution process. The Department is particularly concerned about the potential added time because this rule limits how much time the Department may take to decide applications or else declare the loans unenforceable. While the timelines established in these regulations do not include time for reconsideration, both initial decisions and reconsiderations will draw from the same pool of resources and personnel. (The actual staff that conduct the reconsideration of a given borrower's claim would be different than the one that did the initial review). A potentially extensive number of reconsideration requests, all of which necessitate a more detailed legal review could jeopardize the Department's ability to meet the timelines for initial decisions or result in borrowers waiting inordinate periods for reconsideration decisions.
The indefinite inclusion of a State law standard also runs the risk of inaccurate decision-making. Adopting a Federal standard allows the Department to conduct training and ensure that its reviewers are applying consistent approaches and protocols to claims. It is unrealistic to be able to train all reviewers on 50-plus State standards. The result is there is greater risk that the decision made by one reviewer may be different when considering State laws.
For all the reasons identified above, we will keep the ability to bring a reconsideration request under the State law standard for loans disbursed prior to July 1, 2017. As noted, these borrowers already have access to State law review under the 1994 regulation and this leaves their treatment unchanged. This limitation will also result in a single Federal standard for all new loans issued over the last 5 years and into the future. Because borrowers with loans disbursed prior to July 1, 2017, always had access to a State law standard, it is not possible to fully eliminate this element, as requested by a few commenters.
Substantively, this limitation on the application of State law in the consideration of BD claims will not result in a material change to the likelihood that a borrower's claim will be approved. That is because the rule's unified Federal standard reflects elements of a variety of State laws, but its core elements—actionable conduct, causation, and detriment—are basic elements of fraud- or deception-based causes of action. The Department does not believe that an equivalent remedy would be available to a borrower under any individual State standard that is not available under the Federal standard.
Indeed, many State laws are narrower than the Federal standard. For instance, claims for common law fraud or violations of applicable UDAP statutes in many states require proof of intent, knowledge, or recklessness—requirements that are not present in the Federal standard. Many State-law causes of action also require particularized proof of causation-related elements such as reliance. The Federal standard employs a general causation element that does not force claimants to satisfy individual steps in the causal chain with a particular form of proof. Some State laws also demand a more detailed showing of loss or harm to the borrower than the approach adopted by the Department. The Department also notes that, in conventional civil litigation, a plaintiff may principally benefit from invoking a certain State law due to the additional remedies available, which is not relevant here, because the available remedies are the same for all successful BD claims.
Therefore, the Department will limit the availability of the State law standard to reconsideration requests relating to loans that were first disbursed before July 1, 2017.
Conversely, other commenters stated that many borrowers do not find out about their right to a discharge, or how to apply, until much later, which is often when the student is no longer enrolled at the institution, and these commenters supported the Department's proposal that borrowers with an outstanding loan balance would not be subject to a limitations period.
This position makes BD discharges consistent with all the other discharge opportunities available in the Direct Loan Program, such as closed school discharges, total and permanent disability discharges, and false certification discharges.
The Department reiterates the points raised in the NPRM regarding the operational challenges of administering a limitations period that varies by State or that requires a determination of when the borrower knew or could credibly have known about the act or omission.
The concerns raised by institutions about the staleness of evidence, record retention requirements, lack of finality, and related issues are addressed in several ways. First, the burden is to show, by a preponderance of the evidence, that the act or omission meets the standard to approve a BD claim. The commenters do not consider how the passage of time would also affect the evidence that could be available in favor of the claim. Second, the Department has included a separate limitations period for the recoupment of costs associated with approved discharges from institutions. As noted already, claims pending on or received on or after July 1, 2023, will be adjudicated under this rule, the Department will not seek to recoup the cost of discharges on approved claims that are outside that limitations period. Nor, as noted elsewhere in this final rule, would institutions be subject to recoupment for conduct that occurred prior to July 1, 2023, unless such conduct was separately covered under the regulations for recoupment in effect at that time.
The Department does not want to create a situation in which a borrower is still obligated to repay a loan on which the Department has concluded that the borrower should have received a discharge due to the institution's misconduct solely because the individual did not fill out an application in time.
Other commenters argued that the Department should explicitly state it is not excluding violations of civil rights laws that relate to the making of a Federal student loan for enrollment at the school or the provision of educational services. They pointed to ongoing litigation in cases that involve the Civil Rights Act and the Equal Credit Opportunity Act and noted that judgments on those grounds would give borrowers a defense under the Master Promissory Note.
We disagree with the request to include civil rights laws more explicitly as grounds for a BD claim. Both cases cited by the commenters involve allegations of misrepresentations, which are already a component of the proposed Federal standard. Moreover, the Department's Office for Civil Rights has existing statutory authority to address civil rights violations.
Congress clearly contemplated group discharges for BD claims. Section 703 of the Consolidated Appropriations Act of 2021 (Pub. Law 116-260) amended the HEA to restore Federal Pell Grant eligibility during a period for which a student received a loan, and that loan is discharged “due to the student's successful assertion of a defense to repayment of the loan, including defenses provided to any applicable groups of students.” Clearly, Congress envisioned a group BD process, including a group discharge process.
The Supreme Court's holding in
As noted earlier in this document, the general provisions granted to the Secretary in GEPA and the Department's organic act, along with the provisions in the HEA, authorize the Department to promulgate regulations that govern defense to repayment standards, including the initiation of a group process. And as we stated in 2016, and we reiterate again, in addition to giving the Secretary the discretion to “specify which acts or omissions” may be asserted as a defense to repayment of loan, Congress also gave the Department the authority to determine such subordinate questions of procedure, such as the scope of what acts or omissions alleged by borrowers meet the Department's requirements, how such claims by borrowers should be determined, and whether such claims should be heard contemporaneously as a group or successively, as well as other procedural issues.
We similarly disagree about the lack of clarity for group claims based upon third-party requests. We specify in § 685.402(c) the criteria for when a third-party requestor may request the Secretary to form a group, and the documentation that must be submitted with such a request, including information about the group; evidence beyond sworn borrower statements that supports each element of the claim; and identifying information about the affected borrowers to the extent that information is available. While we customarily do not prescribe such granular details in regulations, we listed the application criteria in this instance, so requestors know exactly what to submit and the Department official knows what to consider in evaluating the appropriateness of forming a group.
In response to the commenters' concerns, and to provide interested parties with even more detail, the Department has revised the requirement that a third-party requestor must provide evidence beyond sworn borrower statements that supports each element of the claim, to specify that such evidence must include, but is not limited to, evidence demonstrating that the conduct is pervasive or widely disseminated. While we do not prescribe what would constitute evidence beyond sworn borrower statements for the purposes of forming a group under this paragraph, we believe that this further clarification will provide requestors guidance while allowing the Department official to assess each group request on a case-by-case basis. The Secretary retains the authority and reserves the right to request other information or supporting documentation from the third-party requestor.
Affording this additional opportunity for institutional response to a group formation, as well as the changes discussed earlier to allow legal assistance organizations to request consideration of a group claim means the initial review of group requests will take longer prior to issuing a decision
Second, we will remove the set time limit for the Department to respond to requests for reconsideration around the formation of a group by a third-party requestor from the 90 days proposed in the NPRM. In looking further at the extent of information provided under previous requests for group claims and the number of potential additional group claim consideration requests it might receive, the Department is concerned that it will not be feasible to fully consider all the evidence that may be received in a reconsideration request within 90 days, especially while still balancing other pending requests. Accordingly, we have adjusted § 685.402(c)(6) to remove the 90-day response deadline. Instead, the Department will provide responses to the third-party requestor and institution after making a decision on the reconsideration request. This approach also mirrors the treatment of reconsideration decisions elsewhere in the regulation, which do not contain timelines for rendering a decision.
The Department has also revised the regulations to provide that institutions will receive copies of all decisions that are given to third-party requestors.
We do not believe it would be appropriate to add the other requirements for third-party requestors as requested by commenters. The group request is a mechanism for a third-party requestor to share information with the Department, which evaluates what it receives and makes its own decision about whether to form a group. Adding the requirement that parties make submissions under the penalty of perjury sufficiently ensures the information shared under that practice is truthful and accurate and ensures that every external party providing information to the Department is held to the same standard.
Commenters also argued that tying other Secretarial actions to BD claims could result in more lawsuits on those actions rather than settlements since it would be more worthwhile for an institution to challenge those actions. Conversely, other commenters argued that approvals tied to prior Secretarial actions could encourage too many settlements so that institutions could avoid the threat of a group claim. Commenters also raised concerns about the lack of due process procedures for claims under this process.
The Department appreciates the questions from commenters about exactly what types of final actions fall under this process. We updated the Federal standard in § 685.401(b)(5)(ii) to create an exhaustive list of the types of actions that fall under this standard. Those are actions taken under part 668, subpart G, action to deny the institution's application for recertification, or revoke the institution's provisional program participation agreement under § 668.13, if the institution's acts or omissions tied to those final actions could give rise to a BD claim under § 685.401(b)(1) (substantial misrepresentation), (b)(2) (substantial omission of fact), (b)(3) (breach of contract), or (b)(4) (aggressive recruitment). We provided a longer discussion of why we are making this change in the
Because we have moved the definition of what actions would fall under this process to § 685.401(b)(5)(ii), we have removed the additional clarifications that were in paragraphs (a)(1) through (5) of § 685.404.
As we explain elsewhere in this document, the Department will not attach any new liability for institutions to actions or transactions that were permissible when the events occurred. Thus, the formation of groups under § 685.404 exists independent of any recovery action that the Secretary could take after discharging a loan. To allay institutions' concerns, the Department codified in § 685.409 that we will only initiate recovery proceedings for loans first disbursed after the effective date of regulations if we would not separately approve claims and initiate recovery under the relevant regulation in effect at the time.
Thus, a few commenters proposed a 3-year limitations period for a borrower to bring a claim which would align to the general record retention period that institutions must adhere to regarding title IV records. A few commenters also disagreed with the Department's statement in the NPRM that the financial aid records subject to the 3-year records retention requirement were less likely to be relevant in adjudicating a claim than other records.
We explain our rationale for not imposing a limitations period for a borrower to file a BD claim elsewhere in this document under the “
Other commenters believed that the timeline to adjudicate is concerning as institutions do not have control over the timeline the Department may choose to process a claim. These commenters stated that deeming loans unenforceable after a certain time frame is a misuse of tax dollars and wasteful. One commenter argued that the timelines to decide on a claim would encourage all borrowers to file a claim in the hopes of overwhelming the Department. Similarly, another commenter pointed to program reviews that have taken as long as 5 years as evidence that the Department would not be able to decide claims within 3 years.
While a few commenters believe 3 years is too long for a borrower to wait for a claim to be decided (in the case of an individual claimant), we reiterate that a thorough review of a claim cannot be achieved in a few weeks; we also reject the proposal to reduce the time to adjudicate claims to 1 year. The BD process requires many administrative steps, including identifying borrowers in the case of a group; collecting information pertinent to the claim; providing the institution an opportunity to respond; placing the borrower's loans in the appropriate status; reviewing what can be an extensive evidentiary record; making a recommendation to the Secretary; and issuing a decision. To mitigate risk of financial harm to borrowers who filed a claim, the Department will place all of a borrower's loans in forbearance or cease mandatory enforcement collections, with interest accrual ceasing either immediately (in the case of a group claim) or after 180 days from the date the borrower was placed in forbearance or stopped enforced collections. The Department also added a provision in § 685.406(g)(5) that after the timelines expire, the loans covered by the claims that do not yet have a decision would be unenforceable. Collectively, these guardrails provide adequate protection to the borrower while giving the Department time to thoroughly adjudicate the claim.
With regard to the commenters who expressed concerns about the Department not being able to handle the number of possible claims, we believe the changes made to a materially complete application will address this concern. While not erecting major barriers, this requirement will ensure that borrowers provide sufficient details about the institution's acts or omissions such that there will be a baseline level of quality in applications that go through the full adjudication process and that those applications contain the details needed to fairly adjudicate them. The goal of ensuring applications contain sufficient information for adjudication is reflected in existing regulations permitting the Department to seek further details from the borrower;
In this context, the Department recognizes that the interaction of the materially complete application provision and regulation's July 1, 2023 effective date for then-pending applications could cause confusion surrounding the timeline for a borrower to receive a decision. To address this concern, we have clarified that the timeline for a decision on an individual application will be the later of July 1, 2026 or 3 years from the date the Department determines the borrower submitted a materially complete application. For applications that are pending on July 1, 2023, and that are not materially complete—that is, applications that lack sufficient information to adjudicate the claim—the Department will contact the applicant with an explanation of the details needed to make out a materially complete application. This, however, is not a novel requirement or a departure from existing standards. The material-completeness threshold merely sets forth clearer guidance on the details needed to facilitate continued adjudication. Indeed, under existing regulations, applications that lack such details would prompt a request for further information or have a higher likelihood of a denial.
With respect to the commenter who suggested that the timeline should begin upon receipt of an application, we decline to adopt this proposal. Determining that an application is materially complete ensures the Department has the information it needs to fully review a claim under the Federal standard. An incomplete application may be missing key details that must be received to continue the process. Having the Department bind itself with deadlines for review of claims thus makes the most sense to start from when the borrower has given us enough information to start other parts of the adjudication process, such as the institutional response.
We understand that commenters are concerned about timelines over which institutions may feel they have no control. When crafting these timelines, however, we considered the institution's stake in the lifecycle of a BD claim and have made adjustments described elsewhere in this document to accommodate institutional concerns. We believe that the timelines in these regulations provide all parties concerned an opportunity to be heard in the BD adjudication process.
Finally, while we acknowledge concerns from commenters that deeming loans unenforceable if the Department is unable to meet prescribed timelines may result in a cost to the taxpayer that cannot be recouped, the Department's goal is to ensure claims are adjudicated within the prescribed timelines and thus no costs are ultimately incurred from these deadlines.
The commenters are correct that there are some differences between an approved claim and a loan deemed unenforceable, which is another reason why the Department is committed to making decisions on claims before the time limits are reached.
Moreover, as we discuss elsewhere in this document, we would provide copies of the written decision to the institution so the institution will be aware of the status of the claim. We will also commit to giving the institution an interim update as we do for borrowers.
The Department already explicitly states in the NPRM that the application itself, including the borrower's sworn statement, is a form of evidence. The Department has not deviated from this position and will consider the application as one of several components in the adjudication of a BD claim. Similarly, although the Department has updated the presumption applied to groups, it has not deviated from its position that, based on supporting factual evidence, it will apply a presumption that actionable acts or omissions affected each member of a group considered collectively.
While the Department requires a materially complete application from an individual claimant to continue with adjudication, an otherwise complete application does not require legal analysis from the borrower. Although an individual's claim must still meet the same evidentiary standard whether or not represented by counsel,
Therefore, we decline to alter the regulations or to expressly adopt a
In its proposal to give institutions 90 days to respond, the Department aligned the maximum time afforded to schools in the program review process.
After further consideration, we believe that BD claims from individual claimants need clearer standards so that such individuals have a clear understanding of what information is needed by the Department prior to adjudication. To that end, the Department will determine an individual's application to be materially complete when the application contains: a description of one or more acts or omissions by the institution; the school or school representative to whom the act or omission is attributed; approximately when the act or omission occurred; how the act or omission impacted the borrower's decision to attend, to continue attending, or to take out the loan for which they are asserting a defense to repayment; and a description of the detriment they suffered as a result of the institution's act or omission. Laying out these concepts will also guide borrowers in creating the strongest claims possible and avoid denial of a valid claim because the borrower did not provide greater detail upfront. We reiterate, as we state elsewhere in this preamble, that an otherwise complete application lacking a legal analysis will not preclude adjudication. However, we believe it is reasonable to require an individual claimant to tell their story so the Department official can adjudicate the claim. By requiring all the aforementioned information, the Department believes it has created a framework that minimizes the likelihood of vague or emotional claims as suggested by the commenters. We also believe that the inclusion of the aforementioned information will be sufficient to allow the institution to understand and respond appropriately to the BD claim. Finally, by identifying the elements of a materially complete application package for an individual claim, we believe we have crafted a process that will result in a sufficient record to adjudicate, and we decline adopting any further requirements that would add unnecessary hurdles for a borrower to assert a defense to repayment.
We already outline the conditions under which the Department would
After careful consideration of the commenters' suggestion that institutions be allowed to request reconsideration, we decline to make this change. We remind institutions of the bifurcated process of the BD framework—adjudicating the claim is a separate and distinct process from the process for recoupment from the institution for the amounts that the Secretary discharges. In crafting the reconsideration process, we distinguished the issue of whether the borrower has a defense to repayment from whether and how much the Secretary should recoup from the institution. Consideration of the borrower's BD claim is between the borrower and the Secretary, since it is the borrower raising a defense to repaying the Secretary on a loan that is payable to the Secretary. Allowing institutions to request reconsideration is inconsistent with the purpose of this process.
We disagree with the concerns that allowing reconsideration would result in a lack of finality of a claim and that a claim could be continuously granted reconsideration. We also disagree with the proposal to give borrowers an unqualified right to reconsideration. We outline the limited circumstances under which we would consider a reconsideration request: administrative or technical errors; consideration under an otherwise applicable State law standard for loans disbursed prior to July 1, 2017; and new evidence. Limiting the State law reconsideration only to borrowers who would have previously had access to it also should help reduce borrower confusion and address the concerns raised by commenters about the use of a different standard during reconsideration. As we expressed in the NPRM, the specific instances for reconsideration provide appropriate limits on the borrower's ability to seek reconsideration or to ask for the same allegations to be reviewed repeatedly without a rationale for why the outcome may change.
We also disagree with the commenters that the reconsideration process violates principles of
Nothing prevents an individual who is part of a group from submitting a new individual BD claim under § 685.403.
Other commenters raised different objections to the proposed partial discharge approach. They said that the Department should not adopt a presumption of full discharge, should conduct its own fact finding for each individual borrower to determine discharge amounts, and give institutions an opportunity to provide additional evidence during the process of determining the discharge amount. Commenters argued that the Department should be capable of assessing the value of an education and did not explain why it no longer thought it could do so. Commenters also argued that the Department should be able to calculate the value of the education and that the proposal to provide a 50 percent discharge if the Department could not easily quantify the amount of harm was not sufficiently reasoned. Commenters also raised many concerns with the examples provided, arguing that some were unrealistic, some did not clarify how they would interact with the presumption of a full discharge, did not address fact-specific elements like a borrower not getting an internship because they lacked the academic qualifications to be eligible for one, and displayed favoritism toward more selective institutions that were more likely to have claims against them result in partial discharge. Commenters argued for rebutting the presumption of a full discharge for claims approved under State law. Commenters argued that the risk of giving borrowers an insufficient amount of discharge needs to be better balanced against the risk of trying to recoup excessive sums from institutions. Commenters also connected the concerns about discharge amounts to other comments around the lack of harm in the overall standard. Commenters also disagreed with the Department's argument that all approved claims to date have been for full discharges since, in all but one instance, those were all against schools that were no longer in business.
Based upon all of this feedback, the Department is convinced that articulating a clear and consistent standard for applying a partial discharge is not feasible. Instead, the Department will award a full discharge for approved claims, while adding language that an approved claim must be tied to an act or omission that caused detriment to the borrower that warrants relief in the form that BD provides. Such an approach also means that a separate calculation of the educational value of a program is not necessary.
The Department finds support for this conclusion in the nature of the remedy provided by a defense to repayment, including the legal principles it implicates and the practical realities of administering the remedial scheme. Although the student loan context is unique, a defense to repayment resembles rescissionary remedies available in contract law (avoidance and restitution or reliance costs),
This type of remedy differs from damages. Generally speaking, a damages remedy seeks to measure and compensate an injured party for the harm they suffered; rescissionary remedies, on the other hand, emerge from principles of restitution and restore a party to the status quo ante. In the context of a fraudulent transaction, a damages remedy would seek to measure loss based on either the injured party's out-of-pocket costs or on the benefit of the bargain that the injured party lost as a result of the wrongdoer's fraud.
Although BD combines interests that do not neatly fit distinctions in conventional legal doctrine, we think it more closely resembles the latter category of remedies described above, which informs our determination to omit the option of partial discharge. Partial discharge more closely resembles conventional damages remedies, which honor compensatory interests that exist in the BD context but present far more practical difficulties. A damages-like remedy in the BD context would suggest that recovery should reflect the difference between the actual value of the educational program and the price a borrower paid. It might also suggest
This approach will address the concerns of both commenters that pushed for limiting partial discharge and those that were concerned about approved claims being tied to minor matters. For the former group, the elimination of a partial discharge ensures that any borrowers whose claim is approved will receive a full discharge. But for the latter group, the language ensuring that an approved claim must warrant this relief adds a requirement that the circumstances justify the remedy BD provides. This concept is captured in new § 685.401(e), which states that in determining whether an act or omission merits relief, “the Secretary will consider the totality of the circumstances, including the nature and degree of the acts or omissions and of the detriment caused to borrowers.” Removing the concept of partial discharge also eliminates the need for changes to the rebuttable presumption of a full discharge requested by commenters.
In applying § 685.401(e)'s totality-of-the-circumstances approach, the Department expects to draw on principles and reasoning underlying the application of rescissionary remedies that BD resembles, where factual circumstances call for it. We chose not to expressly adopt the precise standards from any of those areas, because none account for the unique combination of interests at work in the Federal student loan program or for the wide range of varying circumstances that arise in the context of adjudicating BD claims.
The Department considered whether the regulations themselves should include a more specific enumeration of circumstances that will warrant relief, but ultimately determined that the most appropriate approach was to further develop the standard through adjudication of particular cases. To that end, in appropriate cases dealing with circumstances not specifically addressed in the regulations, the Department will make its explanations of remedy-related determinations public to guide affected parties and provide an opportunity for public scrutiny. As a general matter, however, the determination described in subsection (e) is informed by documented cases of fraud and misrepresentation that the Department has addressed in the past.
The Department also adopts a rebuttable presumption that, for claims that otherwise satisfy the standard, the detriment caused in the case of closed schools will be sufficient to warrant relief. This is based on the Department's experience that when a school closes and is shown to have been responsible for the misconduct encompassed by “actionable acts or omissions,” the borrowers shown to have been injured by that conduct are very likely to fall within the circumstances that warrant relief. This also acknowledges that when schools close, it is often challenging for borrowers or for the Department to obtain additional evidence that may be necessary to fully establish the nature and degree of detriment. In such situations, the Department does not want to make borrowers worse off because their institution has closed. This does not mean that every otherwise proven claim from a borrower who attended a closed school will necessarily be determined to warrant BD relief. Rather, in such cases are determined not to warrant relief, the Department will cite to the specific reasons and evidence for that conclusion.
The Department disagrees with the allegations by the commenters that its prior consideration of partial discharges had been shielding a specific type of institution. The Department has crafted a set of rules based upon what we have seen as misrepresentations, omissions, and other acts over time and there are no sector-specific limitations to those standards.
Other commenters expressed reservations about the Department's ability to recoup from the institution. These commenters stated that the Department did not have a legal obligation to detail the instances in which it would not seek to recoup because doing so would undermine its overall prosecutorial discretion. The commenters suggested eliminating § 685.409(b) or revising § 685.409(b)(1) to note the Department's discretion will be consistent with typical practice. Other commenters stated that the Department lacked the statutory authority to impose borrower defense liabilities against affiliated persons of closed schools.
Other commenters suggested that by requiring the Department seek recoupment from schools and school owners in all but a few narrow circumstances, the regulations will inadvertently constrain how much relief the Department is willing to provide borrowers. These commenters suggested that the Department would be reluctant to grant relief when doing so might result in an institutional liability that would push a school to close. Additionally, commenters theorized that if the Department is required to pursue recoupment, and believes schools will contest recoupment, then granting BD claims will create substantial additional administrative, legal, and resource demands on the Department. Commenters believed that this would decrease the likelihood that the Department would grant meritorious claims or pursue group processes.
We disagree with commenters who stated that we lack the statutory authority to institute action to collect the amount of approved BD claims from persons affiliated with closed schools. As we discussed in the NPRM, Sec. 454(a)(3) of the HEA provides that an institution must accept responsibility and financial liability stemming from its failure to perform the functions set forth in its PPA—the signed document required for participating in the Federal financial aid programs through which the institution and other relevant parties agree to abide by the rules and requirements governing the programs.
Because the BD framework is a bifurcated process, the recovery provisions under § 685.409 would have no bearing on the separate process of adjudicating the claim. We dismiss any unfounded conjecture that the recoupment process itself would decrease the likelihood of granting meritorious claims.
With regard to transcript withholding, we note that such policies may have separate implications under State and Federal consumer protection laws. Likewise, transcript-withholding practices have also drawn increased scrutiny from the Department independent of this rule and from the CFPB.
A few commenters stated the Department does not include any regulatory text in the proposed rule that guarantees, specifies, or even suggests that recovery proceedings will occur under subpart H. A few commenters asked if the shift to part 668, subpart H would mean that the same time limits that apply to program reviews would be applied, such as 30 to 90 days to respond a review and 45 days to appeal any final decision.
When the Department initially issued final rules on recovery proceedings under § 668.87, subpart G appeared a more appropriate fit because those recovery proceedings also included combined consideration of certain fact-finding steps like the actual claims' merits and relief for members of the group. In doing so, however, it made BD recovery an outlier among the other procedures in subpart G—that is, a fine, limitation, suspension, or termination proceeding involves punitive measures, whereas subpart H appeals are more appropriate in cases involving the recovery or reimbursement of federal funds owed.
First, the updated structure and sequence of the process for adjudicating BD claims includes new features to make it a more robust fact-finding process, which also provides for considerable input from schools. But as we explain more in the “
Second and relatedly, in light of that updated structure, there is little reason for recovery to remain an outlier among the punitive steps provided for in subpart G. As noted, BD recovery more closely matches the other means of recovering federal funds provided for in subpart H. As we explain in the “
Contrary to at least one comment's suggestion, the 2016 BD regulations do not acknowledge that the Department
We believe that, in addition to schools' opportunities to submit evidence and arguments during the adjudication stage, using the familiar process in subpart H will provide institutions with a meaningful opportunity to contest any liabilities sought in recoupment.
In response to the commenters who stated the Department does not include any regulatory text in the proposed rule that guarantees, specifies, or even suggests that BD recovery proceedings would occur under subpart H, we agree that the regulations should better reflect the recovery proceedings. Therefore, we are adding regulatory text that makes clear the Secretary will recoup these amounts discharged under a subpart H proceeding. We are including a new § 668.125 to part 668, subpart H to add specific provisions related to the proceedings for recouping the costs of approved borrower defense claims from institutions. Under these provisions, institutions will have 45 days to request a review of the determination that they are liable for the amounts discharged, with that period running from the day the institution receives a written notice from the Department. This timeline mirrors the process for other part 668, subpart H proceedings and addresses the questions from commenters about how timelines for borrower defense would compare to program reviews.
The added language also specifies that the written notice's request will fulfill the role of a final program review or final audit determination as described in §§ 668.115 to 668.124. This ensures that the correct document will be used for all the proceedings under this part. The Department also adds language in § 668.125(e) to specify that the Department has the burden to prove that the loans it is seeking to recoup on were discharged for the purposes of borrower defense and that the institution has the burden to prove that the decision to discharge the loans was incorrect or inconsistent with law and thus that the institution should not be liable. Also within paragraph (e), the Department
As noted above, the Department has added language in the new § 668.125 to address certain issues raised by commenters. This specifies the types of evidence considered during the proceedings and confirms the time provided for an institution to request a hearing after receiving written notice.
We specify in § 685.410 that to obtain a discharge, a borrower must reasonably cooperate with the Secretary in any proceeding under these regulations. Because recoupment is a matter between the institution and the Department, the borrower would be a non-party at the recoupment stage because, by then, the borrower's BD claim would have been adjudicated. The sworn statement under penalty of perjury and any other materials submitted by the borrower when they applied are likely to be the most important items from the borrower in a recoupment proceeding. The cases where additional cooperation might be necessary would vary depending on the specifics of the recoupment effort and the facts involved. Accordingly, the Department expects that borrowers will provide any necessary additional assistance as relevant and requested when conducting a recoupment proceeding.
A few commenters suggested limiting the tolling period and suggested revised language. The commenters stated tolling should come to an end and allow the institution to maintain its business without the fear of receiving BD claims at some indeterminate date in the future. Similarly, some commenters expressed concerns about the lack of any limit on the recoupment period for claims approved due to a judgment. Other commenters proposed that the limitations period should be temporarily suspended upon notification by the Department and that any pause should cease upon the issuing of a final decision on the claim or the issuing of a judgment. One commenter requested that the Department make the regulatory text more definitive as to when events suspend the limitations period. Finally, commenters also suggested that the Department issue a decision within 1 year of the final decision notice about whether it would seek to recoup.
We disagree with commenters who suggest a 3-year limitations period. The Department believes this time frame is too short, as it minimizes the financial remedies for the Department.
We also disagree with the proposal to limit the recoupment period for judgments. Obtaining a judgment often takes years after a complaint is filed. The Department is concerned that the limitations period for recoupment could expire while a case is working its way through the litigation process. Using a clock on judgments could also encourage institution to intentionally extend case schedules rather than expeditiously moving a case closer toward resolution. Given that the litigation process produces and preserves evidence, and that a judgment follows a robust factfinding process, the lack of a limitations period for judgments is appropriate.
In response to the commenter who requested that the Department alter the regulatory text on tolling the limitations period, we disagree that the text is vague as the commenter described. The relevant text in those provisions reflects existing regulatory language,
We are partially accepting the proposal by commenters to not keep the limitations period permanently suspended even after a final decision is issued. In particular, if there is a final agency decision to deny an application, it would be reasonable to cease the tolling of any limitations period, since that would keep a denied claim potentially available for recoupment until the loan is paid off. Therefore, we are updating § 685.409 to cease the suspension of any limitations period upon issuing a final agency decision to deny a claim. We, however, decline the other suggestions from the commenter to cease the suspension of the limitations period upon any approval, or to announce the Department's intentions regarding recoupment within 1 year of a final decision. Based on past experience, the Department is highly likely to receive additional individual applications after the approval of claims. As such, the universe of approved claims under which the Department may seek to recoup could grow over time. It would be more efficient for both the Department and the institution to conduct a single recoupment effort for similarly situated claims. As such, preserving flexibility for a delay between approval and any initiated recoupment is appropriate.
We disagree, however, with the suggestion to unlink the limitations tolling from the filing of a written State investigation request. As we state in the NPRM, such notice would make the institution aware of the issue and the possibility of related action, essentially alleviating the concerns that a limitations period is meant to address. Receiving such formal notice would require the institution to maintain relevant records and thus addresses any concerns about institutions no longer retaining any relevant records.
We also disagree that tolling should only be keyed to final adverse outcomes or findings. As a general matter, a limitations period serves interests in finality, providing notice to defendants, and avoiding adjudications based on stale or disappeared evidence. We do not believe that waiting until final adverse outcomes or findings is needed to account for those interests. Instead, we believe that the events the regulations identify for tolling purposes reflect reasonable points in time that acknowledge the sequence in which Department is likely to learn of relevant bases for relief but that still address interests in finality and avoiding unlimited periods of liability.
Another commenter stated that the Department did not sufficiently explain its analysis for the proposed regulatory changes pertaining to arbitration agreements. This commenter further asserted that we failed to engage with the justifications for the current regulation in a meaningful manner and, therefore, the Department did not provide the public a sufficient basis to justify the rule change.
In response to the commenter who stated that we did not sufficiently explain our analysis for the changes pertaining to pre-dispute arbitration agreements, we note that we explained in the NPRM our reasons for prohibiting pre-dispute arbitration agreements in students' enrollment agreements and the basis for the policy changes from the 2019 rule.
The Department's actions are tied specifically to promoting the interests of the Direct Loan program. Institutions choose to participate in the Direct Loan program and are subject to many restrictions and requirements relating to that participation. If an institution voluntarily signs a PPA to participate in the Direct Loan program and benefit from public funds, then it must agree to abide by the conditions the Department determines are necessary to safeguard borrowers, taxpayers, and the integrity of the program.
In response to the commenters who stated that the Department failed to consider the benefits of arbitration and the costs and benefits associated with arbitration, we considered the effect of
We recognize that arbitration may provide some potential efficiencies for institutions and consumers and the regulations do not discourage institutions from offering or promoting arbitration to complainants once a grievance is reported. The regulations instead only forbid institutions from imposing arbitration upon Direct Loan borrowers as a mandatory barrier to seeking relief through other means. The regulations also do not bar institutions from immediately addressing a grievance as fully as it can, whether or not the student chooses to raise the complaint to outside authorities.
Several other commenters asked the Department to clarify the timing of notices sent to borrowers to ensure that they be made aware as quickly as practicable that their rights to pursue claims in court have been restored, both individually and as part of a class.
However, if a borrower believes that a grievance is significant enough to warrant the attention of a government agency or accrediting agency, we believe that the benefit of bringing that complaint to their attention outweighs the benefits of compelling the student to delay. The regulations do not impose any duty on such an authority or accrediting agency to take any particular action, and they may choose to defer or delay consideration of the complaint until completion of the institutional process. However, at a minimum, the regulations would help those authorities better monitor institutional performance by making timely notice of substantial complaints more likely.
We disagree with the commenters who invoke the FAA to support mandatory reliance upon an internal dispute process. The FAA specifically refers to the practice of arbitration and does not extend to an entity's internal dispute process. Moreover, for reasons detailed elsewhere in this Notice in response to other comments concerning mandatory arbitration, the Department considers the regulation of class action waivers and pre-dispute arbitration agreements to be justified because they affect the interests of the Direct Loan program.
We also disagree that these requirements to submit records are overly broad. Section 685.300(g)(1) states that a school must submit arbitral records in connection with any BD claim filed in arbitration by or against the school, and § 685.300(h)(1) states that a school must submit judicial records in connection with any BD claim filed in a lawsuit by the school against the student or by any party, including a government agency, against the school. The required submission of records is thus appropriately connected with any BD claims.
A separate group of commenters suggested that the Department clarify what it means by “in connection with any borrower defense claim filed in arbitration,” (§ 685.300(g)) or filed “in a lawsuit” (§ 685.300(h)). They asked whether the Department is asserting that covered records must be submitted after a BD claim is filed or whether we would require an institution to submit records that could give rise to a BD claim.
With respect to the commenter's requests for clarification on the policy basis for the Department's regulations, the Department reiterates its policy position and the Department's rationale in the NPRM, specifically the discussion set forth at 87 FR 41913 through 41918. Notably, and we emphasize again, the institutions' use of mandatory arbitration agreements impedes the Department's oversight authority as arbitral records are often shielded from public view. We disagree with the commenters' assertion that publicly available documents are freely available elsewhere. In the case of judicial records that may be public, some records may be difficult for the general public to access because of user registration, fees, and other hindrances. The Department's publication of these arbitral and judicial records in a centralized database supports open government initiatives to help ensure consistency, increase transparency, and establish self-service opportunities for stakeholders, especially for borrowers or prospective students.
In response to the commenter's request to clarify whether the Department has considered the potential for individuals to “troll” the database for clients, we considered the matter and addressed confidentiality concerns in the NPRM.
Finally, with respect to the commenters who suggested that the Department clarify what it means by “in connection with any borrower defense claim,” we believe the regulatory text at § 685.300(i)(1) provides the parameters of a BD claim, which is a claim based on an act or omission that is or could be asserted as a borrower defense as defined in the regulations. Thus, we would require institutions to submit records in connection with an act or omission that is or could give rise to a BD claim.
Reliance upon internal dispute resolution processes and arbitration impedes effective program oversight by the Department as well as accrediting agencies and other oversight bodies, because institutional and arbitral records are often shielded from public view. Prospective students may not be able to make informed enrollment and borrowing decisions without knowledge of or access to arbitral records that may otherwise reveal systemic problems at an institution, whereas public knowledge of a class action suit allows prospective students to make more informed decisions.
It is possible that restricting the use of class action waivers may in some cases
In response to comments that the disclosures currently required under § 668.41(h) protect students, the Department does not believe that there is evidence that such protections are adequate to safeguard borrowers against harm. Since the issuance of the 2019 regulations, the Department has heard from borrowers, student advocacy groups, State attorneys general, and the public about problems arising from mandatory class action waivers and the opaqueness of institutional and arbitral records. In a review of court filings, the Department observed that institutions frequently relied on pre-dispute arbitration clauses to discourage students from filing appropriate claims in court and to force them into arbitration. The records of these arbitration proceedings are not publicly accessible.
In sum, the Department's position is that class action waivers contribute to an environment in which bad actors can mask abuses, delay or evade accountability, and harm borrowers by restricting access to the full array of relief available to them under the law.
As we explained in the NPRM, this position has prevailed in Federal district court.
One commenter noted that the proposed rule will have the effect of slowing growth on the balance of loans and create a fairer repayment system. This commenter also stated that interest capitalization imposes financial burdens on borrowers who are already experiencing financial instability.
Commenters pointed out that ending interest capitalization would assist many borrowers who have struggled with high loan balances and repayment of their loans since their overall amount of interest paid would be significantly lower.
Although the Department will not capitalize interest, it will still accrue while a borrower is in these situations. The borrower will have to pay that interest before a payment is applied to the principal balance.
The Department cannot change interest capitalization requirements in the HEA. This includes when a borrower exits a period of deferment on an unsubsidized loan and when a borrower who is repaying loans under the income-based repayment (IBR) plan is determined to no longer have a partial financial hardship, including if they fail to annually recertify income.
As discussed earlier, the Department cannot eliminate interest capitalization where it is required by the HEA.
The Department is eliminating interest capitalization in all circumstances where we have the discretion to do so. These changes only apply to Direct Loans. We do not have a legal basis to make the suggested changes in the FFEL program regulations. The terms of FFEL program loans are set by the promissory note signed by the borrower and the lender, and the lender has a right to receive the return on the loan that was set under the law at the time the loan was made. In this case, the regulations and the promissory note give the lender the right to capitalize interest in most cases. The assumption is that the lender took that into account when deciding that it was financially worthwhile to make the loan.
The interest rates on all Federal student loans, including those in the FFEL Program, are set by Congress and cannot be changed by the Department.
A few commenters suggested that TPD discharges should be extended to other groups of disabled borrowers, such as cancer patients; partially disabled veterans; primary caretakers and spouses of permanently disabled persons; borrowers with permanent disabilities who still work; people who have been disabled for over 10 years; and people suffering from post-traumatic stress disorder. Commenters argued that if there is factual evidence that a student loan borrower is unable to engage in any substantial gainful activity by means of the Social Security earnings record data demonstrating a period of substantial earnings impairment for a continuous period of not less than 60 months, then the borrower should qualify for a TPD discharge either automatically or upon their own certification of their disability status in accordance with the TPD discharge application process.
The commenter recommended establishing a new forbearance type specifically geared toward borrowers suffering from Long COVID. Even if this were feasible, we believe that the existing forbearance and deferment provisions render such a regulatory action superfluous. Currently, a borrower who is experiencing severe medical problems and who does not qualify for any of the existing deferments—such as an unemployment deferment or an economic hardship deferment—may apply for a forbearance. The Department grants forbearances for borrowers with medical conditions that do not rise to the level of a total and permanent disability. Interest accrues during forbearance periods. While the Department may pause interest accrual during a national emergency, the Department does not have the authority to set interest rates on title IV loans. Interest rates on title IV loans are established by Congress.
A few other commenters pointed to the same section of the HEA to argue that Congress intended for the Department to have a monitoring period. One of these commenters pointed out that Sec. 437(a)(1)(A) and (B) of the HEA describe the circumstances under which reinstatement of a discharged loan is appropriate. They also noted that Sec. 437(a)(3) requires the Secretary to “establish and implement” procedures for an income monitoring process, apply it “to each borrower of a loan that is discharged due to total and permanent disability”, and use return information “to determine the borrower's continued eligibility for the loan discharge.” Finally, that same commenter also pointed to the Fostering Undergraduate Talent by Unlocking Resources for Education (FUTURE) Act, which amends the Internal Revenue Code of 1986 to provide for the release of IRS tax return data for the purpose of monitoring and reinstating title IV loans that were discharged due to a total and permanent disability.
One commenter also pointed to the extensive inaccuracies (and potentially fraudulent occurrences of TPD discharges) as described in OIG Final Audit Report 06-80001 (June 1999) that were identified prior to implementation of the monitoring period. The commenter recommended that, rather than returning to what the commenter characterized as the 1990's discharge process that allowed potential fraud and abuses, the Department should instead use the tools Congress has provided to minimize paperwork burden on individuals with a disability while also minimizing taxpayer burden from the cost of TPD discharges.
Moreover, as noted in the NPRM, the Department has found that the income monitoring requirement is significantly more likely to result in the reinstatement of a loan for a low-income borrower than it is to identify someone whose income suggests they are able to engage in gainful employment. As noted in the NPRM, since 2013, loans for more than half of the 1 million borrowers who received a TPD discharge were reinstated because the borrower did not respond to requests for income documentation. However, an analysis conducted by the Department with Internal Revenue Service (IRS) data suggests that 92 percent of borrowers who received a TPD discharge did not exceed the earnings threshold, and that these results are similar for borrowers whose discharge is based on an SSA disability determination or physician's certification process. Similarly, an older review by GAO
As to the OIG audit, since 1999 the Department has made many reforms to the TPD discharge process, including centralizing the TPD discharge application review process within the Department, rather than relying on guaranty agencies in the FFEL program and school lenders in the Perkins Loan program to make TPD discharge decisions. The Department has implemented reforms allowing TPD discharges to be granted based on SSA or VA disability determinations, rather than relying solely on certifications by physicians. Finally, the Department has entered into agreements with SSA and VA to allow for automatic discharges to be granted based on information provided to us directly from these agencies. All of these reforms provide for more consistent TPD discharge review and significantly reduce the likelihood of TPD discharges being granted in error.
The commenter expressed the view that the while this alleged fraudster was caught, the revised rule would enable many more fraudsters to operate by enabling lower-level professionals to certify a total and permanent disability.
The commenter asserted that the Department's position is untenable because borrowers are only required to submit annual income information because the Department has failed to carry out the authorization that was extended by Congress through the FUTURE Act. The Department could easily remedy borrower burden by implementing the automated data match as authorized. In doing so, we could alleviate borrower burden while protecting taxpayer dollars.
Another commenter believed that a licensed psychologist may be unable to reasonably certify the inability of a person to function productively in society. In the view of the commenter, entrusting TPD determinations to an individual psychologist invites fraud and incorrect TPD determinations. The commenter felt that the risks of error and fraud were not sufficiently weighed against the minor additional accessibility that would be available under the proposed rule, which, in the view of the commenter, rendered the proposed rule arbitrary and capricious.
Psychologists licensed at the independent practice level by a State are generally required to have Ph.D.s. They identify psychological, emotional, and behavioral issues and diagnose disorders. They provided evidence-based clinical services, including psychotherapy, evaluation and assessment, consultation, and training. Psychologists who provide health care services are primarily independent practitioners. The Department believes psychologists licensed at the independent practice level are well-qualified to diagnose patients, and to make TPD determinations.
The reference to a veteran being unemployable due to service-connected disability derives from the current definition in § 674.51(a)(2) which defines “total and permanent disability as the condition of an individual who has been “determined by the Secretary of Veterans Affairs to be unemployable due to a service-connected disability.” This definition, in turn, derives from the statutory language which states that a borrower is considered totally and permanently disabled if the borrower “has been determined by the Secretary of Veterans Affairs to be unemployable due to a service-connected condition” (HEA, Sec. 437(a)(2)).
With regard to the VA requiring veterans who are receiving disability benefits to submit an employment questionnaire annually, we note that VA disability benefits are structured differently than TPD discharges. VA disability benefits are ongoing. When the Department grants a TPD discharge, it is one-time event. We do not see a need to replicate VA's process for determining if a borrower continues to qualify for VA disability benefits.
• Do not consider or acknowledge past orderly closures that have been implemented in consultation with and approval from accreditors and state educational agencies.
• Risk being overinclusive due to inaccurate student status data.
• Create incentives for students to reject teach-out options and delay their education.
• May result in unnecessary discharges for borrowers who have every intention of returning to their program of study through an approved teach-out after 1 year.
• May encourage borrowers to take a discharge and then transfer credits.
These commenters recommended:
• Returning to a 3-year period before granting an automatic closed school discharge because many students choose to voluntarily take a break between attending the closed school and the teach-out institution.
• Only allowing those students who were unable to complete their programs because their schools closed to seek closed school discharges.
• Disqualifying a borrower for a discharge if they accept teach-out at another institution or transfers credits.
With regard to past orderly closures, we disagree that the final rule does not consider this issue. In fact, the conditions that lead to a discharge in this rule better align with what occurs during orderly closures. An orderly closure generally involves an institution doing a combination of teaching out its own students and establishing a teach-out agreement that gives borrowers a clear path to finishing their studies. A borrower who follows either of those paths and finishes would not receive a closed school discharge. Unfortunately, the far more common occurrence is that borrowers face abrupt closures. Under this rule, a poorly managed closure that lacks a teach-out agreement will be more likely to result in discharges for borrowers.
The Department disagrees with the commenters who argued that concerns about the Department's student completion information undercut the rationale for these regulatory changes. The Department is responsible for ensuring that it correctly awards discharges to borrowers who are eligible under the regulations. That is an operational matter and not regulatory. The Department also reminds commenters that it is the institution's responsibility to ensure it is entering accurate data about borrower completion status. The Department issues reminders to schools about this responsibility. In 2012, the Department clarified a series of institutional reporting requirements, including requirements to report student enrollment data even when the student has received Pell Grants but never a FFEL or DL program loan, and even when the student has received Perkins Loans but never a FFEL or DL program loan. While enrollment reporting issues were identified many years ago, those do not affect the regulatory changes, which focus on more recent information.
We also disagree with the argument that this final rule will create incentives for borrowers to take a discharge then simply transfer their credits. First, the requirement in the HEA is that the borrower is eligible for a discharge if they are unable to complete the program because the college closed. The intent is for the student to complete their program at the college they were enrolled in. In this final rule, the Department is also treating programs completed as part of a teach-out or as a continuation at another location of the institution as equivalent to the completion of the program because both approaches are the situations where the program is most likely to be similar to the one the borrower was enrolled in. By contrast, it is incredibly common for borrowers who transfer credits through other means to lose significant numbers of credits. An earlier study of credit transfer by GAO found that very few students transferred credits from private, for-profit colleges and that even when a student moved from one private for-profit college to another, they still lost 83 percent of their credits on average.
The Department similarly rejects the suggestions for disqualifying borrowers for discharges if they simply accept a teach-out or transfer. Those borrowers are eligible for discharges under current rules because they did not complete the program. Having the act of transferring or taking a teach-out disqualify a borrower for a closed school discharge would thus be contrary to the statute.
The data obtained from GAO persuaded the Department that waiting 3 years from closure for issuing automatic discharges is too long. GAO's data found that 52 percent of the borrowers who received an automatic discharge had defaulted, while another 21 percent had been more than 90 days late at some point. Moreover, the majority of those who did default, did so within 18 months of closure. GAO also found that among the borrowers who did transfer, almost half had not finished their program within six years of switching schools. GAO also found that the borrowers who transferred but did not finish had a particularly low closed school discharge application rate.
The high default rates of borrowers who do not re-enroll, especially the significant share defaulting within 18 months of closure, and the low application rates of borrowers who did not complete after enrolling elsewhere convince the Department that there are far too many borrowers missing out of closed school discharges that should be captured by an automatic process. As articulated in the NPRM, setting automatic discharges 1 year after the closure date for borrowers who do not re-enroll affords an opportunity to catch borrowers before they could default.
We agree that the final regulations should provide a more precise timeline for granting automatic closed school discharges. However, we feel that granting such discharges immediately, or 90 days after closure, is too soon. Borrowers need more time to decide on their options, and a borrower who intends to enroll in a teach-out or continue their program at another branch or location of the school may not do so within such a short time frame. As discussed above, we think the 1-year period properly balances giving students time to figure out whether to continue their program at another branch or location of their school or through a teach-out while still helping borrowers before they could default. We have clarified that the closed school discharge will be provided 1 year after closure for a borrower who does not continue the program at another branch or location of their school or through a teach-out. Prior language had said “within 1 year,” which was too vague.
We also agree that the proposed regulations could better clarify that the automatic closed school discharge applies to borrowers who accept a continuation of their program at another branch or location of their institution or a teach-out if they do not ultimately finish that continuation or teach-out. Therefore, in the final regulations, we specify that the automatic closed school discharge will be approved 1 year after the date of last attendance in the continuation of the program or the teach-out for a borrower who accepts either of those paths but does not complete the program.
A few commenters recommended that the Department reconsider provisions allowing borrowers to receive a discharge where they did not complete a teach-out because this would sanction institutions that made a good faith effort to provide an alternative for students in the event of a closure. Other commenters argued that still providing discharges for borrowers who moved to another school through a transfer agreement could discourage the creation of such options.
Several other commenters stated the Department must create a strong incentive for schools to provide students with an opportunity to complete their program through an approved teach-out.
Some commenters recommended that the Department clarify the treatment of what happens if a borrower accepts a teach-out agreement but is unable to complete it due to circumstances in which a borrower was subject to an academic, disciplinary, or other “fault” dismissal.
The Department reminds commenters that the providing of discharges for a borrower who accepts but does not finish a teach-out agreement is not a change from current practice. Under current regulations, a borrower who transfers but then does not finish the program is still eligible for a discharge. However, previously, they were not eligible for an automatic discharge. But as the GAO report mentioned earlier notes, very few of the borrowers who do engage in such a transfer still apply for a discharge. Accordingly, the Department believes keeping the automatic discharge option for those borrowers is appropriate.
The Department disagrees with suggestions to make students ineligible for a discharge if they accept a transfer agreement. The language in the HEA is tied to the borrower's completion of the program. A teach-out or a continuation of the program at another branch or location of the school is designed to be analogous to the program the borrower was in. A transfer agreement does not provide the same protections that a teach-out does, such as requirements around the equitable treatment of students.
A few commenters recommended that the Department ensure the lookback window includes whenever a closing school announced its intentions to go out of business because schools can avoid liability by announcing that they will close more than 180 days in advance. One commenter pointed out that schools may publicly announce that they are going out of business up to a year before school closure and that such an announcement should be included as an exceptional circumstance.
Multiple commenters proposed making the extension of the lookback window automatic at the sign of the first occurrence of any exceptional circumstance. These commenters cited evidence that the Department has not always extended the window even though it has had the ability to do so.
Finally, several commenters opposed the additional list of exceptional circumstances and proposed the Department omit the proposal while others proposed that the Secretary should be required to include a rationale to demonstrate how a triggering event harmed the withdrawn student before approving a discharge based on exceptional circumstance. One commenter suggested that the Department should not include or expand the Secretary's exceptional circumstance authority, specifically identifying instances where schools are placed on probation by their accreditor because schools are often placed on probation and these statuses do not show sufficient legitimate risk of closure.
We disagree with the commenters that proposed further limitations on the exceptional circumstances authority. The circumstances behind institutional closures will vary, and it is important to preserve flexibility for the Secretary to acknowledge situations that are exceptional.
Other commenters recommended that the Department clarify the meaning of “most programs” and “most of its students” in § 685.214(a)(2)(i) and clarify whether the Department will employ any thresholds for these determinations. Still other commenters recommended that the Department clarify the preamble language in the NPRM stating that the provisions will not apply to small institutions that remain open but that close “a program or two.” These commenters stated that the preamble language is too imprecise. A few commenters recommended that the Secretary consult with accreditors and the State to make determinations of closure on a case-by-case basis. Others requested that the Department clarify the language and include it as regulatory text in the final regulation. Some commenters also asked that the Department not treat an institution that is conducting an internal teach-out as an instance of trying to adjust the closure date to avoid the lookback period.
Regarding the terms “most programs” and “most of its students,” these terms are referring to dates “determined by the Secretary” or “chosen by the Secretary.” Since these dates are established by the Secretary at the Secretary's discretion, there is no need to provide a specific definition of the word “most” for the purpose of these regulations. However, the revisions to §§ 674.33(g)(1)(ii)(A), 682.402(d)(1)(ii)(A), and 685.214(a)(2)(i) further clarify that changes to the closure date need to be tied to an
Regarding the internal teach-out, these often are only offered to a small subset of students and finish after the closure date. The borrowers who finish through an internal teach-out would not be eligible for a closed school discharge since they completed their program at the institution.
Commenters recommended that the Department clarify what the Department considers a “significant share of its academic programs” in § 685.214(h)(9). Commenters requested that the Department specify whether a significant share means 50 percent or more of an institution's programs were discontinued, or whether a higher threshold must be met before the Department would consider it an exceptional circumstance for purposes of extending the 180-day lookback period.
The term a “significant share of its academic programs” is used in connection with exceptional circumstances that may justify an extension of the 180-day lookback window, as determined by the Secretary. Since the determination to extend the lookback window is at the Secretary's discretion, the Secretary would determine whether a school has discontinued a significant share of its academic programs.
• The enrollment occurred at the same institution in closely proximate periods;
• The school granted a credential in a program while the student was enrolled in a different program; or
• The programs must be taken in a set order or were presented as necessary for borrowers to complete to succeed in the relevant field of employment.
Just because a school offers stackable credentials does not mean the Department would automatically apply this provision. Rather, it gives the Secretary flexibility to guard against closing schools that may award credentials inappropriately, to prevent students from qualifying for closed school discharges.
Other commenters opposed the elimination of comparable program from consideration. Some of these commenters stated that eliminating consideration of transfer would incentivize borrowers to take a closed school discharge and then transfer the credits they have earned, resulting in a windfall for the borrower. These commenters stated that the Department should incentivize students to transfer and complete regardless of whether there is a formal teach-out agreement, and that the Department should encourage teach-outs rather than discharges.
One commenter noted that, under the Department's determination of closure, a student who lives in close proximity to a campus that takes courses online and is able to successfully complete the program in which they are enrolled would still be eligible for a discharge and states that this is irreconcilable with the HEA since the student would be able to complete their program.
The final rule places a greater emphasis on completion in determining who is ineligible for a closed school discharge. Students that continue, but do not complete, their program maintain eligibility for automatic discharge. This addresses the aforementioned concerns about low application rates for students that transfer and do not finish.
In reviewing the amendatory text for closed school discharges, and in light of the concerns raised about how borrowers who enroll in an online program at the same institution could be affected, the Department is further clarifying the way discharge eligibility would work. In continuing with the policy in the NPRM, a borrower who accepts and completes a teach-out approved by the accrediting agency and, if applicable, the school's State authorizing agency, would not be eligible for a discharge because such an arrangement is designed to give the borrower an opportunity to finish their program. In keeping with existing practice, a borrower who accepts the teach-out but does not finish would maintain access to the discharge, but this rule would give them an automatic discharge 1 year after their last date of enrollment in the teach-out.
In the final rule, the Department has amended the language that previously related to a teach-out performed by the closing institution to instead say a continuation of the program at another branch or location of the school. This means that if a borrower transfers to another branch or location of the same school and finishes the program, they too would lose access to the discharge on the grounds that they did finish their program. Similar to the teach-out, a borrower would receive an automatic discharge 1 year after their last date of attendance if they accept but do not finish the program continuation at another branch or location of the school. This acknowledges that even though the borrower continued their program, they may have decided the continuation did not work for them, such as they did not like moving from a ground-based to online option or the other location was too far away.
The Department declines to put other transfer arrangements, or a transfer done by the student on their own, that leads to them completing on the same footing as a teach-out or continuation of the program at another branch or location of the school. Such options do not have the same protections for the borrower in terms of program similarity. They also open up issues, such as determining what share of credits have to transfer to have that completion elsewhere count as the same program. The Department is concerned about denying the possibility of an automatic discharge to a borrower who transfers with minimal to no help from their original school and essentially starts over. The teach-out and continuation paths identified by the Department best align with the concept in the HEA about giving closed school discharges to borrowers who are unable to complete their programs by defining the instances in which what the borrowers finish are most likely to be the same program.
Commenters also recommended that the Department clarify how it would control for third-party reimbursement in the context of automatic closed school discharges.
Commenters suggested that the Department administer the closed school survey the Department used in the past to determine whether a closed facility truly is a closed school for purposes of the final regulations.
Commenters requested that the Department outline the number of automatic closed school discharges we have issued and the process to notify the Department of the expiration of a borrower's 1 year period prior to eligibility.
One commenter noted the Department will have to improve its data collection process from institutions and accreditors to implement the closed school discharge process.
With respect to the potential assessment of liabilities for closed school discharges against open schools, there is no change to existing Department policy. The Department has clarified the definition of closure date to capture that this would only apply when a school has in fact closed. Longstanding Department policy is that if a school closes a branch campus or additional location, the borrowers at that campus or location do become eligible for closed school discharges, and if the school maintains other locations the ones that are still operating can face the liabilities associated with those discharges.
• Mandating that the institution provide borrowers with notices informing them of their rights shortly after announcing that the institution will close.
• Requiring institutions to explicitly share their accreditation probation status.
• Displaying warnings relating to possible school closures prominently on a school's website.
• Delivering warnings of possible school closures electronically to admitted and enrolled students.
• Setting up lines of communication with borrowers to inform them about the status of their application and other options for continuing their education.
• Requiring that an institution inform the Department it will close concurrently with its public announcement of closure.
The Department notes that the disqualifying condition criteria for a false certification discharge are well established in the existing regulations. These eligibility criteria are under current§ 685.215(a)(1)(ii). The Department is making no changes to the regulatory text in this section. Schools should already comply with this regulation.
The requirements specified in these final regulations will apply to false certification discharge applications received on or after the effective date of these regulations. The effective date for these regulations is discussed under
Relying on the disbursement date instead of the origination date allows institutions time to remedy an already completed false certification that a student was eligible for a loan. Utilizing the origination date will ensure that institutions may be held accountable for their misconduct even if it is subsequently corrected prior to disbursement.
Section 482(c) of the HEA states that any regulatory changes initiated by the Secretary that have not been published in final form by November 1 prior to the start of the award year shall not become effective until the beginning of the second award year after such November 1 date. Consistent with the Department's objective to improve the implementation of PSLF, the Secretary intends to exercise his authority under section 482(c) to designate the simplified definition for full-time employment in PSLF as a provision that an entity subject to the provision may, in the entity's discretion, choose to implement prior to the effective date of July 1, 2023. The Secretary may specify in the designation when, and under what conditions, an entity may implement the provision prior to the effective date. The Secretary will publish any designation under this subparagraph in the
The Secretary does not intend to exercise his authority to designate any other regulations in this document for early implementation. The final regulations included in this document are effective July 1, 2023.
One commenter requested that PSLF eligibility expand to include an option for servicemembers to transfer PSLF eligibility to their married spouse.
Another commenter encouraged the Department to include the Federal Job Corps program as a qualifying employer because its mission and services meet the definition of public service. Job Corps members are engaged by the U.S. Department of Labor to manage the operation of Job Corps campuses and deliver services.
Additional commenters suggested that the Department add Certified B Corporations and Public Benefit Corporations to the list of qualifying employers.
Another commenter encouraged the Department to include specific guidance that Federal Reserve Banks are qualifying employers.
From the initial years of the PSLF program, the Department's regulations have established eligibility for PSLF based on whether the borrower works for a qualifying employer, not their specific job. As a result, anyone doing the jobs mentioned by the commenters while employed at a qualifying employer was eligible for PSLF. Borrowers are not permitted to transfer their PSLF eligibility to their spouse for any reason, which includes active-duty military employment. Under the Sec. 455(m) of the HEA, a borrower must work for a qualifying employer to be considered for PSLF. Eligible not-for-profit organizations include an organization that is tax-exempt under section 501(c)(3) of the Internal Revenue Code, and a not-for-profit organization that is not tax-exempt under section 501(c)(3) of the Internal Revenue Code, but that provides a qualifying service. However, the Department's regulations have consistently provided that a labor union is not a qualified employer for PSLF purposes. Labor unions are not 501(c)(3) organizations, nor do most of their full-time equivalent employees provide a qualifying service.
Job Corps is a program offered to young adults that is intended to improve the quality of their lives through vocational and academic training aimed at gainful employment and career pathways. Individuals participating in Job Corps programs are not employees of the program. To the extent any Job Corps participants work for a private for-profit employer, that issue will be addressed in the future final rule.
We have modified some definitions and added other definitions to provide additional clarity to the types of services that employers must provide to be considered a qualifying employer.
We will address Certified B corporations and public benefit corporations that are private for-profit employers in the future final rule.
We appreciate the comment requesting clarification on the inclusion of Federal Reserve Banks as qualifying employers for the purposes of PSLF. Employees who work at the Board of Governors of the Federal Reserve Board are considered government employees and qualify for PSLF. We will address employees of the Federal Reserve Banks in the future final rule regarding the eligibility of for-profit employers.
The proposed definition of “public health” includes those engaged in the following occupations (as those terms are defined by the Bureau of Labor Statistics): physicians, nurse practitioners, nurses in a clinical setting, health care practitioners, health care support, counselors, social workers, and other community and social service specialists. Therefore, borrowers working in these areas are eligible for PSLF if they work for an eligible employer. Borrowers working for a private for-profit employer will be addressed in the future final rule.
Attorneys providing public interest legal services and critical public defense services are eligible for PSLF if they are employed by an organization that is funded in whole or in part by a Federal, State, local, or Tribal government. As noted above, any further discussion of eligibility for private for-profit employers will be discussed in a future final rule.
Peace Corps and AmeriCorps volunteers have always been and continue to be qualified for the purposes of PSLF.
A few commenters suggested that the proposed definitions of “non-governmental public service” and “school library services” should be updated to clarify that employment by a school library or in other school-based services includes employment at public charter schools. Several commenters further argued that the proposed definition of “public service for the elderly” may not encompass all public services that could be provided to elderly individuals and urged the Department to either lower the age for assistance to the elderly or remove a precise age.
Charter schools that are either government entities or tax-exempt under § 501(c)(3) of the IRC are considered qualifying employers for the purposes of PSLF. A nonprofit charter school that does not fit into either of those classifications would be evaluated based on the services it provides. We will address comments related to the eligibility of a private for-profit charter school in a future final rule considering any changes to whether a private for-profit employer can serve as a qualifying employer for PSLF purposes.
In addition, we have clarified the definition of “civilian service to the military” to mean providing services to or on behalf of members, veterans, or the families or survivors of members or veterans of the U.S. Armed Forces.
We believe that age 62, which is the youngest age for individuals to obtain Social Security retirement benefits, is an appropriate age to use for the purposes of identifying public services to the elderly.
A few commenters further stated that the proposed definition of “public education service,” which would require public education services to be provided to students in a public school or a school-like setting, deviates from established Department practice in administering and determining PSLF eligibility. These commenters suggested that the Department implement a holistic evaluation of employers to determine PSLF eligibility based on whether the organization and its employees provide a meaningful public service.
One commenter proposed to expand PLSF eligibility to include all those who work to advance the public interest.
Several commenters suggested that the proposed definitions fail to consider the substantial reliance interests of individuals such as the interests of employees who have reasonably relied upon the Department's past and current certification of eligible employment to select jobs that qualify for PSLF; the interests of public service organizations
In addition, several commenters stated the Department needs to take further action to clarify employment requirements for nonprofit organizations by explicitly removing any mention of the primary purpose condition, as required by
The Department reviews other nonprofit employers as it receives employment certifications from their employees. The new regulations will help the Department determine whether the employer provides one of the services specified in the HEA. This will improve the Department's ability to provide guidance to employers and employees alike. We note that there is no requirement that the borrower work for the same qualifying organization for the full 10-year period.
The primary purpose test was at one time used by the Department to determine whether a nonprofit organization which was not a 501(c)(3) organization provided a specific public service so that its employees could qualify for PSLF. The Department has not used this test for several years, nor did we include such a test in the current or proposed regulations; therefore, we cannot remove it.
The Department defines a non-governmental qualified employer as an employer that has devoted a majority of its full-time equivalent employees to working in at least one of the following areas: emergency management, civilian service to military personnel military service, public safety, law enforcement, public interest law services, early childhood education, public service for individuals with disabilities and/or the elderly, public health, public education, public library services, school library, or other school-based services. We believe that the definition of public education service, which requires public education services to be provided to students in a public school or in a school-like setting, is consistent with the Department's current practice in administering and determining PSLF eligibility.
(1) through a contractual employment period of at least eight months over a 12-month period, as in the case of primary and secondary school teachers and professors and instructors in higher education; or,
(2) in the case of non-tenure track faculty employment, by either—
(a) teaching at least nine credit hours per semester, six credit hours per trimester, or 18 credit hours per calendar year; or,
(b) multiplying each credit hour taught per week by 3.35 hours; or
(c) counting student-contact hours as attested by the borrower and substantiated by the employer on a form approved by the Secretary.
(3) When determining whether a borrower works full-time, the Secretary includes vacation or leave time provided by the employer or leave taken for a condition that is a qualifying reason under the Family and Medical Leave Act of 1993 (29 U.S.C. 2612(a)(1))). We also adjusted the definition of full-time to note that the treatment of teachers on an employment contract being considered to work for 12 months would also apply to instructors in postsecondary education. The original language was a nonexhaustive list, and this change adds clarity.
A few commenters further urged the Department to expand the hold harmless provision to count payments for periods of default from previously defaulted borrowers. One commenter suggested we count periods of time spent rehabilitating defaulted loans as time toward forgiveness. Other commenters suggested these individuals should be allowed to make a payment that is equal to or lesser than the amount of the lowest IDR plan at the time, rather than an amount equal to or greater than the amount they would have paid at the time on a qualifying repayment plan. Other commenters advised that the Department strengthen oversight of loan servicers to avoid future forgiveness denials and ballooning debt.
Several commenters shared their experiences with servicers incorrectly putting the borrower into forbearance and detailed other improper servicer actions. Several commenters recommended counting $0 IDR payments during bankruptcy toward PSLF qualifying payments.
One commenter argued that the Department does not have the authority to allow periods of time spent in forbearance or deferment to count as qualifying payments for PSLF.
In the proposed regulations, the Department also expanded the types of forbearances and deferments that qualify for PSLF through these new regulations. Qualifying borrowers are statutorily entitled to deferments and certain forbearances. We have to determine whether the statute requires borrowers to give up these rights to apply for PSLF. After further review of the legislative history and language of the PSLF provisions, we do not see anything which suggests Congress intended to require borrowers to give up their rights to these benefits to qualify for PSLF. As discussed in the NPRM, the Department carefully reviewed the different types of deferments and forbearances and proposed awarding credit for ones where a borrower would likely be either engaged in qualifying employment and thus face a confusing tradeoff of pausing payments or receiving credit toward forgiveness or have a high likelihood of a $0 payment on an IDR plan and thus there would not be a meaningful difference were they to have been enrolled on an eligible IDR plan. Awarding credit for deferments and forbearances beyond the ones identified by the Department would not be appropriate because they could be in situations where the borrower would be required to make a payment greater than $0 on IDR or there's no indication that the individual would otherwise be engaging in qualifying employment. In some cases, such as the unemployment deferment, it would not be possible for a borrower to engage in qualifying employment for PSLF since a borrower cannot receive that deferment if they have full-time job.
The regulations also provide a reconsideration process, which will enable borrowers to request a review of the PSLF status of their employer or the number of qualifying payments.
With respect to time while payments are administratively paused as servicers recalculate payments on an IDR plan or transfer them to the PSLF servicer, the Department agrees with commenters to allow those periods to count toward PSLF, provided the borrower still engages in qualifying service. These forbearances will be captured under § 685.205(b)(9), which is already in the regulations as a type of forbearance that would count toward PSLF. The Department had been concerned about this being a path for borrowers to gain significant credit simply by applying repeatedly. However, the Department is working on changes related to the Fostering Undergraduate Talent by Unlocking Resources for Education (FUTURE) Act, which will allow borrowers who provide the necessary approval to the Department to automatically recalculate payments every year using data filed to the IRS. Those borrowers are unlikely to see a delay in having their payment account updated. Similarly, under planned improvements to the student loan servicing the Department is planning to eliminate transfers to specialty servicers for programs like PSLF, further reducing the incidence of months paused for administrative reasons.
For all other deferments and forbearances, we have created a hold harmless provision that will allow borrowers who have been encouraged and placed in forbearances for long periods of time to make payments equal to or greater than what they would have paid in order to count that time spent in forbearances as time toward forgiveness. This process is less burdensome than trying to substantiate which periods of deferment or forbearance may be a result of steering or bad advice versus which ones are not. The hold harmless option would allow borrowers to pay what they otherwise would have paid during the time they spent in a forbearance or a deferment and have that time count toward PSLF rather than an amount equal to or greater than the amount they would have paid at the time on a qualifying plan. The Department announced a payment account adjustment in April 2022 that included adjustments to borrowers' accounts for certain deferments prior to 2013 and extended periods of any type of forbearance. Those adjustments will pick up significant periods that might otherwise have been subject to the hold harmless provision. The Department's regulations cannot waive statutory requirements, and the statute is clear that we cannot count time in default toward PSLF and that includes time spent in loan rehabilitation. Borrowers must make 120 qualifying payments to receive credit toward PSLF. Borrowers on IDR plans with a $0 payment remain eligible for PSLF.
Several commenters urged the Department to include in the PSLF regulations provisions in the Limited PSLF Waiver that allow borrowers with FFEL loans to have payments on those loans count toward PSLF. These commenters stated FFEL loan borrowers only have a year to take the steps to consolidate into the Direct Loan program and get credit for past payments under the Limited PSLF Waiver and asked the Department to extend the deadline on the limited PSLF waiver. Other commenters noted that to qualify for PSLF, the borrower must make required payments on a Direct Loan; payments on FFEL or Perkins loans do not count toward forgiveness. Several commenters asked that we lower the number of required payments
A few commenters stated that while borrowers were automatically placed into forbearance with 0 percent interest rates through August 31, 2022, and the time in forbearance is considered counting as payments toward the minimum requirements for forgiveness, the borrower must have maintained full-time employment at a qualifying employer. These commenters contended that this was an unrealistic obligation during the worst public health crisis in 100 years and that many nonprofits had to lay off workers due to the pandemic at no fault of the worker.
Other commenters suggested that any payment under IDR should count toward PSLF if the borrower qualifies for PSLF. These commenters recommended the Department clearly state in regulations that any month that would count toward IDR forgiveness would be counted as qualifying time toward forgiveness for PSLF. Several commenters urged the Department to ensure PSLF regulations align with future proposed IDR regulations.
• Is serving on active duty during a war or other military operation or national emergency;
• Is performing qualifying National Guard duty during a war or other military operation or national emergency;
• Resides or is employed in an area that is declared a disaster area by any Federal, State, or local official in connection with a national emergency; or
• Suffered direct economic hardship as a direct result of a war or other military operation or national emergency, as determined by the Secretary.
Based on this authority and due to the national pandemic, the Secretary has provided a number of waivers to the requirements for the PSLF program and also paused payments, with those months counting toward forgiveness if the borrower has qualifying employment.
Establishing a single standard that includes all benefits of the waivers and merges the new regulations is not feasible because elements of the waiver, such as counting any month in repayment as a qualifying payment regardless of whether a borrower made a payment or their repayment plan or granting credit for payments made on a commercial FFEL loan, can only be provided on a time-limited basis. The Department believes that these rules streamline processes, clearly define new terms, and revise existing terms.
Other commenters suggested the Department not allow the same servicers to be tasked with reconsideration of any determinations or denials made by that servicer.
The regulations do not address how the Department uses its contractors to perform certain roles in the program.
We appreciate the commenters' concern about the costs associated with the regulatory action. We provide detailed information about the costs in the Regulatory Impact Analysis section.
One commenter noted that the proposed regulations allow a borrower
The Department appreciates the comment about the updating the regulations to include the borrower may request loan forgiveness after making both the 120 months of qualifying payments and qualifying service. The Department will amend the regulatory text.
Other commenters questioned how the Department would be able to establish that physicians in those States were not employees of hospitals exclusively due to State law as opposed to other circumstances when physicians are employed at nonprofit hospitals but are paid by physician groups or work as independent contractors. Other commenters noted that if State law prohibits a public service organization from directly employing a licensed physician, eligibility for loan forgiveness can be demonstrated by a written certification signed by an authorized official of the public service organization. Other commenters noted similar issues such as hospitals not hiring psychiatric pharmacists in States such as Hawaii. One commenter also argued for the inclusion of certified midwives that work for a physician group that provides services to nonprofit hospitals in California.
A few commenters also noted that since physicians are not eligible for PSLF under these arrangements in other states, physicians in Texas and California should not be eligible. Other commenters disagreed with the Department's proposed expansion of the definition altogether.
We thank the commenters for their suggestions to expand eligibility for PSLF to certain and distinct contract employees who provide an eligible service for PSLF but are prohibited from being a full-time employee of an otherwise qualifying employer due to State law. The Department is aware of this situation existing for physicians at some nonprofit hospitals in Texas and California, where rules that have been in place for decades prevent their direct employment by the hospital. Other borrowers may be in a similar situation.
Based on the information provided by the commenters, the Department has determined that this situation is distinct from other types of contractual employment. A hospital must have doctors to provide the needed care to carry out its mission, but in this situation the only option is to bring on contractors to fill gaps or expand capacity because the hospital is legally prohibited from pursuing any other staffing model. In these cases, the employer is limited to hiring someone only as a contractor. Congress intended to support certain organizations and their employees by providing PSLF but limited the benefit to employees. These State laws mean that certain borrowers in these States are barred from PSLF solely because of the State law. For the reasons expressed by the commenters, the Department has decided to address this unequal treatment by allowing borrowers in the narrow and specific situation of a borrower who works as a contractor for a qualifying employer in a position or providing services which, under applicable state law, cannot be filled or provided by an employee of the qualifying employer to qualify for PSLF. We believe that this relates to a relatively limited universe of borrowers. This change does not expand the range of qualifying employers, but rather who can be captured under a qualifying employer. Accordingly, in situations such as the one raised by a commenter who works as a certified midwife, eligibility would be based on whether the specific adjustment allowed in this rule also applies to them.
As discussed above, the Department will publish a separate final rule addressing the comments raised concerning allowing private for-profit employers to serve as qualifying employers for PSLF. This rule does not speak to that issue.
The Department received a range of comments arguing for expanding PSLF to other types of contractual employment relationships beyond the specific case of physicians at certain nonprofit hospitals in Texas or California. These ranged from suggestions for expansions to specific occupations to calls for the inclusion of all borrowers who work as contracted workers at any qualifying organization. Other commenters added that the Department should focus on the service provided and not the employers' status and further stated that private-practice medical practitioners that get reimbursed from Tricare or TriWest (or other qualifying providers) for providing public healthcare for Active-Duty Military and Veterans should get credit. Several commenters urged the Department to include contracted nurses and nurse practitioners as eligible employees for PSLF. Another commenter suggested that we provide clarification that qualifying employers may certify the public service work of contracted employees retroactively.
Many commenters supported extending PSLF eligibility to certain self-employed independent contractors who are working on a full-time basis with a qualifying employer, who are not employed directly by the qualifying employer, and who may receive tax
The Department has decided to allow borrowers in the narrow and specific situation of working as contracted workers for a qualifying employer in a position or providing services which, under applicable State law, cannot be filled or provided by a direct employee of the qualifying employer to qualify for PSLF. An employee who works under this condition may receive a Form 1099 which would be acceptable instead of a W-2. As the Department explained in its rationale for this limited exception earlier in this document, the reasons that justify allowing this targeted exception do not apply to the use of contractors more generally.
The Department thanks commenters for responding to the questions we asked in the NPRM and for providing comments related to Early Childhood Educators who work for for-profit entities. We received many comments related to the eligibility of Early Childhood Educators who work for for-profit entities as well as suggestions to include employees of for-profit entities in many other occupations as well as removing any limitation on the eligibility of for-profit employers so long as they provide a qualifying service.
The Department is separating this issue for a future final rule because we received significant and detailed comments in response to our questions around the possible treatment of for-profit companies that provide early childhood education as qualifying employers for PSLF. These comments included a number of proposals that address operational, legal, and policy considerations, which the Department needs additional time to consider. That rule will be published after November 1, 2022. These Final Rules do not address this issue.
Under Executive Order 12866, the Office of Information and Regulatory Affairs (OIRA) in the Office of Management and Budget (OMB) must determine whether a regulatory action is “significant” and, therefore, subject to the requirements of the Executive Order and subject to review by 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.
The Department estimates the quantified annualized economic and net budget impacts to be $71.8 billion in increased transfers among borrowers, institutions, and the Federal Government, including annualized transfers of $7.4 billion at 3 percent discounting and $7.8 billion at 7 percent discounting, and annual quantified costs of $6.3 million related to paperwork burden. Therefore, based on our estimates, OIRA has determined that this final action is “economically significant” and subject to OMB review under section 6(a)(3) of Executive Order 12866. Notwithstanding this determination, based on our assessment of the potential costs and benefits (quantitative and qualitative), we have determined that the benefits of this final regulatory action justify the costs.
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
(1) Propose or adopt regulations only on 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 Information and Regulatory Affairs of OMB has emphasized that these techniques may include “identifying changing future compliance costs that might result from technological innovation or anticipated behavioral changes.”
We are issuing these final regulations as these policies are better than the alternatives considering the facts. The focus of this regulatory package is to improve title IV HEA program administration. In choosing among regulatory approaches, we selected those approaches that maximize net benefits. Based on the analysis that follows, the Department believes that these regulations are consistent with the principles in Executive Order 13563.
We have also determined that this regulatory action will not unduly interfere with State, local, and Tribal governments in the exercise of their governmental functions.
As required by OMB Circular A-4, we compare the final regulations to the current regulations. In this regulatory impact analysis, we discuss the need for regulatory action, potential costs and benefits, net budget impacts, and the regulatory alternatives we considered.
Pursuant to Subtitle E of the Small Business Regulatory Enforcement Fairness Act of 1996, also known as the Congressional Review Act (5 U.S.C. 801
The Department has identified a significant need for regulatory action to address regulatory burdens, alleviate administrative burden, and ensure Federal student loan borrowers are more easily able to access the loan discharges to which they are entitled under the HEA. Accordingly, these final regulations will alleviate some of the burden on students, institutions, and the Department, as discussed further in the Costs and Benefits section of this RIA.
In recent years, outstanding Federal student loan debt has increased considerably and, for too many borrowers, that burden has been costly. More than 1 million borrowers defaulted on a Federal student loan each year in the periods prior to the nationwide pause of student loan interest and repayment first implemented by the Department and then extended by Congress in the Coronavirus Aid, Relief, and Economic Security (CARES) Act. Millions of others fell behind on their payments and risked default. For those who have defaulted, consequences can be significant, with many borrowers having their tax refunds or other expected financial resources garnished or offset, their credit histories marred, and their financial futures put on hold.
We continually examine our regulations to improve the Federal student loan programs and it was the primary goal of this negotiated rulemaking. This NPRM specifically addresses regulatory changes to discharges that will help borrowers to reduce or eliminate debt for which they should not be responsible to pay based upon discharge programs authorized by the HEA. The American Rescue Plan Act of 2021 modified the Federal tax treatment of student loan discharges through December 31, 2025, by excluding such discharges from gross income for Federal income tax purposes.
The Department seeks to reduce the burden for students and borrowers to access the benefits to which they are entitled through several provisions in these final regulations. This includes streamlining the BD regulations and establishing a process for group consideration of claims from borrowers with common claims or affected by the same institutional act or omission; restricting the use of mandatory arbitration and class action waiver requirements imposed by imposed by institutions participating in the Direct Loan program; reducing the burden caused by interest capitalization; ensuring totally and permanently disabled borrowers have the ability to access and maintain a discharge more easily; allowing borrowers to automatically access a closed school loan discharge; easing the process of accessing false certification discharges; and clarifying the rules borrowers must comply with in the PSLF program. Throughout these final regulations, we accommodate and, where possible, require, that these benefits are provided automatically, so that borrowers are not required to submit unnecessary paperwork to benefit from provisions included in the HEA.
These efforts to reduce burden for students and institutions will also indirectly reduce the burden on the Department by, for example, limiting the need for adjudication of individual claims for BD in some cases, simplifying the criteria that need to be checked to determine if payments count toward PSLF, and limiting the need for the Department to process paperwork by providing discharges on a more automatic basis for borrowers whose schools close or when a borrower has a total and permanent disability.
These final regulations will affect each of the three major Federal student loan programs. This includes the Direct Loan program, which is the sole source of Federal student loans issued by the Department today, as well as loans from the FFEL Program, which stopped issuing new loans in 2010 and the Perkins Loan Program, which stopped issuing new loans in 2017. Changes to TPD and closed school discharges will affect all three programs. Changes to false certification will affect FFEL and Direct Loans. Changes to interest capitalization, BD, arbitration, and PSLF will only affect Direct Loans.
The Department observed several issues and problems around pre-dispute arbitration and class action waivers. First, institutions may use arbitration clauses in enrollment agreements to effectively discourage borrowers from pursuing complaints. This enables an institution to avoid financial risk associated with its wrongdoing and shift the risk to the taxpayers and Federal government through subsequent BD discharges. Additionally, borrowers cannot have their day in court because some enrollment agreements prevent their ability to participate in lawsuits, including class action litigation. This further insulates institutions from the potential financial risk of their wrongdoing and the lack of transparency surrounding institutions' arbitration requirements and limits on class actions.
The Department has identified several aspects of the TPD discharge process that will be improved through regulation. First, the Department currently administers a 3-year post-discharge income monitoring period, for which the documentation requirements are burdensome for affected borrowers. Since 2013, loans for more than half of the 1 million borrowers who received a TPD discharge were reinstated because the borrower did not respond to requests for income documentation, although an analysis conducted by the Department with Internal Revenue Service (IRS) data suggests that 92 percent of these borrowers did not exceed the earnings threshold, and that these results are similar for borrowers whose discharge is based on an SSA disability determination or physician's certification process. Second, borrowers who currently qualify for TPD discharges based on SSA disability determinations must be in SSA's Medical Improvement Not Expected (MINE) category to qualify, although there are other circumstances that may support a discharge based on an SSA disability determination under the terms of the HEA. For borrowers applying for a TPD discharge based on a disability determination by the SSA, acceptable documentation for the TPD discharge is limited to the notice of award that the borrower receives from the SSA and for borrowers applying for a TPD discharge based on a physician's certification, only a Doctor of Medicine or a Doctor of Osteopathy may certify the TPD discharge form. This final regulation aims to mitigate and to streamline total and permanent disability discharge process.
Several aspects of the closed school discharge process have limited the ability of borrowers to receive closed school discharges. Final regulations published in the
Closed school discharges for borrowers who withdrew from a school prior to the school closing are also not consistent across years in the discharge window available to borrowers. Additionally, the Secretary may extend the closed school discharge window under “exceptional circumstances.” The nonexhaustive list of exceptional circumstances provided in the regulations does not include many events that may occur on the path to closure and could reasonably be associated as a cause of that closure. In addition, the September 23, 2019, regulations removed some of the exceptional circumstances that were included in the prior regulations, such as “a finding by a State or Federal government agency that the school violated State or Federal law,” and that remain highly relevant factors in some college closures. This final regulation aims to remedy these issues.
One challenge the Department identified with false certification discharges is that there are different standards and processes for false certification discharges depending on when the loan was disbursed, which can create confusion for borrowers. These final regulations streamline the false certification discharge process for student loan borrowers, establish standards that apply to all claims regardless of when the loan was first disbursed, and provide for a group discharge process. These final rules will also reduce the burden on borrowers to prove eligibility for false certification discharges if they did not have a high school diploma, if the institution falsely signed the borrower's name for the loan, or if the borrower had a disqualifying condition (those that would prevent the borrower from obtaining employment due to applicable State requirements related to criminal record, age, physical or mental condition, or other factors) at the time they took out the loan.
The Department will improve the PSLF application process and automate the discharge process in instances where the Secretary has enough information to determine eligibility for forgiveness. This will significantly reduce burden on the borrower and the Department's burden, to review and approve applications. The current PSLF application process is difficult for many borrowers, who often struggle both with meeting the complex terms of the program and with the process of applying to demonstrate their eligibility.
The Department made several significant changes to borrower defense from the NPRM as well as some changes to interest capitalization, closed school discharges, and total and permanent disability discharges. The Department did not make any non-technical changes to arbitration and class action waivers or false certification discharges. Table 1 below provides a summary of the key changes from the NPRM to the final rule.
The budgetary effects in the regulatory impact analysis reflect reasonable assumptions made by the Department. In general, the Department has seen a significant decline in the filing of borrower defense claims associated with more recent enrollment. Of the approximately 376,000 cases opened since July 1, 2020, only 11,300 are from borrowers whose self-reported first enrollment date was on or after July 1, 2020.
To date, the Department has yet to complete a recoupment effort for approved borrower defense claims. The Department has received some funds from institutions as part of bankruptcy negotiations that offset the expense of some of the transfers from the Federal Government to students when it discharges a loan due to an approved borrower defense claim. But the overwhelming majority of approved borrower defense claims have come against institutions that are no longer in business and have no further resources to potentially reimburse the Department for costs. The Department initiated a recovery proceeding in August 2022 for the only set of claims approved to date against an institution that is still operating. However, that process is not complete. The large share of approved claims associated with closed schools argues in favor of a gap between volume associated with approved claims and amounts recouped.
The structure of the Federal standard will also affect recoupment. As noted in the preamble, the Department will not seek to recoup on the cost of discharges associated with loans disbursed prior to July 1, 2023, unless those claims would have been approved under the standard in the regulation in effect at the time those loans were disbursed. This concept is also now reflected in regulatory text. By applying a single standard to all claims, some claims may be approved that would not have been approved under the standard in effect at that time. Finally, we remind commenters that the budgetary effects from discharges and savings from recoupment in the regulatory impact analysis reflect the effect of this rule, not borrower defense discharges overall.
In establishing the parameters to estimate the effects of the borrower defense rule the Department drew on its experience with administering the different borrower defense regulations to estimate approval rates. We also considered these rates in comparison to the regulatory impact analysis in the 2016 regulation, since that regulation bears more similarities to this final rule than the 2019 regulation does. To date, all approved individual BD claims have been approved by reaching conclusions about an institution's conduct from common evidence the Department has across a range of borrowers and applying those findings to approve individual claims. Many of those findings that were initially used to grant individual approvals were also later used to grant a group discharge of claims. For instance, the Department approved individual claims at Corinthian Colleges, ITT Technical Institute, Marinello Schools of Beauty, and Westwood College before later discharging loans for groups of borrowers who attended those institutions. In constructing its estimates for the NPRM, the Department anticipated that in the future it is more likely to approve those claims first as a group rather than doing individual approvals followed by a discharge of a group of claims.
The higher estimated approval rate for the group claims also reflects the requirements for submitting an application to consider a group. A materially complete application requires evidence beyond sworn borrower statements, which means that if the Department forms a group, it will be beginning that consideration process with a greater evidence basis than it is likely to possess for most individual claims. By contrast, an individual claim only requires a sworn borrower statement for submission. Commenters should also recall that the Department can decide whether to form a group. It is unlikely the Department would form a group where the evidence indicating a likelihood of approval is low. The process for individual claims is different since borrowers decide to initiate those and it is thus reasonable to expect a wider range of quality.
Establishing an approval rate for claims based upon past experience is further complicated by ongoing litigation. The Department issued denials of tens of thousands of claims, but those were then challenged in court. The Department has since committed to not issue further denials until there is a decision on the merits in the litigation. We, therefore, did not factor those claims into estimates of how many claims would be approved or denied. Similarly, for the group claims the Department has only issued approvals so does not have a corresponding number of denied group applications. Instead, as noted above, we estimated that group claims would have a very high likelihood of approval, since a group would be unlikely to be formed if the chance of success was low. Were the Department to base its estimates solely upon the past approvals it has done, then the relevant approval rates would have been 100 percent for group claims. The historical group claim figure does not include any claims that might be denied and, thus, likely overstates the approval rate going forward. For individual claims, the historical approval rate is 47 percent. That figure is also overstated. The denominator is the total number of claims filed by borrowers at two institutions, DeVry University and the Court Reporting Institute, whose enrollment overlapped
In determining how to adjust the group and individual figures downward, we also looked at past estimates from the 2016 regulation. That regulation did not split apart estimates for individual versus group claims. Accordingly, we think the overall estimate, which ranged from 50 to 65 percent of volume associated with group claims seemed overall lower than what we might anticipate when making calculations solely for group claims. Accordingly, we took an estimate that adjusts downward from what the Department has approved to date and upward from the 2016 regulation to a range of 60 to 75 percent, depending on risk group. As for individual claims, the Department considered that the total number of institutions covered by individual claims would be greater than those for group claims, since the Department has at least one individual claim against almost every institution of higher education. However, that significant breadth of claims is less likely to produce approvals since to date no individual claim has been approved without the presence of common findings. The Department also looked at the estimates for claim approvals in the 2019 final rule, which are more analogous to individual claims because that regulation did not allow for group claims. That rule estimated that between 5.25 percent and 7.5 percent of volume associated with applications would be approved. The Department adjusted those estimates upward since this final rule does not include several elements of the 2019 rule that would have led to denials, such as a statute of limitations or the need to show that an act or omission by the school was made with knowledge that it was false, misleading, or deceptive, or that it was made with a reckless disregard for the truth. Accordingly, we think a range of between 8 and 12 percent of volume associated with individual claims reflects the lower likelihood of approval, while also noting that changes in this rule will produce higher approval estimates than the 2019 regulation. As with other prior regulations, the Department estimates the likelihood of a claim being successful at a higher rate at proprietary institutions based upon the fact that to date all approved claims have been associated with that sector. Finally, we note that the Department has yet to approve any borrower defense claims associated with a public or private nonprofit institution. Basing those estimates on adjustments to estimates from previous regulations ensures a greater consistency in estimation given that there is no other data from which to draw upon.
The Department also disagrees with the commenter who raised concerns about the lack of impact studies. The regulatory impact analysis provides estimates of the financial effect of the rule in terms of the cost of approved claims to the Department, the deterrent effect of the policy, and the amount of funds we anticipate recouping.
These proposed rules would eliminate the Post-Discharge Monitoring form (TPD-PDM) from the collection and will create a decrease in overall burden from the 1845-0065 collection. The forms update would be completed and made available for comment through a full public clearance package before being made available for use by the effective date of the regulations. The burden changes would be assessed to OMB Control Number 1845-0065, Direct Loan, FFEL, Perkins and TEACH Grant Total and Permanent Disability Discharge Application and Related Forms [NPRM, p. 41970]
The NPRM went on to state that “burden will be cleared at a later date through a separate information collection for the form” [NPRM, p. 41973]. Far from being arbitrary and capricious, this is our standard practice for evaluating paperwork burden that is primarily a result of requiring individuals to complete a Federal form.
The final regulations are broadly intended to provide benefits to borrowers by improving the administration of specific aspects of Federal student loan programs, including through clearer guidelines and processes for obtaining the benefits and protections that the HEA provides them. These changes are particularly important for borrowers who have difficulty keeping up with their payments, who often end up in forbearance, delinquency, or default, and as a result, see their balances grow through interest accrual and capitalization. Some borrowers may struggle to manage their student loan debt because they were misled due to acts or omissions by the school they attended. This caused them detriment rather than delivering the education promised, which could justify relief in the form of a discharge of the remaining balance of the loan, a refund of payments made to the Secretary, and other changes as applicable to credit reporting and removing a borrower from default. Or they may have a loan that was certified under false pretenses and never should have been made. Others may have debts from an education that they could not complete because a school closed, putting them at significant risk of default. In other cases, a borrower may face major repayment challenges because they have a total and permanent disability that prohibits them from engaging in gainful employment for prolonged periods of time. There are also borrowers who may not be struggling, but who are engaging in service to the United States and need promised relief so they can continue in their public service positions. The rule will help borrowers to thrive economically by avoiding repayment difficulties and default, as well as other contributors to financial instability.
The Department also believes that these final regulations will provide critical support to underserved borrowers, thereby enhancing equity. For instance, Black borrowers are disproportionately likely to face repayment difficulties and growing balances. Within recent cohorts, Black college graduates faced a likelihood of default that was five times larger than that of white borrowers.
Family income, college completion status, and the type of college a student borrowed to attend are additional factors that relate to repayment difficulties. One study finds that students who borrowed to attend 2-year for-profit colleges were 26 percent more likely to default than those who borrowed at 4-year public colleges, and that family income is a strong predictor of default risk.
Using data from the College Scorecard, a different analysis finds that across all institution types, undergraduate non-completers have substantially higher default rates compared to those who completed a degree or credential.
The remainder of this subsection of the RIA summarizes the conclusions and information on which the Department relied, such as technical studies, assumptions, data, and methodologies, to develop this regulation.
These final regulations improve the process for adjudicating BD claims and for recouping from institutions the cost of discharges associated with approved claims where possible. The Department anticipates that these final regulations will have many benefits for borrowers, as well as some reduction of burden for institutions of higher education. In total, the Department believes the expected increase in BD discharges and the expected increase in recoupment, as compared with the 2019 regulations, would deter behavior that could form the basis for a BD claim and ensure more borrowers are able to access a loan discharge, as provided for in the HEA.
The final regulation will establish a uniform Federal standard for initial adjudication of BD claims, regardless of when a loan was disbursed, which will streamline administration of the BD regulations and increase protections for students. However, institutions will not be subject to recoupment actions for applications that are granted based upon this regulation that would not have been approved under the applicable standard that would have been in effect at the time the loan was disbursed. A uniform standard also will significantly reduce the time necessary to determine eligibility and relief for BD claims, ensuring that borrowers would receive faster determinations. The use of a uniform Federal standard for initial
The Federal standard will provide a clearer path for approval of BD claims where the Department's review of the evidence shows that the institution's act or omission caused detriment to the borrower that warrants relief in the form of a full discharge of remaining loan balances, a refund of all payments made to the Secretary, and other benefits. This balances assistance for harmed borrowers while limiting the approval of immaterial claims. We also add aggressive and deceptive recruitment as grounds for a BD approval. The Department is adding this category based upon its experience in administering the BD regulation and because the Department is concerned about instances in which aggressive and deceptive recruitment tactics have caused detriment to borrowers by preventing them from making an informed choice. We also will restore the categories of breach of contract and judgment as grounds for a BD claim, which were included in the 2016 regulation but removed in the 2019 regulation. We have also expanded the category of judgment to include final Department actions against an institution that could give rise to a BD claim. This is limited to actions under part 668, subpart G, denying the institution's application for recertification, or revoking the institution's provisional program participation agreement under § 668.13, based on the institution's acts or omissions that could give rise to a borrower defense claim related to a substantial misrepresentation, substantial omission of fact, or aggressive and deceptive recruitment. To clearly delineate that omission of fact is a form of misrepresentation, we have listed it separately.
These final regulations also provide clearer protections for borrowers while their cases are under consideration by Department officials, by placing a borrower's loan in forbearance or stopping collections activity while the case is being adjudicated. Interest accumulation will cease immediately in the case of a group claim or after 180 days for an individual claim. Individual claims will be adjudicated within 3 years from the receipt of a materially complete application, with adjustments to address claims pending on the effective date of this regulation. Group claims will be adjudicated within 1 year from the formation of a group, which will occur within 2 years of receipt of a complete application. Previously, there was no timeline for adjudicating BD claims. As a result, many borrowers who filed claims have been waiting for years to have their claims adjudicated. Of nearly 81,000 claims submitted in 2017, for instance, more than 14,000 (nearly one in five) remain pending. Nearly one in five claims submitted in 2018 and over one in four claims submitted in 2019 also remain pending.
The Department's failure to render a decision by the end of the timeline will render the loans unenforceable. Loans in such a circumstance will not be considered subject to a BD claim so an institution will not face a recoupment action for the cost of those loans. This will also provide a benefit to borrowers, who would see their loan discharged if we are unable to render a decision on their claim within the deadlines.
The Department has included a group process for BD claims. This process was eliminated in the 2019 regulations. Through a group claim the Department may consider evidence in its own possession as well as requests from third parties to render a single decision on similarly situated borrowers who all attended the same institution, regardless of whether they all applied for BD relief. This will ensure a more efficient process. The inclusion of third-party requestors to initiate a group claim will provide a formal path for the Department to receive additional evidence that will help it make sound decisions on claims. The Department estimates that as much as 75 percent of BD volume associated with private for-profit colleges could be associated with group claims, with the rates in public and private nonprofit sectors a minority of volume. While the staff time required to investigate the evidence behind a group claim could be longer than what is needed for an individual claim, applying the same adjudication result to a group of borrowers will result in an overall reduction in staff time. Approving group claims will also result in the filing of fewer individual claims, as the approved group claims will result in discharges for borrowers who have not yet applied, eliminating the need for such borrowers to submit applications. On net, these actions will save time for both borrowers and the Department, thereby generating real social benefits.
All approved claims will receive a full discharge of remaining loan balances associated with the claim, as well as a refund of amounts previously paid to the Secretary. This eliminates a previously proposed complex process for the potential calculation of partial discharges. It also simplifies the adjudication standards by noting that an approved claim must involve circumstances that warrant this form of relief. All borrowers with approved claims to date have been approved for a full discharge.
If a claim is not approved, a reconsideration process will allow a borrower to submit new evidence that was not available in the initial application. This process will afford borrowers an opportunity to be considered under a State law standard if a decision under the Federal standard does not result in an approved claim and the loans were first disbursed prior to July 1, 2017.
By increasing relief to borrowers with claims that merit approval, improving the BD standard, restoring a group process, and providing a reconsideration process, these final regulations will result in additional transfers from the Department to borrowers, or from institutions to borrowers when the Department successfully recovers from the institutions. All borrowers will fall under a single, more expansive rule and those whose claims are approved will be able to receive relief more quickly and efficiently, which generates real benefits to society.
This process will also afford institutions an appropriate opportunity to respond. The Department's allowance for group processes in the final regulations means that institutions will have an opportunity to respond before a group is formed as well as during the adjudication process if the Department does decide to form a group. That means an institution needs to respond only twice regarding a group claim, instead of sending responses to hundreds if not thousands of individual claims. While institutions will be expected to provide a response within 90 days when contacted, the separation of approval and recovery processes means that institutions will not be expected to engage in extended challenges to claims for which the Department decides not to pursue recoupment.
In the past, the Department has seen institutions attempt to increase
The final rules provide for a process to recover the discharged amount from institutions after the adjudication of BD cases. Recovery from institutions is important to offset costs to the Federal government and taxpayers from approved BD claims. It also holds institutions accountable for past behavior and will help to deter future practices that could form the basis for additional BD claims.
As noted earlier, the Department will apply the BD standards in this rule to all claims pending on or received on or after July 1, 2023, but recoupment would only occur if the claims would have been approved under the standards for the relevant BD regulation in effect at the time the loans were disbursed. The Department believes there will still be a deterrent effect even in situations where a claim is approved but recoupment doesn't occur. If an institution is still engaging in similar behavior that led to the approved BD claim on a loan disbursed earlier, they will have a strong incentive to cease that behavior to reduce the risk of future recoupment efforts. Similarly, institutions that are not currently engaging in a behavior that could lead to an approved BD claim would be dissuaded from adopting practices that have been shown to lead to approved claims.
As detailed in the Net Budget Impact section, the changes to BD are expected to reduce transfers from affected borrowers to the Federal government as their obligation to repay loans is discharged. We estimate this transfer to have an annualized net budget impact of $903 million and $819 million at 7 percent and 3 percent discount rates, respectively. This will be partially reimbursed by affected institutions with the annualized recoveries estimated at $36.9 and $37.1 million at 7 percent and 3 percent discount rates. The Department anticipates that all costs are transfers, other than minimal costs related to implementation. If the Department recoups the forgiven dollars from institutions, they are transfers from institutions to borrowers. Otherwise, they are transfers from the Federal budget to borrowers. Details about these estimates are in the Net Budget Impacts section of this document.
In the Federal standard for defense to repayment claims, a claim could be brought on any of the following grounds: substantial misrepresentation, substantial omission of fact, breach of contract, aggressive and deceptive recruitment, and a State or Federal judgment or final Department action against an institution that could give rise to a BD claim. The first two grounds incorporate and expand part 668, subpart F, which currently defines three categories of misrepresentation, relating to the nature of education programs, the nature of financial charges, and the employability of graduates. Aggressive recruitment is added as a new ground for a BD application and is outlined in part 668, subpart R. The Federal standard will be applied to all borrowers regardless of when their loans were disbursed. BD applications that are currently awaiting adjudication upon the effective date of the regulations will be adjudicated based on the final regulations. Since these regulations expanded on the categories in which borrowers may be eligible for a BD claim, these pending cases could be approved where they otherwise may not be under existing regulations. In addition, the Department expects an increase in the number of BD applications when the regulations go into effect due to the expanded categories of institutional misconduct. However, as explained in the discussion of benefits of the BD rule, the Department also expects a deterrent effect from the regulations as institutions adjust their behavior, even in circumstances where an institution is not subject to recoupment.
The regulations expand group BD claims by including a process initiated by third-party requestors and a process based on prior Secretarial final actions, as well as the general authority for the Secretary to form a group. With these changes, the Department expects that individuals who have a valid BD claim they could assert, but who were previously unaware of their eligibility or unfamiliar with the process, could become members of a group claim. The Department will award a full discharge to all borrowers with approved claims by adjusting the Federal standard to note that an approved claim requires the Department to conclude that the institution's act or omission caused detriment to the borrower or borrowers that warrants this form of relief.
The reconsideration process could increase costs in the form of burden for the Department, although these costs are likely to be small. There are two possible outcomes for a BD application: denial or approval. The Department expects some borrowers whose BD applications are denied to seek reconsideration, which will increase administrative costs and time compared to previous regulations that do not have reconsideration processes. Historically, just under 7 percent of the borrowers who received a denial notice had filed a request for reconsideration.
While these final regulations will result in higher short-term costs for the Federal government in the form of transfers to borrowers, the Department expects that some of these payments will be recovered from institutions over time. While the Department will likely be unable to recover from institutions that are no longer operating when BD claims are adjudicated, the final regulations will increase the likelihood that the Department could recover from relevant institutions before they are closed because (1) group claims against an institution will increase the expected benefit of recovering from the institution since they will result in large discharge amounts if approved; (2) the Department is expected to respond to group claims within 1 year of deciding to form the group, which will increase the possibility that the institution is still in operation; and (3) the streamlined claims process will allow the Department to act more quickly on BD applications. As a result, the costs in the form of transfers to borrowers that will result from the final BD regulations could be smaller for the Federal government in the long term as it receives transfers from institutions.
The final regulations will result in administrative cost savings for the Department, efficiencies for institutions in responding to claims, and benefits to borrowers. In addition, borrowers may benefit from a deterrent effect of these final regulations.
The Department anticipates that establishing a process for recoupment from institutions and providing for a faster adjudication process will assist it in recovering more funds from institutions on claims associated with future loan disbursements because those schools will be less likely to have closed by the time liabilities are assessed than is the case under current regulations.
The Department also believes that a stronger and more expansive BD process will result in changes in institutional behavior that benefit borrowers. For instance, past title IV policy changes to increase accountability, such as the cohort default rate measure and the 90/10 rule, encouraged institutions to change their practices to respond and conform to new regulations. Accordingly, we expect that, over time, institutions will engage less frequently in acts or omissions that could give rise to a BD claim, which, in turn, will generate benefits to borrowers. Discouraging the type of acts or omissions that would lead to approved borrower defense claims will increase the likelihood that borrowers are presented with more accurate and transparent information about the cost of their programs, ability to transfer credits, employment outcomes, and other key things that are necessary for making an informed decision. Institutions will also want to avoid being overly aggressive in pursuing students, furthering the ability of prospective borrowers to understand the decision they are making. A greater focus on transparency and lessening aggressive sales tactics will in turn put greater pressure on institutions to make sure they are delivering better value for students, since making false promises could lead to the possibility of discharges and then recoupment. Overall, when students are able to make better decisions, they will be more likely to consider and enroll in programs and institutions that generate either lower debt or a greater earnings gain.
Borrowers who will be most affected by the final regulations tend to be relatively disadvantaged, which influences the nature and scale of benefits we describe below. To date, BD applicants have disproportionately attended schools in the proprietary sector, and proprietary schools disproportionately serve students of color, women, low-income students, veterans, and single parents.
Borrowers who received Pell Grants while enrolled and borrowers who struggle to repay their loans and default will benefit from these final regulations. Among the more than 144,000 approved individual claims, 88 percent were from borrowers who had also received a Pell Grant at some point.
The single Federal standard for initial adjudication, uniform BD regulations, and a more streamlined process (such as awarding a full discharge for approved claims) will reduce the staff time per borrower needed to adjudicate BD applications. These savings will largely come from being able to apply consistent rules across all borrowers while still ensuring that each case receives a thorough and rigorous review to determine whether their claims should be approved or denied.
The group process will significantly reduce the staff time required to investigate and adjudicate BD cases on a per-borrower basis. The final regulations include several means by which the Department can pursue a group process. Specifically, a group process can be initiated by the Department based on either common evidence from cases being adjudicated or prior Secretarial final action, or a State or legal assistance organization may request that a group process be initiated.
When the Department initiates a group process, it will be considering the possibility of approval for tens of borrowers all at once, if not hundreds or thousands. While the scope of this work will require significantly more time than reviewing any one individual claim, it is far more efficient than review on a per-borrower basis. In addition, the evidence available during group claims is expected to be more extensive than what the Department may possess for an individual claim. The process for group claims tied to prior final actions by the Secretary will be particularly efficient because the Department will draw upon prior work done by the agency, minimizing the amount of duplication in investigation that needs to occur. This will result in a significant saving of Department staff time and ensure faster adjudication for borrowers, as well as a straightforward process for subsequent recoupment. This process is more efficient than how the Department has addressed BD claims to date. For those claims, it has first worked to reach common findings, a process similar to what would be done to determine a group claim. But after reaching those common findings for approval, the Department then conducts reviews of individual claims to determine if the allegations provided by the borrower match the common findings. This results in a second step of claim review that has disqualified some borrowers who may have experienced the misconduct that led to approvals, but whose claims did not necessarily articulate those experiences. Such a secondary review will not be necessary in the group process, though the Department will continue to review borrower eligibility to ensure findings are applied appropriately only to affected borrowers. The time saved
The use of group processes can also provide some efficiencies for institutions in the process of responding to claims. Institutions have to respond to individual claims separately, which could require them to respond to hundreds if not thousands of separate claims from similarly situated borrowers. By contrast, a group approach will require institutions to offer only a single response prior to the formation of the group and a second during adjudication if the Department decides to form a group.
The regulations will also result in significant benefits to borrowers who qualify for a BD approval. Those who have their claims approved will receive a significant benefit as they will no longer have to repay the loans associated with their claim. This results in a transfer from the Department to the borrower. It is the Department's experience that many borrowers who have borrower defense claims approved are those who have had difficulty repaying their loans since the institution did not fulfill its obligations to its students. We anticipate that result will remain true under these regulations. Moreover, the borrower will receive refunds of amounts previously paid to the Secretary, an additional benefit. For all applicants, the regulations will help to reduce the burden of applying where the Department is able to identify eligible borrowers for loan relief but where the borrowers might not know they are eligible or how to access relief. These borrowers who are eligible for BD discharges, but may not know how to access relief, are unlikely to have benefited from the education they received and may be distressed borrowers who are delinquent, in default, or have previously defaulted on their student loans. These loan repayment struggles create further barriers for borrowers' personal financial circumstances, and also add to the Department's administrative burden when there are borrowers in the system who are eligible for a discharge but instead are in default. The regulations will allow more eligible borrowers to access relief through group claims, which will bring benefit to both borrowers and the Department. Although the borrowers could have received relief by applying individually, we see substantial benefit to them receiving this relief sooner through the group process.
The Department believes that the expansion of eligibility for BD claims and the reintroduction of a rigorous group process will result in positive change in institutional behaviors due to the deterrent effect. Past Federal sanctions of institutions resulted in a considerable enrollment shift away from sanctioned institutions and similar types of institutions that did not face sanctions. Though these sanctions were not sector specific, they had greater effects on proprietary institutions and resulted in a shift of enrollment toward public institutions. This shift resulted in reductions in both student borrowing and on defaults on federal student loans.
A deterrence effect will also benefit institutions that do not engage in conduct that leads to approved BD claims. The Department has seen in the past that some institutions with poor outcomes have used fraudulent or misleading materials in marketing and recruitment to attract new students. This may place institutions that remain truthful about their outcomes at a competitive disadvantage in attracting and enrolling students. Curbing the conduct that leads to approved BD claims thus helps institutions that never engaged in those behaviors in the first place. It is possible that in some limited circumstances tied to the worst behavior, the approval of BD claims could result in the exit of an institution from the Federal financial aid programs. An institution that engages in problematic practices for years could face significant liabilities from approved BD claims that they cannot afford. As with deterring institutions from engaging in misleading or other questionable practices, having the institutions with the worst behaviors exit the Federal aid programs will provide benefits to all other institutions that are operating in a more truthful and ethical manner.
False certification discharges provide relief to borrowers whose institutions falsely certified their eligibility for a Federal student loan. The Department's 2019 regulations stated that borrowers who took out loans after July 1, 2020, are ineligible for a false certification discharge if they attested to having a high school diploma or equivalent. For loans disbursed after July 1, 2020, the regulations are unclear regarding the ability of a borrower to seek a false certification discharge for a disqualifying status. After these regulatory changes, we observed a sharp decline in the number of borrowers and total amounts of false certifications discharged in 2021. The number of borrowers who were granted false certification discharge was 400 in 2020 but was only 100 in 2021, and the total amount of false certification discharges was $4.8 million in 2020 but only $0.8 million in 2021, suggesting that borrowers were facing increased barriers to accessing false certification discharges to which they were entitled.
The effects for borrowers could be significant. In 2020, prior to the new regulations, the discharge approval rate was about 7.3 percent, and the average amount discharged per application was $9,310.
To address the decline in borrower access to necessary discharges on their loans, and to ensure the regulations governing these discharges are streamlined and understandable to eligible borrowers, the Department will apply one set of regulatory standards to cover all false certification discharge claims.
The uniform standard will improve borrower access to false certification discharges by clarifying that eligibility for the discharge begins at the time the loan was originated, not at the time the loan was disbursed. Current regulations for Direct Loan and FFEL Program loans also contain separate requirements for loans first disbursed before July 1, 2020, and loans first disbursed on or after July 1, 2020, which confuse borrowers and create equity issues for borrowers who may struggle to navigate this complexity. This uniform standard will ensure that more borrowers have access to the expanded eligibility and that they are not forced to navigate a complex and overlapping set of regulatory frameworks. As with the BD standard, we believe that this uniform standard will streamline the administration of the regulations and better protect students while reducing confusion among borrowers, institutions, servicers, and the Department.
The Department will rescind the requirement that any borrower who falsely attests that they have a high school diploma or its equivalent does not qualify for a false certification discharge. This will ensure that borrowers can seek a discharge if they were coerced or deceived by their institution of higher education and as a result reported having a valid high school diploma or its equivalent when
These final regulations specify that the Secretary may grant a false certification discharge, including without an application, if the institution falsified Satisfactory Academic Progress (SAP) for the loans. We will grant group discharges based on the falsification of SAP and the Department would establish the dates and borrowers affected. The discharge will only cover loans for those borrowers for the period covered by the falsification of SAP and does not discharge all the borrower's other loans or all loans at the institution. The Department is aware of problematic practices by institutions that have falsified SAP, which is a basic eligibility requirement for continued access to title IV, HEA aid, and believes that this addition will ensure that borrowers whose institutions falsely confirmed their eligibility through these practices have access to loan relief, and that institutions may be held accountable for their actions.
These final regulations will remove the requirement that borrowers submit signature specimens when applying for discharge due to unauthorized loan, unauthorized payment, or identity theft, and replace the need that a borrower provides a judicial determination of identity theft with the ability to submit alternative evidence. This will expand access to false certification discharges by reducing the burden of document preparation on borrowers and simplifying the application process.
These final regulations will also establish a group process for awarding discharges to similarly situated borrowers. In part, this addition was in response to negotiators who noted that the Department has rarely utilized its authority to grant group false certification discharges. As a result, borrowers will receive more equitable and consistent treatment because they will be able to access relief on their loans regardless of whether they applied, based on evidence the Department collects or has in its possession. A State attorney general or nonprofit legal services representative will be able to submit an application for a group false certification discharge to the Department. This will ensure a more efficient process than is typically available, whereby third-party requestors and other stakeholders will be able to contribute directly to the fact-finding process required before adjudicating the application. The group process, and associated improvements, will also help to significantly reduce staff time required to investigate and adjudicate individuals' applications when common facts and circumstances are present.
Increased accessibility of discharges may encourage more borrowers to file claims or may result in additional discharges as a result of borrowers' access to a group process. The Department expects an increase in the Federal government's expenditure and an increase in the time in processing the claims in the short term, but a minimal long-term cost. The Department anticipates the costs associated from these changes will be transfer costs. The short-term increase in expenditures will come from the following regulations.
The Department will rescind the provision that any borrower who attests to having obtained a high school diploma or equivalent does not qualify for a false certification discharge on that basis. The Department is aware of numerous instances in which borrowers were forced or misled by their institution into attesting to holding a high school diploma, or into obtaining a diploma on false pretenses. In cases where such evidence is available, the Department believes the institution should be held accountable for its misconduct, and the borrower should be able to access a discharge of their eligible loans. This could lead to more borrowers applying and being granted loan discharges in the future.
These final regulations will remove the requirement that borrowers submit signature specimens and replaces the provision of a judicial determination of identity theft with alternative evidence. Similarly, the Department anticipates that removing this barrier will allow more eligible borrowers to apply without having their applications rejected, and may, therefore, increase the costs of approved false certification discharges.
The process, which will be more streamlined, will ease the administrative burden on the Department for the review of claims and for appeals of denials that are escalated for further review. Most importantly, the process contemplates the benefits to the borrowers themselves who are entitled to discharges when their institution wrongfully saddles them with debt they are not eligible for and wastes their aid eligibility.
The Department also expects that there will be some behavioral impact as institutions respond to changes in the regulations and reduce their use of such predatory practices, since the Department could assess liabilities against the institution for the discharges. In addition, this deterrent of strengthening and streamlining these regulations is expected to offer some benefit to taxpayers. Therefore, the long-term transfer costs may be reduced.
Taken together, the final regulations will result in a more streamlined process, rescind limitations on borrower eligibility from current regulations, and remove and replace requirements, which are expected collectively to improve borrowers' accessibility to false certification discharge. The Department expects that these final rules will ensure more borrowers have access to relief. While this will increase costs to taxpayers through additional false certification discharges, the Department also anticipates that some of these costs will be recouped from the institutions responsible, and that these final rules will be more efficient.
These final regulations clarify the regulations to help borrowers better understand and access the program, particularly by simplifying the rules regarding what constitutes a qualifying payment, and to streamline the Department's processing of the applications it receives for forgiveness. Overall, we anticipate that these final regulations will increase the amount of loan forgiveness through PSLF.
These final regulations further clarify the definition of full-time employment that meets the terms of the program to address inconsistencies in how different employers may consider full-time employment and in how non-tenure track faculty are treated. Most of these changes are modest but will bring benefits to borrowers in the form of more consistent treatment. This may also provide additional clarity to employers, ensuring they can better understand the program and inform borrowers of their eligibility. These final regulations revise the definition of what it means for a borrower to be an employee or employed to include the narrow circumstance of someone who works as a contractor for a qualifying employer in a position or providing service which, under applicable State law, cannot be filled or provided by a direct employee of the qualifying employer. This revised definition will ensure physicians in California and Texas, and anyone else affected by a similar set of restrictions, will be eligible for PSLF benefits as this group were not intended to be excluded by the PSLF regulations.
Where possible, the Department will seek to automate the process of identifying public servants and accounting for their time worked to ensure they automatically receive
Automation will also have considerable benefits, both for the Department and for borrowers, in terms of reducing the administrative burden. While there are initial costs associated with developing the automation, the future cost savings far outweigh the development costs. As noted above, 127,000 borrowers who were civilian Federal employees or service members had employer certifications completed for some employment prior to any data match, and many others could opt to certify employment in the future. Automating the consideration of those borrowers' employment and/or PSLF applications will save time for borrowers and reduce the investment of staff resources required to analyze PSLF applications.
These final regulations create more flexible requirements around loan payments to ensure more eligible borrowers have access to PSLF, partially addressing the low success rate of PSLF applications. Currently, the regulations governing qualifying payments are extremely rigid. Payments must be made on-time, within 15 days of the due date, or they do not count as qualifying payments. Payments also must be made in full, so payments off by only a few cents or payments that are made in more than one installment are disqualified. Additionally, some public servants have opted for deferments or forbearances available to borrowers who are working in public service jobs—such as for AmeriCorps and Peace Corps—without realizing those months will not qualify for PSLF. Simpler payment rules and counting some deferments and forbearances will significantly reduce confusion and improve take up of the program. In addition, borrowers will benefit by being able to make qualifying payments, through the final rule's hold harmless provision, for prior deferment or forbearance periods where there was previously no qualifying payment possible. This change grants borrowers the ability to make up payments that did not previously qualify as well as not reset the clock toward consolidation.
These changes will increase costs to the government in the form of greater transfers to borrowers eligible for PSLF, as take-up of the benefit increases due to automation and as more borrowers become eligible for PSLF outside of the narrow constraints of the existing rules but consistent with the statutory purpose of the PSLF program. Borrowers who work in Federal agencies where data matching agreements are arranged will benefit as a higher fraction of eligible borrowers receive forgiveness and the burden in applying for benefits is reduced. All other things equal, among borrowers for whom receiving forgiveness becomes more likely, borrowers with higher debt levels, including some graduate borrowers, will experience greater amounts of loan forgiveness.
These final regulations formalize a reconsideration process and establish a clear timeline by which borrowers must submit a reconsideration request. These refinements will streamline the application process and provide a clearer timeline to apply for PSLF or request a reconsideration. The Department anticipates that this reconsideration process will increase administrative burden for the agency and for borrowers, but that it will allow for a fairer and more equitable process to access PSLF where borrowers believe the Department has erred in its determination.
As detailed in the Net Budget Impact section, the changes to PSLF are expected to reduce transfers from affected borrowers to the Federal government as their loans are forgiven. We estimate this transfer to have an annualized net budget impact of $2.1 billion and $2.0 billion at 7 percent and 3 percent discount rate, respectively. The Department anticipates most of the budgetary impact will be transfers as borrowers more easily access PSLF benefits. In particular, we expect that the expansion of eligibility, the inclusion of additional payments as qualifying payments, and increases in take-up facilitated by automating the benefit where it is possible to identify eligible borrowers through a data match will increase transfers from the government to eligible borrowers. The revised definitions of qualifying services are not anticipated to impact a significant number of borrowers but will provide greater clarity about eligibility. This budget estimate is explained in greater detail in the net budget impact section of this regulatory impact analysis.
The Department anticipates several benefits based on these regulatory changes to PSLF. The Department seeks to reduce the burden of accessing PSLF benefits for borrowers who are employed by a nonprofit organization that provides non-governmental public services and streamline the process to obtain these benefits. The Department received over 917,000 employment certification forms in 2019, certifying that borrowers are working toward forgiveness, and 825,000 employment certification forms in 2020. The Department also received 96,000 forgiveness applications in 2019 and 135,000 forgiveness applications in 2020 from borrowers who may believe they completed the requirements of the program to qualify for forgiveness. Starting in late 2020, the combined form replaced the separate process of borrowers submitting employment certification forms and forgiveness applications. The Department received 130,000 combined forms in 2020 and 776,000 combined forms in 2021. However, after the announcement of the Limited PSLF Waiver in October 2021
By streamlining the PSLF process, the Department anticipates a reduction in the administrative burden and time savings for application processing. There will also be a burden reduction on qualifying employers as the employers will have a simpler time verifying what they are attesting to, such as the hours worked by the borrower.
We anticipate these regulations will impact tens of thousands of borrowers who will now qualify for PSLF under the clarified definitions of qualifying employment but previously did not qualify for PSLF. This is particularly due to the changes to the definition of employee or employed to capture a narrow and specific type of contractual relationship. The updated list of deferments and forbearances are anticipated to benefit a significant number of borrowers engaged in public service work who would otherwise not be able to consider those months toward forgiveness. Over the long run the Department hopes that hundreds of thousands of borrowers who would ordinarily have to apply for PSLF will receive student loan forgiveness without submitting an application. This includes military service members and Federal employee borrowers who will automatically receive credit toward PSLF using Federal data matches and the Department hopes that over time it will include some State-level matches as well.
Interest capitalization occurs when any unpaid interest is added to a borrower's principal balance, further increasing the amount on which interest is charged. This raises the overall cost of repaying the loan. Prior to this rule, capitalization occurred when a borrower first entered repayment, after periods of forbearance, after periods of deferment for non-subsidized loans, and when borrowers switched out of various income-driven repayment plans. In this regulation, the Department ends capitalization in all circumstances that are not required by statute. This will result in ending capitalization that occurs when a borrower first enters repayment, after periods of forbearance, and upon leaving all IDR plans except for IBR.
The Department is concerned that interest capitalization can adversely affect student loan borrowers by significantly increasing what they owe on their loans, which may extend the time it takes to repay them. While there are circumstances where interest capitalization is required by statute, such as when borrowers exit a deferment period and when they leave Income-Based Repayment, the Department believes that it is important to eliminate capitalization events where it has the authority to do so. Despite counseling, some borrower misunderstanding of interest accrual and capitalization and resulting confusion about the accuracy of one's loan balance contributed to the most frequent type of borrower complaint received by the Department.
Data from the 2003-04 Beginning Postsecondary Students Study (BPS), which tracked students from entry in 2003-04 through 2009 with an additional administrative match through 2015, sheds greater light on the distributional consequences of interest capitalization and the forbearance events that are a source of capitalization. The statistics that follow all concern students who first entered college in 2003-04 and borrowed a Federal student loan at some point within 12 years of entry (as of 2015). Among those students, 43 percent had a larger amount of principal balance outstanding in 2015 compared to what they originally borrowed.
Among borrowers who did not consolidate their loans (
While the BPS data cannot break down the exact sources of interest capitalization, this analysis indicates that borrowers in the groups most likely to experience capitalization also are more likely to experience periods in forbearance, which is one cause of interest capitalization. Nearly 80 percent of Black or African American student loan borrowers in the BPS sample had a forbearance at some point within 12 years of first enrollment as seen in Table 4 below. Among American Indian or Alaska Native or Hispanic or Latino borrowers, the rates of forbearance usage were 64 percent and 59 percent respectively. By contrast, about half of white students used a forbearance.
The results are similar by Pell Grant receipt and family income at college entry. Nearly two-thirds of Pell Grant
Data from the same study also show that the groups of borrowers that are more likely to have had a forbearance also had more total forbearances within 12 years of entering college. On average, Black or African American borrowers who had at least one forbearance had nearly six forbearances compared to four for white borrowers as seen in Table 4. Similarly, borrowers who received a Pell Grant and had a forbearance had an average of nearly five forbearances, compared to just over three for non-Pell students.
Capitalizing events present a significant burden to borrowers as they see their balances quickly rise with interest capitalization that is compounded over time. The events described in the table below are circumstances in which the final regulations eliminate interest capitalization.
As detailed in the Net Budget Impact section, the changes to interest rate capitalization are expected to reduce transfers from affected borrowers to the Federal government as their obligation to repay loans is lessened by the removal of capitalizing events. We estimate this transfer to have an annualized net budget impact of $1.29 billion and $1.26 billion at 7 percent and 3 percent discount rate, respectively. The main effects associated with the regulations represent a transfer from the Federal government to the eligible borrower, primarily forgone revenue from payments on the higher balance and resulting increase in interest due to elimination the capitalizing events listed above. These final regulations will also create some administrative costs for the Department, which will have to compensate servicers for the cost of changes to their systems to remove capitalizing events. More details on budgetary effects are provided in the Net Budget Impact Section.
The Department anticipates that some borrowers may see the lack of capitalizing events for borrowers exiting certain IDR plans as enabling them to switch out of IDR and instead enroll in a Standard or other repayment plan. For some borrowers, this could mean that they pay less on either a monthly basis or over the life of the loan (
The lack of capitalizing events can also have broader societal benefits by reducing debt burdens for groups that may be most affected by interest capitalization—borrowers from low-income families, Black borrowers, and borrowers who do not complete a college credential.
The Department is committed to simplifying the Total and Permanent Disability (TPD) discharge process for eligible borrowers. In addition to allowing for automatic discharges when a borrower is identified through a data match with the Social Security Administration (SSA), which was announced in summer 2021, the Department is also finalizing these regulations for TPD to ensure it provides relief to eligible borrowers uniformly across its loan programs, including Perkins, FFEL, and Direct Loans.
These final regulations expand the circumstances in which borrowers can qualify for TPD discharges based on a finding of disability by SSA. Currently regulations only allow borrowers to qualify for a discharge if SSA has designated the borrower's case as Medical Improvement Not Expected (MINE). In this status, an individual's disability status is reviewed at 5 to 7 years, which fits the requirement in the HEA that a borrower have a disability that is expected to result in death or that has persisted or is expected to persist for at least 60 consecutive months while the borrower does not engage in gainful employment. These final regulations add the following additional circumstances, when supported by appropriate data or documentation from SSA: (1) the borrower qualifies for Social Security Disability Insurance (SSDI) benefits or Supplemental Security Income (SSI) based on a Compassionate Allowance (applied where the applicant has an impairment that significantly affects their ability to function and meets SSA's definition of disability based on minimal, but sufficient, objective evidence; (2) SSA has designated the borrower's case as Medical Improvement Possible (MIP), (3) the borrower had a qualifying circumstance and has since begun to receive SSA retirement benefits; and (4) the borrower has an established onset date for SSDI or SSI that is at least 5 years prior to the TPD application or has been receiving SSDI benefits or SSI based on disability for at least 5 years prior to the TPD application. More borrowers will be eligible for TPD discharges based on a finding of disability by SSA with the addition of these categories.
These final regulations also eliminate the post-discharge income monitoring period. Currently, borrowers must supply their income information annually through a 3-year post-discharge monitoring period to ensure that they continue to meet the criteria for the program. If borrowers do not respond to these requests, their loans
These final regulations streamline the process for applying for a TPD discharge where automation is not feasible. These final regulations amend the TPD regulations to expand allowable documentation that can be submitted as evidence of a qualifying disability status, including the current practice of accepting a Benefit Planning Query Handbook. We note that while this change will clarify an option that already exists for borrowers, the Department's hope is that the added categories of disability determinations will reduce the need for borrowers to rely upon a Benefit Planning Query Handbook in particular, which comes with a fee and may not always have all the necessary information within it. The final rule also expands the list of medical professionals eligible to certify an individual's total and permanent disability to include nurse practitioners, physician assistants, and certified psychologists licensed at independent practice level by a State.
As detailed in the Net Budget Impact section, the changes to total and permanent disability are expected to reduce transfers from affected borrowers to the Federal government as their obligation to repay loans is discharged. We estimate this transfer to have an annualized net budget impact of $1.5 billion and $1.4 billion at 7 percent and 3 percent discount rate, respectively.
As a result of expanding the SSA categories that qualify for TPD discharges, the Department estimates increased costs to the taxpayer in the form of transfers to the additional borrowers who will be eligible for, and receive, TPD discharges.
Because more borrowers will be able to retain their discharges and not see their loans reinstated, the Department also anticipates that this change will increase costs to taxpayers in the form of transfers in direct benefits to those borrowers.
These final regulations expand allowable documentation and the list of certifying medical professionals are expected to modestly increase the amounts discharged through TPD through transfers to affected borrowers, as more borrowers overcome these barriers and apply for discharges.
The Department believes that many more borrowers will be eligible for TPD discharges with the addition of SSA categories. The Department intends to update the data match with SSA, which if successful, could mean that borrowers who previously had to apply for a discharge through the physician's certification process would be identified through the match with SSA. Borrowers who fall into the MIP category currently may be applying under the physician's certification process, but the Department intends to try and capture some of these borrowers if we can successfully update the data match with SSA.
Eliminating the post-discharge income monitoring period will also ensure consistency between borrowers with an SSA determination of disability status and those with a determination by the Department of Veterans Affairs (VA). Total and permanent disability discharges based on determinations by the VA are not subject to a post-discharge monitoring period (though some veterans may apply for or receive a TPD discharge based on an SSA determination instead). The Department believes this change will reduce the burden that borrowers with a total and permanent disability face in retaining their discharge, as the time and effort involved in providing income information during the monitoring process will be eliminated.
The Department also believes that expanding allowable documentation and the list of certifying medical professionals will increase transfers to borrowers through discharges by lowering administrative burdens that borrowers face, including in reducing the costs that borrowers face in obtaining the necessary documentation of their disability.
These final regulations improve access to closed school loan discharges for borrowers who are unable to complete their programs due to the closure of their institution. While there are many closures that occur in an orderly fashion with advance notice, the majority of students affected by closures in the last several years were mid-program and unable to complete their program at the college where they started.
Through these final regulations, the Department aims to expand eligibility for closed school discharges. In 2016, the Department issued regulations that provided automatic closed school discharges to borrowers who were eligible for a closed school discharge but did not apply for one and who did not enroll elsewhere within 3 years of the institution's closure.
Borrowers who left a school shortly before it closed can also receive a closed school discharge. However, the discharge windows have not been consistent across years for these borrowers. Loans made prior to July 1, 2020, were generally subject to a 120-day window, while borrowers with loans made after that date were subject to a 180-day window. These final regulations standardize the window, making it 180 days for all borrowers.
The Secretary can also extend this 180-day window under exceptional circumstances. However, the current non-exhaustive list does not include many events that may reasonably be associated with a closure, such as the accreditor issuing a show cause order. Additionally, the 2019 regulations removed items that were included in prior regulations, such as “a finding by a State or Federal government agency that the school violated State or Federal law.”
Finally, these final regulations provide clearer rules for when a borrower who transfers to another program could still receive an automatic closed school discharge. The past version of automatic closed school discharges required borrowers to apply for the discharge if they enrolled in another institution within 3 years of their original school's closure date. This is regardless of whether the new school they enrolled in accepted any credits or if the borrower finished. While a borrower who transferred but did not finish the program could apply for a closed school discharge, data from GAO show that very few of these borrowers did so. Excluding these individuals from the automatic closed school discharge in effect made the borrower's choice to continue their education needlessly high stakes. These final regulations address these concerns by stating that a borrower maintains access to an automatic discharge as long as they do not complete the program through a continuation of the program at another branch or location of their school or through an approved teach-out. Borrowers who accept but do not complete a continuation of the program or a teach-out agreement would receive a discharge 1 year after their last date of attendance at the other branch or location or in the teach-out.
As detailed in the Net Budget Impact section, the changes to closed school discharge are expected to reduce transfers from affected borrowers to the Federal government as their obligation to repay loans is discharged. We estimate this transfer to have an annualized net budget impact of $758 million and $693 million at 7 percent and 3 percent discount rate, respectively. The Department will work to recover from institutions the amounts that the Secretary discharges and to leverage the processes already in place at § 668, part H. Based on historical closed school discharge data, the average discharge amount at the institutional level was $2.4 million based on discharge amounts from 573 closed institutions. Based on the same data, the majority of closed school discharge loan amounts (88.5 percent), were from closed proprietary schools. Table 6 illustrates the historical average closed school discharge amounts by institution type from 1991 through early April 2022, which are a good estimate of the discharge costs per loan by institution type for future closed school loan discharges.
The Department will also incur costs associated with the closed school discharges. These costs will represent a transfer of benefits between the Federal government and the borrower. The Department will have to discharge the affected loans prior to trying to recover the funds from the institutions in order to provide a timely discharge for the borrower. Ultimately, the size of the transfer from the Department to borrowers would be the difference in funds between the discharge amount and the recovery amount from the institution. The Department will also incur administrative costs associated with the process of recovering funds from closed institutions, especially in cases where the institutions may be facing litigation, such as due to bankruptcy or legal violations. This represents net new costs to the Department.
Automatic loan discharges will significantly benefit affected borrowers who are eligible for a discharge. In particular, after entering repayment, affected borrowers may receive a discharge early enough to avoid default on their loans. The Department will also face a reduced administrative burden due to the reduced staff time required to review applications for borrowers who meet the eligibility criteria for a closed school discharge.
Lower-income students are also significantly more likely to benefit from closed school discharges. Of the more than 294,000 closed school discharges provided either through an application or automatically, 77 percent went to borrowers who also received a Pell Grant.
Regarding standardizing the closed school discharge window, the Department believes this will modestly increase eligibility for the discharge for some borrowers, though application rates for closed school discharge tend to be relatively low and are not likely to increase significantly. The Department is also expanding the non-exhaustive list of exceptional circumstances required for the Secretary to use their authority to extend the 180-day window. In certain cases, this will increase eligibility for closed school discharges, potentially by several years. However, this authority will be employed on a case-by-case basis and thus the overall impact is expected to be modest. In addition, automatic closed school discharge occurs 1 year after the school closure date for borrowers who do not take a teach-out or a continuation of the program at a branch or location of the school.
The Department believes that by removing the “comparable program” requirement and instead providing discharges for all borrowers unless they accept and complete an approved teach-out or finish a continuation of the program at another branch or location of the school will encourage borrowers to continue their education because they will still be able to keep their discharge if the teach-out or continuation option does not work for them. It also means a borrower who continues seeking higher education but loses all or most progress toward their degree will not have to worry about whether they will receive relief because they will receive an automatic discharge.
This approach will also encourage institutions to manage closures more carefully. In particular, institutions will have a stronger incentive to make sure borrowers have access to high-quality and affordable teach-out or continuation options; otherwise, the institution that is closing will face larger liabilities associated with closed school discharges. With higher-quality and affordable teach-outs or continuation options students will benefit from additional education. A large number of studies estimating the causal effect of college education on earnings suggest that each additional year of college generates annual earnings gains in the range of 7-15 percent.
These final regulations limit pre-dispute arbitration and class action waivers in institutions' enrollment agreements to ensure borrowers have access to fair processes and to provide insight and evidence to the Department that may be needed to adjudicate BD claims. Mandatory pre-dispute arbitration and class action waivers may allow institutions to minimize financial risk associated with wrongdoing and instead may shift the risk of wrongdoing to taxpayers and the Federal government through subsequent BD discharges. While the Department included a similar provision in its 2016 BD regulations, the prohibition was rescinded by the 2019 regulations.
Borrowers also may not understand the implications of agreeing to a mandatory pre-dispute arbitration requirement or a class action waiver and what that means for future attempts to seek relief. In a study on arbitration clauses, legal researchers surveyed a random sample of consumers and concluded respondents generally lacked an understanding about the terms of the arbitration agreement and what that meant for their ability to seek relief in court. These researchers expressed concern about whether the consent consumers provide when they enter into a contract that contains an arbitration clause is knowing consent, and therefore valid.
By prohibiting Direct Loan-participating institutions from using certain restrictive contractual provisions regarding dispute resolution and requiring notification and disclosure regarding their use of arbitration, schools will be prevented from keeping complaint information hidden from borrowers facing potential BD issues faced by their borrowers. Keeping complaint and arbitration information hidden from public view hinders the Department's ability to investigate patterns of student complaints.
In addition, borrowers' ability to pursue individual and class-action litigation will make it difficult for schools to hide potentially deceptive practices from current or prospective students and will allow students who have been harmed by an institution to sue for damages and recoup their financial losses. Providing a litigation option could also mitigate the potential conflict of interest between the arbitrators and the institutions that hire them, leading to fairer outcomes for students. Taxpayer dollars will be better protected by ensuring that grievances from enrollees in problematic schools could be publicly aired through the court system.
The Department notes that the impact of these changes will be largely limited to the private for-profit sector. In a 2016 study by an independent think tank, researchers looked at enrollment contracts of more than 270 institutions across the country. None of the public colleges surveyed and only one private nonprofit college required its students to agree to arbitration as a condition of enrollment. Among private for-profit colleges, the researchers found significant differences depending on whether the institution participated in the Federal student financial aid programs. A majority (93 of the 158) private for-profit colleges that participate in the Federal aid programs used a forced arbitration clause compared to just one of the 49 that do not participate in the aid programs.
The costs associated with these final regulations would be affected by whether institutions are less likely to engage in behavior that could lead to an approved BD claim as a result of not using mandatory pre-dispute arbitration clauses or class action waivers. If institutions that engage in conduct that could lead to an approved BD claim do not change their behavior, then there could be a number of costs related to more grievances ending up in court. This will include the cost to students of seeking judicial intervention, though such costs may be offset if their claims in court are successful. Costs can also increase for institutions, as they tend to incur higher legal fees during litigation. Institutions will not only face higher administrative costs, but institutions are also likely to face higher number of settlements and the costs associated
In addition to costs in the form of transfers to borrowers and administrative burden for the Department, there may be an increase in the time it takes to resolve disputes through non-arbitration means, as litigation proceedings rely on more detailed discovery and presentation of evidence than arbitration. Finally, bringing additional cases to court that have generally been resolved through arbitration may create a burden on the courts, leading to longer litigation time and increased costs for students and institutions.
Borrowers will see benefits due to the limitation on arbitration clauses and class-action waivers. Research indicates that the rate at which consumers receive favorable decisions in arbitration is quite low and the amounts they secure when they do are very small. Only 9 percent of disputes that go to arbitration end with relief for the consumer.
Given that pre-arbitration agreements are prevalent in for-profit institutions' enrollment agreements, these benefits will have a greater impact on Black students, who are more likely to attend for-profit institutions compared to other educational institutions.
These final regulations are estimated to have a net Federal budget impact in costs over the affected loan cohorts of $71.8 billion, consisting of a modification of $19.4 billion for loan cohorts through 2022 and estimated costs of $52.4 billion for loan cohorts 2023 to 2032. A cohort reflects all loans originated in a given fiscal year. Consistent with the requirements of the Credit Reform Act of 1990, budget cost estimates for the student loan programs reflect the estimated net present value of all future non-administrative Federal costs associated with a cohort of loans. Changes to the cost estimates for the final regulations involve an updated baseline that includes modifications for the limited PSLF waiver, the IDR account adjustment, the payment pause extension to December 2022, and the August 2022 announcement that the Department will discharge up to $20,000 in Federal student loans for borrowers who make under $125,000 as an individual or $250,000 as a family. Any additional changes are described in the relevant section for the various provisions.
The provisions most responsible for the costs of the final regulations are interest capitalization, PSLF, and TPD discharges. The specific costs for each provision are described in the following subsections covering the relevant topics.
As noted in this preamble, the regulatory provisions related to BD have undergone revisions starting in 2016 and then again in 2019 and the patterns of claim submission and processing have not reached a steady level to serve as a clear basis for estimating future claims. Additional claims are expected from existing loan cohorts, and the level and timing of claims from older cohorts is not likely to be indicative of claims for future cohorts, because BD was not an active area of loan discharges during the early years in repayment of those older cohorts. In addition, the institutions that to date have been among the largest sources of BD claims have been closed for many years. Therefore, we are using a revised version of the approach used to estimate the costs of BD for the 2016 and subsequent regulations to generate estimates for the BD provisions.
The Department's estimates were informed by looking at data from the borrower defense group within FSA about the number of claims received, the loan volumes associated with pending and approved claims, the type of school attended by the borrowers with submitted claims, and the years borrowers reported that they attended. We used this to establish assumptions about the source of BD claims and general cohorts associated with them. We then used data pulled from the National Student Loan Data System (NSLDS) that are used in the scoring baseline and applied the assumptions described in this net budget impact analysis to generate the budget impact estimate.
As a reminder, these estimated costs reflect costs resulting from this regulation relative to baseline, not the overall cost of BD discharges. The estimated cost of the BD changes is a modification to cohorts through 2022 of $4.2 billion and a cost of $3.0 billion for cohorts 2023-2032. Where possible, we adjusted the assumptions made about school conduct, borrowers' chances of making a successful claim, and recovery rates to reflect information from pending claims.
More than three-quarters of BD claims are from borrowers who attended proprietary institutions, which does not include some borrowers who attended proprietary institutions that are now categorized as private nonprofit institutions. Just 5 percent of BD claims are from borrowers who attended public institutions. These amounts include institutions that have a significant number of claims and, therefore, may be more likely to have a group claim process applied to them. This is reflected in the school conduct assumption in Table 7.
While there are many factors and details that would determine the cost of the final regulations, ultimately a BD claim entered into the student loan model (SLM) by risk group, loan type, and cohort will result in a reduced
In order to generate an expected level of claims for processing in the SLM, the Department used President's Budget 2023 (PB2023) loan volume estimates to identify the maximum potential exposure to BD claims for each cohort, loan type, and sector. For the final regulations, we updated this baseline to include modifications for the limited PSLF waiver announced in October 2021, adjustments to fix the count of qualifying payments on IDR announced in April 2022, the extension of the payment pause to December 2022, and the announcement of a one-time action to forgive up to $20,000 for Federal student loan borrowers. Including these additional items, particularly the debt cancellation costs, significantly reduces the net budget impact by lowering the scheduled principal and interest payments expected in the baseline. Other changes are described in the description of the budget estimates for each area. The Department expects that many borrowers who already have loans but have not yet filed a BD claim would have all or a significant portion of their loan balances eliminated by the broad-based forgiveness. For instance, the Department has noted that tens of millions of borrowers will be eligible for loan forgiveness, with significant numbers of those borrowers having all or at least half their balances eliminated. However, the broad-based forgiveness will not affect future loan volume because it is only eligible for currently outstanding debts. Other factors that would affect costs are the rate of consolidation from the FFEL program, the percentage of claims that go through a group process, the potential deterrent effect of claims on school practices, investigative activities of State authorities, increased borrower awareness of BD, and borrower eligibility for other discharges, especially closed school discharges.
As costs are estimated against a specific baseline, it is important to note that the President's Budget for 2023 assumed a higher level of BD claims based more on the 2016 assumptions
The model to estimate BD claims under the final regulations relies upon the following factors:
Conduct Percent, which represents the share of loan volume estimated to be affected by institutional behavior resulting in a defense to repayment application. This percentage varies both by risk group (
Group Process percent, which is the share of affected loan volume we expect to be subject to a group claim.
Claim Balance Adjustment Factor, which captures the potential change in borrowers' balances from origination to the time of their discharge and was added because this regulation addresses claims from older cohorts, not just future loan cohorts, so this factor could be more significant.
Borrower Percent, which is the percent of loan volume associated with approved defense to repayment applications; and
Recovery Percent, which estimates the percent of gross claims for which funds are recovered from institutions, with both of these varying by inclusion in a group process or not.
To generate gross claims volume (gc), loan volumes (lv) by risk group were multiplied by the Conduct Percent (cp), Group Process percent (gpp), the Claim Balance Adjustment factor (cbf), and the Borrower Percent for groups and individual claims (bp_g or bp_i). To generate net claims volume (nc) processed in the Student Loan Model, gross claims were then multiplied by the Recovery Percent. That is, gc = gc_g + gc_i when gc_g = (lv * cp * cbf * gc* bp_g) and gc_i= (lv * cp * cbf * (1−gc)* bp_i) and nc = nc_g + nc_i where nc_g = gc_g−(gc_g * rp_g) and nc_i = gc_i−(gc_i * rp_i). To put this another way, we first calculated separate estimates of gross claims volume for group and individual claims. We calculated the estimate for each of those amounts by taking the amount of loan volume in each risk group and
Additional discussion of these factors follows their presentation in Table 7, with the comparable values for the 2016 and 2019 BD regulations presented in Table 8. To allow for the 2016 and 2019 assumptions to be compared, we collapsed the 2-year and 4-year distinction because the rates applied by institutional control were the same. The assumed levels of school conduct that would result in a potential BD claim remain fairly consistent across the regulations and anticipate some deterrent effect of the regulations. The assumed approval rate is a key driver in changing the net budget impact of the different borrower defense proposals.
As with previous estimates, the conduct percent reflects the fact that more than 75 percent of borrower defense claims have come from borrowers who attended proprietary institutions. This factor also captures the potential deterrent effect of the final regulations. As claims are processed and examples of conduct that results in claims become better known, we believe institutions will strive to avoid similar behavior. We also expect that the improvement or closing of some institutions that have significant findings against them, which should reduce the level of potential claims in future loan cohorts. The Department is already observing this phenomenon with existing BD claims. After peaking in 2010 at 2 million, enrollment in proprietary institutions has declined by nearly 50 percent, in part due to new regulation of the sector.
The share of claims suitable for a group process is expected to vary by institutional control and loan cohort. The further back a cohort of loans were originated, the less likely there is to be evidence of conduct that would support a group claims process, so the group process percent for the pre-2000 loan cohort group is lower than for more recent years. Of current pending claims, approximately 90 percent of those expected to be subject to a group claims process have come from cohorts 2006 to 2016 and we would expect that period to generate the highest share of group claims. We expect conduct that will generate a group claim to decrease following the 2016 regulation and subsequent attention to BD, with more of an effect in future years when more claims have been processed through the system.
The assumptions generating our BD claims are applied to volume estimates at origination, but BD claims are likely to happen several years into repayment when payments that have been made would be subject to refund or balances will have grown through accrued interest or fees. To account for this, the Department looked at BD claims in 2021 and determined the maximum potential claim between the claim amount, the current outstanding balance, and the balance when the loan entered repayment plus accumulated interest through 2021. This maximum balance was compared to the origination amount to generate an adjustment factor that was averaged across loan type. The factors applied to Stafford, PLUS, and Unsubsidized loans are 1.32, 1.68, and 1.54, respectively. These factors are based on balance comparisons for existing loans and include capitalization events that will be eliminated under this rule as well as potential interest accrual beyond the 180-day window for loan subject to a BD claim established in these regulations. Other changes, such as the revisions to IDR anticipated in a separate regulatory package, could also affect these adjustment factors. We are not reducing the adjustment factors for those potential effects to provide a conservative estimate of BD claims—that is, an estimate that offers a larger net budget impact than if all those other items were included. The interaction with other regulatory or legislative actions could affect future re-estimates of the net budget impact of the BD provisions. For instance, changes to IDR that increase borrower benefits would result in a decrease in the cost of the BD provisions because a loan discharge would result in less foregone revenue than previously anticipated. Similarly, there could be interactions between institutions that may have BD claims sustained against them and those that fail the 90/10 rule, which requires institutions to derive a certain share of their revenue from non-Federal sources.
This assumption captures the share of claims expected to lead to a discharge. Factors such as the Federal standard, reconsideration process, the number of claims against individual institutions, enrollment periods associated with the claims, and type of allegations seen to date affect these figures. For instance, the Department adjusted the borrower percent upward for individual claims compared to the 2019 regulation because this rule removes the requirement that we conclude that the act or omission was made with knowledge of its false, misleading, or deceptive nature, or with reckless disregard for the truth. Removing this requirement will result in more claims being approved. Similarly, the Department increased the borrower percent for group claims relative to the overall figure in the 2016 regulation to reflect both the inclusion of third-party requestors and the addition of more categories that could result in an approved BD claim. Overall, the borrower percent for group claims is significantly higher than the one for individual claims. This reflects that, to date, all but two of the institutions for which the Department has approved BD findings have eventually been converted into group discharges. The individual approval rate also includes the significant number of claims that are associated with an institution for which the Department has only received a couple of claims, suggesting that any approval is more likely to be a result of individual circumstances than a more
The recovery percent would vary by cohort and institutional control. To date the Department has only begun one recovery action related to approved BD claims, and it has yet to conclude. Historically, the Department has not had a high success rate in recovering other discharge liabilities, such as closed school discharges. The recovery rates for closed school discharges are particularly low because once an institution has closed, it is difficult to collect funds from it. Some BD claims will result in a similar situation if the institution has closed. In other cases, the likelihood of recovery may be higher because the institution is still in business, but the Department will have to successfully sustain the liability through any applicable appeal proceedings. Another factor that affects potential recoveries is the timing, as the limitations period and application of a standard to all claims pending or submitted after the effective date of the regulations may limit the Department's ability to recover claims related to activities many years ago. We expect claims for future cohorts to happen earlier in the repayment period of the loans and therefore to have a somewhat increased chance of recovery. Moreover, recovery efforts could only occur on claims that would have been approved under the standard in effect at the time the loan was disbursed and thus would not be attributed to this regulation.
The process to generate an estimated level of borrower defense claims under these final regulations remains the same as described in the NPRM, but the surrounding environment against which the potential claims are compared has evolved with recent policy announcements. Since the publication of the NPRM on July 13, 2022, several developments have been announced that further underscore the uncertainty associated with the cost estimate of the borrower defense provisions. Assuming borrowers with potential borrower defense claims qualify for loan forgiveness and the timing works so the forgiveness precedes processing of any borrower defense claim, the balances involved in the borrower defense claim will decrease. The extent to which they decline would vary based upon whether the borrower also has loans that are not associated with the borrower defense claim. However, the Department's estimates of future borrower defense claims and forgiveness are not linked to specific borrowers such that we could predict the extent of this potential reduction in future borrower defense claims at the borrower level. We considered information from evaluating the effect of loan forgiveness that found that approximately 46 percent of borrowers would receive full forgiveness, and, for those who receive partial forgiveness, the median reduction in their balance would be 43 percent. Applying overall income eligibility of 95 percent and a take-up rate of 82 percent, we reduced the borrower defense claims by 80 percent for undergraduate risk groups and 35 percent for the graduate risk group. Within claims processed to date, the average claim size varies by institution. For instance, in July 2021 the Department announced BD approvals of $500 million for approximately 18,000 borrowers who attended ITT Technical Institute, for an average of approximately $28,000 a borrower.
If approved, the settlement proposed in the
To model this scenario, the Department halved the conduct percentage for cohorts prior to 2022. This represents the rough split of the number of claims covered by the settlement and the number outside the class. This reduction in the conduct percentage results in reduced loan volume associated with BD claims, without changing the approval rate for future claims.
To address uncertainty in our assumptions more generally, we also developed some alternate scenarios to capture a range of net budget impacts from the BD regulations. The low budget impact scenario reduces the group percentage and increases recoveries to the 37 percent maximum assumed in the 2016 regulations. We chose this level for approvals because the 2016 regulation also formally included a group process. We predict fewer discharges due to the inclusion of other categories under which a claim could be approved, the addition of third-party requestors, and procedures that more clearly separate approving group claims from recoupment efforts. We also thought using the higher recovery estimate for that regulation would be appropriate because the 2016 regulation is more similar to this rule than the 2019 rule, which does not allow for group claims.
The high budget impact scenario assumes a smaller deterrent effect and keeps the highest conduct percent for an additional cohort range and shifts the 2017-2022 and 2023-28 percentages to the next cohort range. It also increases the highest group percentage and maintains that level for future cohorts; and eliminates all recoveries. The revised assumptions for these scenarios are detailed in Table 9 with the results presented in Table 10.
These final regulations are expected to increase closed school discharges by creating a uniform 180-day enrollment window, increasing the use of administrative data to provide discharges without an application, limiting the circumstances where a borrower cannot receive an automatic discharge, and some other process changes. To estimate the effect of these changes, the Department generated a data file summarizing borrower loan amounts for different enrollment windows prior to closure as well as any existing discharges associated with those loans. This was used to generate a ratio of potential additional claims compared to current discharges to be applied to the closed school component of the discharge assumption. The adjustment factor varied by loan model risk group from 1.11 to 7.46 and was applied to all cohorts for claims from 2023 on. To capture the effect of loan forgiveness on closed school discharges for past cohorts that have not been processed yet, we applied a reduction in the increase associated with the regulations of 70 percent for undergraduate risk groups, 45 percent for the graduate risk group, and 60 percent for the consolidation risk group. This is based on information that approximately 77 percent of borrowers with a closed school discharge were Pell Grant recipients with potential eligibility for up to $20,000 in forgiveness. We also assume that around 95 percent of closed school borrowers would meet the income eligibility requirements, which is slightly higher than what is assumed for the overall forgiveness eligibility. We also applied an 82 percent overall take-up rate for forgiveness to generate an estimated average forgiveness eligibility of approximately $13,710 ((.77*20,000) + (.22*10,000) *.95 * .82)). We also looked at the distribution of closed school discharges in Budget Service's November 2021 sample of NSLDS data by risk group. This amount is above the overall mean closed school discharge of $11,409 and close to the mean for all sectors except graduate students, whose mean discharge is $35,738. We did not eliminate all the effect of future closed school discharges for past cohorts. Borrowers who would be eligible for a closed school discharge but do not apply may be less likely to apply for loan forgiveness. Alternatively, depending on the timing of any application needed, they may be processed for a closed school discharge in advance of any forgiveness being applied. Therefore, we used the factors described above to reduce the estimated increase in transfers associated with the closed school discharge, but we expect the attribution of discharges and forgiveness to become clearer as more data become available in the next year or two, which future re-estimates of the loan program will take into account.
Together, the changes related to the closed school provisions cost $3.42 billion for past cohorts and $3.04 billion for cohorts 2023-2032.
The main driver of the Department's estimated costs for the total and permanent disability provisions of the final regulation is the inclusion of additional circumstances in which borrowers can qualify for discharge based on a finding of disability by SSA. These changes are expected to result in additional transfers to borrowers. We did not adjust the net budget impact for the change in the final rule to grant a discharge after the initial determination that the borrower qualifies for SSDI benefits or SSI based on disability and the borrower's next continuing disability review has been scheduled at 3 years. We do not expect this to adjust the net budget impact, because almost all of those borrowers are expected to have that disability determination continue and thus they would have been eligible even without this provision. The Department's existing data match with SSA does not provide the data needed to estimate the increased discharge from this change. We estimate from SSA data that the added categories have 300,000 additional borrowers compared to approximately 323,000 borrowers included in the categories already eligible through the match from September 2021.
These final PSLF regulations have an estimated cost of $4.0 billion as a modification to cohorts through 2022 and $15.6 billion for cohorts 2023-2032. These figures include an update from the NPRM to include the cost of the limited PSLF waiver announced in October 2021, adjustments to the counting of progress toward income-driven repayment announced in April 2022, and the announcement of a one-time action to discharge up to $20,000 of student loan debt in August 2022. Incorporating those items has reduced the cost of the regulation compared to the NPRM. PSLF is estimated as part of our IDR modeling, which is done on at the borrower- and loan-type level so the effects of loan forgiveness can be taken more directly into account. There is no special adjustment for forgiveness in PSLF as there was for borrower defense, closed school, or total and permanent disability. Instead, the reduction in the borrower's balance affects the scheduled payments of principal and interest against which the effect of PSLF is evaluated.
The change to include certain periods of deferment or forbearance to count toward PSLF and to count payments made on underlying loans prior to consolidation will reduce the time period for some existing PSLF recipients to achieve forgiveness. The Department used information linking consolidations to underlying loans to determine the months paid prior to consolidation and used that to reduce the time to PSLF forgiveness for affected borrowers. A similar process was followed for the deferments and forbearances that count toward PSLF. Estimated deferments and forbearances are tracked for PSLF borrowers in the budget model, and for the final change, time associated with qualifying deferments and forbearances were included toward the 10 years of monthly payments required for forgiveness.
One change in these final PSLF regulations concerns the treatment of individuals who work as a contractor for a qualifying employer in a position or providing services that, under applicable State law, cannot be filled or provided by a direct employee of the qualifying employer. The most cited example of borrowers in this situation are doctors at non-profit hospitals in California and Texas. The Department's PSLF estimates have never been State or occupation specific. Therefore, the Department estimated the effect of this provision by instead increasing the percentage of borrowers with graduate loans who would receive PSLF by 3 percentage points. The Association of American Medical Colleges has reported that 73 percent of medical school graduates had educational debt and the median educational debt of indebted graduates was $200,000.
Allowing installments and late payments to count toward PSLF will result in borrowers being more likely to reach 120 qualifying payments at the same time they have 120 months of qualifying employment. This is in contrast to the situation prior to the limited PSLF waiver where the large numbers of payments not being counted meant that borrowers often needed far more than 120 months of qualifying employment to reach the same number of qualifying payments. Reconsideration should also help those who had issues with their initial applications. These factors are not specifically modeled in this estimate, as the Department does not have data at this time regarding these factors. Moreover, the Department believes that the limited PSLF waiver has addressed many of the situations where a borrower would have sought reconsideration related to whether past payments qualify. These factors are not explicitly accounted for in the Department's baseline, which assumes those who we project have qualifying employment would make payments in such a way that they qualify. The effects of the limited PSLF waiver, which fixed many of these issues for borrowers who had previously applied for PSLF, are included. The administrative and definitional factors are captured to some degree by a ramp up to the maximum percentage of borrowers assumed to receive PSLF forgiveness in our modeling, with levels that reflect the low percent of PSLF forgiveness in the initial years of borrowers potentially being eligible. This ramp up can be seen in Table 11 and varies by cohort range and education level. To better reflect the trends in the program of increasing qualifying payments as borrowers learn about the forms, etc., the model specifies the percent achieving 120 months of qualifying for four time groups: group 0 is prior to 2010; group 1 is from 2010 to 2014; group 2 is from 2015 to 2020; and group 3 is after 2020. The percentages are assumptions based upon the trends in approved applications given forgiveness and trends in reasons for denial that pre-dated the PSLF waiver. As always, we will reflect updated information in future budget re-estimates.
To provide a sense of the effect of these changes, the Department considered an alternate scenario that increased the PSLF percent to the
A few commenters requested additional information about the basis for the PSLF estimate. The percentages in Table 11 are the key factors in generating PSLF estimates. PSLF is estimated as part of the Department's IDR modeling that generates annual payments, deferment, and forbearance status, and expected annual principal and interest payments for borrowers assumed to be in IDR plans. Events that are expected to change the expected stream of payments such as defaults, discharges, PSLF, or prepayments are probabilistically assigned according to percentages based on historical trends or, in the case of PSLF, expected qualification by educational level. The rates vary by cohort range and student loan model risk group. In IDR, risk group is based on the borrower's highest academic level and events, such as default or discharge, are assigned probabilistically by borrower. As more borrowers submit employment certifications and start to receive PSLF, the Department will continue to revise and update its PSLF estimates.
The net budget impact of the reduced transfers from borrowers to the government from increased forgiveness in this alternate scenario is shown in Table 12.
The modification cost for early cohorts is significantly affected by the increase in the alternate scenario because the baseline PSLF levels for the 2010 cohort and earlier are lower than the outyear cohorts as seen in Table 12. Recall that the primary estimate reflects the level of forgiveness seen in the program to date. The changes in the baseline to incorporate the PSLF waiver and the broad-based debt relief reduced the net budget impact of the PSLF provisions in these final regulations relative to the NPRM. Table 12 shows the net budget impact of this rule as well as in an alternate scenario.
These final regulations remove all interest capitalization on Direct Loans that is not required by the HEA and is estimated to have a net budget impact of $24.8 billion from reduced transfers from borrowers, consisting of a modification to cohorts through 2022 of $3.4 billion and increased outlays of $21.4 billion for cohorts 2023-2032. The estimated impact of $24.8 billion is for loans in all types of repayment plans, but the estimation process differs for non-IDR and IDR loans as noted below. The revised score for these final regulations is for the calculation as done in the revised SLM. The baseline for the final estimate also incorporates the scores for the PSLF Waiver, IDR account adjustment, and extension of the COVID-19 payment pause until December 2022, and broad-based debt relief.
Interest capitalization is calculated in the Student Loan Model in accordance with specific conditions, so to estimate this cost for non-IDR loans, we must turn off that capitalization as applicable. We expect the removal of capitalization upon entering repayment to be the primary driver of the net budget impact for these provisions, since it affects all borrowers from the effective date of the regulations. We do not anticipate that removing capitalization on the alternative plan will have noticeable budgetary effect because, so few borrowers use that plan. For the NPRM, we calculated an adjustment factor by loan type, cohort, non-IDR repayment plan, years since loan origination, and SLM risk group to represent the effect of removing capitalization upon entering repayment to generate the net budget impact for non-IDR loans. The adjustment factors varied significantly with later cohorts having increased adjustment since more of the cohort will enter repayment following the effective date of the final regulations. After the publication of the NPRM, we continued to revise the SLM to eliminate capitalization upon entering repayment. The model code was revised to accrue interest but not add it to the principal balance.
For the interest capitalization that affects IDR borrowers, we adjusted the calculations in our IDR sub-model that capitalized interest. One limitation to note is that our current IDR modeling does not estimate borrowers leaving IDR plans so there is no capitalization for that in the baseline and no impact of that provision (leaving PAYE and REPAYE) in this estimate. However, we did create a capitalization event based on the estimated probability that a borrower will leave PAYE or REPAYE in 2023 or later. This estimate does not change the borrowers' plan or subsequent payments and just captures the effect of capitalization at that point. The final regulations will result in reduced repayments from borrowers by removing capitalization for leaving PAYE or REPAYE. When this provision was analyzed for the NPRM we estimated a net budget impact of $108.3 million, consisting of a modification to past cohorts of $29.8 million and $79.5 million for cohorts 2023-2032. While interest capitalization is a fairly straightforward calculation, there are several sources of uncertainty for these estimates. As mentioned, the SLM was revised to account for the elimination of capitalization upon entering repayment. However, not all of the potential effects for the full level or timing of capitalization events that are being eliminated are included for non-IDR borrowers. Additionally, while entering repayment and the timing patterns for that are supported by significant history, other capitalization events affected by the final regulations may be more subject to behavioral changes. Predicting effects of eliminating capitalization related to forbearances or defaults does depend on having the level, timing, repayment plan, and risk group mix of those underlying events estimated accurately. If the pattern of those events changes from historical trends as borrowers return to payment following the Covid payment pause, the costs associated with eliminating capitalization for those events will vary from what we have estimated here.
The Department does not estimate a significant budget impact on title IV programs from the prohibition on pre-dispute arbitration agreements and the related disclosures. It is possible that borrowers not having to go through arbitration could result in some additional BD claims, but we expect those costs have been captured in the BD score. Disclosure of certain judicial and arbitral records may cause some borrowers to enroll at other institutions than they would have attended, but we expect that borrowers will receive similar amounts of aid overall, so we do not estimate a significant impact on the title IV portfolio from these changes.
The final regulations change the false certification discharge rules to establish common false certification discharge procedures and eligibility requirements, regardless of when a loan was originated, and to clarify that the Department will rely on the borrower's status at the time the loan was originated, rather than when the loan was certified, for determining false certification discharge. The revisions to the identity theft provisions will make it easier for affected borrowers to provide evidence for a discharge.
All of the provisions related to false certification should increase transfers to borrowers through additional false certification discharges. Under existing
As required by OMB Circular A-4, we have prepared an accounting statement showing the classification of the expenditures associated with the provisions of these regulations. This table provides our best estimate of the changes in annual monetized transfers as a result of these final regulations. Expenditures are classified as transfers from the Federal Government to affected student loan borrowers.
In response to comments received and the Department's further internal consideration of these final regulations, the Department reviewed and considered various changes to the proposed regulations detailed in the NPRM. The changes made in response to comments are described in the Analysis of Comments and Changes section of this preamble. We summarize below the major proposals that we considered but which we ultimately declined to implement in these regulations. The rationales for why these proposals were not accepted are explained in the places in the preamble where they are summarized and discussed. The Department did not receive significant alternative proposals related to interest capitalization, so it is not discussed here.
We considered some proposals to remove elements of the Federal standard related to breach of contract, aggressive and deceptive recruitment, or judgments, which would have resulted in fewer claims being approved by narrowing the acts or omissions that could give rise to an approved claim. We also considered adding requirements that the Department conclude that an institution acted with intent or that the claim had a material effect. These changes would also result in approving fewer claims by creating requirements that would be harder for an individual borrower to meet. We also considered the removal of group claims or requirements for individual showing of harm, which would have further limited the number of approved claims, in particular by not providing a path to discharges for borrowers who did not submit applications. We declined to accept any of these proposals and instead made other changes to the Federal standard to require that the Department conclude an institution's act or omission caused detriment that warrants the relief granted by a borrower defense discharge. This includes specifying that in making such a determination the Secretary will consider the totality of the circumstances, including the nature and degree of the acts or omissions and of the detriment caused to borrowers. We also considered but rejected proposals to add additional steps for institutions to ask for reconsideration of approved claims or conduct recoupment actions under part 668, subpart G but felt that the final rules provide sufficient opportunities for institutional due process and that part 668, subpart H is the more appropriate mechanism for recoupment. It is unclear if these changes would have resulted in different ultimate decisions, but they would have significantly extended the process of reviewing claims. We considered additional examples or processes for calculating the amount of a partial discharge but ultimately concluded only allowing for a full discharge would create a simpler and more effective standard. The range of suggestions for partial discharge could have either resulted in fewer claims being approved for a full discharge or more claims that would have received a partial discharge getting a full approval. We considered requests to allow for the simultaneous assertion of claims under State law, but kept it limited to reconsideration. Commenters asserted that this change would result in faster second reviews of claims that are not approved under the Federal standard. Finally, we considered but did not accept proposals to stop interest accumulation on individual claims immediately because we want to encourage borrowers to submit strong claims. This would have increased the size of transfers to borrowers and represented a greater cost to the Department.
The Department created a new form for a common law forgery loan discharge for borrowers whose signature was forged by someone other than a school employee. This applied only to Department-held Federal student loans, but the Department is encouraging other loan holders to create a process like this one. Until we launched this form, the Department evaluated all forgery claims using the discharge forms that only apply where the school falsified a signature or if there was a judicially proven crime of identity theft. This new form for a common law forgery loan discharge provides borrowers an alternative option. But it would not benefit many borrowers who do not fit into the false certification categories since the number of applications under the FFEL Program is very small and would continue to shrink.
The Department considered relying on the disbursement date as an alternative to relying on the origination date. Doing so would allow an institution to originate loans for students who have not yet met Title IV eligibility requirements and not disburse the funds until the student has met the requirements. This would potentially have decreased the number
The Department considered whether to expand eligibility for false certification discharges to cover circumstances such as barriers to employment. However, we are concerned that de facto barriers to employment (
The Department considered but ultimately declined to allow any additional deferments and forbearances to receive credit toward PSLF. Such a change would have increased transfers to borrowers by making them eligible for loan forgiveness sooner. We also considered allowing all contractors for a qualifying employer to qualify for PSLF but chose not to do so. This would have resulted in significantly larger transfers to borrowers by dramatically increasing the number of borrowers who would be eligible for PSLF.
The Department did not accept proposals to keep the 3-year income monitoring period or to not expand the categories of medical professionals that could sign forms during the physician's certification process. Both changes would have decreased transfers to borrowers by either reinstating more loans that had been discharged or resulting in potentially fewer applications through the physician's certification process.
The Department considered but ultimately did not adopt requests to limit discharges to borrowers who left a school within 120 days of a closure instead of 180 days, granting a 12-month deferment for a borrower after their school closes, restricting eligibility for borrowers who enrolled in a comparable program or attempted to enroll in a teach-out but did not complete the program. These changes would have had differing effects. A shorter lookback window or greater restrictions on eligibility would result in decreased transfers to borrowers because fewer discharges would be granted. A longer deferment, meanwhile, would increase transfers by providing approximately six months of no-interest accumulation for a borrower beyond the grace period after leaving school.
The Department considered but did not accept proposals to delete this provision or not mandate the associated transparency. The Department did not assign a significant estimated budget impact from the changes to pre-dispute arbitration so its elimination would not have a budgetary effect either.
Section 605 of the Regulatory Flexibility Act allows an agency to certify a rule if the rulemaking does not have a significant economic impact on a substantial number of small entities.
The Small Business Administration (SBA) defines “small institution” using data on revenue, market dominance, tax filing status, governing body, and population. The majority of entities to which the Office of Postsecondary Education's (OPE) regulations apply are postsecondary institutions, however, which do not report such data to the Department. As a result, for this final rule, the Department will continue defining “small entities” by reference to enrollment,
Table 15 summarizes the number of institutions affected by these final regulations.
The Department certifies that Final Rule will not have a significant economic impact on a substantial number of small entities. The final regulations for False Certification, PSLF, TPD Discharge, and Closed School Discharge will not have an impact on small institutions.
These types of discharges are between the borrower and the lender, which often is the Department. The Department anticipates this will impact 310 small lenders that will be required to expand their current reporting and will take approximately 50 hours to update their systems. A few small institutions could be impacted by the final regulations where there is a large group BD claim. Based on recent experience of the Department adjudicating BD cases, small institutions are not expected to be impacted by the final regulations in BD because the Department is unlikely to attempt to recoup from isolated BD cases from small institutions. The changes to eliminate interest capitalization will not have an impact on small institutions as this is also an action between the borrower and lender.
The Department anticipates approximately 38 percent of small institutions will be impacted by these pre-dispute arbitration final regulations. We derived the percentage that will be impacted from a report by the Century
While these final regulations will have an impact on some small institutions and entities, there will not be a significant cost and compliance impact. For example, we examined potential costs to lenders who are generally identified in the North American Industry Classification System (NAICS) under code 52 (finance and insurance) and specifically Credit Unions (522130) and Savings Institutions and Other Depository Credit Intermediation (522180).
As part of its continuing effort to reduce paperwork and respondent burden, the Department provides the general public and Federal agencies with an opportunity to comment on proposed and continuing collections of information in accordance with the Paperwork Reduction Act of 1995 (PRA) (44 U.S.C. 3506(c)(2)(A)). This helps ensure that the public understands the Department's collection instructions, respondents can provide the requested data in the desired format, reporting burden (time and financial resources) is minimized, collection instruments are clearly understood, and the Department can properly assess the impact of collection requirements on respondents.
Sections 668.41, 668.74, 674.33, 674.61, 682.402, 682.414, 685.213, 685.214, 685.215, 685.219, 685.300, 685.304, 685.402, 685.403, and 685.407, of this final rule contain information collection requirements. Under the PRA, the Department has or will at the required time submit a copy of these sections and an Information Collections Request to OMB for its review.
A Federal agency may not conduct or sponsor a collection of information unless OMB approves the collection under the PRA and the corresponding information collection instrument displays a currently valid OMB control number. Notwithstanding any other provision of law, no person is required to comply with, or is subject to penalty for failure to comply with, a collection of information if the collection instrument does not display a currently valid OMB control number.
Requirements: These final regulations remove the requirements in current Section 668.41(h). Burden Calculation: With the removal of the regulatory language in Section 668.41(h), the Department will remove the associated burden of 4,720 hours under OMB Control Number 1845-0004.
Requirements: In the course of adjudicating BD claims, the Department has persistently seen misrepresentations about the employability of graduates. In these regulations, the Department is explicitly including, as a form of job placement rate misrepresentation, placement rates that are inflated through manipulation of data inputs. Section 668.74(g)(2) contains a provision that allows the Department to verify that an institution correctly calculated its job placement rate by requiring an institution to furnish to the Secretary, upon request, documentation and other data that was used to calculate the institution's employment rate calculations.
Burden Calculation: The Department believes that such a request will impose only a modest burden on the part of any institution to provide the existing background data upon which the employment rates that are presented were calculated. We believe that such required reporting will be made by 2 Private Not-for-profit, 2 For-Profit and 2 Public institutions annually. We anticipate that 6 institutions will receive such a request and that it will take 8 hours to copy and prepare for submission to the Department such evidence of their calculated employment rates for a total of 48 burden hours (6 institutions × 1 response × 8 hours = 48 burden hours).
Requirements: These final regulations amend the Perkins, FFEL, and Direct Loan regulations to simplify the closed school discharge process. Sections 674.33(g)(4), 682.402(d)(3) and 685.214(d)(1) provide that the borrower must submit a completed closed school discharge application to the Secretary and that the factual assertions in the application must be true and made by the borrower under penalty of perjury. Additionally, the number of days that a borrower had withdrawn from a closed school to qualify for a closed school discharge will be extended from 120 days to 180 days.
Burden Calculation: These changes will require an update to the current closed school discharge application form. We do not believe that the language update will significantly change the amount of time currently assessed for the borrower to complete the form from those which has already been approved. The form update will be completed and made available for comment through a full public clearance package before being made available for use by the effective date of the regulations. The burden changes will be assessed to OMB Control Number 1845-0058, Loan Discharge Applications (DL/FFEL/Perkins).
Requirements: Under these final rule changes to Sections 674.61(b)(2)(iv), 682.402(c)(2)(iv), and 685.213(b)(2), a TPD discharge application will be allowed to be certified by a nurse practitioner, a physician's assistant licensed by a State, or a certified psychologist, licensed at the independent practice level by a State in addition to a physician who is a Doctor of Medicine or Osteopathy legally authorized to practice in a State. The type of SSA documentation that may qualify a borrower for a TPD discharge will be expanded to include an SSA Benefit Planning Query or other SSA documentation deemed acceptable by the Secretary. The regulations also amend the Perkins, Direct Loan, and FFEL Program regulations to improve the process for granting TPD discharges by eliminating the income monitoring period. Sections 674.61(b)(6)(i), 682.402(c)(6), and 685.213(b)(7)(i) will eliminate the existing reinstatement requirements, except for the provision which provides that a borrower's loan is reinstated if the borrower receives a new TEACH Grant or a new Direct Loan within 3 years of the date the TPD discharge was granted.
Burden Calculation: These final regulatory changes will require an update to the current total and permanent disability discharge application form. We do not believe that the language update will significantly change the amount of time currently assessed for the borrower to complete the Discharge Application (TPD-APP) application form from those which has already been approved. These final rules will eliminate the Post-Discharge Monitoring form (TPD-PDM) from the collection and will create a decrease in overall burden from the 1845-0065 collection. The forms update will be completed and made available for comment through a full public clearance package before being made available for use by the effective date of the regulations. The burden changes will be assessed to OMB Control Number 1845-0065, Direct Loan, FFEL, Perkins and TEACH Grant Total and Permanent Disability Discharge Application and Related Forms.
Requirements: These final regulations streamline the FFEL and Direct Loan false certification regulations to provide one set of regulatory standards that will cover all false certification discharge claims. Sections 682.402(e) and 685.215(c)(5) state that a borrower qualifies for a false certification discharge if the school certified the borrower's eligibility for a FFEL or Direct Loan as a result of the crime of identity theft. Additionally, Section 685.215(c)(10) will provide for a new application to allow a State Attorney General or nonprofit legal services representative to submit a request to the Secretary for a group discharge under section (c).
Burden Calculation: These changes will require an update to the current false certification discharge application forms. We do not believe that the language update will significantly change the amount of time currently assessed for the borrower to complete the forms from those which has already been approved. The forms update will be completed and made available for comment through a full public clearance package before being made available for use by the effective date of the regulations. New forms to capture the requirements of the identity theft section and the group discharge request will be created and made available for comment through a full public clearance package before being made available for use by the effective date of the regulations. The burden changes will be assessed to OMB Control Number 1845-0058, Loan Discharge Applications (DL/FFEL/Perkins).
Requirements: Under Section 682.402(e)(6)(i), if a holder of a borrower's FFEL loan determines that a borrower may be eligible for a false certification discharge, the holder provides the borrower with the appropriate application and explanation of the process for obtaining a discharge. The borrower burden to complete the form is captured under the form collection 1845-0058. Under Section 682.402(e)(6)(iii), if a FFEL borrower submits an application for discharge that a FFEL program loan holder determines is incomplete, the loan holder will notify the borrower of that determination and allow the borrower 30 days to amend the application and provide supplemental information.
Burden Calculation: The Department believes that such a request will require burden on the part of any FFEL lender. Of the 310 FFEL lenders, it is anticipated that 31 lenders will make such determinations of borrower discharge eligibility and that it will take 20 minutes to send an estimated 100 borrowers the correct form for completion, for a total of 33 burden hours (100 borrowers applications × 20 minutes per application (.33 hours) = 33 burden hours).
It is anticipated that 15 lenders will make a determination of 25 borrower's incomplete applications and that it will take 15 minutes to send borrowers the notice to amend their application, for a total of 6 burden hours (25 borrowers receiving lender notices × 15 minutes (.25 hours) = 6 burden hours).
It is anticipated that of the 25 borrowers who receive notice of an incomplete application, 20 will resubmit an amended application or provide additional documentation and it will take 30 minutes to make such amendments, for a total of 10 burden hours (20 borrowers amending initial filings × 30 minutes (.50 hours) = 10 hours under OMB Control Number 1845-0020.
Requirements: Section 682.402(e)(6)(vii) will require a guaranty agency to issue a decision that explains the reasons for any adverse determination on a false certification discharge application, describes the evidence on which the decision was made, and provides the borrower, upon request, copies of the evidence. The guaranty agency will consider any response or additional information from the borrower and notify the borrower as to whether the determination is changed.
Burden Calculation: The Department believes that such a request will require burden on the part of any guaranty agency. It is anticipated that each of the 18 guaranty agencies will make such adverse determinations on 75 borrower discharge applications and that it will take 30 minutes to send borrowers the decision, for a total of 38 burden hours (75 borrowers receiving adverse determination notifications × 30 minutes (.50 hours) = 38 burden hours) under OMB Control Number 1845-0020.
Requirements: Section 682.402(e)(6)(ix) will provide the borrower with the option to request that the Secretary review the guaranty agency's decision.
Burden Calculation: The Department believes that such a request will require burden on the part of any borrower. Of the 75 borrowers whose applications were denied by the guaranty agency, it is anticipated that 30 borrowers will request Secretarial review of the guaranty agencies decision and that it will take 30 minutes to send such a borrower request, for a total of 15 burden hours (30 borrowers × 30 minutes (.50 hours) = 15 burden hours) under OMB Control Number 1845-0020.
Requirements: In Section 682.414(b)(4), these final regulations require FFEL Program lenders to report detailed information related to a borrower's deferments, forbearances, repayment plans, delinquency, and contact information on any FFEL loan to the Department by an established deadline.
Burden Calculation: The Department believes that such a request will require burden on the part of any FFEL lender. It is anticipated that 310 lenders will be required to expand their current reporting and that it will take 50 hours to update systems and to initially provide the additional data, for a total of 15,500 burden hours (310 institutions × 50 hours = 15,500 burden hours) under OMB Control Number 1845-0020.
Requirements: These final regulations provide new, modified, and restructured definitions in Section 685.219(b) that will expand the use of the form.
Burden Calculation: These changes will require an update to the current PSLF form. We do not believe that the language update will significantly change the amount of time currently assessed for the borrower to complete the form from those which has already been approved. The form will be completed and made available for comment through a full public clearance package before being made available for use by the effective date of the regulations. The burden changes will be assessed to OMB Control Number 1845-0110, Application and Employment Certification for PSLF.
Requirements: These final regulations create a reconsideration process under Section 685.219(g) for borrowers whose applications for PSLF were denied or who disagree with the Department's determination of the number of qualifying payments or months of qualifying employment that have been earned by the borrower, which formalizes the current non-regulatory process.
Burden Calculation: The Department is currently in the clearance process for an electronic Public Service Loan Forgiveness Reconsideration Request, OMB Control Number 1845-0164. Public comment on the web-based format is currently being accepted through the normal information clearance process under docket number ED-2022-SCC-0039.
Requirements: These final regulations reinstate prior regulations that barred institutions, as a condition of participating in the Direct Loan program, from requiring borrowers to accept pre-dispute arbitration agreements and class action waivers as they relate to BD claims. Specifically, in Section 685.300(e), institutions will be prohibited from relying on a pre-dispute arbitration agreement, or any other pre-dispute agreement with a student who obtained or benefitted from a Direct Loan, in any aspect of a class action related to a BD claim, until the presiding court rules that the case cannot proceed as a class action. In Section 685.300(f), the final regulations require that certain provisions relating to notices and the terms of the pre-dispute arbitration agreements be included in any agreement with a student who receives a Direct Loan to attend the school or for whom a Direct PLUS Loan was obtained.
Burden Calculation: There will be burden on any school that meets the conditions for supplying students with the changes to any agreements. Based on the Academic Year 2020-2021 Direct Loan information available, there were 1,026,437 Unsubsidized Direct Loan recipients at 1,587 for-profit institutions. Assuming 66 percent of these students will continue to be enrolled at the time these regulations become effective, about 677,448 students will be required to receive the agreements or notices required in Sections 685.300(e) or (f). We anticipate that it will take 1,587 for-profit institutions .17 hours (10 minutes) per
Requirements: Under the final rules at Sections 685.300(g) and (h), institutions will be required to submit certain arbitral records and judicial records connected with any BD claim filed against the school to the Secretary by certain deadlines.
Burden Calculation: The Department believes that such a request will require burden on any school that meets the conditions for supplying the records to the Secretary. We continue to estimate that 5 percent of 1,587 for-profit institutions or an estimated 79 for-profit institutions will be required to submit documentation to the Secretary to comply with the final regulations. We anticipate that each of the 79 schools will have an average of four filings thus there will be an average of four submissions for each filing. Because these are copies of documents required to be submitted to other parties, we anticipate 5 burden hours to produce the copies and submit to the Secretary, for an increase in burden of 6,320 hours (79 institutions × 4 filings × 4 submissions/filing × 5 hours) under OMB Control Number 1845-0021.
Requirements: These final regulations remove Sections 685.304(a)(6)(xiii) through (xv). The final regulations at Section 685.300 will state the conditions under which disclosures will be required and provide deadlines for such disclosures.
Burden Calculation: With the removal of the regulatory language in Sections 685.304(a)(6)(xiii) through (xv), the Department will remove the associated burden of 30,225 hours under OMB Control Number 1845-0021.
Requirements: In § 685.402(c), the Department may initiate a group process upon request from a third-party requestor, on the condition that the third-party requestor submit an application and provide other required information to the Department to adjudicate the claim.
In Section 685.402(c)(4) the Secretary will notify an institution of the third-party requestor's application requesting to form a BD group. The institution will have 90 days to respond to the Secretary regarding the third-party requestor's application. The Department believes that such a request will require burden on any school that wishes to respond to the Secretary.
If, under Section 865.402(c)(6), a third-party requestors' group request is denied, the third-party requestor will have 90 days from the initial decision to request the Secretary reconsider the formation of a group. The Department believes that such a request will require burden on any third-party requestor that wishes to respond to the Secretary.
Burden Calculation: A new form to capture the requirements for the third-party requestors for § 685.402(c) will be created and made available for comment through a full public clearance package before being made available for use by the effective date of the regulations.
Further, the Department believes that with these new regulations there will be new burden on the institutions who are included in a proposed group claim. From 2015-2021 the Department received 11 group claims against institutions from 29 States Attorneys General regarding borrower defense claims. With the new regulations, the Department anticipates an increase group claim filings by third-party requestors. We estimate that 25 such third-party requestor group claims annually. Of that figure, we anticipate that 5 of the group claims will not meet the materially complete requirements.
For the 20 group claims that initially meet the materially complete requirement for which Secretary provides notice to the institutions, we believe that the 20 notified institutions will utilize the 90-day timeframe to respond to the group claim.
We estimate that the 20 institutions will require an average of 378 hours per notice to review and respond to the proposed group claim for a total of 7,560 burden hours (20 institutions × 378 hours/notice = 7,560) under OMB Control Number 1845-0021.
We anticipate that 5 of the estimated 25 third-party requestors filings for consideration of group claims will not
Requirements: In § 685.405, the Department will continue to provide for an institutional response process to BD claims. Under the final regulations in § 685.405(a), the Department official will notify the institution of the BD claim and its basis for any group or individual BD claim. Under the final regulations in § 685.405(b), the institution will have 90 days to respond. Under the final regulations in § 685.405(c), with its response, the institution will be required to execute an affidavit confirming that the information contained in the response is true and correct under penalty of perjury on a form approved by the Secretary.
Burden Calculation: A new form to capture the requirements of § 685.405(c) will be created and made available for comment through a full public clearance package before being made available for use by the effective date of the regulations.
Requirements: § 685.407 sets forth the circumstances under which a borrower or a third-party requestor may seek reconsideration of a Department official's denial of their BD claim. § 685.407(a)(4) identifies the reconsideration process, which includes an application approved by the Secretary.
Burden Calculation: A new form to capture the requirements of § 685.407(a) will be created and made available for comment through a full public clearance package before being made available for use by the effective date of the regulations.
Consistent with the discussions above, the following chart describes the sections of the final regulations involving information collections, the information being collected and the collections that the Department will submit to OMB for approval and public comment under the PRA, and the estimated costs associated with the information collections. The monetized net cost of the increased burden for institutions, lenders, guaranty agencies and students, using wage data developed using Bureau of Labor Statistics (BLS) data. For individuals, we have used the median hourly wage for all occupations, $22.00 per hour according to BLS.
The total burden hours and change in burden hours associated with each OMB Control number affected by the final regulations follows:
If you want to comment on the final information collection requirements, please send your comments to the Office of Information and Regulatory Affairs in OMB, Attention: Desk Officer for the U.S. Department of Education. Send these comments by email to
We have prepared the Information Collection Request (ICR) for these collections. You may review the ICR which is available at
Pursuant to 5 U.S.C. 601(2), the Regulatory Flexibility Act applies only to rules for which an agency publishes a general notice of proposed rulemaking.
Executive Order 13132 requires us to ensure meaningful and timely input by State and local elected officials in the development of regulatory policies that have federalism implications. “Federalism implications” means substantial direct effects on the States, on the relationship between the National Government and the States, or on the distribution of power and responsibilities among the various levels of government. The proposed regulations do not have federalism implications.
You may also access documents of the Department published in the
Colleges and universities, Foreign relations, Grant programs—education, Loan programs—education, Reporting and recordkeeping requirements, Selective Service System, Student aid, Vocational education.
Administrative practice and procedure, Aliens, Colleges and universities, Consumer protection, Grant programs—education, Loan programs—education, Reporting and recordkeeping requirements, Selective Service System, Student aid, Vocational education.
Loan programs—education, Reporting and recordkeeping requirements, Student aid.
Administrative practice and procedure, Colleges and universities, Loan programs—education, Reporting and recordkeeping requirements, Student aid, Vocational education.
Administrative practice and procedure, Colleges and universities,
For the reasons discussed in the preamble, the Secretary amends parts 600, 668, 674, 682, and 685 of title 34 of the Code of Federal Regulations as follows:
20 U.S.C. 1001, 1002, 1003, 1088, 1091, 1094, 1099b, and 1099c, unless otherwise noted.
(a) If the Secretary believes that a previously designated eligible institution as a whole, or at one or more of its locations, does not satisfy the statutory or regulatory requirements that define that institution as an eligible institution, the Secretary may—
(1) Terminate the institution's eligibility designation in whole or as to a particular location—
(i) Under the procedural provisions applicable to terminations contained in 34 CFR 668.81, 668.83, 668.86, 668.88, 668.89, 668.90(a)(1) and (4) and (c) through (f), and 668.91; or
20 U.S.C. 1001-1003, 1070g, 1085, 1088, 1091, 1092, 1094, 1099c, 1099c-1, and 1231a, unless otherwise noted.
Section 668.14 also issued under 20 U.S.C. 1085, 1088, 1091, 1092, 1094, 1099a-3, 1099c, and 1141.
Section 668.41 also issued under 20 U.S.C. 1092, 1094, 1099c.
Section 668.91 also issued under 20 U.S.C. 1082, 1094.
Section 668.171 also issued under 20 U.S.C. 1094 and 1099c and section 4 of Pub. L. 94-452, 92 Stat. 1101-1109.
Section 668.172 also issued under 20 U.S.C. 1094 and 1099c and section 4 of Pub. L. 94-452, 92 Stat. 1101-1109.
Section 668.175 also issued under 20 U.S.C. 1094 and 1099c.
The revision reads as follows:
(c) * * *
(2) An institution that discloses information to enrolled students as required under paragraph (d), (e), or (g) of this section by posting the information on an internet website or an Intranet website must include in the notice described in paragraph (c)(1) of this section—
(a) If the Secretary determines that an eligible institution has engaged in substantial misrepresentation, the Secretary may—
(1) Revoke the eligible institution's program participation agreement, if the institution is provisionally certified under § 668.13(c);
(2) Impose limitations on the institution's participation in the title IV, HEA programs, if the institution is provisionally certified under § 668.13(c);
(3) Deny participation applications made on behalf of the institution; or
(4) Initiate a proceeding against the eligible institution under subpart G of this part.
(b) This subpart establishes the types of activities that constitute substantial misrepresentation by an eligible institution. An eligible institution is deemed to have engaged in substantial misrepresentation when the institution itself, one of its representatives, or any ineligible institution, organization, or person with whom the eligible institution has an agreement to provide educational programs, marketing, advertising, recruiting or admissions services, makes a substantial misrepresentation about the nature of its educational program, its financial charges, or the employability of its graduates. Substantial misrepresentations are prohibited in all forms, including those made in any advertising, promotional materials, or in the marketing or sale of courses or programs of instruction offered by the institution.
(c) The following definitions apply to this subpart:
Misrepresentation concerning the nature of an eligible institution's educational program includes, but is not limited to, false, erroneous or misleading statements concerning—
(a) The particular type(s), specific source(s), nature and extent of its institutional, programmatic, or specialized accreditation;
(b)(1) The general or specific transferability of course credits earned at the institution to other institution(s); or
(2) Acceptance of credits earned through prior work or at another institution toward the educational program at the institution.
(c) Whether successful completion of a course of instruction qualifies a student—
(1) For acceptance into a labor union or similar organization; or
(2) To receive, to apply to take, or to take the examination required to receive a local, State, or Federal license, or a nongovernmental certification required as a precondition for employment, or to perform certain functions in the States in which the educational program is offered, or to meet additional conditions that the institution knows or reasonably should know are generally needed to secure employment in a recognized occupation for which the program is represented to prepare students;
(d) The requirements for successfully completing the course of study or program and the circumstances that would constitute grounds for terminating the student's enrollment;
(e) Whether its courses are recommended or have been the subject of unsolicited testimonials or endorsements by:
(1) Vocational counselors, high schools, colleges, educational organizations, employment agencies, members of a particular industry, students, former students, or others; or
(2) Governmental officials for governmental employment;
(f) Its size, location, facilities, equipment, or institutionally-provided equipment, software technology, books, or supplies;
(g) The availability, frequency, and appropriateness of its courses and programs in relation to the employment objectives that it states its programs are designed to meet;
(h) The number, availability, and qualifications, including the training and experience, of its faculty, instructors, and other personnel;
(i) The nature and availability of any tutorial or specialized instruction, guidance and counseling, or other supplementary assistance it will provide to its students before, during or after the completion of a course;
(j) The nature or extent of any prerequisites established for enrollment in a course;
(k) The subject matter, content of the course of study, or any other fact related to the degree, diploma, certificate of completion, or any similar document that the student is to be, or is, awarded upon completion of the course of study;
(l) Whether the academic, professional, or occupational degree that the institution will confer upon completion of the course of study has been authorized by the appropriate State educational agency;
(m) Institutional or program admissions selectivity if the institution or program actually employs an open enrollment policy;
(n) The classification of the institution (nonprofit, public or proprietary) for purposes of its participation in the title IV, HEA programs, if that is different from the classification determined by the Secretary;
(o) Specialized, programmatic, or institutional certifications, accreditation, or approvals that were not actually obtained, or that the institution fails to remove from marketing materials, websites, or other communications to students within a reasonable period of time after such certifications or approvals are revoked or withdrawn;
(p) Assistance that will be provided in securing required externships or the existence of contracts with specific externship sites;
(q) Assistance that will be provided to obtain a high school diploma or General Educational Development Certificate (GED);
(r) The pace of completing the program or the time it would take to complete the program contrary to the stated length of the educational program; or
(s) Any matters required to be disclosed to prospective students under §§ 668.42, 668.43, and 668.45.
Misrepresentation concerning the nature of an eligible institution's financial charges, or the financial assistance provided includes, but is not limited to, false, erroneous, or misleading statements concerning—
(a) Offers of scholarships to pay all or part of a course charge;
(b) Whether a particular charge is the customary charge at the institution for a course;
(c) The cost of the program and the institution's refund policy if the student does not complete the program;
(d) The availability, amount, or nature of any financial assistance available to students from the institution or any other entity, including any government agency, to pay the costs of attendance at the institution, including part-time employment, housing, and transportation assistance;
(e) A student's responsibility to repay any loans provided, regardless of whether the student is successful in completing the program and obtaining employment;
(f) The student's right to reject any particular type of financial aid or other assistance, or whether the student must apply for a particular type of financial aid, such as financing offered by the institution; or
(g) The amount, method, or timing of payment of tuition and fees that the student would be charged for the program.
Misrepresentation regarding the employability of an eligible institution's graduates includes, but is not limited to, false, erroneous, or misleading statements concerning—
(a) The institution's relationship with any organization, employment agency, or other agency providing authorized training leading directly to employment;
(b) The institution's intentions to maintain a placement service for graduates or to otherwise assist its graduates to obtain employment, including any requirements to receive such assistance;
(c) The institution's knowledge about the current or likely future conditions, compensation, or employment opportunities in the industry or occupation for which the students are being prepared;
(d) Whether employment is being offered by the institution exclusively for graduates of the institution, or that a talent hunt or contest is being conducted, including, but not limited to, through the use of phrases such as “Men/women wanted to train for . . . , ” “Help Wanted,” “Employment,” or “Business Opportunities”;
(e) Government job market statistics in relation to the potential placement of its graduates;
(f) Actual licensure passage rates, if they are materially lower than those included in the institution's marketing materials, website, or other communications made to the student or prospective student; or
(g)(1) Actual employment rates, if they are materially lower than those included in the institution's marketing materials, website, or other communications made to the student or prospective student, including but not limited to:
(i) Rates that are calculated in a manner that is inconsistent with the
(ii) Rates that the institution discloses to students are inflated by means such as:
(A) Counting individuals as employed who are not bona fide employees, such as individuals placed on a 1-day job fair, an internship, externship, or in employment subsidized by the institution;
(B) Counting individuals as employed who were employed in the field prior to graduation; or
(C) Excluding students from an employment rate calculation due to assessments of employability or difficulty with placement.
(2) Upon request, the institution must furnish to the Secretary documentation and other information used to calculate the institution's employment rate calculations.
An omission of fact is a misrepresentation under § 668.71 if a reasonable person would have considered the omitted information in making a decision to enroll or continue attendance at the institution. An omission of fact includes, but is not limited to, the concealment, suppression, or absence of material information or statement concerning—
(a) The entity that is actually providing the educational instruction, or implementing the institution's recruitment, admissions, or enrollment process;
(b) The availability of enrollment openings in the student's desired program;
(c) The factors that would prevent an applicant from meeting the legal or other requirements to be employed in the field for which the training is provided, for reasons such as prior criminal record or preexisting medical conditions;
(d) The factors that would prevent an applicant from meeting the legal or other requirements to be employed, licensed, or certified in the field for which the training is provided because the academic, professional, or occupational degree or credential that the institution will confer upon completion of the course of study has not been authorized by the appropriate State educational or licensure agency, or requires specialized accreditation that the institution does not have; or,
(e) The nature of the institution's educational programs, the institution's financial charges, or the employability of the institution's graduates as defined in § 668.72-74.
If any provision of this subpart or its application to any person, act, or practice is held invalid, the remainder of the subpart or the application of its provisions to any person, act, or practice will not be affected thereby.
(a) * * *
(5) * * *
(i) Borrower defense to repayment claims that are brought by the Department against an institution under § 685.206, § 685.222 or part 685, subpart D, of this chapter; and
(b) * * *
(3) * * *
(iii) For borrower defenses under §§ 685.206(c) and (e) and 685.222 of this chapter, the designated department official has the burden of persuasion in a borrower defense and recovery action; however, for a borrower defense claim based on a substantial misrepresentation under § 682.222(d) of this chapter, the designated department official has the burden of persuasion regarding the substantial misrepresentation, and the institution has the burden of persuasion in establishing any offsetting value of the education under § 685.222(i)(2)(i).
If any provision of this subpart or its application to any person, act, or practice is held invalid, the remainder of the subpart or the application of its provisions to any person, act, or practice will not be affected thereby.
(a) If the Department determines that the institution is liable for any amounts discharged or reimbursed to borrowers under the discharge process described in § 685.408, it will provide the institution with written notice of the determination and the amount and basis of the liability.
(b) An institution may request review of the determination that it is liable for the amounts discharged or reimbursed by filing a written request for review with the designated department official no later than 45 days from the date that the institution receives the written notice.
(c) Upon receipt of an institution's request for review, the designated official arranges for a hearing before a hearing official.
(d) Except as provided in this section, the proceedings will be conducted in accordance with §§ 668.115 to 668.124 of this subpart. For purposes of this section references in §§ 668.115 to 668.124 to a final audit determination or a final program review determination will be read to refer to the written notice provided under paragraph (a) of this section.
(e) In place of the provisions in § 668.116(d), the following requirements shall apply:
(1) The Department has the burden of production to demonstrate that loans made to students to attend the institution were discharged on the basis of a borrower defense to repayment claim.
(2) The institution has the burden of proof to demonstrate that the decision to discharge the loans was incorrect or inconsistent with law and that the institution is not liable for the loan amounts discharged or reimbursed.
(3) A party may submit as evidence to the hearing official only materials within one or more of the following categories:
(i) Materials submitted to the Department during the process of adjudicating claims by borrowers relating to alleged acts or omissions of the institution, including materials submitted by the borrowers, the institution or any third parties;
(ii) Any material on which the Department relied in adjudicating claims by borrowers relating to alleged acts or omissions of the institution and provided by the Department to the institution; and
(iii) The institution may submit any other relevant documentary evidence that relates to the bases cited by the Department in approving the borrower
(a) This subpart identifies the types of activities that constitute aggressive and deceptive recruitment tactics or conduct by an eligible institution. An eligible institution has engaged in aggressive and deceptive recruitment tactics or conduct when the institution itself, one of its representatives, or any ineligible institution, organization, or person with whom the eligible institution has an agreement to provide educational programs, marketing, advertising, lead generation, recruiting or admissions services, engages in one or more of the prohibited practices in § 668.501. Aggressive and deceptive recruitment tactics or conduct are prohibited in all forms, including in the institution's advertising or promotional materials, or in the marketing or sale of courses or programs of instruction offered by the institution.
(b) If the Secretary determines that an eligible institution has engaged in aggressive and deceptive recruitment tactics or conduct, the Secretary may:
(1) Revoke the eligible institution's program participation agreement, if the institution is provisionally certified under § 668.13(c);
(2) Impose limitations on the institution's participation in the title IV, HEA programs, if the institution is provisionally certified under § 668.13(c);
(3) Deny participation applications made on behalf of the institution; or
(4) Initiate a proceeding against the eligible institution under subpart G of this part.
(c) The following definitions apply to this subpart:
(a) Aggressive and deceptive recruitment tactics or conduct include but are not limited to actions by the institution, any of its representatives, or any institution, organization, or person with whom the institution has an agreement to provide educational programs, marketing, recruitment, or lead generation that:
(1) Demand or pressure the student or prospective student to make enrollment or loan-related decisions immediately, including falsely claiming that the student or prospective student would lose their opportunity to attend;
(2) Take unreasonable advantage of a student's or prospective student's lack of knowledge about, or experience with, postsecondary institutions, postsecondary programs, or financial aid to pressure the student into enrollment or borrowing funds to attend the institution;
(3) Discourage the student or prospective student from consulting an adviser, a family member, or other resource or individual prior to making enrollment or loan-related decisions;
(4) Obtain the student's or prospective student's contact information through websites or other means that:
(i) Falsely offer assistance to individuals seeking Federal, state or local benefits;
(ii) Falsely advertise employment opportunities; or,
(iii) Present false rankings of the institution or its programs;
(5) Use threatening or abusive language or behavior toward the student or prospective student; or,
(6) Repeatedly engage in unsolicited contact for the purpose of enrolling or reenrolling after the student or prospective student has requested not to be contacted further.
(b) [Reserved]
If any provision of this subpart or its application to any person, act, or practice is held invalid, the remainder of the subpart or the application of its provisions to any person, act, or practice will not be affected thereby.
20 U.S.C. 1070g, 1087aa—1087hh; Pub. L. 111-256, 124 Stat. 2643; unless otherwise noted.
If any provision of this subpart or its application to any person, act, or practice is held invalid, the remainder of the subpart or the application of its provisions to any person, act, or practice will not be affected thereby.
The revisions and addition read as follows:
(g) * * *
(1)
(ii) For the purposes of this section—
(A) If a school has closed, the school's closure date is the earlier of: the date, determined by the Secretary, that the school ceased to provide educational instruction in programs in which most students at the school were enrolled, or a determined by the Secretary that reflects when the school ceased to provide educational instruction for all of its students;
(B) “School” means a school's main campus or any location or branch of the main campus regardless of whether the school or its location or branch is considered title IV eligible;
(C) The “holder” means the Secretary or the school that holds the loan; and
(D) “Program” means the credential defined by the level and Classification of Instructional Program code in which a student is enrolled, except that the Secretary may define a borrower's program as multiple levels or Classification of Instructional Program codes if—
(
(
(
(3)
(A) Borrower qualified for and received a discharge on a loan pursuant to § 682.402(d) (Federal Family Education Loan Program) or § 685.214 (Federal Direct Loan Program) of this chapter, and was unable to receive a discharge on an NDSL or Federal Perkins Loan because the Secretary lacked the statutory authority to discharge the loan; or
(B) Secretary determines that the borrower qualifies for a discharge based on information in the Secretary's possession. The Secretary discharges the loan without an application from the borrower 1 year after the institution's closure date if the borrower did not complete the program at another branch or location of the school or through a teach-out agreement with another school, approved by the school's accrediting agency and, if applicable, the school's State authorizing agency.
(ii) If the borrower accepts but does not complete a continuation of their program at a branch or another location of the institution or a teach-out agreement at another school approved by the school's accrediting agency and, if applicable, the school's State authorizing agency, then the Secretary discharges the loan 1 year after the borrower's last date of attendance at the institution or in the teach-out program.
(4)
(i) State that the borrower—
(A) Received the proceeds of a loan, in whole or in part, on or after January 1, 1986, to attend a school;
(B) Did not complete the program of study at that school because the school closed while the student was enrolled, or the student withdrew from the school not more than 180 days before the school closed. The Secretary may extend the 180-day period if the Secretary determines that exceptional circumstances such as those described in paragraph (g)(9) of this section justify an extension; and
(C) On or after July 1, 2023, did not complete the program at another branch or location of the institution or through a teach-out agreement at another school, approved by the school's accrediting agency and, if applicable, the school's State authorizing agency.
(ii) State whether the borrower has made a claim with respect to the school's closing with any third party, such as the holder of a performance bond or a tuition recovery program, and, if so, the amount of any payment received by the borrower or credited to the borrower's loan obligation; and
(iii) State that the borrower—
(A) Agrees to provide to the holder of the loan upon request other documentation reasonably available to the borrower that demonstrates that the borrower meets the qualifications for discharge under this section; and
(B) Agrees to cooperate with the Secretary in enforcement actions in accordance with paragraph (g)(6) of this section and to transfer any right to recovery against a third party to the Secretary in accordance with paragraph (g)(7) of this section.
(v) If the borrower fails to submit the completed application described in paragraph (g)(4) of this section within 90 days of the holder of the loan's mailing the discharge application, the holder of the loan resumes collection and grants forbearance of principal and interest for the period during which collection activity was suspended.
(vii) If the holder of the loan determines that a borrower who requests a discharge meets the qualifications for a discharge, the holder of the loan notifies the borrower in writing of that determination and the reasons for the determination.
(9)
(i) The revocation or withdrawal by an accrediting agency of the school's institutional accreditation;
(ii) The school is or was placed on probation or issued a show-cause order, or placed on an equivalent accreditation status, by its accrediting agency for failing to meet one or more of the agency's standards;
(iii) The revocation or withdrawal by the State authorization or licensing authority to operate or to award academic credentials in the State;
(iv) The termination by the Department of the school's participation in a title IV, HEA program;
(v) A finding by a State or Federal government agency that the school violated State or Federal law related to education or services to students;
(vi) A State or Federal court judgment that a School violated State or Federal law related to education or services to students;
(vii) The teach-out of the student's educational program exceeds the 180-day look back period for a closed school discharge;
(viii) The school responsible for the teach-out of the student's educational program fails to perform the material terms of the teach-out plan or agreement, such that the student does not have a reasonable opportunity to complete his or her program of study;
(ix) The school discontinued a significant share of its academic programs;
(x) The school permanently closed all or most of its in-person locations while maintaining online programs;
(xi) The Department placed the school on the heightened cash monitoring payment method as defined in § 668.162(d)(2).
The revisions read as follows:
(b) * * *
(2)
(ii) If the borrower notifies the Secretary of the borrower's intent to apply for a total and permanent disability discharge, the Secretary—
(A) Provides the borrower with information needed for the borrower to apply for a total and permanent disability discharge;
(B) Identifies all title IV loans owed by the borrower and notifies the lenders of the borrower's intent to apply for a total and permanent disability discharge;
(C) Directs the lenders to suspend efforts to collect from the borrower for a period not to exceed 120 days; and
(D) Informs the borrower that the suspension of collection activity described in paragraph (b)(2)(ii)(C) of this section will end after 120 days and the collection will resume on the loans if the borrower does not submit a total and permanent disability discharge application to the Secretary within that time.
(iii) If the borrower fails to submit an application for a total and permanent disability discharge to the Secretary within 120 days, collection resumes on the borrower's title IV loans.
(iv) The borrower must submit to the Secretary an application for total and permanent disability discharge on a form approved by the Secretary. The application must contain—
(A) A certification by a physician, who is a doctor of medicine or osteopathy legally authorized to practice in a State, that the borrower is totally and permanently disabled as defined in § 674.51(aa)(1);
(B) A certification by a nurse practitioner or physician assistant licensed by a State or a certified psychologist licensed at the independent practice level by a State, that the borrower is totally and permanently disabled as defined in § 674.51(aa)(1); or
(C) A Social Security Administration (SSA) Benefit Planning Query (BPQY) or an SSA notice of award or other documentation deemed acceptable by the Secretary indicating that—
(
(
(
(
(v) The borrower must submit the application described in paragraph (b)(2)(iv) of this section to the Secretary within 90 days of the date the physician, nurse practitioner, physician assistant, or psychologist certifies the application, if applicable.
(vi) After the Secretary receives the application described in paragraph (b)(2)(iv) of this section, the Secretary notifies the holders of the borrower's title IV loans that the Secretary has received a total and permanent disability discharge application from the borrower.
(vii) If the application is incomplete, the Secretary notifies the borrower of the missing information and requests the missing information from the borrower, the borrower's representative, or the physician, nurse practitioner, physician assistant, or psychologist who provided the certification, as appropriate. The Secretary does not make a determination of eligibility until the application is complete.
(viii) The lender notification described in paragraph (b)(2)(vi) of this section directs the borrower's loan holders to suspend collection activity or maintain the suspension of collection activity on the borrower's title IV loans.
(ix) After the Secretary receives a disability discharge application, the Secretary sends a notice to the borrower that—
(A) States that the application will be reviewed by the Secretary;
(B) Informs the borrower that the borrower's lenders will suspend collection activity or maintain the suspension of collection activity on the borrower's title IV loans while the Secretary reviews the borrower's application for discharge; and
(C) Explains the process for the Secretary's review of total and permanent disability discharge applications.
(3)
(A) The physician, nurse practitioner, physician assistant, or psychologist certified the borrower's application; or
(B) The Secretary received the SSA data described in paragraph (b)(2)(iv)(C) of this section.
(ii) If the Secretary determines that the borrower's application does not support the conclusion that the borrower is totally and permanently disabled as defined in § 674.51(aa)(1), the Secretary may require the borrower to submit additional medical evidence. As part of the Secretary's review of the borrower's discharge application, the Secretary may require and arrange for an additional review of the borrower's condition by an independent physician or other medical professional identified by the Secretary at no expense to the borrower.
(iii) After determining that the borrower is totally and permanently disabled as defined in § 674.51(aa)(1), the Secretary notifies the borrower and the borrower's lenders that the application for a disability discharge has been approved. With this notification, the Secretary provides the date the physician, nurse practitioner, physician assistant, or psychologist certified the borrower's loan discharge application or the date the Secretary received the SSA data described in paragraph (b)(2)(iv)(C) of this section and directs each institution holding a Defense, NDSL, or Perkins Loan made to the borrower to assign the loan to the Secretary.
(iv) The institution must assign the loan to the Secretary within 45 days of the date of the notice described in paragraph (b)(3)(iii) of this section.
(v) After the loan is assigned, the Secretary discharges the borrower's obligation to make further payments on the loan and notifies the borrower and the institution that the loan has been discharged. The notification to the borrower explains the terms and conditions under which the borrower's obligation to repay the loan will be reinstated, as specified in paragraph (b)(6) of this section. Any payments received after the date the physician, nurse practitioner, physician assistant, or psychologist certified the borrower's loan discharge application or the date the Secretary received the SSA data described in paragraph (b)(2)(iv)(C) of this section are returned to the person who made the payments on the loan in accordance with paragraph (b)(7) of this section.
(vi) If the Secretary determines that the physician, nurse practitioner, physician assistant, or psychologist certification or the SSA data described in paragraph (b)(2)(iv)(C) of this section provided by the borrower does not support the conclusion that the borrower is totally and permanently disabled as defined in § 674.51(aa)(1), the Secretary notifies the borrower and the institution that the application for a disability discharge has been denied. The notification includes—
(A) The reason or reasons for the denial;
(B) A statement that the loan is due and payable to the institution under the terms of the promissory note and that the loan will return to the status that would have existed had the total and permanent disability discharge application not been received;
(C) A statement that the institution will notify the borrower of the date the borrower must resume making payments on the loan;
(D) An explanation that the borrower is not required to submit a new total and permanent disability discharge application if the borrower requests that the Secretary re-evaluate the application for discharge by providing, within 12 months of the date of the notification, additional information that supports the borrower's eligibility for discharge; and
(E) An explanation that if the borrower does not request re-evaluation of the borrower's prior discharge application within 12 months of the date of the notification, the borrower must submit a new total and permanent disability discharge application to the Secretary if the borrower wishes the Secretary to reevaluate the borrower's eligibility for a total and permanent disability discharge.
(vii) If the borrower requests reevaluation in accordance with paragraph (b)(3)(vi)(D) of this section or submits a new total and permanent disability discharge application in accordance with paragraph (b)(3)(vi)(E) of this section, the request must include new information regarding the borrower's disabling condition that was not provided to the Secretary in connection with the prior application at the time the Secretary reviewed the borrower's initial application for a total and permanent disability discharge.
(4)
(5)
(6)
(ii) If the borrower's obligation to repay a loan is reinstated, the Secretary—
(A) Notifies the borrower that the borrower's obligation to repay the loan has been reinstated;
(B) Returns the loan to the status that would have existed had the total and permanent disability discharge application not been received; and
(C) Does not require the borrower to pay interest on the loan for the period from the date the loan was discharged until the date the borrower's obligation to repay the loan was reinstated.
(iii) The Secretary's notification under paragraph (b)(6)(ii)(A) of this section will include—
(A) The reason or reasons for the reinstatement;
(B) An explanation that the first payment due date on the loan following reinstatement will be no earlier than 90 days after the date of the notification of reinstatement; and
(C) Information on how the borrower may contact the Secretary if the borrower has questions about the reinstatement or believes that the obligation to repay the loan was reinstated based on incorrect information.
(7)
(ii) At the same time that the institution returns the payments, it must notify the borrower that there is no obligation to make payments on the loan after it has been discharged due to a total and permanent disability unless the loan is reinstated in accordance with § 674.61(b)(6), or the Secretary directs the borrower otherwise.
(iii) When the Secretary discharges the loan, the Secretary returns to the sender any payments received on the loan after the date the borrower became totally and permanently disabled.
(d)
(i) Obtains data from the Department of Veterans Affairs (VA) showing that the borrower is unemployable due to a service-connected disability; or
(ii) Obtains data from the Social Security Administration (SSA) described in paragraph (b)(2)(iv)(C) of this section.
(e)
(2) Unless the borrower notifies the Secretary that the borrower does not wish to receive the discharge, the Secretary notifies the borrower's lenders that the borrower has been approved for a disability discharge.
(3) In the case of a discharge based on a disability determination by VA—
(i) The notification—
(A) Provides the effective date of the disability determination by VA; and
(B) Directs each institution holding a Defense, NDSL, or Perkins Loan made to the borrower to discharge the loan; and
(ii) The institution returns to the person who made the payments any payments received on or after the effective date of the determination by VA that the borrower is unemployable due to a service-connected disability.
(4) In the case of a discharge based on a disability determination by the SSA—
(i) The notification—
(A) Provides the date the Secretary received the SSA data described in paragraph (b)(2)(iv)(C) of this section; and
(B) Directs each institution holding a Defense, NDSL, or Perkins Loan made to the borrower to assign the loan to the Secretary within 45 days of the notice described in paragraph (e)(2) of this section; and
(ii) After the loan is assigned, the Secretary discharges the loan in accordance with paragraph (b)(3)(v) of this section.
(5) If the borrower notifies the Secretary that they do not wish to receive the discharge, the borrower will remain responsible for repayment of the borrower's loans in accordance with the terms and conditions of the promissory notes that the borrower signed.
If any provision of this subpart or its application to any person, act, or practice is held invalid, the remainder of the subpart or the application of its provisions to any person, act, or practice will not be affected thereby.
20 U.S.C. 1071-1087-4, unless otherwise noted.
The revisions and additions read as follows:
(c) * * *
(2) * * *
(iv) The borrower must submit to the Secretary an application for a total and permanent disability discharge on a form approved by the Secretary. The application must contain—
(A) A certification by a physician, who is a doctor of medicine or osteopathy legally authorized to practice in a State, that the borrower is totally and permanently disabled as described in paragraph (1) of the definition of that term in § 682.200(b);
(B) A certification by a nurse practitioner or physician assistant licensed by a State, or a licensed or certified psychologist at the independent practice level, that the borrower is totally and permanently disabled as described in paragraph (1) of the definition of that term in § 682.200(b); or
(C) An SSA Benefit Planning Query (BPQY) or an SSA notice of award or other documentation deemed acceptable by the Secretary, indicating that—
(
(
(
(
(
(v) The borrower must submit the application described in paragraph (c)(2)(iv) of this section to the Secretary within 90 days of the date the physician, nurse practitioner, physician assistant, or psychologist certifies the application, if applicable.
(vi) After the Secretary receives the application described in paragraph (c)(2)(iv) of this section, the Secretary notifies the holders of the borrower's title IV loans that the Secretary has received a total and permanent disability discharge application from the borrower. The holders of the loans must notify the applicable guaranty agency that the total and permanent disability discharge application has been received.
(vii) If the application is incomplete, the Secretary notifies the borrower of the missing information and requests the missing information from the borrower or the physician, nurse practitioner, physician assistant, or psychologist who provided the certification, as appropriate. The Secretary does not make a determination of eligibility until the application is complete.
(3)
(A) As of the date the physician, nurse practitioner, physician assistant, or psychologist certified the borrower's application; or
(B) As of the date the Secretary received the SSA data described in paragraph (c)(2)(iv)(C) of this section.
(ii) If the Secretary determines that the borrower's application does not support the conclusion that the borrower is totally and permanently disabled as described in paragraph (1) of the definition of that term in § 682.200(b) the Secretary may require the borrower to submit additional medical evidence. As part of the Secretary's review of the borrower's discharge application, the Secretary may require and arrange for an additional
(iii) After determining that the borrower is totally and permanently disabled as described in paragraph (1) of the definition of that term in § 682.200(b), the Secretary notifies the borrower and the borrower's lenders that the application for a disability discharge has been approved. With this notification, the Secretary provides the date the physician, nurse practitioner, physician assistant, or psychologist certified the borrower's loan discharge application or the date the Secretary received the SSA data described in paragraph (c)(2)(iv)(C) of this section and directs each lender to submit a disability claim to the guaranty agency so the loan can be assigned to the Secretary. The Secretary returns any payment received by the Secretary after the date the physician, nurse practitioner, physician assistant, or psychologist certified the borrower's loan discharge application or received the SSA data described in paragraph (c)(2)(iv)(C) of this section to the person who made the payment.
(iv) After the loan is assigned, the Secretary discharges the borrower's obligation to make further payments on the loan and notifies the borrower and the lender that the loan has been discharged. The notification to the borrower explains the terms and conditions under which the borrower's obligation to repay the loan will be reinstated, as specified in paragraph (c)(6)(i) of this section.
(v) If the Secretary determines that the physician, nurse practitioner, physician assistant, or psychologist certification or SSA data described in paragraph (c)(2)(iv)(C) of this section does not support the conclusion that the borrower is totally and permanently disabled as described in paragraph (1) of the definition of that term in § 682.200(b), the Secretary notifies the borrower and the lender that the application for a disability discharge has been denied. The notification includes—
(A) The reason or reasons for the denial;
(B) A statement that the loan is due and payable to the lender under the terms of the promissory note and that the loan will return to the status that would have existed had the total and permanent disability discharge application not been received;
(C) A statement that the lender will notify the borrower of the date the borrower must resume making payments on the loan;
(D) An explanation that the borrower is not required to submit a new total and permanent disability discharge application if the borrower requests that the Secretary re-evaluate the application for discharge by providing, within 12 months of the date of the notification, additional information that supports the borrower's eligibility for discharge; and
(E) An explanation that if the borrower does not request re-evaluation of the borrower's prior discharge application within 12 months of the date of the notification, the borrower must submit a new total and permanent disability discharge application to the Secretary if the borrower wishes the Secretary to re-evaluate the borrower's eligibility for a total and permanent disability discharge.
(vi) If the borrower requests re-evaluation in accordance with paragraph (c)(3)(v)(D) of this section or submits a new total and permanent disability discharge application in accordance with paragraph (c)(3)(v)(E) of this section, the request must include new information regarding the borrower's disabling condition that was not provided to the Secretary in connection with the prior application at the time the Secretary reviewed the borrower's initial application for a total and permanent disability discharge.
(4)
(5)
(6)
(ii) If the borrower's obligation to repay a loan is reinstated, the Secretary—
(A) Notifies the borrower that the borrower's obligation to repay the loan has been reinstated;
(B) Returns the loan to the status that would have existed if the total and permanent disability discharge application had not been received; and
(C) Does not require the borrower to pay interest on the loan for the period from the date the loan was discharged until the date the borrower's obligation to repay the loan was reinstated.
(iii) The Secretary's notification under paragraph (c)(6)(ii)(A) of this section will include—
(A) The reason or reasons for the reinstatement;
(B) An explanation that the first payment due date on the loan following reinstatement will be no earlier than 90 days after the date of the notification of reinstatement; and
(C) Information on how the borrower may contact the Secretary if the borrower has questions about the reinstatement or believes that the obligation to repay the loan was reinstated based on incorrect information.
(7)
(A) The lender must submit a disability claim to the guaranty agency, in accordance with paragraph (g)(1) of this section;
(B) If the claim satisfies the requirements of paragraph (g)(1) of this section and § 682.406, the guaranty agency must pay the claim submitted by the lender;
(C) After receiving a claim payment from the guaranty agency, the lender must return to the sender any payments received by the lender after the date the physician, nurse practitioner, physician assistant, or psychologist certified the borrower's loan discharge application or after the date the Secretary received the SSA data described in paragraph (c)(2)(iv)(C) of this section as well as any payments received after claim payment from or on behalf of the borrower;
(D) The Secretary reimburses the guaranty agency for a disability claim paid to the lender after the agency pays the claim to the lender; and
(E) The guaranty agency must assign the loan to the Secretary within 45 days of the date the guaranty agency pays the disability claim and receives the reimbursement payment, or within 45 days of the date the guaranty agency receives the notice described in paragraph (c)(3)(iii) of this section if a guaranty agency is the lender.
(ii) If the Secretary does not approve the borrower's total and permanent disability discharge request, the lender must resume collection of the loan and is deemed to have exercised forbearance of payment of both principal and interest from the date collection activity was suspended. The lender may capitalize, in accordance with § 682.202(b), any interest accrued and not paid during that period, except if the lender is a guaranty agency it may not capitalize accrued interest.
(9)
(i) Obtains data from the Department of Veterans Affairs (VA) showing that the borrower is unemployable due to a service-connected disability; or
(ii) Obtains data from the Social Security Administration (SSA) described in paragraph (c)(2)(iv)(C) of this section.
(10)
(ii) Unless the borrower notifies the Secretary that the borrower does not wish to receive the discharge, the Secretary notifies the borrower's loan holders that the borrower has been approved for a disability discharge. With this notification the Secretary provides the effective date of the determination by VA or the date the Secretary received the SSA data described in paragraph (c)(2)(iv)(C) of this section and directs the holder of each FFEL Program loan made to the borrower to submit a disability claim to the guaranty agency in accordance with paragraph (g)(1) of this section.
(iii) If the claim meets the requirements of paragraph (g)(1) of this section and § 682.406, the guaranty agency pays the claim and must—
(A) Discharge the loan, in the case of a discharge based on data from VA; or
(B) Assign the loan to the Secretary, in the case of a discharge based on data from the SSA.
(iv) The Secretary reimburses the guaranty agency for a disability claim after the agency pays the claim to the lender.
(v) Upon receipt of the claim payment from the guaranty agency, the loan holder returns to the person who made the payments any payments received on or after—
(A) The effective date of the determination by VA that the borrower is unemployable due to a service-connected disability; or
(B) The date the Secretary received the SSA data described in paragraph (c)(2)(iv)(C) of this section.
(vi) For a loan that is assigned to the Secretary for discharge based on data from the SSA, the Secretary discharges the loan in accordance with paragraph (c)(3)(iv) of this section.
(vii) If the borrower notifies the Secretary that they do not wish to receive the discharge, the borrower will remain responsible for repayment of the borrower's loans in accordance with the terms and conditions of the promissory notes that the borrower signed.
(d) * * *
(1)
(ii) For purposes of the closed school discharge authorized by this section—
(A) If a school has closed, the school's closure date is the earlier of: the date, determined by the Secretary, that the school ceased to provide educational instruction in programs in which most students at the school were enrolled, or a date determined by the Secretary that reflects when the school ceased to provide educational instruction for all of its students;
(B) The term “borrower” includes all endorsers on a loan;
(C) A “school” means a school's main campus or any location or branch of the main campus, regardless of whether the school or its location or branch is considered title IV eligible, and
(D) “Program” means the credential defined by the level and Classification of Instructional Program code in which a student is enrolled, except that the Secretary may define a borrower's program as multiple levels or Classification of Instructional Program codes if—
(
(
(
(2)
(ii) A discharge of a loan under this paragraph (d) qualifies the borrower for reimbursement of amounts paid voluntarily or through enforced collection on a loan obligation discharged under this paragraph (d).
(iii) A borrower who has defaulted on a loan discharged under this paragraph (d) is not regarded as in default on the loan after discharge, and is eligible to receive assistance under the title IV, HEA programs.
(iv) A discharge of a loan under this paragraph (d) must be reported by the loan holder to all consumer reporting agencies to which the holder previously reported the status of the loan, so as to delete all adverse credit history assigned to the loan.
(3)
(i) Received the proceeds of a loan, in whole or in part, on or after January 1, 1986, to attend a school;
(ii) Did not complete the program of study at that school because the school closed while the student was enrolled, or the student withdrew from the school not more than 180 calendar days before the school closed. The Secretary may extend the 180-day period if the Secretary determines that exceptional circumstances, as described in paragraph (d)(9) of this section, justify an extension;
(iii) On or after July 1, 2023, state that the borrower did not complete the program at another branch or location of the school or through a teach-out agreement at another school, approved by the school's accrediting agency and, if applicable, the school's State authorizing agency; and
(iv) State that the borrower (or student)—
(A) Agrees to provide to the Secretary or the Secretary's designee upon request other documentation reasonably available to the borrower that demonstrates that the borrower meets the qualifications for discharge under this section; and
(B) Agrees to cooperate with the Secretary or the Secretary's designee in enforcement actions in accordance with paragraph (d)(4) of this section and to transfer any right to recovery against a third party to the Secretary in accordance with paragraph (d)(5) of this section.
(8)
(A) Borrower received a discharge on a loan pursuant to § 674.33(g) of this chapter under the Federal Perkins Loan Program, or § 685.214 of this chapter under the William D. Ford Federal Direct Loan Program; or
(B) The Secretary or the guaranty agency, with the Secretary's permission, determines that the borrower qualifies for a discharge under sections (d)(3)(i), (ii) and (iii) based on information in the Secretary or guaranty agency's possession. The Secretary or guaranty agency discharges the loan without an application or any statement from the borrower 1 year after the institution's closure date if the borrower did not complete the program at another branch or location of the school or through a teach-out agreement at another school, approved by the school's accrediting agency and, if applicable, the school's State authorizing agency.
(ii) If the borrower accepts but does not complete a continuation of the program at another branch of location of the school or a teach-out agreement at another school, approved by the school's accrediting agency and, if applicable, the school's State authorizing agency, then the Secretary or guaranty agency discharges the loan 1 year after the borrower's last date of attendance in the teach-out program.
(9)
(i) The revocation or withdrawal by an accrediting agency of the school's institutional accreditation;
(ii) The school is or was placed on probation or issued a show-cause order, or placed on an accreditation status that poses an equivalent or greater risk to its accreditation, by its accrediting agency for failing to meet one or more of the agency's standards;
(iii) The revocation or withdrawal by the State authorization or licensing authority to operate or to award academic credentials in the State;
(iv) The termination by the Department of the school's participation in a title IV, HEA program;
(v) A finding by a State or Federal government agency that the school violated State or Federal law related to education or services to students;
(vi) A State or Federal court judgment that a School violated State or Federal law related to education or services to students;
(vii) The teach-out of the student's educational program exceeds the 180-day look back period for a closed school discharge;
(viii) The school responsible for the teach-out of the student's educational program fails to perform the material terms of the teach-out plan or agreement, such that the student does not have a reasonable opportunity to complete his or her program of study;
(ix) The school discontinued a significant share of its academic programs.
(x) The school permanently closed all or most of its ground-based or in-person locations while maintaining online programs.
(xi) The school was placed on the heightened cash monitoring payment method as defined in § 668.162(d)(2).
(e) * * *
(1)
(ii) A student's or other individual's eligibility to borrow will be considered to have been falsely certified by the school if the school—
(A) Certified the eligibility for a FFEL Program loan of a student who—
(
(
(B) Certified the eligibility of a student who is not a high school graduate based on—
(
(
(C) Certified the eligibility of the student who, because of a physical or mental condition, age, criminal record, or other reason accepted by the Secretary, would not meet State requirements for employment (in the student's State of residence when the loan was certified) in the occupation for
(D) Signed the borrower's name without authorization by the borrower on the loan application or promissory note; or
(E) Certified the eligibility of an individual for a FFEL Program loan as a result of the crime of identity theft committed against the individual, as that crime is defined in paragraph (e)(14) of this section.
(iii) The Secretary discharges the obligation of a borrower with respect to a loan disbursement for which the school, without the borrower's authorization, endorsed the borrower's loan check or authorization for electronic funds transfer, unless the student for whom the loan was made received the proceeds of the loan either by actual delivery of the loan funds or by a credit in the amount of the contested disbursement applied to charges owed to the school for that portion of the educational program completed by the student. However, the Secretary does not reimburse the lender with respect to any amount disbursed by means of a check bearing an unauthorized endorsement unless the school also executed the application or promissory note for that loan for the named borrower without that individual's consent.
(iv) If a loan was made as a result of the crime of identity theft that was committed by an employee or agent of the lender, or if at the time the loan was made, an employee or agent of the lender knew of the identity theft of the individual named as the borrower—
(A) The Secretary does not pay reinsurance, and does not reimburse the holder, for any amount disbursed on the loan; and
(B) Any amounts received by a holder as interest benefits and special allowance payments with respect to the loan must be refunded to the Secretary, as provided in paragraphs (e)(8)(ii)(B)(
(3)
(i) State whether the student has made a claim with respect to the school's false certification with any third party, such as the holder of a performance bond or a tuition recovery program, and if so, the amount of any payment received by the borrower (or student) or credited to the borrower's loan obligation;
(ii) In the case of a borrower requesting a discharge based on not having had a high school diploma and not having met the alternative to graduation from high school eligibility requirements in 34 CFR 668.32(e) and under section 484(d) of the Act applicable when the loan was certified, and the school or a third party to which the school referred the borrower falsified the student's high school diploma, the borrower must state in the application that the borrower (or the student for whom a parent received a PLUS loan)—
(A) Received, on or after January 1, 1986, the proceeds of any disbursement of a loan disbursed, in whole or in part, on or after January 1, 1986, to attend a school;
(B) Reported not having a valid high school diploma or its equivalent when the loan was certified; and
(C) Did not satisfy the alternative to graduation from high school statutory or regulatory eligibility requirements identified on the application form and applicable when the loan was certified.
(iii) In the case of a borrower requesting a discharge based on a condition that would disqualify the borrower from employment in the occupation that the training program for which the borrower received the loan was intended, the borrower must state in the application that the borrower (or student for whom a parent received a PLUS loan) did not meet State requirements for employment in the student's State of residence in the occupation that the training program for which the borrower received the loan was intended because of a physical or mental condition, age, criminal record, or other reason accepted by the Secretary.
(iv) In the case of a borrower requesting a discharge because the school signed the borrower's name on the loan application or promissory note without the borrower's authorization state that he or she did not sign the document in question or authorize the school to do so.
(v) In the case of a borrower requesting a discharge because the school, without authorization of the borrower, endorsed the borrower's name on the loan check or signed the authorization for electronic funds transfer or master check, the borrower must—
(A) State that he or she did not endorse the loan check or sign the authorization for electronic funds transfer or master check, or authorize the school to do so; and
(B) State that the proceeds of the contested disbursement were not received either through actual delivery of the loan funds or by a credit in the amount of the contested disbursement applied to charges owed to the school for that portion of the educational program completed by the student.
(vi) In the case of an individual whose eligibility to borrow was falsely certified because he or she was a victim of the crime of identity theft and is requesting a discharge—
(A) Certify that the individual did not sign the promissory note, or that any other means of identification used to obtain the loan was used without the authorization of the individual claiming relief;
(B) Certify that the individual did not receive or benefit from the proceeds of the loan with knowledge that the loan had been made without the authorization of the individual; and
(C) Provide a statement of facts and supporting evidence that demonstrate, to the satisfaction of the Secretary, that the individual's eligibility for the loan in question was falsely certified as a result of identity theft committed against that individual. Supporting evidence may include—
(
(
(
(
(
(vii) That the borrower agrees to provide upon request by the Secretary or the Secretary's designee, other documentation reasonably available to the borrower, that demonstrates, to the satisfaction of the Secretary or the Secretary's designee, that the student meets the qualifications in this paragraph (e); and
(viii) That the borrower agrees to cooperate with the Secretary or the Secretary's designee in enforcement actions in accordance with paragraph (e)(4) of this section, and to transfer any right to recovery against a third party in accordance with paragraph (e)(5) of this section.
(6)
(ii) If the borrower fails to submit the application for discharge and supporting information described in paragraph (e)(3) of this section within 60 days of the holder providing the application, the holder resumes collection and grants forbearance of principal and interest for the period in which collection activity was suspended.
(iii) If the borrower submits an application for discharge that the holder determines is incomplete, the holder notifies the borrower of that determination and allows the borrower an additional 30-days to amend their application and provide supplemental information. If the borrower does not amend their application within 30 days of receiving the notification from the holder the borrower's application is closed as incomplete and the holder resumes collection of the loan and grants forbearance of principal and interest for the period in which collection activity was suspended.
(iv) If the borrower submits a complete application described in paragraph (e)(3) of this section, the holder files a claim with the guaranty agency no later than 60 days after the holder receives the borrower's complete application.
(v) The guaranty agency determines whether the available evidence supports the claim for discharge. Available evidence includes evidence provided by the borrower and any other relevant information from the guaranty agency's records or gathered by the guaranty agency from other sources, including the Secretary, other guaranty agencies, Federal agencies, State authorities, test publishers, independent test administrators, school records, and cognizant accrediting associations.
(vi) The guaranty agency issues a decision that explains the reasons for any adverse determination on the application, describes the evidence on which the decision was made, and provides the borrower, upon request, copies of the evidence. The guaranty agency considers any response from the borrower and any additional information from the borrower and notifies the borrower whether the determination is changed.
(vii) If the guaranty agency determines that the borrower meets the applicable requirements for a discharge under this paragraph (e), the guaranty agency notifies the borrower in writing of that determination.
(viii) If the guaranty agency determines that the borrower does not qualify for a discharge, the guaranty agency notifies the borrower in writing of that determination and the reasons for the determination.
(ix) If the guaranty agency determines that the borrower does not qualify for a discharge, the borrower may request that the Secretary review the guaranty agency's decision.
(x) A borrower is not precluded from re-applying for a discharge under this paragraph (e) if the discharge request is closed as incomplete, or if the guaranty agency or Secretary determines that the borrower does not qualify for a discharge if the borrower provides additional supporting evidence.
(7)
(ii) If the guaranty agency receives information it believes to be reliable indicating that a borrower whose loan is held by the agency may be eligible for a discharge under this paragraph (e), the agency will immediately suspend any efforts to collect from the borrower on any loan received for the program of study for which the loan was made (but may continue to receive borrower payments) and inform the borrower of the procedures for requesting a discharge.
(iii) If the borrower fails to submit the Secretary's approved application described in paragraph (e)(3) of this section within 60 days of being notified of that option, the guaranty agency will resume collection and will be deemed to have exercised forbearance of payment of principal and interest from the date it suspended collection activity.
(iv) If the borrower submits an application for discharge that the guaranty agency determines is incomplete, the guaranty agency notifies the borrower of that determination and allows the borrower an additional 30-days to amend their application and provide supplemental information. If the borrower does not amend their application within 30 days of receiving the notification from the guaranty agency the borrower's application is closed as incomplete and the guaranty agency resumes collection of the loan and grants forbearance of principal and interest for the period in which collection activity was suspended.
(v) Upon receipt of a discharge claim filed by a lender or a complete application submitted by a borrower with respect to a loan held by the guaranty agency, the agency will have up to 90 days to determine whether the discharge should be granted. The agency will review the borrower's application in light of information available from the records of the agency and from other sources, including other guaranty agencies, State authorities, and cognizant accrediting associations.
(vi) A borrower's application for discharge may not be denied solely on the basis of failing to meet any time limits set by the lender, the Secretary or the guaranty agency.
(8)
(ii) If the agency determines that the borrower satisfies the requirements for discharge under this paragraph (e), it will, not later than 30 days after the agency makes that determination, pay the claim in accordance with paragraph (h) of this section and—
(A) Notify the borrower that his or her liability with respect to the amount of the loan has been discharged, and that the lender has been informed of the actions required under paragraph (e)(8)(ii)(C) of this section;
(B) Refund to the borrower all amounts paid by the borrower to the lender or the agency with respect to the discharged loan amount, including any late fees or collection charges imposed by the lender or agency related to the discharged loan amount; and
(C) Notify the lender that the borrower's liability with respect to the amount of the loan has been discharged, and that the lender must—
(
(
(D) Within 30 days, demand payment in full from the perpetrator of the identity theft committed against the individual, and if payment is not received, pursue collection action thereafter against the perpetrator.
(iii) If the agency determines that the borrower does not qualify for a discharge, it will, within 30 days after making that determination—
(A) Notify the lender that the borrower's liability on the loan is not discharged and that, depending on the borrower's decision under paragraph (e)(8)(iii)(B) of this section, the loan will either be returned to the lender or paid as a default claim; and
(B) Notify the borrower that the borrower does not qualify for discharge and state the reasons for that conclusion. The agency will advise the borrower that he or she remains obligated to repay the loan and warn the borrower of the consequences of default, and explain that the borrower will be considered to be in default on the loan unless the borrower submits a written statement to the agency within 30 days stating that the borrower—
(
(
(iv) Within 30 days after receiving the borrower's written statement described in paragraph (e)(8)(iii)(B)(
(v) Within 30 days after receiving the borrower's request for review by the Secretary, the agency will forward the claim file to the Secretary for his review and take the actions required under paragraph (e)(12) of this section.
(vi) The agency will pay a default claim to the lender within 30 days after the borrower fails to return either of the written statements described in paragraph (e)(8)(iii)(B) of this section.
(9)
(ii) If the agency determines that a borrower who asserts that he or she did not endorse the loan check satisfies the requirements for discharge under paragraph (e)(3)(v) of this section, it will, within 30 days after making that determination—
(A) Notify the borrower that his or her liability with respect to the amount of the contested disbursement of the loan has been discharged, and that the lender has been informed of the actions required under paragraph (e)(9)(ii)(B) of this section;
(B) Notify the lender that the borrower's liability with respect to the amount of the contested disbursement of the loan has been discharged, and that the lender must—
(
(
(
(
(C) Transfer to the lender the borrower's written assignment of any rights the borrower may have against third parties with respect to a loan disbursement that was discharged because the borrower did not sign the loan check.
(iii) If the agency determines that a borrower who asserts that he or she did not sign the electronic funds transfer or master check authorization satisfies the requirements for discharge under paragraph (e)(3)(v) of this section, it will, within 30 days after making that determination, pay the claim in accordance with paragraph (h) of this section and—
(A) Notify the borrower that his or her liability with respect to the amount of the contested disbursement of the loan has been discharged, and that the lender has been informed of the actions required under paragraph (e)(9)(iii)(C) of this section;
(B) Refund to the borrower all amounts paid by the borrower to the lender or the agency with respect to the discharged loan amount, including any late fees or collection charges imposed by the lender or agency related to the discharged loan amount; and
(C) Notify the lender that the borrower's liability with respect to the contested disbursement of the loan has been discharged, and that the lender must—
(
(
(iv) If the agency determines that the borrower does not qualify for a discharge, it will, within 30 days after making that determination—
(A) Notify the lender that the borrower's liability on the loan is not discharged and that, depending on the borrower's decision under paragraph (e)(9)(iv)(B) of this section, the loan will either be returned to the lender or paid as a default claim; and
(B) Notify the borrower that the borrower does not qualify for discharge and state the reasons for that conclusion. The agency will advise the borrower that he or she remains obligated to repay the loan and warn the borrower of the consequences of default, and explain that the borrower will be considered to be in default on the loan unless the borrower submits a written statement to the agency within 30 days stating that the borrower—
(
(
(v) Within 30 days after receiving the borrower's written statement described in paragraph (e)(9)(iv)(B)(
(vi) Within 30 days after receiving the borrower's request for review by the Secretary, the agency will forward the claim file to the Secretary for his review and take the actions required under paragraph (e)(12) of this section.
(vii) The agency will pay a default claim to the lender within 30 days after the borrower fails to return either of the written statements described in paragraph (e)(9)(iv)(B) of this section.
(10)
(ii) If the agency determines that the borrower satisfies the requirements for discharge under paragraph (e)(3) of this section, it will immediately terminate any collection efforts against the borrower with respect to the discharged loan amount and any charges imposed or costs incurred by the agency related to the discharged loan amount that the borrower is, or was otherwise obligated to pay and, not later than 30 days after the agency makes the determination that the borrower satisfies the requirements for discharge—
(A) Notify the borrower that his or her liability with respect to the amount of the loan has been discharged;
(B) Report to all credit reporting agencies to which the agency previously reported the status of the loan, so as to delete all adverse credit history assigned to the loan;
(C) Refund to the borrower all amounts paid by the borrower to the lender or the agency with respect to the discharged loan amount, including any late fees or collection charges imposed by the lender or agency related to the discharged loan amount; and
(D) Within 30 days, demand payment in full from the perpetrator of the identity theft committed against the individual, and if payment is not received, pursue collection action thereafter against the perpetrator.
(iii) If the agency determines that the borrower does not qualify for a discharge, it will, within 30 days after making that determination, notify the borrower that the borrower's liability with respect to the amount of the loan is not discharged, state the reasons for that conclusion, and if the borrower is not then making payments in accordance with a repayment arrangement with the agency on the loan, advise the borrower of the consequences of continued failure to reach such an arrangement, and that collection action will resume on the loan unless within 30 days the borrower—
(A) Acknowledges the debt and, if payments are due, reaches a satisfactory arrangement to repay the loan or resumes making payments under such an arrangement to the agency; or
(B) Requests the Secretary to review the agency's decision.
(iv) Within 30 days after receiving the borrower's request for review by the Secretary, the agency will forward the borrower's discharge request and all relevant documentation to the Secretary for his review and take the actions required under paragraph (e)(12) of this section.
(v) The agency will resume collection action if within 30 days of giving notice of its determination the borrower fails to seek review by the Secretary or agree to repay the loan.
(11)
(ii) If the agency determines that a borrower who asserts that he or she did not endorse the loan check satisfies the requirements for discharge under paragraph (e)(3)(v) of this section, it will refund to the Secretary the amount of reinsurance payment received with respect to the amount discharged on that loan less any repayments made by the lender under paragraph (e)(11)(ii)(D)(
(A) Notify the borrower that his or her liability with respect to the amount of the contested disbursement of the loan has been discharged;
(B) Report to all credit reporting agencies to which the agency previously reported the status of the loan, so as to delete all adverse credit history assigned to the loan;
(C) Refund to the borrower all amounts paid by the borrower to the lender or the agency with respect to the discharged loan amount, including any late fees or collection charges imposed by the lender or agency related to the discharged loan amount;
(D) Notify the lender to whom a claim payment was made that the lender must refund to the Secretary, within 30 days—
(
(
(E) Notify the lender to whom a claim payment was made that the lender must, within 30 days, reimburse the agency for the amount of the loan that was discharged, minus the amount of borrower payments made to the lender that were refunded to the borrower by the guaranty agency under paragraph (e)(11)(ii)(C) of this section; and
(F) Transfer to the lender the borrower's written assignment of any rights the borrower may have against third parties with respect to the loan disbursement that was discharged.
(iii) In the case of a borrower who requests a discharge because he or she did not sign the electronic funds transfer or master check authorization, if the agency determines that the borrower meets the conditions for discharge, it will immediately terminate any collection efforts against the borrower with respect to the discharged loan amount and any charges imposed or costs incurred by the agency related to the discharged loan amount that the borrower is, or was, otherwise obligated to pay, and within 30 days after making that determination—
(A) Notify the borrower that his or her liability with respect to the amount of the contested disbursement of the loan has been discharged;
(B) Refund to the borrower all amounts paid by the borrower to the lender or the agency with respect to the discharged loan amount, including any late fees or collection charges imposed by the lender or agency related to the discharged loan amount; and
(C) Report to all credit reporting agencies to which the lender previously reported the status of the loan, so as to delete all adverse credit history assigned to the loan.
(iv) The agency will take the actions required under paragraphs (e)(10)(iii) through (v) of this section if the agency determines that the borrower does not qualify for a discharge.
(12)
(ii) The Secretary notifies the agency and the borrower of a determination on review. If the Secretary determines that the borrower is not eligible for a discharge under this paragraph (e), within 30 days after being so informed, the agency will take the actions described in paragraphs (e)(9)(iv) through (vii) or (e)(10)(iii) through (v) of this section, as applicable.
(iii) If the Secretary determines that the borrower meets the requirements for a discharge under paragraph (e) of this section, the agency will, within 30 days after being so informed, take the actions required under paragraph (e)(8)(ii), (e)(9)(ii) or (iii), (e)(10)(ii), or (e)(11)(ii) or (iii) of this section, as applicable.
(13)
(ii) If the borrower fails to submit the Secretary's approved application within 60 days of being notified of that option, the lender will resume collection and will be deemed to have exercised forbearance of payment of principal and interest from the date the lender suspended collection activity on the loan. The lender may capitalize, in accordance with § 682.202(b), any interest accrued and not paid during that period.
(iii) If the borrower submits an application for discharge that the lender determines is incomplete, the lender notifies the borrower of that determination and allows the borrower an additional 30-days to amend their application and provide supplemental information. If the borrower does not amend their application within 30 days of receiving the notification from the lender the borrower's application is closed as incomplete and the lender resumes collection of the loan and grants forbearance of principal and interest for the period in which collection activity was suspended.
(iv) The lender will file a claim with the guaranty agency in accordance with paragraph (g) of this section no later than 60 days after the lender receives the borrower's complete application described in paragraph (e)(3) of this section. If a lender receives a payment made by or on behalf of the borrower on the loan after the lender files a claim on the loan with the guaranty agency, the lender will forward the payment to the guaranty agency within 30 days of its receipt. The lender will assist the guaranty agency and the borrower in determining whether the borrower is eligible for discharge of the loan.
(v) The lender will comply with all instructions received from the Secretary or a guaranty agency with respect to loan discharges under this paragraph (e).
(vi) The lender will review a claim that the borrower did not endorse and did not receive the proceeds of a loan check. The lender will take the actions required under paragraphs (e)(9)(ii)(A) and (B) of this section if it determines that the borrower did not endorse the loan check, unless the lender secures persuasive evidence that the proceeds of the loan were received by the borrower or the student for whom the loan was made, as provided in paragraph (e)(1)(iii) of this section. If the lender determines that the loan check was properly endorsed or the proceeds were received by the borrower or student, the lender may consider the borrower's objection to repayment as a statement of intention not to repay the loan and may file a claim with the guaranty agency for reimbursement on that ground but will not report the loan to consumer reporting agencies as in default until the guaranty agency, or, as applicable, the Secretary, reviews the claim for relief. By filing such a claim, the lender will be deemed to have agreed to the following—
(A) If the guarantor or the Secretary determines that the borrower endorsed the loan check or the proceeds of the loan were received by the borrower or the student, any failure to satisfy due diligence requirements by the lender prior to the filing of the claim that would have resulted in the loss of reinsurance on the loan in the event of default will be waived by the Secretary; and
(B) If the guarantor or the Secretary determines that the borrower did not endorse the loan check and that the proceeds of the loan were not received by the borrower or the student, the lender will comply with the requirements specified in paragraph (e)(9)(ii)(B) of this section.
(vii) Within 30 days after being notified by the guaranty agency that the borrower's request for a discharge has been denied, the lender will notify the borrower of the reasons for the denial and, if payments are due, resume collection against the borrower. The lender will be deemed to have exercised forbearance of payment of principal and interest from the date the lender suspended collection activity, and may capitalize, in accordance with § 682.202(b), any interest accrued and not paid during that period.
(14)
(ii) Identifying information includes, but is not limited to—
(A) Name, Social Security number, date of birth, official State or government issued driver's license or identification number, alien registration number, government passport number, and employer or taxpayer identification number;
(B) Unique biometric data, such as fingerprints, voiceprint, retina or iris image, or unique physical representation;
(C) Unique electronic identification number, address, or routing code; or
(D) Telecommunication identifying information or access device (as defined in 18 U.S.C. 1029(e)).
(15)
(16)
(b) * * *
(4) A report to the Secretary of the borrower's enrollment and loan status information, details related to the loans or borrower's deferments, forbearances,
If any provision of this subpart or its application to any person, act, or practice is held invalid, the remainder of the subpart or the application of its provisions to any person, act, or practice will not be affected thereby.
20 U.S.C. 1070g, 1087a,
(d) Subpart D of this part contains provisions regarding borrower defense to repayment in the Direct Loan Program.
If any provision of this subpart or its application to any person, act, or practice is held invalid, the remainder of the subpart or the application of its provisions to any person, act, or practice will not be affected thereby.
The revision reads as follows:
(b) * * *
(2) For a Direct Loan not eligible for interest subsidies during periods of deferment, the Secretary capitalizes the unpaid interest that has accrued on the loan upon the expiration of the deferment.
* * *
(b) * * *
(6) Periods necessary for the Secretary to determine the borrower's eligibility for discharge—
(i) Under § 685.206(c) through (e);
(ii) Under § 685.214;
(iii) Under § 685.215;
(iv) Under § 685.216;
(v) Under § 685.217;
(vi) Under § 685.222;
(vii) Under subpart D of this part; or
(viii) Due to the borrower's or endorser's (if applicable) bankruptcy;
(e)
(1)
(i) A “Direct Loan” under this paragraph (e) means a Direct Subsidized Loan, a Direct Unsubsidized Loan, or a Direct PLUS Loan.
(ii) “Borrower” means:
(A) The borrower; and
(B) In the case of a Direct PLUS Loan, any endorsers, and for a Direct PLUS Loan made to a parent, the student on whose behalf the parent borrowed.
(iii) A “borrower defense to repayment” under this paragraph (e) includes—
(A) A defense to repayment of amounts owed to the Secretary on a Direct Loan, or a Direct Consolidation Loan that was used to repay a Direct Loan, FFEL Program Loan, Federal Perkins Loan, Health Professions Student Loan, Loan for Disadvantaged Students under subpart II of part A of title VII of the Public Health Service Act, Health Education Assistance Loan, or Nursing Loan made under part E of the Public Health Service Act; and
(B) Any accompanying request for reimbursement of payments previously made to the Secretary on the Direct Loan or on a loan repaid by the Direct Consolidation Loan.
(iv) The term “provision of educational services” under this paragraph (e) refers to the educational resources provided by the institution that are required by an accreditation agency or a State licensing or authorizing agency for the completion of the student's educational program.
(v) The terms “school” and “institution” under this paragraph (e) may be used interchangeably and include an eligible institution, one of its representatives, or any ineligible institution, organization, or person with whom the eligible institution has an agreement to provide educational programs, or to provide marketing, advertising, recruiting, or admissions services.
(2)
(i) The institution at which the borrower enrolled made a misrepresentation, as defined in § 685.206(e)(3), of material fact upon which the borrower reasonably relied in deciding to obtain a Direct Loan, or a loan repaid by a Direct Consolidation Loan, and that directly and clearly relates to:
(A) Enrollment or continuing enrollment at the institution or
(B) The provision of educational services for which the loan was made; and
(ii) The borrower was financially harmed by the misrepresentation.
(3)
(i) Actual licensure passage rates materially different from those included in the institution's marketing materials, website, or other communications made to the student;
(ii) Actual employment rates materially different from those included in the institution's marketing materials, website, or other communications made to the student;
(iii) Actual institutional selectivity rates or rankings, student admission profiles, or institutional rankings that are materially different from those included in the institution's marketing materials, website, or other communications made to the student or
(iv) The inclusion in the institution's marketing materials, website, or other communication made to the student of specialized, programmatic, or institutional certifications, accreditation, or approvals not actually obtained, or the failure to remove within a reasonable period of time such certifications or approvals from marketing materials, website, or other communication when revoked or withdrawn;
(v) The inclusion in the institution's marketing materials, website, or other communication made to the student of representations regarding the widespread or general transferability of credits that are only transferrable to limited types of programs or institutions or the transferability of credits to a specific program or institution when no reciprocal agreement exists with another institution, or such agreement is materially different than what was represented;
(vi) A representation regarding the employability or specific earnings of graduates without an agreement between the institution and another entity for such employment data, or sufficient evidence of past employment or earnings to justify such a representation, or without citing appropriate national, State, or regional data for earnings in the same field as provided by an appropriate Federal agency that provides such data. (In the event that national data are used, institutions should include a written, plain language disclaimer that national averages may not accurately reflect the earnings of workers in particular parts of the country and may include earners at all stages of their career and not just entry level wages for recent graduates.);
(vii) A representation regarding the availability, amount, or nature of any financial assistance available to students from the institution or any other entity to pay the costs of attendance at the institution that is materially different in availability, amount, or nature from the actual financial assistance available to the borrower from the institution or any other entity to pay the costs of attendance at the institution after enrollment;
(viii) A representation regarding the amount, method, or timing of payment of tuition and fees that the student would be charged for the program that is materially different in amount, method, or timing of payment from the actual tuition and fees charged to the student;
(ix) A representation that the institution, its courses, or programs are endorsed by vocational counselors, high schools, colleges, educational organizations, employment agencies, members of a particular industry, students, former students, governmental officials, Federal or State agencies, the United States Armed Forces, or other individuals or entities when the institution has no permission or is not otherwise authorized to make or use such an endorsement;
(x) A representation regarding the educational resources provided by the institution that are required for the completion of the student's educational program that are materially different from the institution's actual circumstances at the time the representation is made, such as representations regarding the institution's size; location; facilities; training equipment; or the number, availability, or qualifications of its personnel; and
(xi) A representation regarding the nature or extent of prerequisites for enrollment in a course or program offered by the institution that are materially different from the institution's actual circumstances at the time the representation is made, or that the institution knows will be materially different during the student's anticipated enrollment at the institution.
(4)
(i) Periods of unemployment upon graduating from the school's programs that are unrelated to national or local economic recessions;
(ii) A significant difference between the amount or nature of the tuition and fees that the institution represented to the borrower that the institution would charge or was charging, and the actual amount or nature of the tuition and fees charged by the institution for which the Direct Loan was disbursed or for which a loan repaid by the Direct Consolidation Loan was disbursed;
(iii) The borrower's inability to secure employment in the field of study for which the institution expressly guaranteed employment; and
(iv) The borrower's inability to complete the program because the institution no longer offers a requirement necessary for completion of the program in which the borrower enrolled and the institution did not provide for an acceptable alternative requirement to enable completion of the program.
(5)
(i) A violation by the institution of a requirement of the Act or the Department's regulations for a borrower defense to repayment under paragraph (c) or (d) of this section or under § 685.222, unless the violation would otherwise constitute the basis for a successful borrower defense to repayment under this paragraph (e); or
(ii) A claim that does not directly and clearly relate to enrollment or continuing enrollment at the institution or the provision of educational services for which the loan was made, including, but not limited to—
(A) Personal injury;
(B) Sexual harassment;
(C) A violation of civil rights;
(D) Slander or defamation;
(E) Property damage;
(F) The general quality of the student's education or the reasonableness of an educator's conduct in providing educational services;
(G) Informal communication from other students;
(H) Academic disputes and disciplinary matters; and
(I) Breach of contract unless the school's act or omission would otherwise constitute the basis for a successful defense to repayment under this paragraph (e).
(6)
(7)
(i) A final, non-default judgment on the merits by a State or Federal Court that has not been appealed or that is not subject to further appeal and that establishes the institution made a misrepresentation, as defined in paragraph (e)(3) of this section; or
(ii) A final decision by a duly appointed arbitrator or arbitration panel that establishes that the institution made a misrepresentation, as defined in paragraph (e)(3) of this section.
(8)
(i) Certify that the borrower received the proceeds of a loan, in whole or in part, to attend the named institution;
(ii) Provide evidence that supports the borrower defense to repayment application;
(iii) State whether the borrower has made a claim with any other third party, such as the holder of a performance bond, a public fund, or a tuition recovery program, based on the same act or omission of the institution on which the borrower defense to repayment is based;
(iv) State the amount of any payment received by the borrower or credited to the borrower's loan obligation through the third party, in connection with a borrower defense to repayment described in paragraph (e)(2) of this section;
(v) State the financial harm, as defined in paragraph (e)(4) of this section, that the borrower alleges to have been caused and provide any information relevant to assessing whether the borrower incurred financial harm, including providing documentation that the borrower actively pursued employment in the field for which the borrower's education prepared the borrower if the borrower is a recent graduate (failure to provide such information results in a presumption that the borrower failed to actively pursue employment in the field); whether the borrower was terminated or removed for performance reasons from a position in the field for which the borrower's education prepared the borrower, or in a related field; and whether the borrower failed to meet other requirements of or qualifications for employment in such field for reasons unrelated to the school's misrepresentation underlying the borrower defense to repayment, such as the borrower's ability to pass a drug test, satisfy driving record requirements, and meet any health qualifications; and
(vi) State that the borrower understands that in the event that the borrower receives a 100 percent discharge of the balance of the loan for which the defense to repayment application has been submitted, the institution may, if allowed or not prohibited by other applicable law, refuse to verify or to provide an official transcript that verifies the borrower's completion of credits or a credential associated with the discharged loan.
(9)
(ii) With respect to the borrower defense to repayment application submitted under this paragraph (e), the Secretary may consider evidence otherwise in the possession of the Secretary, including from the Department's internal records or other relevant evidence obtained by the Secretary, as practicable, provided that the Secretary permits the institution and the borrower to review and respond to this evidence and to submit additional evidence.
(10)
(ii) Upon receipt of the school's response, the Department will provide the borrower a copy of the school's submission as well as any evidence otherwise in possession of the Secretary, which was provided to the school, and will give the borrower an opportunity to submit a reply within a specified timeframe, which will be no less than 60 days. The borrower's reply must be limited to issues and evidence raised in the school's submission and any evidence otherwise in the possession of the Secretary.
(iii) The Department will provide the school a copy of the borrower's reply.
(iv) There will be no other submissions by the borrower or the school to the Secretary unless the Secretary requests further clarifying information.
(11)
(A) Notifying the borrower and the school of the decision on the borrower defense to repayment under this paragraph (e);
(B) Providing the reasons for the decision; and
(C) Informing the borrower and the school of the relief, if any, that the borrower will receive, consistent with paragraph (e)(12) of this section and specifying the relief determination.
(ii) If the Department receives a borrower defense to repayment application that is incomplete and is within the limitations period in paragraph (e)(6) or (7) of this section, the Department will not issue a written decision on the application and instead will notify the borrower in writing that the application is incomplete and will return the application to the borrower.
(12)
(ii) The Secretary affords the borrower such further relief as the Secretary determines is appropriate under the circumstances. Further relief may include determining that the borrower is not in default on the loan and is eligible to receive assistance under title IV of the Act.
(13)
(14)
(i) Providing testimony regarding any representation made by the borrower to support a successful borrower defense to repayment under this paragraph (e); and
(ii) Producing, within timeframes established by the Secretary, any documentation reasonably available to the borrower with respect to those representations and any sworn statement required by the Secretary with respect to those representations and documents.
(15)
(ii) The provisions of this paragraph (e)(15) apply notwithstanding any provision of State law that would otherwise restrict transfer of those rights by the borrower, limit or prevent a transferee from exercising those rights, or establish procedures or a scheme of distribution that would prejudice the Secretary's ability to recover on those rights.
(iii) Nothing in this paragraph (e)(15) limits or forecloses the borrower's right to pursue legal and equitable relief arising under applicable law against a party described in this paragraph (e)(15) for recovery of any portion of a claim exceeding that assigned to the Secretary or any other claims arising from matters unrelated to the claim on which the loan is discharged.
(16)
(ii) Under this paragraph (e), the Secretary will not initiate such a proceeding more than 5 years after the date of the final determination included in the written decision referenced in paragraph (e)(11) of this section. The Department will notify the school of the borrower defense to repayment application within 60 days of the date of the Department's receipt of the borrower's application.
(k) * * *
(4) If a borrower's application for a discharge of a loan based on a borrower defense is approved under 34 CFR part 685, subpart D, the Secretary discharges the obligation of the borrower, in accordance with the procedures described in subpart D of this part.
The revisions read as follows:
(b) * * *
(2)
(i) A certification by a physician, who is a doctor of medicine or osteopathy legally authorized to practice in a State, that the borrower is totally and permanently disabled as described in paragraph (1) of the definition of that term in § 685.102(b);
(ii) A certification by a nurse practitioner or physician assistant licensed by a State, or a certified psychologist at the independent practice level who are licensed to practice in the United States, that the borrower is totally and permanently disabled as described in paragraph (1) of the definition of that term in § 685.102(b); or
(iii) An SSA Benefit Planning Query (BPQY) or an SSA notice of award, or other documentation deemed acceptable by the Secretary, indicating that—
(A) The borrower qualifies for Social Security Disability Insurance (SSDI) benefits or Supplemental Security Income (SSI) based on disability, and the borrower's next continuing disability review has been scheduled between 5 and 7 years;
(B) The borrower qualifies for SSDI benefits or SSI based on disability and the borrower's next continuing disability review has been scheduled at 3 years;
(C) The borrower has an established onset date for SSDI benefits or SSI of at least 5 years prior to the application for a disability discharge or has been receiving SSDI benefits or SSI based on disability for at least 5 years prior to the application for a TPD discharge;
(D) The borrower qualifies for SSDI or SSI based on a compassionate allowance; or
(E) For borrowers currently receiving SSA retirement benefits, documentation that, prior to the borrower qualifying for SSA retirement benefits, the borrower met the requirements in paragraphs (b)(2)(iii)(A) through (D) of this section.
(3)
(i) Identifies all title IV loans owed by the borrower, notifies the lenders that the Secretary has received a total and permanent disability discharge application from the borrower and directs the lenders to suspend collection activity or maintain the suspension of collection activity on the borrower's title IV loans;
(ii) If the application is incomplete, notifies the borrower of the missing information and requests the missing information from the borrower or the physician, nurse practitioner, physician assistant, or psychologist who certified the application, as appropriate, and does not make a determination of eligibility for discharge until the application is complete;
(iii) Notifies the borrower that no payments are due on the loan while the Secretary determines the borrower's eligibility for discharge; and
(iv) Explains the process for the Secretary's review of total and permanent disability discharge applications.
(4)
(A) As of the date the physician, nurse practitioner, physician assistant, or psychologist certified the borrower's application; or
(B) As of the date the Secretary received the SSA data described in paragraph (b)(2)(iii) of this section.
(ii) If the Secretary determines that the borrower's application does not support the conclusion that the borrower is totally and permanently disabled as described in paragraph (1) of the definition of that term in § 685.102(b), the Secretary may require the borrower to submit additional medical evidence. As part of the Secretary's review of the borrower's discharge application, the Secretary may require and arrange for an additional review of the borrower's condition by an independent physician or other medical professional identified by the Secretary at no expense to the borrower.
(iii) After determining that the borrower is totally and permanently disabled, as described in paragraph (1) of the definition of that term in § 685.102(b), the Secretary discharges the borrower's obligation to make any further payments on the loan, notifies the borrower that the loan has been discharged, and returns to the person who made the payments on the loan any payments received after the date the physician, nurse practitioner, physician assistant, or psychologist certified the borrower's loan discharge application or the date the Secretary received the SSA data described in paragraph (b)(2)(iii) of this section. The notification to the borrower explains the terms and conditions under which the borrower's obligation to repay the loan will be reinstated, as specified in paragraph (b)(7)(i) of this section.
(iv) If the Secretary determines that the physician, nurse practitioner, physician assistant, or psychologist certification or the SSA data described in paragraph (b)(2)(iii) of this section provided by the borrower does not support the conclusion that the borrower is totally and permanently disabled, as described in paragraph (1) of the definition of that term in § 685.102(b), the Secretary notifies the borrower that the application for a disability discharge has been denied. The notification to the borrower includes—
(A) The reason or reasons for the denial;
(B) A statement that the loan is due and payable to the Secretary under the terms of the promissory note and that the loan will return to the status that would have existed if the total and permanent disability discharge application had not been received;
(C) The date that the borrower must resume making payments;
(D) An explanation that the borrower is not required to submit a new total and permanent disability discharge application if the borrower requests that the Secretary re-evaluate the borrower's application for discharge by providing, within 12 months of the date of the notification, additional information that supports the borrower's eligibility for discharge; and
(E) An explanation that if the borrower does not request re-evaluation of the borrower's prior discharge application within 12 months of the date of the notification, the borrower must submit a new total and permanent disability discharge application to the Secretary if the borrower wishes the Secretary to re-evaluate the borrower's eligibility for a total and permanent disability discharge.
(v) If the borrower requests re-evaluation in accordance with paragraph (b)(4)(iv)(D) of this section or submits a new total and permanent disability discharge application in accordance with paragraph (b)(4)(iv)(E) of this section, the request must include new information regarding the borrower's disabling condition that was
(5)
(6)
(7)
(ii) If the borrower's obligation to repay the loan is reinstated, the Secretary—
(A) Notifies the borrower that the borrower's obligation to repay the loan has been reinstated;
(B) Returns the loan to the status that would have existed if the total and permanent disability discharge application had not been received; and
(C) Does not require the borrower to pay interest on the loan for the period from the date the loan was discharged until the date the borrower's obligation to repay the loan was reinstated.
(iii) The Secretary's notification under paragraph (b)(7)(ii)(A) of this section will include—
(A) The reason or reasons for the reinstatement;
(B) An explanation that the first payment due date on the loan following reinstatement will be no earlier than 90 days after the date of the notification of reinstatement; and
(C) Information on how the borrower may contact the Secretary if the borrower has questions about the reinstatement or believes that the obligation to repay the loan was reinstated based on incorrect information.
(d)
(i) Obtains data from the Department of Veterans Affairs showing that the borrower is unemployable due to a service-connected disability; or
(ii) Obtains data from the Social Security Administration (SSA) described in paragraph (b)(2)(iii) of this section
(2) [Reserved]
(e)
(2) Unless the borrower notifies the Secretary that the borrower does not wish to receive the discharge the Secretary discharges the loan:
(i) In accordance with paragraph (b)(4)(iii) of this section for a discharge based on data from the SSA; or
(ii) In accordance with paragraph (c)(2)(i) of this section for a discharge based on data from VA.
(3) If the borrower notifies the Secretary that they do not wish to receive the discharge, the borrower will remain responsible for repayment of the borrower's loans in accordance with the terms and conditions of the promissory notes that the borrower signed.
The revisions and additions read as follows:
(a) * * *
(2) For purposes of this section—
(i) If a school has closed, the school's closure date is the earlier of: the date, determined by the Secretary, that the school ceased to provide educational instruction in programs in which most students at the school were enrolled, or a date determined by the Secretary that reflects when the school ceased to provide educational instruction for all of its students;
(ii) “School” means a school's main campus or any location or branch of the main campus, regardless of whether the school or its location or branch is considered title IV eligible;
(iii) “Program” means the credential defined by the level and Classification of Instructional Program code in which a student is enrolled, except that the Secretary may define a borrower's program as multiple levels or Classification of Instructional Program codes if:
(A) The enrollment occurred at the same institution in closely proximate periods;
(B) The school granted a credential in a program while the student was enrolled in a different program; or
(C) The programs must be taken in a set order or were presented as necessary for borrowers to complete in order to succeed in the relevant field of employment;
(c)
(2) If a borrower accepts but does not complete a continuation of the program at another branch or location of the school or a teach-out agreement at another school, approved by the school's accrediting agency and, if applicable, the school's State authorizing agency, then the Secretary discharges the loan 1 year after the borrower's last date of attendance at the other branch or location or in the teach-out program.
(d)
(i) State that the borrower (or the student on whose behalf a parent borrowed)—
(A) Received the proceeds of a loan, in whole or in part, on or after January 1, 1986, to attend a school;
(B) Did not complete the program of study at that school because the school closed while the student was enrolled, or the student withdrew from the school not more than 180 calendar days before the school closed. The Secretary may extend the 180-day period if the Secretary determines that exceptional circumstances, as described in paragraph (i) of this section, justify an extension; and
(C) On or after July 1, 2023, state that the borrower did not complete the program at another branch or location of the school or through a teach-out agreement at another school, approved by the school's accrediting agency and, if applicable, the school's State authorizing agency.
(ii) State whether the borrower (or student) has made a claim with respect to the school's closing with any third party, such as the holder of a performance bond or a tuition recovery program, and, if so, the amount of any payment received by the borrower (or student) or credited to the borrower's loan obligation; and
(iii) State that the borrower (or student)—
(A) Agrees to provide to the Secretary upon request other documentation reasonably available to the borrower that demonstrates that the borrower meets the qualifications for discharge under this section; and
(B) Agrees to cooperate with the Secretary in enforcement actions in accordance with paragraph (d) of this section and to transfer any right to recovery against a third party to the Secretary in accordance with paragraph (e) of this section.
(2) [Reserved]
(e)
(i) Provide testimony regarding any representation made by the borrower to support a request for discharge;
(ii) Produce any documents reasonably available to the borrower with respect to those representations; and
(iii) If required by the Secretary, provide a sworn statement regarding those documents and representations.
(2) The Secretary denies the request for a discharge or revokes the discharge of a borrower who—
(i) Fails to provide the testimony, documents, or a sworn statement required under paragraph (d)(1) of this section; or
(ii) Provides testimony, documents, or a sworn statement that does not support the material representations made by the borrower to obtain the discharge.
(f)
(2) The provisions of this section apply notwithstanding any provision of State law that would otherwise restrict transfer of those rights by the borrower (or student), limit or prevent a transferee from exercising those rights, or establish procedures or a scheme of distribution that would prejudice the Secretary's ability to recover on those rights.
(3) Nothing in this section limits or forecloses the borrower's (or student's) right to pursue legal and equitable relief regarding disputes arising from matters unrelated to the discharged Direct Loan.
(g)
(2) If the borrower's current address is known, the Secretary mails the borrower a discharge application and an explanation of the qualifications and procedures for obtaining a discharge. The Secretary also promptly suspends any efforts to collect from the borrower on any affected loan. The Secretary may continue to receive borrower payments.
(3) If the borrower's current address is unknown, the Secretary attempts to locate the borrower and determines the borrower's potential eligibility for a discharge under this section by consulting with representatives of the closed school, the school's licensing agency, the school's accrediting agency, and other appropriate parties. If the Secretary learns the new address of a borrower, the Secretary mails to the borrower a discharge application and explanation and suspends collection, as described in paragraph (g)(2) of this section.
(4) If a borrower fails to submit the application described in paragraph (d) of this section within 90 days of the Secretary's providing the discharge application, the Secretary resumes collection and grants forbearance of principal and interest for the period in which collection activity was suspended.
(5) Upon resuming collection on any affected loan, the Secretary provides the borrower another discharge application and an explanation of the requirements and procedures for obtaining a discharge.
(6) If the Secretary determines that a borrower who requests a discharge meets the qualifications for a discharge, the Secretary notifies the borrower in writing of that determination.
(7) If the Secretary determines that a borrower who requests a discharge does not meet the qualifications for a discharge, the Secretary notifies that borrower in writing of that
(h)
(1) The revocation or withdrawal by an accrediting agency of the school's institutional accreditation;
(2) The school is or was placed on probation or issued a show-cause order, or was placed on an equivalent accreditation status, by its accrediting agency for failing to meet one or more of the agency's standards;
(3) The revocation or withdrawal by the State authorization or licensing authority to operate or to award academic credentials in the State;
(4) The termination by the Department of the school's participation in a title IV, HEA program;
(5) A finding by a State or Federal government agency that the school violated State or Federal law related to education or services to students;
(6) A State or Federal court judgment that a School violated State or Federal law related to education or services to students;
(7) The teach-out of the student's educational program exceeds the 180-day look-back period for a closed school discharge;
(8) The school responsible for the teach-out of the student's educational program fails to perform the material terms of the teach-out plan or agreement, such that the student does not have a reasonable opportunity to complete his or her program of study;
(9) The school discontinued a significant share of its academic programs;
(10) The school permanently closed all or most of its in-person locations while maintaining online programs; and
(11) The school was placed on the heightened cash monitoring payment method as defined in § 668.162(d)(2) of this chapter.
The revisions and additions read as follows:
(a)
(i) Certified the eligibility of a student who—
(A) Reported not having a high school diploma or its equivalent; and
(B) Did not satisfy the alternative to graduation from high school requirements under section 484(d) of the Act and 34 CFR 668.32(e) of this chapter that were in effect when the loan was originated;
(ii) Certified the eligibility of a student who is not a high school graduate based on—
(A) A high school graduation status falsified by the school; or
(B) A high school diploma falsified by the school or a third party to which the school referred the borrower;
(iii) Signed the borrower's name on the loan application or promissory note without the borrower's authorization;
(iv) Certified the eligibility of the student who, because of a physical or mental condition, age, criminal record, or other reason accepted by the Secretary, would not meet State requirements for employment (in the student's State of residence when the loan was originated) in the occupation for which the training program supported by the loan was intended; or
(v) Certified the eligibility of a student for a Direct Loan as a result of the crime of identity theft committed against the individual, as that crime is defined in paragraph (c)(6) of this section.
(3)
(c)
(1)
(i) Reported not having a valid high school diploma or its equivalent when the loan was originated; and
(ii) Did not satisfy the alternative to graduation from high school statutory or regulatory eligibility requirements identified on the application form and applicable when the loan was originated.
(2)
(3)
(4)
(i) State that he or she did not endorse the loan check or sign the authorization for electronic funds transfer or authorize the school to do so; and
(ii) State that the proceeds of the contested disbursement were not delivered to the student or applied to charges owed by the student to the school.
(5)
(i) Certify that the individual did not sign the promissory note, or that any other means of identification used to obtain the loan was used without the authorization of the individual claiming relief;
(ii) Certify that the individual did not receive or benefit from the proceeds of the loan with knowledge that the loan had been made without the authorization of the individual; and
(iii) Provide a statement of facts and supporting evidence that demonstrate, to the satisfaction of the Secretary, that eligibility for the loan in question was falsely certified as a result of identity theft committed against that individual. Supporting evidence may include—
(A) A judicial determination of identity theft relating to the individual;
(B) A Federal Trade Commission identity theft affidavit;
(C) A police report alleging identity theft relating to the individual;
(D) Documentation of a dispute of the validity of the loan due to identity theft filed with at least three major consumer reporting agencies; and
(E) Other evidence acceptable to the Secretary.
(6)
(ii) Identifying information includes, but is not limited to—
(A) Name, Social Security number, date of birth, official State or government issued driver's license or identification number, alien registration number, government passport number, and employer or taxpayer identification number;
(B) Unique biometric data, such as fingerprints, voiceprint, retina or iris image, or unique physical representation;
(C) Unique electronic identification number, address, or routing code; or
(D) Telecommunication identifying information or access device (as defined in
(10)
(d)
(2) If the borrower fails to submit the application for discharge and supporting information described in paragraph (c) of this section within 60 days of the Secretary's providing the application, the Secretary resumes collection and grants forbearance of principal and interest for the period in which collection activity was suspended.
(3) If the borrower submits an application for discharge that the Secretary determines is incomplete, the Secretary notifies the borrower of that determination and allows the borrower an additional 30-days to amend their application and provide supplemental information. If the borrower does not amend their application within 30 days of receiving the notification from the Secretary, the borrower's application is closed as incomplete and the Secretary resumes collection of the loan and grants forbearance of principal and interest for the period in which collection activity was suspended.
(4) If the borrower submits a completed application described in paragraph (c) of this section, the Secretary determines whether the available evidence supports the claim for discharge. Available evidence includes evidence provided by the borrower and any other relevant information from the Secretary's records and gathered by the Secretary from other sources, including guaranty agencies, other Federal agencies, State authorities, test publishers, independent test administrators, school records, and cognizant accrediting associations. The Secretary issues a decision that explains the reasons for any adverse determination on the application, describes the evidence on which the decision was made, and provides the borrower, upon request, copies of the evidence. The Secretary considers any response from the borrower and any additional information from the borrower and notifies the borrower whether the determination is changed.
(5) If the Secretary determines that the borrower meets the applicable requirements for a discharge under paragraph (c) of this section, the Secretary notifies the borrower in writing of that determination.
(6) If the Secretary determines that the borrower does not qualify for a discharge, the Secretary notifies the borrower in writing of that determination and the reasons for the determination.
(7) A borrower is not precluded from re-applying for a discharge under paragraph (c) of this section if the discharge request is closed as incomplete, or if the Secretary determines that the borrower does not qualify for a discharge if the borrower provides additional supporting evidence.
(a)
(b)
(i) To whom an organization issues an IRS Form W-2;
(ii) Who receives an IRS Form W-2 from an organization that has contracted with a qualifying employer to provide payroll or similar services for the qualifying employer, and which provides the Form W-2 under that contract;
(iii) who works as a contracted employee for a qualifying employer in a position or providing services which, under applicable state law, cannot be filled or provided by a direct employee of the qualifying employer.
(i) Working in qualifying employment in one or more jobs—
(A) A minimum average of 30 hours per week during the period being certified,
(B) A minimum of 30 hours per week throughout a contractual or employment period of at least 8 months in a 12-month period, such as elementary and secondary school teachers and professors and instructors, in higher education, in which case the borrower is deemed to have worked full time; or
(C) The equivalent of 30 hours per week as determined by multiplying each credit or contact hour taught per week by at least 3.35 in non-tenure track employment at an institution of higher education.
(ii) Routine paid vacation or paid leave time provided by the employer, and leave taken under the Family and Medical Leave Act of 1993 (29 U.S.C. 2612(a)(1)) will be considered when determining if the borrower is working full-time.
(i) A United States-based Federal, State, local, or Tribal government organization, agency, or entity, including the U.S. Armed Forces or the National Guard;
(ii) A public child or family service agency;
(iii) An organization under section 501(c)(3) of the Internal Revenue Code of 1986 that is exempt from taxation under section 501(a) of the Internal Revenue Code;
(iv) A Tribal college or university; or
(v) A nonprofit organization that—
(A) Provides a non-governmental public service as defined in this section, attested to by the employer on a form approved by the Secretary; and
(B) Is not a business organized for profit, a labor union, or a partisan political organization.
(i) An income-contingent repayment plan under § 685.209 or an income-based repayment plan under § 685.221;
(ii) The 10-year standard repayment plan under § 685.208(b) or the consolidation loan standard repayment plan with a 10-year repayment term under § 685.208(c); or
(iii) Except for the alternative repayment plan, any other repayment plan if the monthly payment amount is not less than what would have been paid under the 10-year standard repayment plan under § 685.208(b).
(c)
(i) Is not in default on the loan at the time forgiveness is requested;
(ii) Is employed full-time by a qualifying employer or serving in a full-time AmeriCorps or Peace Corps position—
(A) When the borrower satisfied the 120 monthly payments described under paragraph (c)(1)(iii) of this section; and
(B) At the time the borrower applies for forgiveness under paragraph (e) of this section; and
(iii) Satisfies the equivalent of 120 monthly payments after October 1, 2007, as described in paragraph (c)(2) of this section, on eligible Direct loans.
(2) A borrower will be considered to have made monthly payments under paragraph (c)(1)(iii) of this section by—
(i) Paying at least the full scheduled amount due for a monthly payment under the qualifying repayment plan;
(ii) Paying in multiple installments that equal the full scheduled amount due for a monthly payment under the qualifying repayment plan;
(iii) For a borrower on an income-contingent repayment plan under § 685.209 or an income-based repayment plan under § 685.221, paying a lump sum or monthly payment amount that is equal to or greater than the full scheduled amount in advance of the borrower's scheduled payment due date for a period of months not to exceed the period from the Secretary's receipt of the payment until the borrower's next annual repayment plan recertification date under the qualifying repayment plan in which the borrower is enrolled;
(iv) For a borrower on the 10-year standard repayment plan under § 685.208(b) or the consolidation loan standard repayment plan with a 10-year repayment term under § 685.208(c), paying a lump sum or monthly payment amount that is equal to or greater than the full scheduled amount in advance of the borrower's scheduled payment due date for a period of months not to exceed the period from the Secretary's receipt of the payment until the lesser of 12 months from that date or the date upon which the Secretary receives the borrower's next submission under subsection (e).
(v) Receiving one of the following deferments or forbearances for the month:
(A) Cancer treatment deferment under section 455(f)(3) of the Act;
(B) Economic hardship deferment under § 685.204(g);
(C) Military service deferment under § 685.204(h);
(D) Post-active-duty student deferment under § 685.204(i);
(E) AmeriCorps forbearance under § 685.205(a)(4);
(F) National Guard Duty forbearance under § 685.205(a)(7);
(G) U.S. Department of Defense Student Loan Repayment Program forbearance under § 685.205(a)(9);
(H) Administrative forbearance or mandatory administrative forbearance under § 685.205(b)(8) or (9); and
(vi) Being employed full-time with a qualifying employer, as defined in this section, at any point during the month for which the payment is credited.
(3) If a borrower consolidates one or more Direct Loans into a Direct Consolidation Loan, including a Direct PLUS Loan made to a parent borrower, the weighted average of the payments the borrower made on the Direct Loans prior to consolidating and that met the criteria in paragraphs (c)(2)(i) through (vi) of this section will count as qualifying payments on the Direct Consolidation Loan.
(d)
(e)
(2) If the Secretary has sufficient information to determine the borrower's qualifying employer and length of employment, the Secretary informs the borrower if the borrower is eligible for forgiveness.
(3) If the Secretary does not have sufficient information to make a determination of the borrower's eligibility for forgiveness, the borrower must provide additional information about the borrower's employment and employer on a form approved by the Secretary.
(4) If the borrower is unable to secure a certification of employment from a qualifying employer, the Secretary may determine the borrower's qualifying employment or payments based on other documentation provided by the borrower at the Secretary's request.
(5) The Secretary may request reasonable additional documentation pertaining to the borrower's employer or employment before providing a determination.
(6) The Secretary may substantiate an employer's attestation of information provided on the form in paragraph (e)(3) of this section based on a review of information about the employer.
(7) If the Secretary determines that the borrower meets the eligibility requirements for loan forgiveness under this section, the Secretary—
(i) Notifies the borrower of this determination; and
(ii) Forgives the outstanding balance of the eligible loans.
(8) If the Secretary determines that the borrower does not meet the eligibility requirements for loan forgiveness under this section, grants forbearance of payment on both principal and interest for the period in which collection activity was suspended. The Secretary notifies the borrower that the application has been denied, provides the basis for the denial, and informs the borrower that the Secretary will resume collection of the loan. The Secretary does not capitalize any interest accrued and not paid during this period.
(f)
(g)
(2) To evaluate a reconsideration request, the Secretary considers—
(i) Any relevant evidence that is obtained by the Secretary; and
(ii) Additional supporting documentation not previously provided by the borrower or employer.
(3) The Secretary notifies the borrower of the reconsideration decision and the reason for the Secretary's determination.
(4) If the Secretary determines that the borrower qualifies for forgiveness, the Secretary adjusts the borrower's number of qualifying payments or forgives the loan, as appropriate.
(5) After the Secretary makes a decision on the borrower's reconsideration request, the Secretary's decision is final, and the borrower will not receive additional reconsideration unless the borrower presents additional evidence.
(6) For any months in which a borrower postponed monthly payments under a deferment or forbearance and was employed full-time at a qualifying employer as defined in this section but was in a deferment or forbearance status besides those listed in paragraph (c)(2)(v) of this section, the borrower may obtain credit toward forgiveness for those months, as defined in paragraph (d) of this section, for any months in which the borrower—
(i) Makes an additional payment equal to or greater than the amount they would have paid at that time on a qualifying repayment plan or
(ii) Otherwise qualified for a $0 payment on an income-driven repayment plan under § 685.209 and income-based repayment plan under § 685.221.
The revisions and additions read as follows:
(b) * * *
(7) Provide assurances that the school will comply with loan information requirements established by the Secretary with respect to loans made under the Direct Loan Program;
(10) Provide that the school will not charge any fees of any kind, however described, to student or parent borrowers for origination activities or for the provision of information necessary for a student or parent to receive a loan under part D of the Act or for any benefits associated with such a loan;
(11) Comply with the provisions of paragraphs (d) through (i) of this section regarding student claims and disputes;
(13) Accept responsibility and financial liability stemming from losses incurred by the Secretary for repayment of amounts discharged by the Secretary pursuant to §§ 685.206, 685.214, 685.215, 685.216, 685.222, and subpart D of this part.
(d)
(e)
(2) Reliance on a pre-dispute arbitration agreement, or on any other pre-dispute agreement, with a student, with respect to any aspect of a class action includes, but is not limited to, any of the following:
(i) Seeking dismissal, deferral, or stay of any aspect of a class action;
(ii) Seeking to exclude a person or persons from a class in a class action;
(iii) Objecting to or seeking a protective order intended to avoid responding to discovery in a class action;
(iv) Filing a claim in arbitration against a student who has filed a claim on the same issue in a class action;
(v) Filing a claim in arbitration against a student who has filed a claim on the same issue in a class action after the trial court has denied a motion to certify the class but before an appellate court has ruled on an interlocutory appeal of that motion, if the time to seek such an appeal has not elapsed or the appeal has not been resolved; and
(vi) Filing a claim in arbitration against a student who has filed a claim on the same issue in a class action, after the trial court in that class action has granted a motion to dismiss the claim and noted that the consumer has leave to refile the claim on a class basis, if the time to refile the claim has not elapsed.
(3) Required provisions and notices: (i) After the effective date of this regulation, the school must include the following provision in any agreements with a student recipient of a Direct Loan for attendance at the school, or a student for whom the PLUS loan was obtained, that include pre-dispute arbitration or any other pre-dispute agreement addressing class actions: “We agree that this agreement cannot be used to stop you from being part of a class action lawsuit in court. You may file a class action lawsuit in court, or you may be a member of a class action lawsuit even if you do not file it. This provision applies only to class action claims concerning our acts or omissions regarding the making of the Direct Loan or our provision of educational services for which the Direct Loan was obtained. We agree that the court has exclusive jurisdiction to decide whether a claim asserted in the lawsuit is a claim regarding the making of the Federal Direct Loan or the provision of educational services for which the loan was obtained.”
(ii) When a pre-dispute arbitration agreement or any other pre-dispute agreement addressing class actions has been entered into before the effective date of this regulation and does not contain the provision described in paragraph (e)(3)(i) of this section, the school must either ensure the agreement is amended to contain that provision or provide the student to whom the agreement applies with written notice of that provision.
(iii) The school must ensure the agreement described in paragraph (e)(3)(ii) of this section is amended to contain the provision set forth in paragraph (e)(3)(i) or must provide the notice to students specified in that paragraph no later than the exit counseling required under § 685.304(b), or the date on which the school files its initial response to a demand for arbitration or service of a complaint from a student who has not already been sent a notice or amendment, whichever is earlier.
(A)
(B)
(f)
(ii) A student may enter into a voluntary post-dispute arbitration
(2) Reliance on a pre-dispute arbitration agreement with a student with respect to any aspect of a borrower defense claim includes, but is not limited to, any of the following:
(i) Seeking dismissal, deferral, or stay of any aspect of a judicial action filed by the student, including joinder with others in an action;
(ii) Objecting to or seeking a protective order intended to avoid responding to discovery in a judicial action filed by the student; and
(iii) Filing a claim in arbitration against a student who has filed a suit on the same claim.
(3) Required provisions and notices: (i) The school must include the following provision in any pre-dispute arbitration agreements with a student recipient of a Direct Loan for attendance at the school, or, with respect to a Parent PLUS Loan, a student for whom the PLUS loan was obtained, that include any agreement regarding arbitration and that are entered into after the effective date of this regulation: “We agree that neither we nor anyone else will use this agreement to stop you from bringing a lawsuit concerning our acts or omissions regarding the making of the Federal Direct Loan or the provision by us of educational services for which the Federal Direct Loan was obtained. You may file a lawsuit for such a claim, or you may be a member of a class action lawsuit for such a claim even if you do not file it. This provision does not apply to lawsuits concerning other claims. We agree that only the court is to decide whether a claim asserted in the lawsuit is a claim regarding the making of the Federal Direct Loan or the provision of educational services for which the loan was obtained.”
(ii) When a pre-dispute arbitration agreement has been entered into before the effective date of this regulation, that did not contain the provision specified in paragraph (f)(3)(i) of this section, the school must either ensure the agreement is amended to contain the provision specified in paragraph (f)(3)(iii)(A) of this section or provide the student to whom the agreement applies with the written notice specified in paragraph (f)(3)(iii)(B) of this section.
(iii) The school must ensure the agreement described in paragraph (f)(3)(ii) of this section is amended to contain the provision specified in paragraph (f)(3)(iii)(A) of this section or must provide the notice specified in paragraph (f)(3)(iii)(B) of this section to students no later than the exit counseling required under § 685.304(b), or the date on which the school files its initial response to a demand for arbitration or service of a complaint from a student who has not already been sent a notice or amendment, whichever is earlier.
(A)
(B)
(g)
(i) The initial claim and any counterclaim;
(ii) The arbitration agreement filed with the arbitrator or arbitration administrator;
(iii) The judgment or award, if any, issued by the arbitrator or arbitration administrator;
(iv) If an arbitrator or arbitration administrator refuses to administer or dismisses a claim due to the school's failure to pay required filing or administrative fees, any communication the school receives from the arbitrator or arbitration administrator related to such a refusal; and
(v) Any communication the school receives from an arbitrator or an arbitration administrator related to a determination that a pre-dispute arbitration agreement regarding educational services provided by the school does not comply with the administrator's fairness principles, rules, or similar requirements, if such a determination occurs;
(2) A school must submit any record required pursuant to paragraph (g)(1) of this section within 60 days of filing by the school of any such record with the arbitrator or arbitration administrator and within 60 days of receipt by the school of any such record filed or sent by someone other than the school, such as the arbitrator, the arbitration administrator, or the student.
(3) The Secretary will publish the records submitted by schools in paragraph (g)(1) of this section in a centralized database accessible to the public.
(h)
(i) The complaint and any counterclaim;
(ii) Any dispositive motion filed by a party to the suit; and
(iii) The ruling on any dispositive motion and the judgment issued by the court;
(2) A school must submit any record required pursuant to paragraph (h)(1) of this section within 30 days of filing or receipt, as applicable, of the complaint, answer, or dispositive motion, and within 30 days of receipt of any ruling on a dispositive motion or a final judgment;
(3) The Secretary will publish the records submitted by schools in paragraph (h)(1) in a centralized database accessible to the public.
(i)
(1)
(i) § 685.206(c)(1);
(ii) § 685.222(a)(5);
(iii) § 685.206(e)(1)(iii); or
(iv) § 685.401(a);
(2)
(3)
(4)
(a) * * *
(3) The school's actions that gave rise to a successful claim for which the Secretary discharged a loan, in whole or in part, pursuant to §§ 685.206, 685.214, 685.216, 685.222, or subpart D of this part.
This subpart sets forth the provisions under which a borrower defense to repayment may be asserted and applies to borrower defense applications pending with the Secretary on July 1, 2023, or received by the Secretary on or after July 1, 2023.
(a)
(i) The borrower; and
(ii) In the case of a Direct PLUS Loan, any endorsers, and for a Direct PLUS Loan made to a parent, the student on whose behalf the parent borrowed.
(i) A defense to repayment of all amounts owed to the Secretary on a Direct Loan including a Direct Consolidation Loan that was used to repay a Direct Loan, a FFEL Program Loan, Federal Perkins Loan, Health Professions Student Loan, Loan for Disadvantaged Students under subpart II of part A of title VII of the Public Health Service Act, Health Education Assistance Loan, or Nursing Loan made under part E of the Public Health Service Act;
(ii) Reimbursement of all payments previously made to the Secretary on the Direct Loan or on a loan repaid by the Direct Consolidation Loan;
(iii) For borrowers in default, determining that the borrower is not in default on the loan and is eligible to receive assistance under title IV of the Act; and
(iv) Updating or deleting adverse reports the Secretary previously made to consumer reporting agencies regarding the borrower's Direct Loan.
(i) employs attorneys who:
(A) Are full-time employees;
(B) Provide civil legal assistance on a full-time basis; and
(C) Are continually licensed to practice law; and,
(ii) Is a nonprofit organization that provides legal assistance with respect to civil matters to low-income individuals without a fee.
(b)
(1) The institution made a substantial misrepresentation as defined in 34 CFR part 668, subpart F, that misled the borrower in connection with the borrower's decision to attend, or to continue attending, the institution or the borrower's decision to take out a covered loan;
(2) The institution made a substantial omission of fact, as defined in 34 CFR part 668, subpart F, in connection with the borrower's decision to attend, or to
(3) The institution failed to perform its obligations under the terms of a contract with the student and such obligation was undertaken as consideration or in exchange for the borrower's decision to attend, or to continue attending, the institution, for the borrower's decision to take out a covered loan, or for funds disbursed in connection with a covered loan;
(4) The institution engaged in aggressive and deceptive recruitment conduct or tactics as defined in 34 CFR part 668, subpart R, in connection with the borrower's decision to attend, or to continue attending, the institution or the borrower's decision to take out a covered loan; or,
(5)(i) The borrower, whether as an individual or as a member of a class, or a governmental agency has obtained against the institution a favorable judgment based on State or Federal law in a court or administrative tribunal of competent jurisdiction based on the institution's act or omission relating to the making of covered loan, or the provision of educational services for which the loan was provided; or,
(ii) The Secretary sanctioned or otherwise took adverse action against the institution at which the borrower enrolled under 34 CFR part 668, subpart G, by denying the institution's application for recertification, or revoking the institution's provisional program participation agreement under 34 CFR 668.13, based on the institution's acts or omissions that could give rise to a borrower defense claim under paragraphs (b)(1) through (4) of this section.
(c)
(d)
(e)
(a)
(b)
(1) Actions by the Federal Government, State attorneys general, other State agencies or officials, or other law enforcement activity;
(2) Lawsuits related to educational programs filed against the institutions that are the subject of the claims or judgments rendered against the institutions; or,
(3) Individual borrower defense claims pursuant to § 685.403.
(c)
(1) Submits an application to the Secretary, under penalty of perjury, and on a form approved by the Secretary that—
(i) Identifies the requested group, including at minimum:
(A) The name of the institution or commonly owned institutions;
(B) The campuses or programs which are the subject of the claim, if applicable;
(C) A description of the conduct that forms the basis for the group borrower defense claim under the Federal standard in § 685.401(b);
(D) An analysis of why the conduct should result in an approved group borrower defense claim under the Federal standard in § 685.401(b); and,
(E) The period during which the activity in (c)(1)(i)(C) of this section occurred;
(ii) Provides evidence beyond sworn borrower statements that supports each element of the claim made in this paragraph (c)(1), including but not limited to evidence demonstrating the actionable acts or omissions asserted were pervasive or widely disseminated;
(iii) Provides the names and other identifying information of borrowers in the group to the extent available; and
(iv) For requests submitted by a legal assistance organization, includes a certification that the requestor has entered into a legal representation authority with each borrower identified as a member of the group; and,
(2) Provides any other information or supporting documentation reasonably requested by the Secretary within 90 days of the Secretary's request.
(3) The Secretary may consolidate multiple group applications related to the same institution or commonly owned institutions.
(4) Once the Secretary determines that the third-party requestor's application is materially complete, the Secretary will provide notice to the institution of the third-party requestor's application. The institution will have 90 days to respond to the Secretary regarding the third-party requestor's application request to form a group under this paragraph (c).
(5) The Secretary will provide a response to any materially complete third-party requestor group request under this paragraph (c) within two years of receipt. That response will be sent to the third-party requestor and the institution and includes:
(i) Whether the Secretary will choose to form a group and a definition of the group formed; and
(ii) Any additional information needed from the third-party requestor to continue the third-party requestor requested group process.
(6)(i) If the Secretary denies in whole or in part a third-party requestor's request to form a group under the process described in this paragraph (c), for reasons other than that the Secretary already has formed a group that includes the members of the proposed group or has findings that cover the members of the proposed group, the third-party requestor submitting the group claim may request that the
(ii) The third-party requestor submitting the group claim under this paragraph (c) must request reconsideration of the group formation no later than 90 days from the date of the Secretary's initial decision regarding formation of the group.
(iii) The Secretary will provide a response to the third-party requestor that requested reconsideration of the group's formation and the institution after reaching a decision on the reconsideration request.
(d)
(1) Designates a Department official to present the group's claim in the institutional response process described in § 685.405;
(2) For borrowers who have an application pending with the Secretary prior to the formation of the group, notifies those borrowers that they are an identified member of the group formed under this section and follows § 685.403(d) or (e) as appropriate;
(3) For borrowers whose names were submitted by the third-party requestor and that can be identified by the Secretary, or that can otherwise be identified by the Secretary, if the borrower is not in default and does not have a separate application pending with the Secretary, follows the procedures under § 685.403(d) except that interest on the loan will stop accumulating immediately;
(4) For borrowers whose names were submitted by the third-party requestor and that can be identified by the Secretary, or that can otherwise be identified by the Secretary, if the borrower is in default and does not have a separate application pending with the Secretary, follows the procedures under § 685.403(e) except that the interest on the loan will stop accumulating immediately;
(5) For possible group members that the Secretary cannot identify, takes reasonable steps to identify and notify potential members of the group, and if the Secretary ultimately is able to identify any additional members, follows the process under paragraphs (d)(3) and (4) of this section to allow those additional members to opt-in the group formed; and,
(6) If the Secretary later identifies a borrower that should have received the benefits as described under paragraph (d)(3) or (4) of this section, either prior to the adjudication of the group or after an adjudication that results in the approval of a group borrower defense, retrospectively applies the benefits available to the borrower under those subparagraphs and no other consequences will apply.
(a)
(2) If § 685.402 applies to an individual borrower who is covered under a group borrower defense application being considered by the Secretary, that group borrower defense application will toll the timelines under § 685.406 on adjudicating the individual borrower application.
(3) Paragraph (a)(1) of this section will not apply to claims covered by a group claim under § 685.402, including claims submitted prior to the formation of such a group, until after the Secretary makes a decision on that group claim.
(b)
(i) Submits an application to the Secretary, under penalty of perjury and on a form approved by the Secretary with the following information:
(A) A description of one or more acts or omissions by the institution;
(B) The school or school representative attributed with the act or omission;
(C) Approximately when the act or omission occurred;
(D) How the act or omission impacted their decision to attend, to continue attending, or to take out the loan for which they are asserting a defense to repayment; and,
(E) A description of the detriment they suffered as a result of the institution's act or omission;
(ii) Provides additional supporting evidence for the claims made under subparagraph (b)(1)(i) of this section, if any;
(2) The individual must provide any other information or supporting documentation reasonably requested by the Secretary.
(c)
(1) Designates a Department official to present the individual's claim in the institutional response process described in § 685.405;
(2) Notifies the borrower that the Department will adjudicate the claim under § 685.406(c); and
(3) Places all the borrower's loans in forbearance in accordance with paragraph (d) of this section or stopped enforcement collections in accordance with paragraph (e) of this section, as applicable.
(d)
(1) Notifies the borrower of the option to decline forbearance and to continue making payments on the borrower's loans, and the availability of income-contingent repayment plans under § 685.209 and the income-based repayment plan under § 685.221; and,
(2) Does not charge interest on the borrower's loans beginning 180 days from the date the borrower was initially granted forbearance under this paragraph (d) if the Secretary has failed to make a determination on the borrower's claim by that date and continuing until the Department notifies the borrower of the decision.
(e)
(1) Suspends collection activity on all defaulted title IV loans until the Secretary issues a decision on the borrower defense claim;
(2) Does not charge interest on the borrower's loans beginning 180 days from the date the Secretary initially suspended collection activity under subparagraph (e)(1) of this section if the Secretary has not made a determination on the borrower's claim by that date and continuing until the Department notifies the borrower of the decision;
(3) Notifies the borrower of the suspension of collection activity and explains that collection activity will resume no earlier than 90 days following final adjudication of the borrower defense claim if the Secretary determines that the borrower does not qualify for a full discharge; and
(4) Notifies the borrower of the option to begin or continue making payments under a rehabilitation agreement or other repayment agreement on the defaulted loan.
(a) For purposes of forming a Secretary-initiated group process in accordance with § 685.402(b), the Department official may consider final actions as described in § 685.401(b)(5)(ii).
(b) For groups based on prior Secretarial final actions in accordance
(a) For purposes of adjudicating a borrower defense claim other than those based on prior Secretarial final actions in accordance with § 685.404, the Department official notifies the institution of the group claim under § 685.402 or individual claim under § 685.403 and requests a response from the school. Such notification also may include, but is not limited to, requests for documentation to substantiate the school's response.
(b)(1) The notification in paragraph (a) of this section tolls any limitation period by which the Secretary may recover from the institution under § 685.409.
(2) The Department official requests a response from the institution, which will have 90 days to respond from the date of the Department official's notification.
(c) With its response, the institution must submit an affidavit, on a form approved by the Secretary, certifying under penalty of perjury that the information submitted to the Department official is true and correct.
(d) If the institution does not respond to the Department official's information request within 90 days, the Department official will presume that the institution does not contest the borrower defense to repayment claim.
(a)
(b)
(2) For a group of borrowers under § 685.402 for which the Department official determines that there may be a borrower defense under § 685.401(b), there is a rebuttable presumption that the act or omission giving rise to the borrower defense affected each member of the group in deciding to attend, or continue attending, the institution, and that such reliance was reasonable.
(c)
(d)
(e)
(f)
(1)
(i) The written decision states the Secretary's determination and the relief provided as defined in § 685.401 on the basis of that claim.
(ii) The Secretary places a borrower's Direct Loans associated with a group borrower defense claim into forbearance until the Secretary discharges the loan obligations under § 685.212(k). If any balance remains on the Direct Loans not associated with the borrower defense claim, those loans will return to their status prior to the claim process. The Secretary resumes collection activities on those Direct Loans not associated with the borrower defense claim no earlier than 90 days from the date the Department official issues a written decision. No interest will be charged on the loans during the forbearance period.
(2)
(ii)
(3)
(i) An individual whose claim was adjudicated under § 685.406(c), as applicable;
(ii) The members of the group whose claims were adjudicated under § 685.406(b)(1), as applicable;
(iii) The school; and,
(iv) The third-party requestor who requested the group claims process, as applicable.
(g)
(i) For a group claim under § 685.402(c), within 1 year of the date the Department official notified the third-party requestor under § 685.402(c)(5).
(ii) For an individual claim under § 685.403, within the later of July 1, 2026 or 3 years after the date the Department determines the borrower submitted a materially complete application.
(2) The timelines in paragraph (g)(1) of this section will not apply for additional adjudications carried out as part of the reconsideration process in § 685.407.
(3) An individual claim under § 685.403 that is included in a group claim under § 685.402 will be subject to the adjudication timeline for that group under paragraph (g)(1)(i) of this section, and any timelines associated with
(4) The Department official will provide an interim update to the individual borrower submitting a claim under § 685.403, the third-party requestor requesting a group process under § 685.402, and the institution contacted for the institutional response under § 685.405 no later than 1 year after the dates in paragraph (g)(1) of this section. Such notification will—
(i) Indicate the Department official's progress in adjudicating the claim or claims; and,
(ii) Provide an expected timeline for rendering a decision on the claim.
(5) If the Secretary does not issue a written decision under paragraph (e) of this section on loans covered by certain claims by the dates identified in paragraph (g)(1) of this section, the loans, or portion of the loans in the case of a Direct Consolidation Loan, will not be enforceable by the Department against the borrower and the school will not be liable for the loan amount.
(a) The decision of the Secretary is final as to the merits of the borrower defense and any discharge that may be granted on the claim. Notwithstanding the foregoing—
(1) If the borrower defense is denied, an individual may request that the Secretary reconsider their individual borrower defense claim on the following grounds:
(i) Administrative or technical errors;
(ii) Consideration under an otherwise applicable State law standard under § 685.401(c) but only for loans first disbursed before July 1, 2017; or,
(iii) Identification of evidence that was not previously provided by the borrower and that was not identified in the final decision as a basis for the Department official's determination;
(2)(i) If the borrower defense is denied for a group claim adjudicated under § 685.406(b)(1), any of the third-party requestors that requested to form a group under § 685.402(c) may request that the Secretary reconsider the borrower defense for the reasons provided under (a)(1)(i) through (iii) of this section. A third-party requestor's reconsideration request made in accordance with subparagraph (a)(1)(ii) of this section must provide:
(A) The applicable State law standard;
(B) Why the third-party requestor requests use of such State law standard;
(C) Why application of the State law standard would result in a different outcome for the group than adjudication under the Federal standard; and
(D) Why the applicable State law standard would lead to a borrower defense.
(ii) An individual borrower from a group claim initially adjudicated under § 685.406(b)(1) may not file a reconsideration request under this section.
(3) The borrower or third-party requestor that requested to form a group under § 685.402(c) must request reconsideration under this section no later than 90 days from the date of the Department official's written decision, for any decisions issued on or after the effective date of these regulations.
(4)(i) The Secretary will consider a reconsideration request under paragraph (a)(1) or (a)(2)(i) of this section in which the individual or third-party requestor—
(A) Submits an application under penalty of perjury to the Secretary, on a form approved by the Secretary; and,
(B) Provides additional supporting evidence for the reconsideration claims made in this paragraph (a)(4)(i), if any; and
(ii) The borrower or third-party requestor submitting the reconsideration request must provide any other information or supporting documentation reasonably requested by the Secretary regarding the reconsideration request.
(b) The Secretary designates a different Department official for the reconsideration process than the one who conducted the initial adjudication.
(c) If accepted for reconsideration by the Secretary, the Department official follows the procedures in § 685.405 to notify the institution of the claim and the basis for the group's borrower defense under § 685.402 or individual's borrower defense under § 685.403 for purposes of adjudicating reconsideration of the borrower defense claim and to request a response from the school to the reconsideration request.
(d) If accepted for reconsideration by the Secretary, the Secretary follows the procedures in § 685.403(d) for granting forbearance and § 685.403(e) for defaulted loans, as applicable.
(e) The Department official adjudicates the borrower's reconsideration request under § 685.406, makes a recommendation to the Secretary, and the Secretary provides notice of the final decision upon reconsideration in accordance with § 685.406(f).
(f)(1) The Secretary may reopen at any time a borrower defense application that was denied. If a borrower defense application is reopened by the Secretary, the Secretary follows the procedures in § 685.403(d) for granting forbearance and for § 685.403(e) for defaulted loans, as applicable.
(2) Upon reopening a borrower defense application under paragraph (f) of this section, the Department official adjudicates the claim under § 685.406, makes a recommendation to the Secretary, and the Secretary provides notice of the final decision on the reopened case in accordance with § 685.406(f).
(a) The Secretary discharges the obligation of the borrower in accordance with the procedures described in subpart D of this part.
(b) Members of a group that received a written notice of an approved borrower defense claim in accordance with § 685.406(f)(1) may request to opt out of the discharge for the group.
(a)(1) For loans first disbursed on or after July 1, 2023, the Secretary may collect from the school, or in the case of a closed school, a person affiliated with the school as described in § 668.174(b) of this chapter, any liability to the Secretary for any amounts discharged or reimbursed to borrowers for claims approved under § 685.406.
(2) Notwithstanding paragraph (a) of this section, the Secretary may choose not to collect from the school, or in the case of a closed school, a person affiliated with the school as described in § 668.174(b) of this chapter, any liability to the Secretary for any amounts discharged or reimbursed to borrowers under the discharge process described in § 685.408, under conditions such as:
(i) The cost of collecting would exceed the amounts received; or
(ii) The claims were approved outside of the limitations period in paragraph (c) of this section;
(b) The Secretary will not collect from the school any liability to the Secretary for any amounts discharged or reimbursed to borrowers for an approved claim under § 685.406 for loans first disbursed prior to July 1, 2023, unless:
(1) For loans first disbursed before July 1, 2017, the claim would have been approved under the standard in § 685.206(c)(1);
(2) For loans first disbursed on or after July 1, 2017, and before July 1, 2020, the claim would have been approved under the standard in §§ 685.222(b) through (d); or
(3) For loans first disbursed on or after July 1, 2020, and before July 1, 2023, the claim would have been approved under the standard in § 685.206(e)(2).
(c)(1) The Secretary will initiate a proceeding to collect from the school
(2) The limitations period described in paragraph (c)(1) of this section will not apply if at any time prior to the end of the limitations period—
(i) The Department official notifies the school of the borrower's claim in accordance with § 685.405(b);
(ii) A class that may include the borrower is certified in a case against the institution asserting relief that may form the basis of a claim in accordance with this subpart; or
(iii) The institution receives written notice, including a civil investigative demand or other written demand for information, from a Federal or State agency that has power to initiate an investigation into conduct of the school relating to specific programs, periods, or practices that may have affected the borrower, for underlying facts that may form the basis of a claim under this subpart.
(3) For a borrower defense under § 685.401(b)(5), the Secretary may initiate a proceeding to collect at any time.
(4) The tolling of the limitations period described in paragraph (c)(2) of this section will cease upon the issuance of a written decision denying an application under § 685.406(f)(2).
(d) In requiring an institution to repay funds to the Secretary based on successful borrower defense claims under this subpart, the Secretary follows the procedures described in 34 CFR part 668, subpart H.
To obtain a discharge under this subpart, a borrower must reasonably cooperate with the Secretary in any proceeding under this subpart.
(a) Upon the granting of any discharge under this subpart, the borrower is deemed to have assigned to, and relinquished in favor of, the Secretary any right to a loan refund (up to the amount discharged) that the borrower may have by contract or applicable law with respect to the loan or the contract for educational services for which the loan was received, against the school, its principals, its affiliates, and their successors, its sureties, and any private fund.
(b) The provisions of this section apply notwithstanding any provision of State law that would otherwise restrict transfer of those rights by the borrower, limit or prevent a transferee from exercising those rights, or establish procedures or a scheme of distribution that would prejudice the Secretary's ability to recover on those rights.
(c) Nothing in this section limits or forecloses the borrower's right to pursue legal and equitable relief against a party described in this section for recovery of any portion of a claim exceeding that assigned to the Secretary or any other claims arising from matters unrelated to the claim on which the loan is discharged.
If any provision of this subpart or its application to any person, act, or practice is held invalid, the remainder of the subpart or the application of its provisions to any person, act, or practice will not be affected thereby.